Stop Playing Games

Is Stop Killing Games actually about safeguarding game preservation?

Ross Scott of Stop Killing Games

There is a repeated rhetorical move that proponents of the Stop Killing Games campaign love to execute. It goes something like this:

1. We’re just asking for games to retain ‘reasonable functionality’ on an indefinite basis

2. We won’t give you a concrete definition of either ‘reasonable functionality’ or ‘indefinite’

3. You keep misinterpreting our ask as “100% functionality in perpetuity”

The campaign has certainly received its fair share of poorly informed responses. In my previous piece on this topic, I was highly critical of the initial reactionary knee-jerk industry blather which failed to address the core issues around game preservation on which the campaign has built its platform. As someone who cares about this stuff, wants games I’ve worked on to remain playable and has devoted a big chunk of time and energy to supporting preservation efforts in the past, it’s an issue close to my heart.

However, it's starting to feel like there's something else going on with SKG. If the core tenets of your campaign are still being repeatedly misinterpreted years after its launch - including by the legislative and regulatory bodies you are seeking to influence - then surely it's time to make a change?

Fallout New Vagueness

Let's start with a charitable viewpoint: maybe the campaign's argument is perfectly legible and all of this misinterpretation is just a result of stupidity or malice on the part of its audience?

This is certainly SKG's own position: Ross Scott has characterised the wording of the initial Citizens’ Initiative as "almost perfect" (The End of Stop Killing Games) and asserted that "I don't actually think it's that vague. It's more ‘open’“ (The Strategy to Stop Killing Games in the EU - Grokludo), so it's clear that he is very confident of its intelligibility.

Here are some of the partial definitions of “reasonably playable” we've seen so far, some of which I highlighted in my previous Stop Killing Games piece:

• 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)

Now let’s collate some more recent statements on the topic:

• “Okay we’re not sure, like if we’re moving this feature - like something like matchmaking or, you know, in-game voice chat or something, does that still count as “reasonably playable”? I would say “yes”, even if you remove that. But if the game cannot be played in any fashion for all customers, that’s not vague.” (The Strategy to Stop Killing Games in the EU - