Buying a license, not a game

Famous Wizard101 blogger Cap'n John posted an interesting theory on the last open Sunday thread: End-User License Agreement's (EULA) might be unenforceable in a court of law, because the license taker, YOU, have to pay before accepting the license conditions. If you don't like the EULA conditions, you cannot just go back to the shop and demand the money back. Hmmm, certainly an interesting theory. I am not a lawyer, but I'm pretty sure that the lawyers of game companies disagree with that interpretation.

But EA's lawyers are busy with a class action suit over Spore DRM installing the SecuROM rootkit on the users computer. And in another tricky maneuver they are trying to explain how the manual stating that you could run several accounts with one copy of Spore was just a misprint. Does that mean next time they can explain how the $49.95 price tag was just a misprint too, and in fact you now owe EA $4995? And of course the announcement that your Spore game could be rendered inactive if you dare to discuss DRM on the official forums is legally tricky as well.

Buying a game or other software is hard to understand for the average person. We *think* we bought the game, but in reality we only bought a limited license to use the software under carefully prescribed conditions. Only rarely the users revolt, like the 2,000 people leaving a negative review for Spore on Amazon, when the difference between owning the game and licensing it becomes too great. In most cases people just ignore the legal difference, and treat the game as if they would own it. DRM is often more an attempt to combat casual piracy than really designed to thwart serious hackers. A hacked version of Spore was available on Bittorrent before the game even hit the shops in the USA. And there is a big risk for game companies that the more DRM they pack onto their games, the more popular the pirated version becomes over the legally bought version.

As others so correctly remarked, it is a bad situation when the pirated version of the game is perceived as better (not just better value for money) than the legit version. The obvious solution for games with online components, and Spore easily could have done that, is to have no DRM on the disk, but make it impossible to create an account with a pirated version. People pay for World of Warcraft because even if you could play it with a pirated version on a free server, the game experience on the real servers is better. There is very little discussion about DRM regarding MMORPGs, because it simply is no problem. You can legally download the WoW client for free, as trial version. And while an anti-cheat program like Warden might be perceived as bad, a lot more people can live with that than with SecuROM.

Trying to sell your customers a complicated license and then going after them with for EULA infractions, or annoying them with DRM software, is not going to work well for mass market software like games are. You just get a mix of backlash and EULA breaches you can't do much against. Selling people just a game, and putting the license on the online service is a lot easier to understand. And if the online services are good, people are quite willing to pay for them.