Stop Killing Games will become an endless nightmare if we don't wake up

A contentious campaign and an industry asleep at the wheel

Stop Killing Games is a consumer advocacy movement initiated by the YouTuber Ross Scott which has subsequently erupted into an array of regional campaigns including a European Citizens’ Initiative, as well as a petition which will culminate in a UK Parliament debate on November 3rd.

These efforts have turned up the temperature on the conversation around a valid cultural and economic concern: what should happen if a game becomes functionally unplayable when its online features are deactivated?

The games industry’s response so far has been entirely counterproductive. We’ve had to endure pompous publishers bouncing off the surface of these complex issues and utterly dismissing the needs of the very audience they are supposed to be serving, as well as snippy handwaves or lukewarm nothingburgers from trade bodies.

I spoke to George E. Osborn, Editor of Video Games Industry Memo and a seasoned commentator on the intersection of games and politics.

“I think Stop Killing Games is a mess, to be perfectly honest,” he told me. “There are lots of strands to the campaign that could, by themselves, be pretty good. Game preservation is a bit naff. Consumer rights for people buying from games as a service titles are good on paper, poorly implemented in practice. There remains a power imbalance between companies and consumers, with the latter holding far too much power to nudge the former into doing what they want.

But Stop Killing Games itself is a poorly thought-through mixture of all the above.”

Let’s attempt a critical look at both the campaign and the industry response to it in order to lay some groundwork for this discussion to progress. It is worth mentioning from the outset that establishing a single canonical source of truth for the campaign’s intentions and demands is challenging due to its decentralised nature. Ross Scott has acted as de facto spokesperson at times, and is clearly a focal point, but has also simultaneously disavowed this role, referring to himself as a “super-promoter”. As such, any good faith effort to parse the campaign as a whole requires the aggregation of a number of different sources. I have focussed on the EU and UK elements of the campaign for reasons of relevance and sanity - there is a lot more out there which would need to be reconciled in order to be truly comprehensive but I will leave that up to others.

One possible response to these criticisms might well be “you can’t address the campaign as a whole - it’s a distributed movement”. The problem here is that - as we’ll discuss later - the campaign is reliant on a response in order to coalesce into workable proposals, meaning that we become ensnared in a boring paradox before we can even engage in discussion. It’s best to move forward by ignoring that mess and just talk about what’s actually been stated so far…

The FAQ

The campaign’s FAQ characterises the harm it is seeking to remedy as the following:

“An increasing number of videogames are designed to rely on a server the publisher controls in order for the game to function. This acts as a lifeline to the game. When the publisher decides to turn this off, it is essentially cutting off life support to the game, making it completely inoperable for all customers. Companies that do this often intentionally prevent people from ‘repairing’ the game also by withholding vital components. When this happens, the game is ‘destroyed’, because no one can ever operate it again.”

Stop Killing Games FAQ

It’s notable that the primary explicit goal mentioned in the FAQ is punitive, namely to ensure that companies “face penalties for destroying copies of games they have sold”.

Accompanying this is a desire to encourage the adoption of end-of-life plans:

“What we are asking for is that they implement an end-of-life plan to modify or patch the game so that it can run on customer systems with no further support from the company being necessary. We agree that it is unrealistic to expect companies to support games indefinitely and do not advocate for that in any way.”

Stop Killing Games FAQ

The EU Citizens’ Initiative

The EU Citizens’ Initiative is weighted slightly differently, with less upfront emphasis on penalties, as well as introducing language around “reasonable means”:

“Specifically, the initiative seeks to prevent the remote disabling of videogames by the publishers, before providing reasonable means to continue functioning of said videogames without the involvement from the side of the publisher.”

“The initiative does not seek to acquire ownership of said videogames, associated intellectual rights or monetization rights, neither does it expect the publisher to provide resources for the said videogame once they discontinue it while leaving it in a reasonably functional (playable) state.”

Stop Destroying Videogames - European Citizens Initiative

The UK Petition

“Most video games sold can work indefinitely, but some have design elements that render the product non-functional at a time which the publisher controls, with no date provided at sale. We see this as a form of planned obsolescence, as customers can be deprived of their purchase and cannot retain or repair the game. We think this practice is hostile to consumers, entirely preventable, and have concerns existing laws do not address the problem. Thus, we believe government intervention is needed.”

