Ubisoft Says We Need To "Get Comfortable With Not Owning Your Games" And We Think It Should Be The Other Way Around -- Op-Ed

This past week, Phillipe Tremblay, the Director of Subscriptions at Ubisoft, in an interview with GameIndustry.Biz said that gamers need to get comfortable with “not owning your games” and we need to have a talk about that. Now, I know he is referencing subscription services as his reasoning here, and that makes logical sense given his position at the firm, however it is a close movement from subscriptions to sales. Look at how the automotive and equipment industries are transitioning to see where this could go next.

He goes on to reference television shows, movies and music, which have largely transitioned from physical media to digital media, and also are dominated by subscription services such as Spotify, Netflix and Disney+, as evidence that the consumer is used to this method of distribution, and that we need to become accustomed to it when it comes to games.

This, right here, is where he lost me. The problem isn’t that content is in a subscription service, the problem is that owning the content outright isn’t possible. And this is where the entire concept of digital ownership needs to change. As consumers, we need to be able to make a purchase of content and then be able to access that content whenever we may choose. This is different than that of a distribution model, such as Xbox Game Pass, which, for a monthly fee, allows access to a curated library of games.

The Ubisoft+ Dashboard (January 23,2024)

To disambiguate what needs to change, we need to first define what it means to “own” content and then establish the difference between distribution models and sales models. In our example, this content is a game called “Shooty Game 2” and it is published by “Gaming Software Inc” for distribution and sales worldwide. We will use this example to illustrate the differences between models and ownership rights, as they sit now and how they need to evolve to reflect the changing landscape around us.

To set the stage, let’s talk about Shooty Game 2. It is an action-based first person shooter set in the realistic future, with archived footage and music from real world sources. It has a cast of actors represented by a union, made by a studio with no union, and is distributed worldwide by Gaming Software Inc on PlayStation, Xbox and PC platforms in both digital and physical formats. It has online multiplayer, which has become a significant part of it’s usage, and a separate off-line campaign to enjoy. Microtransactions and DLC are available for purchase through the in-game storefront.

To “own” content, in my mind, we need to explicitly purchase that content. This would mean going to a storefront, either digitally or physically, and exchange currency for a specific piece of content. So we log on to Xbox and go to the Store on the dashboard and search for “Shooty Game 2” amongst the results. We find the title, click “buy now” and funds are transferred from our wallet to the store in exchange for this game. This is ownership, and this is called a “digital sale” by the industry.

Alternatively, we can travel to our favourite video game store in the physical world, select Shooty Game 2 off the shelf and pay money to the store in exchange for a box with a disc in it. This disc may have the game code directly on it or it may act as a “key” to digitally download the game, and either is fine so long as the requirements for “internet access” to access the game itself are clearly shown before purchasing.

When it comes to subscription models, Gamer Software Inc has agreed to a contract with Microsoft for including the game in the popular subscription platform Xbox Game Pass. Subscribers of the service will be able to download and play Shooty Game 2 at no additional cost to them, however all microtransactions and DLC purchases are extra to the base cost. This arrangement may involve Xbox Game Pass giving a lump sum to Gamer Software Inc, or it may be a more detailed model based off of hours played. It’s a private business dealing and we aren’t privy to the information, but the important thing here is that Gamer Software Inc stops being the distributor of the game for the service and Xbox Game Pass takes over. And when the agreement between Gamer Software Inc and Xbox Game Pass ends, the game is removed from the service. This is fine and understandable, because the agreement between the subscriber and the service is for access to collection of curated content.

The Xbox PC Store Dashboard (January 23, 2024)

As it sits now, Shooty Game 2 may be delisted from a store because, for an example, it contains licensed content that the license has now expired for, and rights need to be renegotiated. This may or may not come to pass depending on the willingness of the parties involved but is a valid reason to stop selling the game, however it is not a valid reason for the game to stop working altogether. Further to that, online functionality may cease due to Gaming Software Inc shutting down servers due to lack of traffic or high costs associated with maintaining the service. All of this is fine, and understandable, within reason.

Games are made physically in what are called “runs”; that is to say the disc pressing facility does a production run of a set number of units, this set number is based off of projections for the amount of units sold in a set time. More runs can be ordered should the demand be there for production, but at some point it becomes not viable to keep making a game in physical format due to costs, and that game will disappear from stores. This is also understandable.

Where it becomes not understandable, where the publisher crosses a line, is when games, that have no actual need for online functionality, are not only removed from sale in any format, but also shut down from operating altogether. The game is updated with a kill-code that basically shuts down the ability to play the game. This process is criminal, as far as I am concerned, and this is where it needs to change.

Gamer Software Inc has decided that, in order to increase demand of the upcoming Shooty Game 3, they are going to completely lock up Shooty Game 2. They will make it shut down at a set date, not just online, but also in offline modes. They justify this by saying that Shooty Game 3 will have all the content of Shooty Game 2 included in it, just updated for the user, at a premium cost. Or even worse, they just shut it down because they want to, which is horrible for preservationists.

This is the same as a movie production company coming into your home and stealing a movie from your shelf, because they promise that the Director’s Cut will have all the content from the film in it, and more, you just have to buy it again.

When we first use software, there is almost always an agreement known as the End User Licensing Agreement that most of us just gloss over and click “accept” and move on. Within that agreement is language that basically says we are granted a license to use the code, not the code itself. That makes sense to a degree; the code is a proprietary thing that is essentially copyrighted material and we can’t just be allowed ownership over it, because we could just copy and paste it and sell it ourselves (which is called piracy), and that doesn’t benefit the industry at all, and these companies need to make money, so they can pay their staff, and make more content. That’s how economy works. Where it fails, however, is when the publisher can revoke this license without cause, without merit and without compensation.

