Thursday, September 30, 2010

A Quiz

Isn't it rich?
Isn't it queer?
Losing my timing this late
In my career?
--Stephen Sondheim, "Send In The Clowns"

Send In The Clowns: the new meme.

Here's a question for you: do you remember when Jack Thompson was relevant?

I ask this question because three weeks ago, it was duly noted in the gaming press that Thompson had sent a letter to Defense Secretary Robert Gates, encouraging him to stop the release of EA's upcoming Medal Of Honor game.

Of course, the only way that any media outlets found out about this is that Thompson told them.

Here were his main "points":
Thompson's objection is fourfold: that the game itself used U.S. Special Operations soldiers as consultants, which would provide enemies a "powerful and useful training tool to rehearse killing our soldiers"; that the game allows players to play as the Taliban; that EA is allegedly allowing anyone to preorder the game, regardless of age; and that school massacres have been linked to "military killing simulators" like the "Medal of Honor" game.

Let me make this clear: no school massacres have ever been linked to "military killing simulators." Do some kids who shoot other kids play videogames? Yes, they do, like most of their peers. Has any law enforcement or intelligence organization ever concluded that videogames were responsible for any of these tragedies? No, and Jack Thompson is a disingenuous asshole for repeatedly ignoring the facts in order to further his own fame.

This entire controversy over the upcoming Medal Of Honor game is entirely contrived and manufactured by people who believe they have something to gain. I'm sure the Taliban has pre-ordered thousands of copies of this game. "Yes, our tactics may have been weak in the past, but this videogame is going to put us over the top! Let us sit around our newly-purchased plasma television and play co-op!

Thompson is always leading the charge in situations like this because he is so desperate to be noticed. The funny thing, though, is that he's not really famous any more. Thompson was always a self-promoting loser, but there was a segment of society that took him very seriously. Now, though, after his disbarment, it's hard for anyone to even pretend that he is anything more than part of the lunatic fringe. He's just this shitty unlikable version of Don Quixote, without the empathy, charm, or poignancy, and of course without Sancho Panza.

What's most interesting about this, really, is how quickly he disappeared. Thompson was back in the headlines for one day, maybe two, then everyone suddenly remembered that he no longer mattered. And everyone stopped paying attention.

Console Post (Addendum)

Michael Pachter had this to say yesterday:
"[Nintendo] screwed up on the Wii. It was sold out for two full years! You just couldn't get one," Pachter said. "What was the point? They should have sold it for $300 at launch, and made another $50 for every Wii sold during that period. It sold so competitively in the first few weeks that it was going for $1,000 on eBay -- and they absolutely don't want to see the 3DS on eBay."

This might be the funniest thing Michael Pachter has ever said.

Take a look at Nintendo's fiscal year earnings for the last few years:
2010 (projected)-1.08b

That's right--making $1 billion during the fiscal year is a disappointment. For Nintendo.

Their profit in the last three years? 6.77 billion dollars.

If any of us ever "screw up" like that, it will be the luckiest day of our lives.

Remember when the Wii launched? Yes, it was sold out instantly, and yes, units went for $600-$800 on eBay. Regularly.

Getting a Wii became an event. The Wii was the single hottest consumer product in this country for over two years. It was a happening.

It made Sony and Microsoft seem unimportant in comparison.

Would all that have happened at $299? Who knows? But it did happen at $249.

"Screw up" posts, in this generation, should be limited to Microsoft and Sony. Both have ample material.

Wednesday, September 29, 2010

Console Post (with 3DS on the side)

Let's do a quick NPD run-through before we talk about the Nintendo 3DS.

August numbers:
360: 356,700
Wii: 244,300
PS3: 226,000

So after the big price cut to $299 last September, the 360 has outsold the PS3 in the U.S. every month this year. Total gap? Over 650,000 units. Ironically, the gap between the 360 and the PS3 is actually going to be larger this year in the U.S. than it was in 2009.

Don't be surprised if Sony actually sells fewer units in the last four months of this year than they did in 2009, either. The easy, pre-price cut compares are over now, and August (the last in the "easy" category) sales were only up 16% compared to last year. That groove the PS3 was supposed to hit at the $299 price point? Not happening--their final U.S. sales for the year will wind up about 10% higher than last year.

The effect of the Move? Negligible, I believe.

Kinect will be in the same (negligible) category, but Microsoft has actually done quite well this year, and unlike Sony, they seem to have momentum heading into the holiday season, with August sales up 65% over last year.

Nintendo? They looked relatively awful last year, then sold 3.8 million units in December, so who knows? There are an unlimited number of possible future scenarios, and they're all right and all wrong.

Okay, let's move on to the 3DS, even though we don't usually talk about handhelds.

Today, Nintendo announced the launch date in Japan, which is February 26. The price? The equivalent of $300 U.S. dollars.

I was expecting $199, so that's a miss. My miss, I mean.

Will that $100 stop people from buying the handheld? It will certainly stop some people.

Probably more important than price, though, is the degree of user satisfaction with the experience. Sony had more than a pricing problem with the PS3 (and $599 is worlds apart from $299)-- they had a user experience problem. Seriously, the PS3 menus were (and are) probably the worst I've ever seen for a consumer electronics device. I felt like I was playing Hacker half the time I was moving around between them.

Plus, the PS3 was relatively large and ran as hot as a toaster oven. And once the fans kicked in (after about five minutes), it was loud, too.

It also delivered nothing new except Blu-Ray support. It wasn't more powerful than the 360 and didn't do anything unique. So there was a $200 price delta for not much extra besides a Blu-Ray player.

The 3DS, on the other hand, does something totally unique: it provides a 3-D experience without the need for glasses. I think many people are entirely underestimating the coolness of a "diorama" effect where you can peer into your world.

If the user experience is good enough, the price won't be much of an obstacle, at least for the first few months. However, and this is a big however, I don't believe this unit can survive at $299 for an extended length of time. Six months, yes. Eighteen months, no.

Here's one other angle. It will be very interesting to see if any developers complain about the $299 price point. The software lineup, at this point, looks tremendously strong. If no one jumps ship, there's going to be outstanding content available. The PS3 (there's that name again) lost developers as soon as they announced the price, and much-touted exclusives like Lair underperformed so badly in regards to the expectations that had been created that they were utter failures.

That's not what the 3DS line-up feels like. It looks both deep and wide.

Look, there's no question that I personally want the 3DS to be great. 3-D in my hand with no glasses? Who wouldn't want that to be great? There's no question though, that Nintendo could still screw this up.

Let's just hope they don't.

Tuesday, September 28, 2010

The Alternative

The other possibility for Bobby Kotick's nickname was Boris Becker's Cough.

I should just leave it at that, but since so many of you have no idea what that means, here's a short explanation. Becker was a West German tennis player who rocketed onto the international scene by winning Wimbledon in 1985 (at the age of eighteen).

A few years later, he played at Wimbledon despite some kind of bronchial infection. He had a nasty cough, though, and would cough deeply several times before each serve. Everyone felt badly for the guy, soldiering onward in the face of illness, etc.
Well, everyone felt badly until he kept doing it for three more years.

That's right. It became a mannerism, and it was absolutely excruciating to watch one of his matches. He couldn't serve without coughing first, and it drove everyone crazy.

Weekend Thrifting

Chris Kohler has a fantastic series over at Game|Life titled "Weekend Thrifting," where he digs up incredibly obscure games in sometimes even more obscure places for ridiculously good prices. If you haven't read it, and have any interest in the history of gaming, I highly recommend checking it out. This week's entry: Weekend Thrifting, From Akihabara to Seattle.

New Wonders Of The World

I was walking across the street from Eli's school yesterday and heard an ice cream truck.

When I turned around, I saw that it wasn't an ice cream truck-- it was a roasted corn truck.

That's excellent. If I hadn't been walking into school, I would've flagged the driver down and purchased an ear. Or two.

Now I'm just hoping that someday we get a tamale truck.

Monday, September 27, 2010

A New Term

Bobby Kotick gave another interview. This is always a good time to make popcorn.

Here are just a few excerpts from an interview he gave to Edge Magazine:
"The core principle of how we run the company is the exact opposite of EA," he says. "EA will buy a developer and then it will become ‘EA Florida’, ‘EA Vancouver’, ‘EA New Jersey’, whatever. We always looked and said, 'You know what? What we like about a developer is that they have a culture, they have an independent vision and that’s what makes them so successful.' We don’t have an Activision anything - it’s Treyarch, Infinity Ward, Sledgehammer.

...EA has a lot of resources, it’s a big company that’s been in business for a long time, maybe it’ll figure it out eventually. But it’s been struggling for a really long time. The most difficult challenge it faces today is: great people don’t really want to work there.