Prohibit publishers irrevocably disabling video games they have already sold - UK Petition

Breaking it Down

There are three key points worth examining here:

1. The campaign is seeking an outcome in which all games are operable indefinitely without publisher intervention

2. There is a reiterated implication that, when games do become inoperable, it is often due to a deliberate pre-meditated act by the game’s publisher to maliciously “destroy” the game at the expense of the customer, extending even to “planned obsolescence”

3. “Operable” is fundamentally undefined and the steps taken towards a definition are inconsistent

Forever and Ever

The first point here is necessarily unworkable: a given software product cannot be guaranteed by law to operate forever, as the external factors involved with this are too numerous and unpredictable.

“What it translates to [as] a practical policy ask, is to suggest that the digital version of every shop must remain sort of partially open forever. It’s madness if you compare it to the physical world, where we don’t expect a pub to stay open if it runs out of cash even if we spent our formative years there. But in the current regulatory environment where companies have pretty burdensome expectations of them under things like the Online Safety Act or Digital Services Act, asking businesses to say services basically have to run in some form in perpetuity forever is bonkers.”

George E. Osborn

Even in the case of a fully self-contained offline game which has no requirement for external services, the publisher would somehow have to assure the players’ ability to emulate the environment required to run it. When external services come into play, the problem compounds.

While the campaign attempts to frame this as a one-and-done from the publisher, creating an end-of-life plan and then setting the game free to roam happily in the wilds, this doesn’t actually accord with the extent of their demands. If perpetual liability for the game’s operation rests with the publisher then it follows that the publisher may need to intervene at some future time after shutdown in order to preserve that operability: the process of standing ready to do this would certainly entail “endless support”. If any link in the end-of-life chain were to fail, work would need to be done to replace it.

The campaign is quick to cry “misconception” when it is suggested that their wording directly implies this, although it’s clear the discussion has evolved a little since the initial campaign materials were published:

“The number one misconception we always get is that we’re asking for endless support. No, we’re not. They can end the game anytime they want. Like the support we’re asking for end-of-life plans, so that - you know - it’s not impossible to run the game…Another possible compromise that might emerge in the EU that we were on the fence for including in the initiative itself would be say, “Okay, we’re not going to give you a working game, but at end of life, we’re going to give you the equivalent of repair instructions”. Okay. So they might release - you know - documentation on the networking structure, or - you know - decrypt the packets and that sort of thing. Whatever they [can] to give tech-savvy users a fighting chance of making a server emulator.”

Ross Scott - You’ll Own Nothing | Stop Killing Games, ft. Ross of Accursed Farms

It’s great to hear that the campaign is open to flexible solutions but this kind of broad compliance scope suits a self-regulatory model, not a legislative one. By claiming misrepresentation every time perpetual compliance is raised as a concern, the campaign has largely shut down the conversation on this. It is also very challenging to parse demands which could potentially range from “the game doesn’t even have to work but someone in the future could ‘repair’ it” to “the game absolutely must work in perpetuity without the publishing touching it”.

Fail to Plan or Plan to Fail?

The second point above - namely that “planned obsolescence” is ubiquitous in the games industry - is fallacious: why would any publisher intentionally seek a situation from the outset where interest in a game dwindled to the point that it became an economic necessity to deactivate the servers? The insinuations here fail to account for situations in which server shutdowns are unanticipated, where games fail unexpectedly or experience late-stage fluctuations in their player base. Evil publishers are not flying above the houses of gamers in ominous blimps, cackling as they press the “Disable Game” button at the centre of their villainous apparatus, revelling in the culmination of their dastardly plan to lose money.

But sure, publishers have certainly done bad things in the past and the campaign is starting from a place of righteous indignation: does it really matter if industry is painted as something of a caricature?

“On far too many occasions, I’ve seen regulators and policy makers try to draft rules about video games without speaking to the sector, creating policy that is based on the Big Bad Wolf version of games, and then realising, steadily, that its impractical or outright mad - leading to embarrassing climbdowns and raging consumers, who feel like they’ve been diddled in a backroom deal.”

George E. Osborn

One caveat: we should be charitable here and point to some specific instances which could approach planned obsolescence. There is an incentive for publishers of franchise games with a periodic sequel cadence to make sure players move on from previous iterations. Personally, I’ve always disliked this - it cheapens the specific distinctive design elements of the individual games and I think it’s absolutely right to raise an eyebrow from a player perspective.

Operating Principles

On the issue of defining operability, some serious detective work is needed to figure out what the campaign is actually asking for. Here is just a small collection of relevant statements:

• The game should be “reasonably functional” (EU Citizens Initiative)

• “A working game, which may only need that 2% [of game logic]” (Ross Scott - The industry is lobbying against Stop Killing Games!)

• Allow players to “continue playing the game in some form” while “missing some features” (Stop Killing Games FAQ)

• “If your game has multiplayer support, you should keep this functionality working at end of life” (Stop Killing Games FAQ & Guide for Developers)

• “Okay, we’re not going to give you a working game, but at end of life, we’re going to give you the equivalent of repair instructions” (Ross Scott - You’ll Own Nothing | Stop Killing Games, ft. Ross of Accursed Farms)

This is just a single issue - you can find similar ambiguity on any number of material points that the campaign is attempting to explore.

My question to those developers and public figures who have offered unqualified support to the campaign is, “Which version of it are you supporting?”

Hard Stop

But let’s take a step back from these gnarly details for a moment and try again from first principles.

When players purchase a game, they should be able to keep playing it for as long as humanly possible. There’s also a countless array of other reasons to keep games functioning, such as education and cultural preservation.

Expensive games with no single player options which are suddenly shut down simply don’t represent good value for money - players deserve better.

These all seem like truisms: there has to be a set of conditions which feel intuitively and ethically correct here. So why has the campaign taken us immediately into the realm of ambiguous hostility? Why has all of the interpretive work been left up to those of us in the development community who need to start making sense of the situation?

Well, that’s a strategic decision.

Campaign Mode

“I know some won’t believe this, but a hell of a lot of thought went into the wording of the initiative. I think it’s almost perfect.

See, the initiative isn’t even a proposed bill, it’s a negotiation. Our side says we want games to be functional when publishers end support, so they need end-of-life plans. The industry’s position is going to be against whatever we write and claim they need no regulation whatsoever. Then the EU Commission gets to decide who is more in the right here. The Citizens’ Initiative is the opening offer in these negotiations.

Trust me, the industry, worth hundreds of billions of dollars, will make its position known to the EU. We don’t have to make their case for them. So for this negotiation, simple is good. That’s why we’re straight and to the point for what we want. Then the industry will argue against that. Then the EU Commission might look for compromises. You don’t start a negotiation with a bunch of compromises, because then it will get so watered down, you won’t save anything.”

Ross Scott - The End of Stop Killing Games

“The best route to go for how these initiatives work is to keep it simple. Believe me, the EU Commission will drill into all the details and figure out what makes sense.”

Ross Scott - You’ll Own Nothing | Stop Killing Games, ft. Ross of Accursed Farms

Hardball negotiation makes no sense in a context where a consensus between the parties exists already: ask any rank-and-file game developer if they love the thought of their work being banished to the shadow realm and you’ll be met with a confused expression. Pointing this out seems ridiculous but is apparently necessary: nobody actually working on games wants those games to become unplayable.

This is particularly evident from Alanah Pearce’s recent video:

“Okay, so there are two things that the developers that I asked about Stop Killing Games agreed on almost unanimously. The first: game devs would really like it if their games were playable forever. They would love it if the thing that they worked on was prevented from disappearing because some publisher decided to shut it down…Developers were overwhelmingly in support of Stop Killing Games and hope that it succeeds in some form.”

Alanah Pearce - I asked 20 game developers about Stop Killing Games

Instead of leveraging this, the campaign made a conscious choice to go scorched earth:

“We’re also not attempting “the easy way” [ie compromise] since the industry as a whole has been very clear it has no interest in changing its practices whatsoever.”

Ross Scott, Youtube comment

A blunt object is good for getting attention. However, throwing a brick through the industry’s window, shrugging and then leaving it to regulators to sort out the mess is a fast-track to disaster.

But surely the only job of advocacy is to make noise? It’s not the role of campaigners to actually consult with game developers in a meaningful way or even provide a starting point for workable legislation?

That argument works until you actually get to the negotiation table, as is currently happening in the EU, and the desire to punch the entire industry in the face rather than seek a concrete mutually agreeable outcome is likely to backfire.

This is the crux of my main criticism: regulators don’t arrive in the room with any kind of sophisticated understanding of the overall situation. They do specifically look to the demands of campaigns and the harms they imply as a basis, but the idea that initial regulatory proposals will be founded on a nuanced understanding of live service architecture and the cultural perception of evolving online games is a laughably absurd fantasy.

If industry is eventually allowed to make its case during regulatory consultations, reasonable counter-arguments tend to be shouted down by the loudest voices in the room. Those of us who have been involved in one of these processes in the past know first-hand the sort of jaw-droppingly misguided proposals that can worm their way up into the conversation. You only have to point to the recent Online Safety Act for a concrete example of just how ridiculous these things can get.

