For years, I’ve adamantly opposed the idea of completely replacing tangible media with digital distribution for video games and other forms of entertainment. It’s a fantastic alternative, but could spell disaster for consumers if it becomes the standard.

This resistance on my part stems from an age where products that you purchase (like video games) became your property. Media publishers have begun adopting digital distribution as a lucrative business model, now that they’ve realized that they can use it to destroy the secondhand market and overthrow consumer ownership.

I don’t know about you, but this idea scares me.

More often we’re seeing that software is only licensed to us; with the publisher retaining ultimate ownership. Each check box labeled “I Agree To These Terms” is our virtual signature to the software’s service contract. I’d come to accept it as normal for application software and downloadable game services, but I never expected to see this applied to games that still come in the form of a physical cartridge or disc.

Have you ever read the end user license agreement (or EULA) on any game that you buy? Of course not! Who has time to read legal mumbo-jumbo when you gotta get your game on! Though Scribblenauts is about a year old (as of this posting), I still find it to be a brilliant example of just how badly consumers are being cheated out of their rights.

Below is an excerpt from the first section of the EULA from Scribblenauts. Those who have already bought the game are encouraged to read along from your own manual.

WBIE grants you the non-exclusive, non-transferable, revocable, limited right and license to use one copy of this Product solely and exclusively for your personal use. All rights not specifically granted under this Agreement are reserved by WBIE. This product is licensed, not sold. Your license confers no title or ownership in this Product and should not be construed as a sale of any rights to the Product.

First, keep in mind that the user end agreement takes effect the moment you pop the Scribblenauts cartridge into your DS and fire it up. With these first four sentences, Warner Bros. Interactive Entertainment spells it out that you don’t own this game you’ve bought.

Your possession of this cartridge is non-transferable, meaning you can’t sell it or give it to someone else. It is revocable, meaning they can repossess the game. It’s unlikely that they’d enforce this, but it’s unfortunate that they’d institute that kind of leverage. You can play the game again by purchasing another copy, provided that you play by the rules this time.

Further down the agreement, it states:

You may not:

1. Copy the Product in its entirety onto a hard drive or other storage device.

So, no back ups. Unfortunate, but understandable.

2. Distribute, rent, lease, or sublicense all or any portion of the Product

No lending or selling the game to your buddies. If you’re finished with the game, it’s a violation of the agreement to give it away, trade it in, or sell it because that’s distribution. Once it’s out of your hands, there’s no take-backs according to your license. It also means that whomever is the recipient of the game now possesses it illegally. If your friends want to play, they’ll have to buy their own! (Those cheap moochers!)

I’m going to skip around…

4. Transmit the Product over a network, by telephone, or electronically using any means, or permit the use of the product in a network, multi-user arrangement, or remote access arrangement, except in the course of your network multiplayer play of the Product over authorized networks.

Don’t pirate the game. Fair ball. If you want to play the game, you’ll have to pay for it like the rest of us, ya jerks.

6. Reverse engineer the Product, derive source, or attempt to reconstruct or discover any underlying source code, ideas, algorithms, file formats…[etc]

The part that gets me in this section is that we’re not allowed to discover anything about the game. So if I’m poking around in the game and–in a rare moment of genius–figure out some pattern or game mechanic, I’m toast. Many great discoveries in human history were made by accident. We don’t seek out these things; they just show up when we don’t expect them.

Also, once I’ve discovered something, I can’t very well undiscover it. The publisher may demand I keep my mouth shut about any discoveries I do make, but they can’t forbid me to do something I cannot control.

Right now, some of your are hastily typing into the comments field, “Yeah… License agreements like these are nothing new. That’s no secret.” Of course hardcore gamers and journalists are familiar with these practices because they keep their fingers held securely on the pulse on the video game industry.

Yet I’ll bet that the vast majority of people who buy and play games don’t know the details of what they’re signing up for. The fact that it’s “nothing new” should make it all the more disturbing.

Here’s the bottom line: You’ve thrown down a good chunk of hard-earned money for this game. (You’ve earned it!) Though according to this end user agreement, that money was not exchanged in the acquisition of property; rather it was the admission fee to access an experience. Don’t be distracted by the physical dimensions of a cartridge, for it is merely a delivery device for the software service. It is an incidental object that you possess–not own–and do so only by WBIE’s good graces.

So as I’ve let people play around with my copy of Scribblenauts, encouraging them to buy their own copies, I’ve actually been voiding my warranty.

Realistically, I don’t envision some Game Gestapo enforcing these rules to their fullest degree. I won’t be sleeping with one hand clutching my Scribblenauts cart while the other grips a loaded revolver; an open eye on my front door. The game’s good, but not that good.

I do also understand that the EULA isn’t as much the words of the developers, but rather the lawyers that are paid to protect the publisher’s interests in a time of rampant software piracy (especially on the DS). However, it does affect my attitude toward mainstream media and I find myself inclined to seek out more independently developed entertainment.

On a positive note, it’s comforting to find out that EULAs that are this severe seem to be in the minority (for the time being). After flipping through the manuals of my other Nintendo DS games, I found that most of my games document no license agreement at all. The most they ask is that you don’t copy and pirate the game; otherwise enjoy!

This entry was posted on Sunday, August 29th, 2010 at 7:00 am and is filed under Games, Rants. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.