"It’s like, if you have no other option, you might consider them...we have no shortage of opportunity to recruit out of EA – that’s their biggest challenge: its stock options have no value. It’s lost its way. And until it has success, and hits, and gets that enthusiasm back for the company, it’s going to have a struggle getting really talented people, which is going to translate into less-than-great games."

There are times when standard language fails me. I know that there are tens of thousands of words in the dictionary, but none of them seem adequate to describe the degree of arrogance that Bobby Kotick possesses. That's why I'm proposing a new hybrid term created just for him: the dickopotamus.

That works. Tasteful Photoshops welcome.

So let's take a look at what dickopotamus Bobby Kotick said, given that his entire interview was bathed in the rancid smell of self-congratulation. The entire premise of the interview was that Activision was successful, while EA wasn't.

That's certainly an interesting perspective.

As a quality check, here's a list of all games developed by EA (or a subsidiary studio) in the last 12 months for the 360 that have an 85+ score over at Game Rankins (minimum 10 reviews):
Mass Effect 2 (95)
NHL 11 (90)
Battlefield: Bad Company 2 (89)
FIFA Soccer 10 (89)
Dragon Age: Origins (86)
NCAA Football 11 (86)
Madden NFL 11 (85)

Here are Activision's 85+ games for the 360:
Call Of Duty: Modern Warfare 2 (93)
DJ Hero (85)

PC? Three EA games, two Activision games. PS3? Five to two.

Basically, Activision appears to have put out three 85+ games in the last year: Modern Warfare 2, Starcraft 2, and DJ Hero ( I LOL'd). Oh, and not to piss in Bobby's breakfast cereal, but most of Infinity Ward is gone.

So the "other" company is putting out quality games at a 2-1 ratio over Activision, but Bobby Kotick is talking about why the other company has failed. THAT'S how you get to be a dickopotamus.

Here's the other funny part. Kotick says that EA's options have no value, but Activision stock has been flat for the last three years. Guess who's going to have the same problem soon?

Good grief, I just defended EA. I need a hot shower with a new bar of soap to wash off the shame.

Friday, September 24, 2010

Friday Links!

Leading off, Ronny Mo sent in a link to a tremendous story: WWI journal discovered. What makes this remarkable is that there is a beautiful and haunting set of sketches in the journal as well.

From about twenty of you, a video of an enginer climbing a 1,786 foot high transmission tower. If you only click on one link this week, it should be this one.

Matt Sakey's Culture Clash column has a new installment, and this time, it's about censorship in video games: The Sounds of Silence.

From Clayton Lee, a very funny advertisement for VB beer, and a second one that's even funnier.

From Tateru Nino, a fascinating article about a lizard species evolving from eggs to live birth. Also, Pluto gets 14 new neighbors.

From Cory Elzey, a link to a brilliant story about Eileen Nearne, a war-time spy who recently died at age 90. Her exploits were enirely remarkable

From Daniel Quock, a link that is both inspired and seemingly derived from Monty Python at times. It's the Royal Navy Gun Field Competition.

From Frank Regan, a video of some exhilarating speed climbing, and a second one here.

From Sirius, and these are amazing, it's Gigantic Spider Webs Made of Silk Tougher Than Kevlar. Next, it's spray-on clothing. Then, a bizarre discovery: Tyrannosaurs Were Human-size for 80 Million Years. Finally, and these pictures are absolutely spectacular, it's around the solar system.

From Dirk, an homage to the brilliant music work of Camper Van Beethoven, now encapsulated in a fascinating blob titled 300 Songs: a song by song history of Cracker and Camper Van Beethoven.

From Business Week, an article about infamous Chinese manufacturer Foxconn and its founder, Terry Gou: The Man Who Makes Your iPhone.

From Jeremy Fischer, it's one more game retrospective, and this time, it's Metal Gear. Also, a short film titled 8Bits Movie.

Thursday, September 23, 2010

We, The Jury, Are Leaving Now

First off, there's this:

That is unquestionably the most bad-ass vending machine I've ever seen. Two full rows of energy drink and an entire row of Mountain Dew.

The vending machine was located on the second floor of Municipal Court, where I went for jury duty yesterday. And in spite of its contents, I did not notice any city employees appearing more jittery than usual. I didn't see any coffee, either--with that vending machine, coffee would be entirely redundant.

So I spent about two hours at the Court yesterday, and sort of managed to blow up the jury selection process during voir dire, which, um, resulted in a mistrial.

There's a story behind all of that, of course, so here you go.

In Texas, a defendant can still request a jury trial in a misdemeanor case (where only fines are involved), and the Municipal Court handles these cases. The vast majority of these cases never go to trial, even ones that are scheduled for trial--yesterday, 19 out of 20 cases either pled out or were dropped. So there was only one case to try.

There were 25 of us in the jury selection pool. I was juror number 20, so I was in exceptionally good shape, since only six jurors were needed. Golden.

We went into the jury room and received some preliminary details about the case. The defendant was from El Salvador, had been in the United States for 10 years on a green card, and had a commercial driver's license to drive trucks. He also had a family here. He didn't speak much English, and needed a translator to understand the proceedings. He could, however, read enough English to pass the licensing exam for his commercial driving license.

The defendant was contesting a speeding ticket.

The prosecutor explained that these kinds of cases were very simple, usually involving just the testimony of the ticketing officer and the defendant. The only question he really asked of the jury was whether anyone had received a ticket in the last five years (about half of us had), and whether there had been any feelings on our part that the ticket had been unjustified. 

Then the defense attorney stood up, and started asking more pointed questions. In particular, she asked whether anyone in the jury pool felt the defendant should have learned English in the 10 years he spent in the United States. About half the jury pool raise their hands.

Personally, I couldn't care less. The guy had been working here for 10 years, and what he did on his own time was his own damn business.

Then the defense attorney explained the points system for commercial licenses (which I was already vaguely familiar with). Basically, when you have a commercial license (called a CDL), any violation, even if it occurs in a non-commercial vehicle, adds a certain number of "points."

Those points, in certain situations, can cost you your commercial license for varying periods of time.

The defense attorney asked a question about prior offenses and whether that would prejudice us, and I raised my hand. "I would have a serious difficulty voting for a conviction if this offense is going to cost him his ability to make a living," I said.

Immediately, the other half of the jury pool (who hadn't raised their hands about the English question) raised their hands. I think there were even a few double dippers.

I didn't say that as precisely as I wanted. What I specifically wanted to say was that if this guy was driving a private vehicle and going (for example) 38 in a 30 MPH zone, I wasn't going to break him off from his livelihood. That's an entirely borderline speeding ticket in this state, and the vast majority of drivers here go that fast or faster (I don't, but then I drive like a 70+ year old Tim Conway).

Yes, I know--that's jury nullification--but hey, they said they wanted honesty. I wasn't lying, or trying to do anything devious. They had already told us that the trial would only last a couple of hours, at most, so we weren't going to be there very long, regardless.

The defense attorney finished asking questions, and we went back to an adjoining room while they hashed things out (we could hear raised voices at times through the wall). After about 30 minutes, they called us back in. "Sometimes, in the judicial process, it turns out that there aren't enough jurors in the pool to seat the jury," he said. "In this case, only three jurors could be seated, and the result is a mistrial."

Oops. Didn't see that coming.

I'm guessing what happened is that the prosecuting attorney used all his peremptory challenges on people like me, while the defense attorney used her challenges on the group who seemed annoyed that the defendant hadn't learned English.  

So, instead of participating in a trial, I took a picture of a badass vending machine and went to ride my unicycle in the park. Win.

All Right, So Maybe That Wasn't It

Victor Godinez of the Dallas Morning News wrote a very interesting piece about what Gamestop is doing to adapt to changing market conditions. He actually visited one of the "flagship" stores in the Dallas area, and here's an excerpt on how Gamestop is entering the DLC market:
The most striking new element is the digital kiosk.

GameStop president Tony Bartel walked me through the touchscreen device, which will basically make sure shoppers are aware of every single piece of additional downloadable content available for games they want to buy.

The kiosks are now in about 1,700 stores, and will eventually be rolled out to all 4,400-plus stores in the U.S.

So if you scan the bar code on a Modern Warfare 2 box, for example, in addition to a description and video trailer, you'll also see a menu of the various downloadable map packs, etc., that are sold separately as digital downloads.

You can then either pick up a card hanging on a rack next to the kiosk for that specific piece of DLC or, when you get to the register with your boxed copy of the main game, the cashier will ask if you want to go ahead and buy the DLC.

The full article is an excellent read.

Wednesday, September 22, 2010

You Will Pay for Your Treachery, Sir

We heard that phrase on television last week, and now it's firmly in place as a standard.