Back when the laws around software were written, software was on a CD-ROM or floppy disk or some form of physical media. If the company stopped supporting it, the community could basically hack it, or in other words, modify the software, to operate on modern equipment. The community could also go another way and create an emulator, also known as a runtime environment, that mimics the original intended runtime environment and allows the software to work without modifying the code. The second of those options are significantly more above board that the first, but in the name of preserving content, either is acceptable in my books. When these methods are deployed, the publisher isn’t losing money, the publisher is, instead, missing out on potential earnings. These are fundamentally different things, and one of them does indeed indicate a crime, where the other indicates poor business decisions.

In the modern era, however, with digital distribution being paramount, and access to software being protected in the name of corporate greed, there needs to be a shift in expectations to protect the consumer. This also applies to films, television shows, and music. There also needs to be protections for publishers as technology evolves.

What my thoughts are here are quite simple:

-          Content can be sold/distributed by digital or physical means.

-          Content can be delisted due to whatever valid reason.

-          Content can be in a subscription service and be exclusive to that service for an agreed time that is no more than twelve months, but once that exclusive time has passed, it must be available for distribution by other means. This does not apply to special MTX, flair or bonuses to recognize a subscriber This does not mean that Xbox content must go to PlayStation or Nintendo content to PC; it just means that if content is available on Xbox Game Pass, it has to be available to purchase on Xbox.

o   Pertaining to other media other than software, subscription providers that are also owners of content (i.e. “House of Cards” and “Netflix”) must, after a duration no longer than 12 months, make the content available to purchase via a storefront, and follow all the rules governing the distribution and access to that content.

-          Access to portions of content (i.e. online servers) can be officially unsupported after a set duration (36 months seems fair, but a study should be completed to determine an appropriate length of time), with adequate official notification from the publisher.

-          Content can be removed from subscription models with adequate official notification from the distributor.

-          Content that has been paid for explicitly needs to stay available for access in perpetuity, in the format it was sold in, (DVD, MP4, MP3, etc.), in the runtime environment it was sold in.

-          Emulation is for preservation. “Current” runtimes, meaning the latest commercially available runtime environment (for example, PlayStation 5) are protected from emulation. Abandoned runtime environments are not protected by emulation (for example, PlayStation 4 or PlayStation 3), provided they don’t inadvertently provide access to protected platforms (a PlayStation 4 emulator cannot allow PlayStation 5 products to be played.) The protected format (in this example, PlayStation 5) is protected to the point of fair use; if a PlayStation 4 emulator needs to utilize PlayStation 5 level information to stop it from using PlayStation 5 software, then that is acceptable and is not a breach of license.

o   To further demonstrate this, if we talk about movies, we could have a movie on VHS that is not available on other other formats, such as Blu-ray or DVD. We are allowed to watch it using our VCR, and we’re allowed to modify the VCR to connect to modern television sets. The same must be allowed for software.

To help stop companies from being greedy and taking advantage of a model unfairly, the following restrictions and or penalties are proposed:

-          If content is delisted with no intention of relisting it, copyright rights are waived after 24 months. Piracy becomes distribution. However, the material cannot be sold for profit. The justification for this is that “vaulting” content to re-release later is not ethical and also if the publisher has decided they have made enough money off of the product, then they are not missing out on the potential revenue that comes after the wait period. The 24 months is provided for publishers to change their mind for whatever reason (successful negotiations with licensed content holders, community feedback, etc.).

-          If access to portions of content (i.e. online servers) is officially revoked sooner than the suggested duration, or without adequate official notification from the publisher, a refund of the purchase price of the content must be provided, in the form of payment originally made. This is largely to protect the consumer; if the product has failed the internal goals and metrics required to maintain the full level of content expected by the consumers that did purchase it, they should be compensated for their loss, and companies need to be expected to make more realistic goals.

-          If access to portions of content (i.e. Online servers) is officially revoked after the suggested duration, unofficial support (i.e. community servers) is acceptable and not considered a breach of license or agreement. If the community feels the costs to maintain the service are acceptable, let them utilize it and let the product live on.

-          The ability to purchase content and “carry over” must be made available to subscription service users in the event of a product being removed from a service.

-          If a publisher removes content that has been paid for explicitly, the publisher must provide a full refund to the consumer. There is no acceptable limits on this.

-          If a publisher abandons content by not continuing to provide access to it on updated formats or operating environments, and when formats or operating environments evolve, then they abandon any rights to protection when it comes to consumers accessing the content via emulation. This is for preservation and not for piracy; provided the publisher is still selling the content on the obsolete format or runtime (it isn’t delisted under the first rule), then the publisher still retains rights on the copyrights, they just have no control over emulation access.

For the purposes of this proposal, there are some definitions.

Full Refund: The full and complete original purchase price of the product, including any taxes, fees, levies, and other charges, plus interest as defined by the national interest rate over the period of time lapsed in the country of purchase. There are no deductions or “pro-rating” to a full refund; this is the nuclear option to deter theft of owned content.

So, Mr. Phillipe Tremblay, Ubisoft Director of Subscriptions, it isn’t the consumer that needs to “shift” from owning content; it is the publishers that need to, in your words, “get comfortable not owning your games” and instead provide choice for the consumer and understand that there are consequences when choices are made that covet greed over anything else.