This is only scratching the surface: as the campaign is international, many devs from different regions won’t even get the chance to participate in consultations which take place in other territories, leaving us without a voice in major markets.

As veteran indie Caspian Prince put it to me recently: “Regulatory involvement in any aspect of design, development, maintenance, and support in the games-as-a-service industry, will be an unmitigated disaster, wrought by incompetence, ignorance, and naivety; and built upon the entirely incorrect assumption that there is a problem that can or should be fixed by changing the way design, development, maintenance, or support is done.”

It’s not just indies who might face a significant impact from this either. Oscar Clark, a pioneer across an array of gaming businesses since 1998 and currently a Founder at LiveOps Strategy Platform Arcanix.ai echoed this:

“There is no doubt that future legislation will also be heaped onto the development community and again be based on a lack of the full understanding of the implications of enforcement.”

You absolutely do not want a situation where “the EU Commission might look for compromises” - that should be a failure mode of this process, not it’s objective. The risk isn’t all on the industry side either: there is a real danger that the campaign might not achieve anything approximating its original spirit.

So, given the dialogue between entities such as Video Games Europe and the campaign, what has been done to broaden out the conversation and give the wider development community a chance to discuss their concerns prior to engaging with regulators? Nothing. Zero.

Instead of opening up a forum to potentially de-escalate the situation, the mainstream industry has contributed nothing but ammunition for further hostility. In fact, you could say that’s how this whole thing got started:

“I’d like to end this by saying thank you to Ubisoft. You’re a French company, and you pulled this crap, and you did it to one of your flagship titles with millions of players. If this had been Electronic Arts or Blizzard Activision, I would have had nearly the options that I do. And a month later, you made a PR statement of saying people should get comfortable not owning their games and then go on to lie in that same interview about online games being safe as you’re killing The Crew. I mean, what are you going to do next, threaten the judge? Here I’ve been thinking I have no way to fight this, and you go and create one of the best openings ever for me. Shame on me if I don’t act on that.”

Ross Scott - The largest campaign ever to stop publishers destroying games

Technical Foul

“Let’s take a game in the future: no code has been written yet, it’s still just a design document.

Okay, so we have the client portion as usual; then we have the server logic; now we’ll bring in our usual middleware and microservice vendors. Nope, stop. Stop.

Now, the EU says we can’t just brick customer purchases like we’ve been doing if we want to sell our games there. So that means we can’t keep making all these same deals the way we have been. Now we need to renegotiate with the vendors to allow for an end-of-life build with their software, or redesign things to make the microservices easier to sever at end-of-life. And vendors probably will renegotiate, otherwise they’ll start losing sales to everyone who wants to sell games in the EU.

But say a vendor refuses anyway, then we need to go with Vendor B who will offer EU-compliant solutions because they will be happy to take money away from their competitor Vendor A. Or maybe we need to abandon one of the microservices altogether and come up with an in-house alternative that is compatible with an end-of-life plan. And, if the server can’t run on consumer hardware, well, maybe now we code it in a way that’s more versatile and can be compiled to run a stripped-down version with less features for the customer machine at end-of-life. Or hey, if that’s not doable, then we scrap that but still give customers some form of server software at end-of-life because now we’ve planned for this and inform them it requires specialized hardware and they’re on their own for getting it working. And these are all just suggestions, the publisher would get to decide how they want to comply.”

Ross Scott - The End of Stop Killing Games

The campaign has come in for some justified criticism around the technical implications of its aims. To its credit, a video was posted a while back offering practical suggestions for future-proofing smaller games, marking a much more productive engagement with the development community.

While I think this was a hugely positive step and could be a helpful resource for developers who are trying to make end-of-life plans for their game, there was a sense that this was done to say “See? We’ve accounted for all of your misplaced technical concerns.”

“You cannot require ongoing provision of infrastructure or a service of any kind,” Ian Hardingham (CTO of Oxford Brain Diagnostics and my Mode 7 co-founder) told me recently. “Most sensible people realise this but I want to emphasise it myself. I would definitely go for the “How do we make non -server functionality a selling point” approach over “How can we force this thing to happen which realistically we cant force or police?””

But, again, is the campaign truly asking for ongoing provision of infrastructure?

“There is no aspect of the petition that asks for publishers to continue updating software or hosting servers on their infrastructure, and those arguing against that strawman rather than engaging with what’s actually being discussed are being tremendously disingenuous.”