This is how much Eli 9.1 loves hockey: after finding out what days he practices this fall (Tuesday and Saturday), he said, "So, if Christmas is on a Saturday, does that mean I have to miss practice, or can we still have it?"

He had two practices last week that each lasted 2 1/2 hours (extra long while they evaluated kids and assigned them to teams based on their skill levels). He skated as a player for the first half of the practice, then came off the ice and I changed him into his goalie gear for the last half. When he skated off at the end, he said, "If only that could have lasted another 30 minutes."
If you're wondering how long it took to change him from player gear into full goalie gear, it was 17 minutes (we timed it). I felt like I was in a NASCAR pit crew. It would've taken me 30 minutes, at least, at the beginning of the summer. Goalies have so much equipment that has to fit perfectly, and the learning curve for doing it properly is steep. Now, though, we're fairly precise, and he knows exactly what he needs to do to help me.
I watched him last night at practice and was completely floored by how much he's improving each week. Kids were doing a drill where they skated around cone with the puck, then took a shot, and he was stoning all of them. He's become very adept about not letting people shoot through him--nothing gets through the five hole, and nothing gets between his arms and his body. That sounds easy, but it's not so easy when you're nine.

Eli had one of his best friends (Craig) spend the night last Friday, and on Saturday morning, we all went to breakfast. The waitress (who we see every week and who spoils Eli rotten) found out that Craig was from Wisconsin, and asked when he had moved. "Four years ago," Craig said. "I lived down a dead-end and didn't have any friends."

Every year, when Eli goes back to school, he gets sick. He'll be healthy all summer, even though he's around kids at the day camps he goes to, but as soon as he gets back to school, he's catching something all the time. A few weeks ago, he said to me, "Dad, what do you call the next few months?"

"Um, Fall?" I said.

"Try again," he said.

"Football season?" I asked.

"Nope," he said, grinning. "It's the Season Of Sickness!"

"Hey, Dad," Eli 9.1 said, "Who first said that the moon was made out of cheese?"

"I believe that theory was put forth by cheese manufacturers," I said. Gloria laughed.

"One small bite for man, one giant bite for mankind," she said.

"I don't believe ANY of this," Eli said.

"The cheese manufacturers figured that if you thought about cheese every time you looked at the moon, then you'd eat more cheese," I said. "Actually, when the astronauts first landed, they try to make nachos with a solar oven."

"Rigggght," Eli said.

Eli is at an age where he is often profound without understanding why.

We were sitting at Krispy Kreme on Sunday, having breakfast, just hanging out. "Eh," he said, "you come, you go, you live your life." Then he paused for a moment and said, "I have no idea what that means."

"That's okay, little man," I said. "I do."

Jury Duty

Yes, that's where I'll be today. So please enjoy some pre-recorded entertainment that will be posting shortly.


The always-entertaining Rock, Paper, Shotgun has an excellent interview with Vic Davis about Six Gun Saga.

Tuesday, September 21, 2010

Six Gun Saga

Vic Davis, developer of stellar titles Armageddon Empires and Solium Infernum, has announced a new project. It's a card game called Six Gun Saga, and here's Vic's brief description:
It will remind you of some games like Race For the Galaxy, Dominion and of course Poker and it’s more than just a simple card game as it’s got a small board for moving your “posses” around and going after your opponent’s homesteads.

This is a single-player game, and he's hoping to have it finished by Thanksgiving, roughly.

Anything Vic makes is an auto-buy for me, and since the Old West is one of the two most underrepresented themes in gaming (espionage would be the other), this seems like a great idea.

Vic graciously agreed to answer some questions, so I will be working on those this week, and you will hopefully see his answers soon after.

Arcen Games

There's a fascinating bit of public drama playing out over at Arcen Games, where Chris Park has been very frank in discussing the financial problems he faces.

The last three or four blog posts at that link make for required reading, because it explains very clearly that, in addition to how difficult it is to get attention for your game as an indie developer, it's equally difficult managing finances. Plus, even tougher, it's an entirely different skill set.

I think Chris Park is an amazing developer. To make AI War, then make a puzzle game (Tidalis) as the next project is both ridiculous and remarkable. And I think the core gameplay mechanic in Tidalis is one of the most interesting I've ever seen for a puzzle game.

If you're interested in seeing a tremendous talent live to fight another day, hit the links and check out the body of work. We need this guy to survive.

Brian Wood

I've had a mental block about mentioning this story, because it is so painful in so many ways.

Brian Wood, the lead designer of Company of Heroes Online, was killed on September 3 when the car he was driving was hit by an idiotic asshole who will probably be spending the rest of her life in prison.

What makes this story remarkable instead of simply tragic is that Wood managed to turn his car so that he faced the brunt of the collision, not his pregnant wife. That saved her life.

I can't imagine being such a bad ass that my head was clear enough to execute that decision under pressure. If anyone ever took a final exam on what it means to be human and passed it with flying colors, it was Brian Wood.

A memorial trust has been established to help Brian's wife Erin and their baby. Here's the website: The Brian Wood Memorial Trust.

So Long, And Thanks For All The Briefs

James sent me an excellent link to an analysis prepared by the law firm of Wilson, Sonsini, Goodrich & Rosati in regards to the Vernor vs. Autodesk case. It's here:
WSGR analysis

Most importantly, they mention two other cases pending before the court:
This year there are two other closely followed cases before the Ninth Circuit, UMG Recordings v. Augusto and MDY Industries v. Blizzard Entertainment, which will determine whether transactions involving books, music, films, games, and other copyrighted works are also subject to the three-prong test for determining whether users of a licensed work are considered to be owners or licensees. The Vernor v. Autodesk case itself may also not be over yet. Vernor's attorney may ask for a full-panel, en banc review by the Ninth Circuit of the September 10 ruling, and possibly consider an appeal to the Supreme Court.

And with that, coverage of this court case, thankfully, has come to its conclusion. Mostly.

Monday, September 20, 2010

Vernor vs Autodesk: The Implications

All right, let's wade into the swamp that represents the potential consequences of the Vernor vs. Autodesk decision.

First off, there's no guarantee that this case isn't overturned on appeal, although DQ Copyright Law Advisor Nhut Tan Tran believes it's unlikely. I do think, though, that the circumstances of this case and used game sales appear to have some key differences.

For one, selling a physical copy after you've upgraded to a newer version seems different than selling a game. Well, it is different, but the decision seemed to rest heavily on the nature of the license agreement, not the details of the transaction itself. For the court, it seemed that the license agreement defined the transaction.

Also, someone who buys a disc-based game can't look at the licensing agreement, decide they don't agree, and return the game for a refund. With Autodesk, you can.

For the sake of discussion, though, let's assume that the decision doesn't get overturned. What then?

As a starting point, consider this e-mail from an executive in the industry who will remain anonymous:
Game companies are not "moving to" the licensing model. We've always been there. It is just that the licenses are more in your face with digital distribution. But don't for a second think that we have been in anything other than a license model for over a decade.

With MMOs and online play, game companies often require multiple licenses -- one for the client and offline play (often referred to as the single player campaign) and another for online play. MMOs often have two or more agreements: the game license agreement and the terms of service for the MMO subscription. Again, nothing new. 

That's an excellent point. I think what I've personally always done is look at those licensing agreements, laugh at their stringency, and move on. And the reason I was laughing is because I mistakenly assumed that they would never be found legally enforceable. I thought it was sort of like tenant rights,where tenants can sign all kinds of outrageous leases, but no matter what the lease says, there are certain rights that cannot be forfeited.

Joke's on me, apparently.

So let's say that Vernor vs. Autodesk is both upheld on appeal and the decision is not narrowed in scope. Does this mean that console games will immediately switch to a restrictive licensing model that forbids resale?


Well, they could, if they wanted to lay off a third of the industry within 18 months.Would that actually happen? Maybe not, but the gaming industry doesn't know one way or the other, and it would be a risk of epic proportions. 

Successful companie are like lawyers in courtrooms: they never ask a question when they don't already know the answer. Shutting down the used game market would be asking a question having absolutely no clue about the answer.

In general, that's bad business.

However, that doesn't mean there won't be a few test cases. Would anyone be surprised if Bobby Kotick decided to crush the resale market for a Modern Warfare game, for example? I don't think it takes much of a leap to imagine a console version with the same restrictive licensing agreement as the PC version. It also doesn't take much of a leap to imagine some amusing and ridiculous "concession" to consumers--say, a $54.95 purchase price instead of $59.95.

That way, in the imaginary world of Bobby Kotick, he can present himself as a champion of consumers. Yes, selling copies of any Modern Warfare game would easily net you more than $20 for months after its release, but he's counting on us being unable to do the math.

