Background on Keller v. EA: Samuel Keller is formerly the quarterback of Arizona State University’s team. He is suing Electronic Arts, the makers of several sports video games, for infringing several of his (and thousands of other college athletes’) rights in the production of NCAA Football. Through the creation of a realistic digital environment simulating everything from stadiums to weather to players uniform styles (though they omit players’ names), EA seeks to immerse its customers in the experience of college football. Keller alleges that the realistic models of players used in the game violate his Right to Publicity according to California Civil Code 3344. He further alleges that by enabling its users to share self-created rosters via “EA Locker” that they induce infringement of this right. Additionally in consideration in this case is the NCAA’s non-endorsement policy prohibiting its players from profiting from their images as football players. The case is currently before the US 9th Circuit court on appeal from the district court’s decision to deny EA dismissal for anti-SLAPP purposes. This project is an exploration of the policy-based arguments on both sides of the case.
While the online music industry is shifting away from utilizing DRM, or digital rights management, the video game industry continues to employ restrictive DRM technologies. Although these two industries are certainly not identical, video game companies may have some important lessons to learn from recent changes made by the major music labels.
Over the past couple of years, the major music labels have agreed to do away with DRM restrictions of digital songs sold through online music stores such as iTunes. DRM has proven to be an unsuccessful strategy for the online music industry, failing to stop the piracy of songs while driving away honest consumers who were frustrated by the lack of control they had over purchased music content. The subsequent decision to eliminate DRM restrictions was applauded by consumers, who are now purchasing online music more than ever. The lesson was a simple one: making your consumers happy is a good business move.
This concept, however, seems to have slipped passed some of the leading companies of the video game industry. Three recently released, high-profile games, Assassins Creed 2, Command and Conquer 4, and Silent Hunter 5 have a new form of DRM protection called “always-online DRM” that is frustrating even the most loyal fans of these franchises.
Always-online DRM requires a user to be online at all times in order for the game to run. On the one hand, this allows video game companies to combat piracy by periodically checking that a user is a valid one. On the other, this can create a truly dissatisfying gaming experience for those consumers who have legitimately purchased a gaming title.
For example, if a user is playing EA’s Command & Conquer 4 in single player mode, which does not require an internet connection, they can be booted from the game and lose the progress they’ve made on their mission if their internet connection happens to go out. One reviewer of the game complained that even without losing the connection, “the spectre of catastrophe hung over [his] head like a razor sharp guillotine.” Even worse, if a user happens to be somewhere that lacks internet service, he simply cannot play the game at all.
While always-online DRM might make sense in some future world in which an internet connection is available everywhere with constant reliability, this is clearly not the case today. Instead, always-online DRM punishes the very consumers who are keeping video game companies in business, those who have legally purchased the games. This approach to DRM, which holds combatting privacy above the gameplay experience of consumers, has proven to be incredibly damaging in the past. For example, another EA game, Spore, was released in late-2008 with DRM restrictions that prevented users from installing the game on more than three machines. In addition, Spore required users to verify that their copy was legitimate each and every time they went online. Users became so frustrated with this highly restrictive DRM system that piracy became rampant, landing Spore at the top of the list of most pirated games for 2008.
The lesson here is that video game companies must be sure that they don’t employ DRM technologies that are so restrictive that they end up alienating the very consumers upon which their businesses depend. While doing away with DRM protection entirely may not make sense for the video game industry, keeping consumers satisfied must be prioritized above and beyond keeping pirates at bay. Otherwise, once-loyal customers may end up joining the pirates in droves.