Rob Fahey - Stop Being Dismissive About Stop Killing Games

As discussed earlier, I strongly disagree with this assessment. The petition directly implies a legal requirement for publishers to update software or provide infrastructure in the event that end-of-life attempts fail or it turns out - at any time in the future - that relevant services can’t be readily excised or replicated.

So how hard would it truly be to guarantee that no updates are needed - perhaps the technical concerns are overblown?

“Now the server is run by Joe Bloggs. It’s not going to be run by anyone interested in making money, because the reason it’s been abandoned in the first place is because the publisher - with all of the necessary know-how and infrastructure and staff already in place - is already losing money running it, or more sensibly, has noticed the graph cratering and is about to start losing money. So it’ll be guaranteed to be some entity operating it not-for-profit.

Before any switchover can occur, Joe Bloggs needs to be able to maintain the service. That means a handover of all of the technical knowledge to build the service, set up the environment (which is very likely not to be just one machine but maybe even hundreds - if we’re talking about online games as a whole, whatever legislation there is will have to cover all of them), deploy the built service to test, stage a test, deploy to live.

The new service will need to be at least as secure as the official one - there are already laws and remedies covering data security and privacy. Players need to know their data is safe. They need to know that Joe Bloggs is not in fact just recording all their credit card details for later and the whole thing is an elaborate scam. The servers need a comprehensive backup plan. The backup plan needs to be actually tested in a disaster recovery scenario. What’s the service level agreement? What happens if Joe goes on holiday and the server collapses and Joe isn’t back for two weeks? What happens if Joe crashes a moped on holiday and never returns?

Exactly what sort of service do we draw the line at? A full blown client/server game, where the “world logic” is executing 24/7 on a server? A server that spins up only when some players get together and create a game? The matchmaking server? What about just online hiscores? Is it all of these services, or just some of them? Who decides? Where do you draw the line at what’s the purpose of a game and when it becomes not-the-game? Think. What if the entire existence of my stupid little Space Invaders game was about being on the top of the global hiscore list - if the global hiscores services goes down forever, who’s responsible for it? Is the game now broken? Who decides whether it’s broken? How do they decide? Who’s liable if it is? What damage or reparations are they liable for? Do we attempt to word the legislation so that it “only applies to big games”? Who decides what’s “big”? Who proves something is big? Who audits it?”

Caspian Prince

Now obviously, the campaign would respond “Aha! What about all the community servers which already exist?”

The problem is not that this is impossible per se: it’s that it is impossible to generalise.

I directly asked a group of devs how difficult they thought it would be to implement an ability to just allow players to continue playing an online game after a studio has taken servers offline. And the answers amounted to depends on the game and how much the game needs to be playable, and then range from easy for this type of game and impossible for this type of game. It was a spectrum. There’s just a ton of variability.

Alanah Pearce - I asked 20 game developers about Stop Killing Games

I asked Oscar Clark to walk through some details:

“Let’s look at the process of running a live game.

• We need a client (sometimes multiple running on different platforms) which connects to servers.

• Servers include player account, player inventory, player progress, gameplay config, environment art, character and cosmetic art, Analytics (not personal info).

• There will usually be multiple server environments typically Dev/Test/Staging/Live and sometimes one or more ‘Beta’ environments.

• There will be integrations to 3rd party systems which could be entire platforms such as Playfab or Metaplay to Twitch integrations, Advertising Attribution, etc etc

• The game may be built using a 3rd party engine or utilise 3rd party components which may themselves require integration to other APIs

• The game will require hosting on servers which whilst they could be in house are usually 3rd party such as AWS or Azure (or one of the number of alternatives such as Servers.com). Sometimes these are a combination of metal (self-owned hardware) and cloud (3rd party hardware). For larger games bespoke arrangements with last-mile connectivity providers may also be required especially where latency is a priority.

Each of these elements need to be maintained and any 3rd party provider may mandate an update to the integration to sustain the experience and that’s assuming that the game is stable and that Tech Debt won’t lead to some quirky issue the developers would need to fix in the game code as a result of some combination or API/SDK changes down the line! The idea that “we need to abandon one of the microservices altogether and come up with an in-house alternative that is compatible with an end-of-life plan.” completely fails to comprehend what is involved in making scalable games in my opinion.

In short, live games are not simple packaged goods and the idea that they could be run on consumer platforms is highly naive IMHO. It’s just not the reality of the necessary methods needed to make these games scalable in the first place. And to make them operable on a consumer platform would in many cases be to make an entirely separate game (and potentially at a higher cost!)”