Actually, who am I kidding? He's just going to charge $60, anyway.

I think that's one reasonable scenario--that a high-profile publisher chooses a game they believe we can't live without and uses it as a test case.

Another reasonable scenario: even if some publishers decide to effectively end resale of their products, other companies won't. It will be used as a competitive advantage in terms of marketing to consumers. So it's possible that, over time, a tiered market emerges, with a non-resale tier competing with a tier where resale is still allowed. 

That will give us some interesting choices.

The most interesting aspect of this, though, is the apparently titanic collision that's looming between retailers and publishers. It seems like everyone has announced they're going full bore into the used games market in the last two months.

What do those companies do now? Could they work out an agreement with the gaming publishers where a voluntary "resale royalty" of X dollars is included in any used game sale? I think that's a likely outcome, and if it does happen, here are the basic effects:
1. Trade-in prices for games go down, because of the X dollars that have to go to the gaming company upon resale.
2. The used market will become less attractive. If you're selling a game back for $10 less, then have to buy some kind of  "online pass" if you buy a used game, that's a double whammy.

Without that, I don't see how a resale market is viable. This decision appears to give 100% of the leverage to publishers, not retailers or consumers.

Oh, and if publishers do kill the used market? Piracy will explode. And publishers will use that as an excuse not to lower game prices.

Is there any possible way that this court decision could be a benefit to consumers? No.

Friday, September 17, 2010

Friday Links!

From Sirius, a fascinating article about extinction-- and water fleas. Also, and these are amazing, it's Earth’s Most Stunning Natural Fractal Patterns. Next, it's the 2010 World Yo-yo champion, and holy cow, this guy is amazing. Finally, and this is an incredibly strange phenomenon--an ant death spiral.

Here's another entirely wonderful illustrated story based on Dwarf Fortress, and this time, it's Oilfurnace (thanks Sebastian Mankowski).

This is an absolutely stunning series of pictures from atomic bomb tests.

From Frank Regan, and this is outstanding video, it's rebuild a Jeep in under four minutes.

From The Edwin Garcia Links Machine, the Bollywood version of a Robert Rodriguez movie, and it's absolutely hilarious.

From Chris Karalus, a short video about a man who reinvented his life--by unicycling.

From Hogie Chang, the trials and tribulations of a game store owner, told in entirely entertaining fashion: Acts of Gord.

From Matthew Teets, a story about an angler who likes to catch lots of fish--in this case, over 1000 different species and counting.

From Logan Griffall, and this is a fantastic mash-up, it's Inceptionauts (Psychonauts meets Inception).

From Dib O, some truly remarkable, previously unpublished images of the Lascaux cave paintings.

This is, unquestionably, the greatest studio portrait ever taken.

From Ryan Brandt, a video with some of the most spectacular driving you'll ever see: Gymkhana Three, Part 2.

Jeremy Fisher sent me a series of game series "retrospectives" from Game Trailers, and they're just tremendous. You could blow your entire morning just watching these, so here they are: Star Wars Retrospective, Final Fantasy Retrospective, Warcraft Retrospective, Legend of Zelda Retrospective, and Metroid Retrospective.

Thursday, September 16, 2010

A CFO Makes Me Throw up in My Mouth, Plus More From The Official DQ Copyright Law Advisor

The post about the possible ramifications of the Vernor vs. Autodesk decision is postponed until Monday.

Julian Dasgupta sent me a link to an absolute eye-opener of an interview with Electronic Arts CFO  Eric Brown. If you wonder about value to the consumer and its future, just get a load of these quotes:
Arguing that, despite a general decline in units shifted, games in the top 20 were actually selling more, Brown asserted that the online functionality of triple-A titles was leading to enormous revenues.

"Instead of selling one product with a unified $60 price point we see people buying a $60 disc and then bolting on hundreds of dollars of DLC. We're happy to have $500 worth of extra content to sell."

..."There'll generally be half a dozen different pieces of DLC available for a title, and GameStop's in a really good position to explain to the customer what the DLC is, what pack number one and five and four and six provides, because they have a staffing model and a customer service model geared exclusively to games.

"So we view them as a very important current and future market partner for all forms of DLC."

I've written about this in the past, but he described exactly where we're headed, unfortunately. Here's an advertising blurb from the future:
Your $60 purchase gains you exclusive entry into the downloadable content marketplace!

Look, publishers may deny this, but over time, more and more essential features of the game are going to shift from the core game to DLC. It's inevitable, and the only question is how far these guys are willing to push the envelope.

A reasonable guess: very, very far.

It's just math. Brown claims that "digital revenue" (DLC, presumably, based on context ) has a 70-80% net margin. Translation: putting content into the lower-net margin core game is for suckers.The only purpose of the core game is to lead people to the sacred forest of high-margin DLC.

Brown also inadvertently said something quite amusing. Take a look:
Brown felt that the $10 Online Pass – requiring second-hand users to fork out extra money for a code necessary to play certain EA titles online – could draw significant money from the used market, which he posited had grown by around five times over the last half-decade.

Let's see--when did game publishers begin raising prices by $10? Why, that would be at the launch of the 360, which happened almost exactly 5 years ago.

What an odd coincidence.

What's really funny here is that even with steadily dropping levels of value for the consumer, the big gaming companies are collectively losing a ton of money. In some industries--clever ones--when companies lose money, they try to provide more value to the consumer, not less.  

Sadly, not here.

Moving on, I received another e-mail from Official DQ Copyright Law Advisor Nhut Tan Tran in regards to the Vernor vs. Autodesk decision, and it makes for excellent reading. Here you go:
1. The chances of a higher court affirming but narrowing:
Slim. This is a decision by the Ninth Circuit Court of Appeals. It ends here unless Vernor decides to petition for appeal, which is expensive. He also needs to cite error. Unless the EFF or some other organization steps in to help him, I don't see it. The only appeal he has is to the Supreme Court by filing a writ of certiorari and four Supreme Court Justices need to vote approval for hearing it. Those are very slim chances. Unless another Appeals Circuit comes up with a different decision on the same issue which causes conflict of law between the two Circuits, the Supreme Court probably won't intervene. Or they might, since it is a sexy Constitutional issue. Vernor needs to appeal, though, to give the Supreme Court the procedural means to intervene.

Second, the Ninth Circuit essentially punted the football on this. The decision rests on the interpretation of established copyright law and how licenses work. Like I said before, Nimmer pretty much explicated the problem and the judicial history is that a license rules the terms of the relationship with the consumer. This is not new, and Nimmer (which I agreed with on his interpretation) encapsulated it thoroughly. Lay people always cite the First Sale Doctrine like it's the "I Win" button for used games/software. It's not--it's what's called an "affirmative defense," which always can be overcome in the right circumstances. The Ninth Circuit basically stated in its decision that their hands were tied, and that it should be up to Congress to change the laws to accommodate the new distribution methods for creative works due to changes in technology.

2. Game Companies are already moving to the Licensing Model.
 Modern Warfare 2 for the PC is only offered on the Steam platform. You buy Modern Warfare 2 and it's explicit that you only get the license to the game under the Steam Subscriber Agreement:
"Valve hereby grants, and you accept, a limited, terminable, non-exclusive license and right to use the Software for your personal use in accordance with this Agreement and the Subscription Terms. The Software is licensed, not sold. Your license confers no title or ownership in the Software."

It will not be hard for Activision to apply this format to console copies of Modern Warfare. The next one can be set so that you have to sign a click thru agreement before you play multiplayer on their servers. You can put a license agreement terms in the DVD, the case and the manual. It's not hard at all.

On Monday: what this all means.

Wednesday, September 15, 2010

Vernor vs. Autodesk: The Decision

Vernor has decided to take his talents to South Beach. Sorry, sports joke.

The Ninth Circuit Court of Appeals handed down their decision in the Vernor vs. Autodesk case last week. Let's take a look, and please note that any italicized excerpt comes from the text of the actual ruling (which you can read here.

First, the history as it relates to Autodesk's software licensing agreement:
Since at least 1986, Autodesk has offered AutoCAD to customers pursuant to an accompanying software license agreement (“SLA”), which customers must accept before installing the software. A customer who does not accept the SLA can return the software for a full refund.

The SLA for Release 14 first recites that Autodesk retains title to all copies. Second, it states that the customer has a nonexclusive and nontransferable license to use Release 14...Fifth, the SLA provides for license termination if the user copies the software without authorization or does not comply with the SLA’s restrictions. Finally, the SLA provides that if the software is an upgrade of a previous version:
[Y]ou must destroy the software previously licensed to you, including any copies resident on your hard disk drive . . . within sixty (60) days of the purchase of the license to use the upgrade or update . . . .Autodesk reserves the right to require you to show satisfactory proof that previous copies of the software have been destroyed.

Wow. I believe that's also known as the RPUL (Rectal Penetration Unit License).
Now, to the history of the case, which is quite interesting.
In March 1999, Autodesk reached a settlement agreement with its customer Cardwell/Thomas & Associates, Inc. (“CTA”), which Autodesk had accused of unauthorized use of its software. As part of the settlement, Autodesk licensed ten copies of Release 14 to CTA. CTA agreed to the SLA, which appeared (1) on each Release 14 package that Autodesk provided to CTA; (2) in the settlement agreement; and (3) onscreen, while the software is being installed.

CTA later upgraded to the newer, fifteenth version of the AutoCAD program, AutoCAD 2000. It paid $495 per upgrade license, compared to $3,750 for each new license. The SLA for AutoCAD 2000, like the SLA for Release 14, required destruction of copies of previous versions of the software, with proof to be furnished to Autodesk on request. However, rather than destroying its Release 14 copies, CTA sold them to Vernor at an office sale with the handwritten activation codes necessary to use the software.

Hmm. I worked for a computer company in the late 90s (fortunately now defunct) that employed several hundred people, and the entire company basically had one copy of Microsoft Excel. Everyone, and I mean everyone, installed that single copy. The settlement agreement here makes me suspect that CTA had ten people using a far fewer number of copies than ten.

So CTA upgraded to Release 15 for less than 15% of the cost of a new license, and, in a classy move, tried to resell the copies that made them eligible for the upgrade in the first place.

In legal terms, I think that would be technically described as "dumbassery."

So Vernor buys the copies, and the story continues:
Vernor has sold more than 10,000 items on eBay. In May 2005, he purchased an authentic used copy of Release 14 at a garage sale from an unspecified seller. He never agreed to the SLA’s terms, opened a sealed software packet, or installed the Release 14 software. Though he was aware of the SLA’s existence, he believed that he was not bound by its terms. He posted the software copy for sale on eBay.

In April 2007, Vernor purchased four authentic used copies of Release 14 at CTA’s office sale. The authorization codes were handwritten on the outside of the box. He listed the four copies on eBay sequentially, representing, “This software is not currently installed on any computer.”

On each of the first three occasions, the same DMCA process ensued. Autodesk filed a DMCA take-down notice with eBay, and eBay removed Vernor’s auction. Vernor submitted a counter-notice
to which Autodesk did not respond, and eBay reinstated the auction.

...Vernor also wrote to Autodesk, claiming that he was entitled to sell his Release 14 copies pursuant to the first sale doctrine, because he never installed the software or agreed to the SLA. 

To me, Vernor essentially conceded that the SLA would preclude resale, but that he wasn't bound by the SLA because he never installed the software.

Here's how the Court summarized the case:
This case requires us to decide whether Autodesk sold Release 14 copies to its customers or licensed the copies to its customers. If CTA owned its copies of Release 14, then both its sales to Vernor and Vernor’s subsequent sales were noninfringing under the first sale doctrine. However, if Autodesk only licensed CTA to use copies of Release 14, then CTA’s and Vernor’s sales of those copies are not protected by the first sale doctrine and would therefore infringe Autodesk’s exclusive distribution right.

Last week, I mentioned that I was very confident that Vernor would prevail, but I also didn't understand all the issues involved. Needless to say, I was wrong, because the Court found in favor of Autodesk, and here's the language of the ruling:
...We determine that Autodesk’s direct customers are licensees of their copies of the software rather than owners, which has two ramifications. Because Vernor did not purchase the Release 14 copies from an owner, he may not invoke the first sale doctrine, and he also may not assert an essential step defense on behalf of his customers.

...We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.
What I think is most interesting about this decision is that the Court is asserting that this is not a new interpretation of existing law, but rather, the correct interpretation of existing law.

The first sale doctrine dates from a 1908 Supreme Court decision in the case of Bobbs-Merrill Co. v. Straus. However, even in that decision, note the exclusion:
The Supreme Court articulated the first sale doctrine in 1908, holding that a copyright owner’s exclusive distribution right is exhausted after the owner’s first sale of a particular copy of the copyrighted work. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908).

The Court noted that its decision solely applied to the rights of a copyright owner that distributed its work without a license agreement. Id. at 350 (“There is no claim in this case of contract limitation, nor license agreement controlling the subsequent sales of the book.”).

Here's more:
Congress codified the first sale doctrine the following year. See 17 U.S.C. § 41 (1909). In its current form, it allows the “owner of a particular copy” of a copyrighted work to sell or dispose of his copy without the copyright owner’s authorization. 7 Id. § 109(a) (enacted 1976). The first sale doctrine does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee.

Also, the Court looks at the legislative history:
The House Report for § 109 underscores Congress’ view that the first sale doctrine is available only to a person who has acquired a copy via an “outright sale”. H.R. Rep. No. 94-1476, at 79 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5693. The report also asserts that the first sale doctrine does not “apply to someone who merely possesses a copy or phonorecord without having acquired ownership of it.”

In essence, the Court says that when a software license specifically tells the user that they are not the owners of the software, but only licensees, then the right of first sale does not apply, because they aren't owners.

Okay, I think that covers the ruling. Tomorrow, we'll talk about what this might mean for the gaming industry, and what it might mean for us.

Tuesday, September 14, 2010

The Delay Really Didn't Tone It down Much

Here's my problem with big gaming companies today: loyalty, in most cases, is a one-way street, flowing from us to them. There is a notable absence of anything heading back in our direction from them, unfortunately.

And really, why should they be loyal? I mean, look at the size of these companies, based on their trailing 12-month revenue:
Activision-- 4.54 billion dollars
Electronic Arts-- 3.8 billion dollars
Take-Two-- 1.34 billion dollars
THQ-- 805 million dollars

Even though these companies do everything they can to remind us that "they're one of us," they're not us. They're not even them. They're a series of corporate monoliths, and their job is to benefit shareholders.

Not us.

Still, though, they keep insisting.

Want to return a game that was released in alpha condition for a refund? Sorry. Making games is hard.

Ah, I see. It's a $4 billion company with corporate standards for customer service, but not for development. So if you want to return a game, screw you, but if you want a finished game, hey, all that crazy magic is very combustible.

That's my problem.

Remember how piracy used to be the number one problem for gaming companies? And remember how much cheaper games would be, said the big companies, if only they could stop piracy?

Well, that's very clever. Gaming companies never really talk about reducing piracy being enough to reduce game prices. They always talk about ending piracy.

Notice what they did there?

Did Ubisoft release Silent Hunter 5 or Assssin's Creed 2 at a lower price because the requirement of an always-on Internet connection made piracy exponentially more difficult? The PSP GO didn't even have physical media. Were those games cheaper than their physical media equivalents?
Then there's the question of wallets.

It used to be that if I wanted the full experience that the game had to offer, I'd buy it on day one, play it, and if I liked it, hope for an expansion pack a year later. The expansion pack was released because another version of the game wouldn't be ready for a few years.

Now, I have no idea what to buy, because plenty of games have day one DLC available. Is that part of the core experience? Are the three other DLC packs that come out over the next three months part of the full experience? Who can tell?

I guess I wind up paying $80-$100 for the "full" experience, then get ready for the sequel, because it's being rushed out in time for the holidays.

I have a hard time understanding where I'm getting more value. Where's the loyalty to us, exactly? Where are the examples of big gaming companies doing things that offer more value to the consumer, not less?

Crickets chirping.

Let's go back to that interview by THQ Creative Director Cory Ledesma:
We hope people understand that when the game's bought used we get cheated.

Cory, here's what I don't understand: what are you getting when someone trades in someone else's game in order to buy a new copy of your game? Blown?

There are many, many game developers and companies who offer wonderful customer service and truly care about their customers. They are not faceless mega-corporations. And what I'm, well, ranting about here has nothing to do with those companies. I'm talking about these giant companies for whom customer service is a strategy, not a service.

They need to stop lecturing us.

Rock Band Notes

Engadget has detailed, hands-on impressions of the Rock Band 3 Squire Stratocaster. Short version: a former guitar instructor, much to his surprise, thinks it's terrific.

Also, and this would be totally fantastic, it appears that the greatest hits album of Bob Marley and the Wailers, Legend, may be Rock Band DLC as early as next week.


If you're wondering why I didn't post yesterday--well, I thought I did. When I write a draft of a post, I add a day to the posting date so that it doesn't go live accidentally.

I did that yesterday, but completely forgot to change the date back. So I finished the post, hit "publish", and went about my business. It didn't post, though, because I didn't change the date.

Yes, I'm as surprised as you are that this hasn't happened before.

Monday, September 13, 2010

Used Games Part One: Your E-mail

Tomorrow, I'll have the modified "rant" that I wrote last week, and Wednesday, we'll discuss the Verner vs. Autodesk decision handed down last Friday by the Ninth Circuit Court.

Today though, your e-mail.

As a general introduction, the idea that consumers shouldn't be allowed to resell their games pisses you off. A lot. Add exclamation points.

It's interesting to note that in the European Union a law has actually been passed to address the notion of resale (thanks James Brisco), although it appears to be narrowly tailored toward artists. It's called the Resale Rights Directive, and it "creates a right under European Union law for artists to receive royalties on their works when these are resold."

For sales under €50,000, the royalty rate is set at 4%, although member states are allowed to set a minimum sale price under which this law does not apply (as long as the minimum is not above €3000).

Philosophically, that's an interesting approach, because while it's not eliminating the right of first sale, it's taxing it.

Would this work for the gaming industry? I don't think so, for two reasons. One, there would be tremendous consumer backlash, and two, in spite of that backlash, the gaming industry would perpetually be lobbying to raise the tax rate, which would piss all of us off even more.

Now, if the idea was broached that a 4% tax would be added to used game sales, and that this 4% number would be etched in stone, never to be altered, and that as part of the agreement, gaming companies would have to forever shut the hell up about used game sales, would consumers be willing? I doubt it, although a 4% surcharge to get people to shut the hell up sounds, conceptually, like a great idea in most cases.

Also, on the legal front, I received this from Mike Stinchfield:
After a bit of late summer cleaning I found some games just taking up space. I decided to take them down to the local Gamespot (Sand City, CA). Well, the cashier let me know if I wanted to sell the games to the store, they would require my fingerprints. Errrrr... So I inquired. Apparently, Sand CIty has classified Gamestop as a pawn shop and are mandating Gamestop abide by all regulations relating to such a fine establishment. Needless to say, I want no part of it. I can imagine this hurting the used games business, at least for that store.

That's an interesting strategy legally, to get Gamestop legally classified as a pawn shop.

John Krepps asked this question:
On the topic of selling used games, I was wondering how game companies view their products. Would it be like a Broadway play (you buy a ticket that entitles you to a set amount of entertainment, at which point the ticket has no value) or like a book (which can be picked up again and again or sold to another).

Well, I think the gaming industry would be thrilled if, once you finished playing a game, the physical media spontaneously combusted, leaving only a hot pile of ashes and a confetti shower.

Failing that, I'm surprised no one has tried the Flexplay model (although it was a colossal failure in the DVD market).That's the technology used for DVD rentals where once you opened up the package, some flesh eating virus escaped and destroyed the disk after a certain length of time (I'm slightly modifying the facts for entertainment purposes only). Fortunately, it was a miserable failure.

Here's a comment from Matt LeMayabout used game sales fueling the purchase of new games:
Anecdotally, I trade in a lot of games to Gamestop and every bit of that credit goes to new games. I typically only do this when there's a promotion involved that makes it worth my while, and thankfully, they have promotions for most of the games that I buy. If I didn't have this option, I would buy fewer new games, period...I also worked on and off at Gamestop over a period of 6 years through high school and college and I consistently saw the same behavior. Trade-ins fueled new purchases the majority of the time, especially for new games. Most of the trade-ins for used games were done by more value-conscious or less informed gamers, and this group wouldn't buy new games anyway unless they were drastically marked down.

I wish it was possible to get hard data on that relationship--used game sales fueling new game purchases-- but the only "data" is coming from Gamestop, who I would hardly regard as unbiased. I do believe that there is a category of consumer, though, that only buys new games with the proceeds of their used game sales (I certainly fall in that category).
Here's a comment from David Gloier on game pricing:
If they priced a new game at $39.99 instead of $59.99 maybe I might be willing to pay $10 or whatever to activate a used game online. The fact that Gamestop buys a game back for $15 or $20 and then sells it for $54.95 instead of the retail $59.95 ought to be telling them they are gouging us on new games. Might that be part of the reason for the huge used market?
I don't think there's any question that if new games cost $40 instead of $60, the used games market would be less robust. I think that's true for any retail product.

Here's a very interesting comment about the gaming market in general from Simon van Alphen:
Back in my day (I'm 31) why didn't have any sort of a used games market.

We did have several dozen budget games labels.

Now that they're gone, is it so surprising that something else filled the niche, that market demand? There's a lot of money there and if the game developers/publishers aren't willing to fill it in themselves anymore then, well, it really is their fault entirely isn't it?

I certainly wouldn't still be a gamer now if it wasn't for first budget releases of games and then used copies of games that were available during the time when my parent's wouldn't buy games for me and I din't have the cash to spend on games at their release price (throughout high school and college, basically).

That's both very interesting comment about budget labels as well as a very pertinent point about becoming a gamer--how many fewer games would kids play without the used market available to them? And how would that affect them when they become adults? Would they still be gamers,  or would they have instead moved onto one of the many other entertainment options at their disposal?

Warning, danger.

From James (via the curiously thriving DQ audience in New Zealand):
What I haven't seen addressed yet is the question of renting games via stores or mailed subscriptions services. Wouldn't this cause a significant loss to game publishers? Or are they compensated for every rental? 

To the best of my knowledge, gaming companies receive nothing from rental services (other than the purchase of the original discs used for the rentals). That's probably far closer to a parasitic relationship than the used games market. 

Finally, and this is a very thoughtful point from Neil Sorens, a reason to be interested in some of the strange things that game companies are trying:
I am in favor of the current experimentation, if only because it will generate more data about how many sales publishers are losing because of the used game market. It won’t be exhaustive by any means, but any additional data points are helpful.

Well said.

Argghhh, with lots of *$*$*#*@@

There's been lots and lots of strangeness to start the morning today.

I bought an Android phone on Friday, and I had to create a Gmail account to access the marketplace. Fine.

This morning, when I tried to log into Blogger, I got a message telling me that I needed to use my Google account. So I tried the Gmail address, which made Blogger entirely willing to let me create a new blog but not access the old one. After an absolutely ridiculous amount of what I like to call "dicking around," I finally got in to make this post.

Coming later today: the used games discussion, based on your e-mail. If I can get in.

Friday, September 10, 2010

Friday Links!

Leading off, and this must be one of my favorite links ever, a submission from Sebastian Morgan-Lynch that's the story of an artist. Why is this interesting? Because he created a painting or sketch every day for years, and posted all of them. His progression over time is completely fascinating.

From Cliff Eyler, the obituary for Charles S. Roberts, who founded Avalon Hill in 1958.

From Andrew Wonser, a story about one of the most remarkable intelligence operations in World War II: Mincemeat And The Imaginary Man.

From Sebastian Morgan-Lynch, an article about one of the most polluted places on earth: Iron Mountain Mine. Also, and this is quite mesmerizing, it's mega dashboards and instrument panels.
From Kevin W, someone who submerges their hand in liquid nitrogen (and how it's possible).

From Frank Regan, and this video is quite incredible, it's amazing card throwing. Believe me, it's worth watching.

From Michael O'Reilly, and this is quite remarkable, it's Man Spends 62 Years Building Fleet Out of Matchsticks.

From The Edwin Garcia Links Machine, a time-lapse video of the Earth--captured by an astronaut at the International Space Station.

From Andrew B, a Craigslist ad--for a Golem (technically, a rabbi to create a Golem).  

From Logan Griffall, a story about the first billionaire athletes: Roman chariot racers.

From Paul Baxter, a video of free-running across 50 states in 30 days.

From Sirius, a fascinating story: Charles Darwin's ecological experiment on Ascension isle. Also, it's Yellowstone hot spot shreds ancient Pacific Ocean. Next, and it's also excellent, it's Edison’s Failed Plot To Hijack Hollywood. Finally, it's black Swallowtail "mating avoidance" flight pattern.

From Kevin, video of what happens when you try to drive a 12' high truck under an 11'8" trestle.

From Michael Grimm, a video of Blink-182 drummer Travis Barker playing Flo Rida.

From Chis Pencis, it's the Middle Earth Hockey Association, and even though it's fictional, the logos are tremendous.

From Jarod, a spectacular image of the awesome death spiral of a bizarre star.

From Robert McMillon, video of a Pacific Sun Cruise liner in very heavy seas, and "very heavy" is an understatement.

Thursday, September 09, 2010

August NPD

Analysis next week, but here are the numbers:
360: 356,700

Wii: 244,300
PS3: 226,000

A Thought On Used Games

The used games post has been finished for a couple of days now, but I still haven't posted it because it sounded a bit, um, "ranty." So it's going to sit for a few days, and I'll see if I can make it more effective and less emotional.

