Thursday, November 5, 2020


I just finished reading a lengthy and quite fascinating article at entitled "Ten risks associated with the new EU Digital Content Directive". It has some potentially major implications for the kind of games I play and blog about, although I suspect it's a potential that will mostly go unfulfilled. Which is probably just as well.

The proposed directive, due to be implemented in the individual member states of the EU by July next year, primarily exists as a piece of consumer protection legislation. Some of the issues it seeks to address, like "Not delivering on advertised and publicly communicated qualities and features" are very familiar from other aspects of consumer law.

That stuff neither surprises nor bothers me. As described, at first it all just sounds like typical consumer rights stuff:

"The Directive requires suppliers of digital content or digital services to comply with certain objective requirements for conformity. Such objective requirements include that the digital content or digital service shall possess the qualities and performance features, including in relation to functionality, compatibility, accessibility, continuity and security, normal for digital content or digital services of the same type. In other words, a game that does not function as it can be expected by the consumer does not meet the requirement".

But note the inclusion of the word "continuity", soon to be joined by another c-word: "conformity" . As the post goes on to explain in some detail, this means producers of a game that operates as a service have to notify customers in advance of any change to the nature of the game that would cause it to cease to conform with established expectations. 

Following such a deviation from conformity, players will be entitled to refunds for the portion of time for which the game has deviated from the norm. So far, so good. Your game introduces a major change. You don't like it. You ask for your money back. They re-imburse you for the period from when the change happened to when you told them you didn't like it. 

Presumably there will be some reasonable period after which, if you go on playing the game without asking for a refund, you'll be deemed to have accepted the change. Otherwise we could all play for years then say we didn't much like that feature they added three expansions ago so we'd like six years of our sub-money back, please.


Let's leave the fine detail to the lawyers and anyway it's not the money-back if no longer satisified guarantee that intrigues me. It's the concept that a change you don't personally welcome can be reverted - not just for you but for everyone. 

Instead of just demanding a refund because the game has changed in a way the player doesn't like, the player can instead demand the change be reversed:

"Such a claim would require the game company to remove unpopular modifications again.

Players can demand this unless re-establishing the original state of the game would be impossible or would impose costs on the game company that would be disproportionate, taking into account all the circumstances of the case including:

  1. the value the digital content or digital service would have if there were no lack of conformity
  2. the significance of the lack of conformity"

There's probably enough get-out clauses in there to justify replacing all the expensive character models with stick figures but let's stick to the underlying assumptions rather than the practicalities. Should players really be entitled to have their games reflect their own personal tastes as a matter of right? After all, as Wilhelm often observes, every removed or replaced feature was alwayssomebody's favorite. 

And even if we excise individual refuseniks from the legal mix that leaves plenty of potential mass revolts. I can immediately think of several examples where changes to a game I play were deeply unpopular with a commercially significant number of players. It's very easy to imagine a sufficiently large and motivated group organizing for pushback, using this legal right, to have unpopular changes removed from the game. 

The imposition of the desert borderlands for world vs world gameplay in Guild Wars 2 or the removal of PvP servers from EverQuest II would be two examples. I'm sure everyone reading this could come up with examples from their own experience in pretty much any MMORPG ever because if there's one thing a long-running "game as a service" can be relied upon to do it's to piss everyone off over something, eventually. 

We've all seen many player protests over the years, ranging from in-game marches and sit-ins to forum wars and ddos attacks. Some of those have been influential. Changes have been reversed, the aforementioned desert borderlands debacle being one of them, but by and large companies tend to sit tight and wait for things to blow over. Whether the addition of a theoretically enforceable legal right will change that is hard to say. It depends just how enforceable it turns out to be. 

In the end, it's not whether or how much this directive might materially affect the games we play that interests me so much as the underlying assumption that what the players are entitled to expect from their games is "conformity". Not just conformity to a general, acceptable standard of purpose-worthiness, something upon which you'd think we could agree, at least until someone raises the awkward question of Early Access or Paid Alpha, but the idea that, once begun, an online game should continue in the same direction of travel forever, without deviation or digression. 