Alanah Pearce also spoke to developers about their infrastructure concerns:

One developer who asked to remain anonymous explicitly told me that being unable to use these third-party tools or companies would likely shut down some studios and could otherwise make funding much, much, much more difficult for multiplayer indie games due to potential added development costs for teams who just don’t already have the experience with this kind of thing.

Alanah Pearce - I asked 20 game developers about Stop Killing Games

A lack of retroactive application has been used as a get-out-of-jail free card by the campaign to assert that, as long as developers know what the requirements are in the future, then technical implementations will be trivial. There are many instances in which this would not be the case, however:

“Fred Hogan, a senior technical director currently at Astrid Entertainment, also worked on Runescape, which is an MMO that runs entirely on in-house tech. Again, he also noted that the initiative is not retroactive, but I felt like this tidbit was worth sharing regarding design complications specifically, which is really interesting. He said of Runescape, “Its heavy use of bespoke tech designed specifically to run RS in a known environment means getting it to run outside of this environment could be extremely complicated. For an existing game like Runescape, this isn’t an issue, however it means that Jagex’s in-house engine may become unsuitable for future projects purely because of assumptions made way before the initiative existed”, basically meaning that this studio and many others might have to make a whole new engine for any future games because their previous ones were not built with this initiative in mind or even really considered because they can’t see the future.”

Alanah Pearce - I asked 20 game developers about Stop Killing Games

We can’t except the campaign’s claims of “it has been done already, therefore it can always be done in the future”:

“The examples given like Gran Turismo Sport or Knockout City are games where:

• The core gameplay can run locally.

• Online features are mostly extra services like matchmaking or events.

• The game design allows a fallback to offline or private matches.”

Freyja - Stop Killing Games is misleading

If we want to build bridges around game preservation, those in the industry with deep knowledge of these complex live systems need to start seriously thinking about how to maintain them for the future, as well as how to communicate their knowledge to proponents of the campaign.

Legal Minefield

If this movement does result in a change in the law then formulating that change and then establishing compliance structures will be decidedly non-trivial.

“In some cases, server code will use licensed middleware (such as physics engines, matchmaking libraries, or proprietary hosting frameworks) that developers do not own and cannot legally redistribute. Even if a developer wanted to release the server code, they would most likely be in breach of their contractual obligations by doing so.

The situation becomes even more complex when licensed content is involved. Take Fortnite, which regularly licenses music, skins, and likenesses (e.g., Eminem, Marvel characters, or real-world footballers). If Epic were to shut the game down, retaining this content for offline use could require expensive re-licensing or force the removal of large portions of the game experience.”

Sergio Ferreira - The Stop Killing Games initiative doesn’t understand what it’s asking for

The campaign tends to use “just take it out” or “the market will evolve to support the distribution of middleware” but these are serious handwaves. In reality the intersection of consumer law, IP law, data protection and security concerns is so complex in some cases that only companies with extensive legal resources have a chance at navigating it all successfully. Yet again, indies will be out in the cold here having to rely on the goodwill of their advisors in order to help them either wade through complex minutiae or (often worse) try to read the tea leaves of vague, woolly regulatory language. The idea of needing to look up Brazilian regulatory requirements for game shutdowns before figuring out if I can use an analytics platform, then trying to reconcile that with the nuances of EU consumer law makes my blood run cold.

Even at the consultation stage, it will be difficult to thread the needle legally without extensive support from domain specialist lawyers: I certainly don’t have access to this currently and it will require a huge industry effort to organise it. While this post by Daniel Tan is framed in a slightly scattergun and inflammatory tone which I don’t endorse - and has largely been dismissed by the campaign itself - it does show how complex some of these legal interactions may get.

One issue which has received little attention is enforcement, arbitration and appeal: will games companies need to expend ongoing resources to track and maintain the legal status of their shuttered games and external use of their IP; will we need to be prepared to maintain relations with enforcement bodies and potentially contest their decisions?

Response Time

“These proposals would curtail developer choice by making these video games prohibitively expensive to create”

Video Games Europe - Statement on Stop Killing Games

“I do not believe the industry when they say this is so expensive it’s not possible especially when it’s been done many times before”

Ross Scott - The industry is lobbying against Stop Killing Games

As you can see above, the dialogue between the campaign and industry so far has largely been comprised of contentless trivial generalisations instead of anything substantive.

“I do think the industry’s response to the campaign hasn’t been fantastic…I used to respond to these kinds of campaigns when I worked for the UK trade association. I appreciate that you can be onto a hiding to nothing, especially when you’re trying to make boring technical arguments about the cost and practicalities of server upkeep versus people shoving a stick in a bucket, whacking it against the side, and saying “you’re betraying the gamerz.”