However, in the meantime, I realized something today that I think is interesting.

I've always been baffled as to why the gaming industry has never confronted Gamestop more directly. Sure, there's heated rhetoric at times, but that's all it is--rhetoric.

If you listen to the words of the gaming industry, Gamestop is an incredible leech. If you listen to their actions, though, Gamestop is a partner. One-use codes are about the strongest action anyone has taken, and that really hasn't hurt them in the least. Based on the actions of the gaming industry, Gamestop is a partner, not an adversary.

Surely, the gaming industry should strong-arm Gamestop. It would be great for the industry if Gamestop shut down tomorrow, right?

No. It wouldn't be great--in fact, it would be catastrophic. That's why the gaming industry isn't trying to crush Gamestop.

They need Gamestop.

Here's why. When you trade in games at Gamestop, it's for store credit. Yes, theoretically, you could trade those games in for cash, but good luck doing that--Gamestop has effectively built a procedural labyrinth to stop you. The degree of "screwed" is so high when trading games in for cash that only burglars would want to use that option.

So what can you buy at Gamestop? Well, games. Gaming hardware. Gaming strategy guides. Maybe some of your trade-in credit is spent on used merchandise, but it's still being spent on gaming merchandise.

Best Buy and Target recently entered the used games market, and they're going full throttle. Amazon, too.What do consumers get when they trade in used games at these retailers?

Gift cards. What can they buy with those gift cards? Anything.

In Gamestop's case, I'm willing to bet that over 95% of used game trade-in credit goes back into the gaming ecosystem.What would that number be at Amazon, though, or Target?

There's the problem. With the broad-line retailers, money actually gets removed from the ecosystem when gamers trade in their games. A significant amount of money. It's not recirculation--it's hemorrhaging.That's the real nightmare scenario for the gaming industry. 

That's why gaming companies rattle their swords at Gamestop, but never do anything substantive. Believe it or not, as long as the used game market exists, Gamestop is their best option.

Wednesday, September 08, 2010

I Forgot to Mention

Average rainfall for Austin annually is 33 inches.We basically just got one third of our average annual rainfall in one day. 

It's Wet

We got a little rain yesterday.

I grew up on the Gulf Coast, so hurricanes and tropical depressions are nothing new for me. Many times, these storms bring with them quite a bit of rain.

Again, that's nothing new.

What is new is that never in my life have I been anywhere where it rained for an entire day. I think it was 27 consecutive hours, actually, and it was just amazing.

I don't mean that it rained most of the time for 27 hours. No, I mean that it literally rained for 27 hours.

We got about 10 inches of rain--some areas got up to 15-- and if it had gone on much longer, the flooding would have been extensive and quite dangerous.

Of course, this reminds me of Thrall.

Thrall is about 30 miles northeast of Austin, and on September 9-10 (note the date), 1921, it was the site of the largest rainstorm in US history.

How large? 32 inches in 12 hours, with 24 coming in the first six hours of the storm. I have no idea what rain at the rate of 4 inches an hour even looks like--2 inches an hour seems torrential.

Like yesterday, the rain was the result of remnants of a tropical storm. The flooding, though, was exponentially worse. Here's an example:
On the San Gabriel River the first rise, at midnight of the 9th, came as a 4 foot wall of water. Thereafter, the river rose at the rate of 2 feet a minute until it overflowed its banks. The second and third rises completely submerged the lowlands, raising the river at least 7 feet higher than ever before known.

As you can imagine, the toll was devastating. 215 people lost their lives, and there was $19 million in property damage.

If you're interested in the storm, there's an excellent article titled "The Unparalleled Thrall, Texas Rainstorm" which makes for excellent reading.

Tuesday, September 07, 2010

Mafia II (final impressions)

Well, I just finished the game.

Let me go back first to more pleasant times and talk about an earlier chapter. I was driving through the city with a body in my trunk (an occupational hazard), and the ensuing police chase was frantic. My car was all smashed up, and as I drove over the crest of a short hill at high speed (the police in close pursuit), the car caught big air. When it landed, the hood came off like a projectile, flying behind me into the oncoming police cars.

I would frame that moment if I could.

That entire chapter was one of the most enjoyable, brilliantly written moments of gaming I've ever had.

Now, on to the hard realities. Does the ending redeem the earlier collapse of the plot? No, because it's the wrong ending.Without giving spoilers, the way to make that ending work was to give the player a meaningful moral choice. It's not like it would have been difficult to do. Hell, they set up the possibility of a choice almost perfectly, and then completely ignored it in favor of a far less satisfying resolution.

I strongly believe (and have believed for years) that these guys are geniuses. I still believe that, but they're also erratic at times, and that shows through strongly in the last two chapters of this game.That's unfortunate,  because in the first 13 chapters, their genius was on full display.

Would I recommend this game? Absolutely. Is it what it could have been? Absolutely not. 

NHL 11 (360)

The apex predator of sports games.

Mafia II

Damn it.


Mafia II consists of 15 "chapters." The first 13 chapters were, bar none, the finest writing I've ever seen in a game. Voice acting, too. Yes, I understand complaints raised about the gameplay--indisputably, it was thin-- but the overall experience was incredibly compelling. I couldn't wait to see what happened next in the story.

Chapter 14 opened with my favorite gaming moment in years, an event that stirred many emotions, some of them overwhelming.  

Then, incredibly, everything went to hell.

After 15 hours of perfectly plotted story, with a dramatic, tense arc, an absolutely nonsensical twist gets thrown in. No foreshadowing, no reason, just a gigantic "WTF?" moment that is followed by an equally nonsensical reaction from your character. The entire scene, and the ones that followed in that chapter, felt like they were scotch-taped together, so clumsy that I refuse to believe Daniel Vávra was involved at all.

After that, all sense of momentum is lost. If it were just story problems, it would be manageable--is, after all, a videogame--but the general sensibilities of the gameplay run into a wall as well. Previous to this chapter, I had no problems with the "save points" (even though, like all of us, I can't stand them in general), but suddenly, the designers lost their way. I went through a scene where there was a lengthy but not difficult shootout, followed by a second shootout that was quite difficult (and tricked up as well). I died several times within seconds, and where did I return? Why, to the beginning of the easy section, where I had to methodically dispatch a large number of enemies again before I could go to the next shootout and die almost instantly.

For a game with save points so carefully placed, it was a gut punch. And Chapter 15 has the same problem as well. I'm sure there are only 10 minutes or so of gameplay left, but I was so annoyed by the save points that I didn't even finish last night. 

So here I sit, wanting to know how the story ends, but feeling incredibly disappointed at the same time.

Monday, September 06, 2010


Clayton Lee let me know that the video I linked to below is actually from "Australia's Funniest Home Videos." This surprises me, because I assumed that if you did anything stupid in Australia, you died, but I'm sure he's correct.

Not Terribly Bright (I am not talking about myself-- this time)

We were watching TV last week-- as a family-- when we saw a promo for a new series.

Well, it was new to us, anyway.

The promo started off with a man in a sumo suit falling, then cut to a woman in a plastic tub getting pushed down stairs (summary: it does not go well for her).

We all laughed. Stupid people are funny. Or, as Homer Simpson said, "It's funny because it didn't happen to me."

Then a man in a Speedo rode his bicycle through waste-high mud, followed by a man riding an ATV into the side of a cliff.

"Dad, can we tape this?" Eli 9.1 asked.

"Almost," I said. "I'm almost in. But I need something more."

A woman, holding down a thin tree, lets go and gets hit in the face by the rebound.

"So close," I said. "I'm just not quite there."

The last excerpt began with an open-mouthed alligator. Then someone sticks their hand into the alligator's mouth.

We all burst out laughing, because none of us thought that this nonstop parade of stupidity could be topped.

The alligator's mouth closed on the hand.

"I'm in," I said.

Note: after watching two episodes of this show (I think it's called "The World's Dumbest People"), which were a bizarre mix of hilarious/cruel/inappropriate content, we decided that Eli 9.1 wasn't old enough to watch. Not because of the video so much as the audio reactions, which were constantly being bleeped.

I found one good video example of the show's content here. I didn't have the audio on, but there are no NSFW bits in the video.

Friday, September 03, 2010

Friday Links!

Once again, we are positively loaded.

From Stephen Kreuch, and these are quite stunning pictures, it's swimming with the crocodiles.

From Sirius, news of the discovery of a possible treatment for Ebola. Also, stunning sculptures made from vintage circuit boards. Next, and this is entirely awesome, it's gateway to the Viking Empire discovered in Denmark.