I'm not at all sure that's what I think I'm paying for when I renew the direct debit on my annual subscription to Daybreak's All Access or my occasional monthly sub to World of Warcraft. Yes, I want the games to remain recognizeably the same ones I originally purchased but I also want to see innovation and change, even if that change is controversial. 

For example, the introduction of mercenaries to EverQuest and EQII incontravertibly altered the fundemental proposition of those games. It was no longer necessary to team up with other players in order to complete content that had until then required a group. Some people loved that. Others loathed it.

Flying mounts, too, have been considered game-making or breaking propositions in various MMORPGs, as has the removal of the automatic right to use them in later content, once introduced. Changes to the extent or nature of PvP have caused uproar in several games, most recently one that hasn't even launched, Amazon's New World, although in that case, since the game had yet to take any money from anyone, perhaps it didn't count. Or perhaps it did...

"The directive also applies where the consumer is not required to pay a purchase price for the game but instead provides or undertakes to provide personal data to the trader. With this requirement, the Directive targets business models where the consumer "pays" with personal data instead of money."
Not that I'm suggesting Amazon would want our personal data or have any use for it if it could get it...

As I suggested, I don't really think much is likely to come of this directive in a purely practical sense, although where the EU regulators are involved you can never quite be sure, but it does seem to pose some existential questions about the nature both of games as a service in general and massively multiple role-playing games in particular. The law of unintended consequences lies beyond the remit of any court in the EU. Or the universe.


  1. I think this is targeted right at cash shop and loot box introduction to video games.

    1. And that's what I get for accidentally clicking the wrong thing.

      I suspect that it is so broad so as to prevent video game companies from trying to weasel out of loot boxes, using the "oh, this isn't gambling, it's just fun!" excuse. I suspect in a court of law, an item such as "in game flying" would get thrown out. But data collection? Oh yeah, that'd get a company in hot water. There's been the occasional game that uses the equivalent of spyware to keep an eye out for "illegal" add-ons, among other things, and this sort of law could target that activity too.

    2. Hmm. That hadn't occurred to me. It's certainly likely that adding lootboxes to a game that didn't originally have them would breach conformity rules but then so would replacing time-gated overland travel with an instant version. In fact, as I read the article, just about any of the iterative changes significant enough to stick in the memory made to any MMORPG you care to name would not be consist with this concept of conformity. It seems to be such an ill-defined yet catch-all concept as to render the whole genre untenable - were it to be applied. Which it won't be. Hopefully.

  2. With EU regulations like this, the first question to ask is generally "How are they going to use this to go after Google, Facebook, Amazon, and Apple?" Those are the big four tech companies that seem to annoy the EU by their very existence due to their size. (Something that is rubbing off in the US as well lately.)

    So I get the feeling this was not at all intended to get down into the relatively small potatoes that are video games, even at the EA or ActiBlizz level. That said, it is not an uncommon occurrence that a law written for a very specific target then gets applied more widely against companies and situations it was never intended to address. This is why governments shouldn't try to walk the line of writing laws to punish specific companies while pretending they're just writing a general law that could apply to anybody... because eventually it will.

    1. I am a strong supporter of the EU as a concept and an idea and I very much would prefer it if the UK weren't leaving in January, but...

      The one area where I consistently disagree with almost everything the EU proposes are these kind of media/technology/intellectual rights issues. They frequently seem positively pre-digital in some of their conceptualizations and they have what appears to be almost a quasi-religious fervor when it comes to thwarting US-based transnational tech giants. It seems to be a combination of an understandable wish to retain some kind of control over areas that are at risk of slipping into the hands of non-state entities, for which I have some sympathy, although not a lot, and an almost nineteenth-century allegiance to modes of self-expression and personal rights ownership, for which I have no sympathy whatsoever.

      Sometimes I think I've read too much science fiction. All of this position-taking between fading state entities and aggressive megacorps seems very familiar from the plots of umpteen novels I read in the 1970s and 80s...

    2. I've read a lot of those books as well. And, on that thought, the whole thing is just a proposal at this point, a plan, something that is probably even now the subject of much intense lobbying by those very same businesses. We'll see what it ends up looking like when that is done.

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