But the sector has always moved far too cautiously on regulatory matters in Europe because its upper echelons are dominated by businesses who are oriented towards Japan (who tend not to lobby too hard), China (who can’t lobby too hard), or America (who only think the opinion of US courts matter). The result has, as it was on previous consumer led campaigns, for the industry to put its head under the covers, hide behind a couple of holding statements, and hope it goes away.

George E. Osborn

For Josh Garrity, Head Game Scout at Secret Mode, the response shows a real disconnect between the industry and the players:

“I appreciate that what is being asked is more complicated than those involved in the movement may understand, but I have witnessed some in the industry who are out right dismissing or wilfully misinterpreting the argument being made. Even if ‘the ideal’ is impossible, we still need to LISTEN. I fear this reaction is yet another example of leadership in this industry being increasingly disconnected with the cultural heart beat of video games and conversations being had by the audience that actually buy and play our games.

The folks leading this movement are very representative of our core audience and it’s short-sighted not to acknowledge the problem being flagged, even if the solution suggested isn’t workable. We need to talk to each other, stop being condescending to these folks and actively find a more effective solution.”

I like Josh’s positive perspective here and the industry does need to see past the rhetoric and take a proactive stance on this.

One issue is that many major publishers have started off in a defensive posture. Game communities are often ignored in general and server shutdowns are conducted with little thought for those still playing the game: public companies are often pushed in a direction where focus on the customer becomes diluted. This is a short-term game and too many large games businesses are content to play it. It’s deeply frustrating that many companies who do care about the lifecycle of their games are being tarred with the same brush as these bad actors.

Concerted efforts to resolve the situation have been notably absent. Where is the push for workable self-regulation led by a major player? Where has been the comprehensive sit down between representatives of the campaign and a relevant trade body? Who has been driving for a cultural shift at the top end of the industry to improve player communication around these issues? Everyone is asleep at the wheel.

In future, if the gaming community is raising an issue en masse, we need to be smart about responding to it in advance of regulatory consultation: we shouldn’t need petitions and debates in Parliament to wake us up. Large and small games companies need to communicate with each other; we need greater cohesion to deal with issues like this.

Instead, we’ve allowed some of the loudest voices in game development to be some of the most unhelpful. The leading critical opinion at the early stage of the campaign was PirateSoftware, an indie developer and YouTuber whose initial response was so poisonously vitriolic and facile that it ended up both instigating a personal scandal and adding rocket fuel to the campaign itself. This is a broader topic than I’m able to cover here but I believe the industry has dropped the ball on communicating knowledge externally, leaving the floor open for opportunists whose sole motivation is leveraging attention.

Solution Oriented

When I got into game development, one of my great fears was that my work wouldn’t see the light of day or would become unavailable in the future due to circumstances out of my control. I believe game preservation is important and I continue to support efforts like VHS through the National Videogame Museum. Games deserve to be viewed as more than just disposable toys or value extraction mechanisms. We’ve tried our best to keep Mode 7’s older games going with very limited resources and will maintain those efforts - we never want the servers to go down and we’ll look at doing whatever we can if they become commercially unviable in the future.

Given all that, personally I find it profoundly frustrating that the actions of a few larger publishers who have taken their communities for granted might lead to a consultation process in which those same publishers will have the lion’s share of the airtime to discuss regulation which will directly impact indies…the very developers who fight to keep their older games functional!

Leaping straight to a regulatory intervention mirrors the worst aspects of corporate politics. If my company has a disagreement with another, we will try to work it out in dialogue first: I have diffused contract breaches with a single phone call in the past. “My bad, let’s see if we can fix it,” can save hundreds of hours and thousands of dollars in legal costs. If that doesn’t work, you can have an extended discussion and work through everything point-by-point. After that, formal and informal mediation is available - you can bring in a neutral party to help work things out. Finally, you might decide to litigate, but the threat of this or a subsequent settlement can cut things short before things go too far.

A lawyer friend of mine once said that if litigation actually gets to court, usually both of the parties have been idiots at some point in the process. While we are talking about industry regulation and not civil action here, Stop Killing Games feels like the equivalent of trademark trolling or other pernicious uses of the legal system: an unexpected gun to the head which deliberately thwarts any attempt at reconciliation.

The campaign has attained its current level of influence by foregrounding a pair of laudable values: customers should get what they paid for and cultural artefacts should be preserved. There is no argument there - as we’ve seen, both players and devs alike have a stake in this.