From Brad Ruminer, a website that tracks the history of MIT students hacking their campus.

A series of excellent links from David Byron. First, a terrific video of an excellent use for your big toe, courtesy of Houdini (it's supposed to start at 6:25 into the clip, so don't be surprised when it does). Next, Italian authorities have cracked an 11M dollar art fraud ring. Finally, it's Five Things You Didn't Know about John Tyler (most incredibly, that his grandchildren are still alive).

From DQ Fitness Advisor Doug Walsh, and I bet you'd never expected to see these three words in sequence, it's Proper Opossum Pedicure. Also, this is quite spectacular, an article about 3-D images you can touch.

From Eric-Higgins Freese, and I think this is my favorite mash-up of all time, it's Scott Pilgrim versus The Last Airbender.

From Amy Leigh, it's 15 Amazing Wii Controller Hacks and Modifications.

From David, and I think my head just exploded, it's Hackers blind quantum cryptographers.

From the Edwin Garcia Links Machine, an astounding commercial from a bygone era: Mattel's 1960s "Tommy Burst" t.v. commercial . It's the perfect toy for Christmas, as the "detective set" comes with the
"Tommy Burst" Tommy Gun,  a snub-nose .38, and a "snap draw" shoulder holster. Epic.

From Kevin W, it's high-speed bullet photography.

From Chris Mattos, and this is both stupidly dangerous and wonderful at the same time, it's Wheelchair Double Back Flip (the first one ever, apparently).

From Brad Ruminer, a stunning video: Asteroid Discovery From 1980 - 2010.

From Frank Donahue, and entirely bizarre invention: World's most amazing subwoofer has no woofer.

From Jake Margolis, and this is utterly wonderful, it's Sleep Talkin' Man.

From Jim, and there's no way this is real, but it's hilarious anyway: The Ultimate Extreme Sport.

I think this might well be the greatest headline ever.

From Keith Schleicher, and this is an outstanding way to close out the week, it's Judy Collins sings 'Send In The Clowns' on the Muppet Show.

Thursday, September 02, 2010

Elemental (again)

This is an extraordinary mea culpa from Brad Wardell. Full credit given:
forum post

Local Humor

Eli 9.1 has been changing his viewing habits in the last few months.

Before, he would come downstairs in the morning, flip on the television, and watch a Nickelodeon or Disney show.

Now, he comes downstairs, flips on the television, and watches SportsCenter.

Last night, there was a fly buzzing around the house, so I got the flyswatter out of the cupboard. I saw the fly, it landed, and I swatted it. Clean kill.

It was so unusually precise that Eli started laughing. "Boy," he said, "that's sure not going to wind up on FlyCenter's 'Top 10 Plays'."

The Right Of First Sale

Before we wade into the swamp that is the used games issue in general, I received an excellent e-mail from attorney Nhut Tan Tran concerning the Right Of First Sale doctrine.

Lost in all the emotion about used games vs. new games and purchase rights for consumers under the first sale doctrine is that you have, for software, you can override the doctrine of first sale by the copyright owner's right to restrict via a contractual relationship.
The "sale" of a piece of software is a complicated transaction and those that use upon the affirmative defense of the first sale doctrine leaves themselves vulnerable to the fact the "sale relationship" opens them up to the privity of contract between the two parties.
This is what Nimmer, the pre-eminent scholar on Copyrights says (please note that I am paraphrasing his position, and that this is a quote from a much larger article from Nimmer on Copyrights):

"License agreements focus on information and informational rights. Many licenses do not involve transfer of any tangible property. In other transactions, however, the licensed information is delivered on tangible media (goods) or the intellectual property rights cover the tangible property (e.g., patented machine). In these cases, issues can arise about whether delivery of the goods pursuant to a license constitutes a first sale of the copy under copyright law, is a first sale of genuine trademarked goods under trademark law or creates a case of patent exhaustion under patent law.
In general, a transfer of ownership of goods that constitute a copy of the informational property, that are sold under a trademark or that embody the invention, does not in itself transfer ownership of intellectual property or other information-related interests.1 This theme is present in all bodies of intellectual property law. It creates an environment in which possession (even ownership) of a tangible thing does not in itself communicate much or anything about the right of the possessor to use or claim ownership of the intellectual property rights involved. The basic principle is expressed in section 202 of the Copyright Act in the following terms:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
The separation of tangible and intangible property highlighted by this language is a central feature of licensing law and practice. It is also one basis for the rejection of ideas of bona fide purchaser status stemming from mere possession and control of a copy...The first-sale doctrines do not involve transfers of rights ownership. Nor do the doctrines deal with or limit the enforceability of contractual terms. Indeed, the reverse relationship exists: the terms of the contract determine when or whether a first sale or sale establishing exhaustion of the patent occurs. The first-sale rules merely set out limited defense to claims of property rights infringement, but those exemptions can be important in determining the remedies available to a licensor or property rights owner, especially with respect to claims against remote third parties."

Also, my understanding is that Congress explicitly recognized that a copyright holder can sue his direct customer for breach even if, for the very same act, he cannot sue for copyright infringement. The legislative history indicates that Congress designed the first sale doctrine as a default rule that copyright owners could override by contract. See Aymes v. Bonelli, 47 F.3d 23, 26-27, 33 U.S.P.Q.2d (BNA) 1768, 1771 (2d Cir. 1995) (noting that the CONTU Report to Congress proposing Section 117 conceded that "should proprietors feel strongly that they do not want rightful possessors of copies of their programs to [adapt software], they could, of course, make such desires a contractual matter").

lthough I'm partial to  gamers, as I'm one myself, I'm going to go with Nimmer's interpretation of copyright rights considering Supreme Court Justices quote him sometimes.

Now, if I'm understanding this correctly, many of the issues that Nimmer raises will be resolved with a final ruling in the Vernor v. Autodesk case, which is currently on appeal. The ruling handed down by the United States District Court for the Western District of Washington, though, was in favor of the consumer's rights:
The court held that when the transfer of software to the purchaser materially resembled a sale (non-recurring price, right to perpetual possession of copy) it was, in fact, a "sale with restrictions on use"[1] giving rise to a right to resell the copy under the first-sale doctrine.

Given how downright hostile the present Supreme Court has been to consumer's rights, it wouldn't surprise me at all if this is overruled, should it reach them (right now, it's in the hands of the United States Court of Appeals for the Ninth Circuit).

The interesting question is what would happen to the gaming market if it were illegal to sell used games? Given how money from the sale of used games flows through, in many cases, to the purchase of new games, does anyone think this would be positive for the gaming market?

Here's a bizarre scenario. Let's fast forward to the future, where the Vernorcase actually has reached the Supreme Court, and the gaming industry figures out,with advanced mathematical reasoning from the future, that making the sale of used games illegal will cut their industry by a third.

That could lead to my favorite irony of all time: the ESA submitting an amicus curiae brief to the Supreme Court, urging them to keep the sale of used games legal.

Wednesday, September 01, 2010

Madden: The Very Smart and the Less Than Smart

Madden's two-minute A.I. is nothing short of remarkable. Considering it was crap last year, that's quite an achievement, and whoever rewrote that code should be congratulated.

Here's an example. I was watching a game yesterday where the team was ahead by three points, with twelve seconds left in the game. They had the ball on the opponent's 28 yard line, and it was fourth down. The opponent had no timeouts left.

That's a tough situation for any A.I.

The team lined up to kick a field goal, which is defensible as a decision, but then the offense drew an illegal procedure penalty. Now it would be a 50 yard field goal.

Normally, if the penalty takes the kick distance outside range, then the decision toggles to a punt. In this case, though, considering the time remaining and no timeouts for the opponent, the smarter decision would be to run a play. An outside handoff, in particular, to run a few seconds off the clock with almost no risk.

I've never seen an A.I. do that in thirty years of playing football games.

Then the offense lined up--and ran a play. An outside running play.

The opponent took over on downs, but didn't have enough time to get into position to kick a field goal.


So the two-minute A.I. is fabulous, but in other places, the game is rough. There so many pass coverage busts that have nothing to do with reaction time (making them not adjustable by slider settings) that the number of big plays is far too high. It completely unbalances the game.

I'm confident that the pass coverage will be adjusted in a patch, but it's frustrating to have something like this crop up every year. It seems like I wait for months to actually play the finished version of this game, and by the time it is finished, I'm not interested anymore.

So I'm in the strange position of working on Madden sliders in some depth, but spending all of my actual playing time with Backbreaker.

Why You're Not Reading about Used Games Yet

I apologize for the delay in putting up this post, but the issue is huge. Everyone tends to focus on one facet of the issue, but it's multi-layered, and I really want to do it justice. Hence, the delay.

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