At the same time, developers want to make games - we don’t want to spend our lives delving into regional regulatory frameworks, filling in forms and mounting counter-campaigns to preserve our ability to quietly exercise our craft.

For smaller devs in particular, our time is at a premium: every hour spent on bureaucratic bullshit is an hour deducted from making a better game and serving our players. The incalculable stupidity of regional tax minutiae, the repetitive idiocy of GDPR, the infinite broken form-filling of platform product management…even when the industry self-regulates it still manages to create a compliance disaster for small businesses.

Between arguing with a ratings board about a one pixel appendage (long story), fending off baseless and pernicious “compliance checks” from tax authorities triggered by diligently following their own best practice guidelines and being forced to have physical documents literally rubber stamped in order to access benefits to which my company was entitled, I’ve had enough of this stuff and I cannot support any addition to the pile, particularly when I wholeheartedly agree with the principles at stake already.

So how to move forward?

My ideal scenario would be that the campaign takes its victory lap then drops its drive towards a legislative outcome and collaborates with industry to establish an unified self-regulatory framework that provides workable options. One suggestion would be requiring an end-of-life statement on storefronts which outlines planned online service dependencies as well as developers’ plans to maintain their game for the future. This would allow consumers to make an informed judgment upfront about the games they choose to buy as well as taking their business elsewhere in future if publishers fail to live up to their commitments. You could perhaps take this further with advisory minimum notice periods for full shutdowns, potentially even offering refunds to players who are hit with a service termination shortly after buying the game.

Here are some of the solutions suggested by folks I talked to for this article:

“I’d like to see the industry do something it rarely does: offer reasonable concessions up top to head off concerns. Work with the platform holders and storefronts to make it easier for consumers to exercise their rights for in-game purchases generally. Agree principles for the best practice for closing down a service game, including ideal lengths of time to announce closures, refund windows for players, and upgrade options for those who want to move on. And on the preservation front, go and work with some institutions like the National Videogame Museum and, arguably, something like the British Library to develop an archiving system for games for the purpose of open academic research.

By doing that, the industry narrows the conversation down to the question of should games shift into community ownership after a shutdown. That would allow the industry to focus entirely on practicalities, demonstrate its not as easy as tossing players the keys to a server, and allow for an honest case-by-case review of whether a game needs to close or if the community can be left to play alone.”

George E. Osborn

“We need a real debate about how to maintain games after the commercial success has ended but I do not trust legislation, as every single time it is turned into another barrier to entry to smaller developers and fails to hold the platforms and larger publishers to account. If there was a way that could require games meeting certain audience sizes/revenues to have to have an end of life plan - perhaps to put the code into an escrow for the audience maybe with some kind of % of revenue assigned to that (ideally tax exempt) as an insurance to sustain the game after the EOL period that would make some sense to me.”

Oscar Clark

“My carefully considered answer is that purchases should be refundable pro-rata in the event of service termination within a defined contracted window of time. In the UK, this would be an adjunct to something like the Sale of Goods Act 2015, which already has provision for when you make a contract with a trader for the supply of a service, you have rights against the provider if the service is not carried out with reasonable care and skill. It could be argued that selling the use of a service and then shuttering that service two weeks later is in breach of the regulations already, but I think that additional wording to clarify the position of online service provision in exchange for money would be welcome here.”

Caspian Prince

Unfortunately, I don’t think any of this is likely now. Stop Killing Games is a sad situation all round, fruitlessly pitting players and devs against each other on an issue where they fundamentally agree: I fear that it has become about symbolism, punishing “the other side” and proving itself right. I worry that the higher echelons of the industry will continually fail to take it seriously until it’s too late.

I’ve enjoyed Ross Scott’s retro game content for years and I’ve appreciated him drawing attention to games being shut down - it’s genuinely a little depressing to see him spearhead a movement which has become about securing a punitive victory against the entire industry at all costs, regardless of the externalities.

Equally, I fail to understand why so many in the industry who have given unqualified support to this campaign are content to be turkeys voting for Christmas in terms of their own compliance burden: why have we all abandoned the idea of working out a mutually agreeable solution with our players? Do we truly believe that governments know more than we do about how to solve technical and logistical problems? Do we care so little about our developer peers that we’re content to wave the flag of a campaign which has increasingly abandoned any consideration for collateral damage?

Instead of taking polarised positions, let’s bring both sides together and at least try to agree on some concrete and realistic material principles before talking to regulators. We need to wake up soon or else face the prospect of being trapped in this nightmare in perpetuity.

A big thank you to everyone who provided comment for this post - I very much appreciate your time and consideration.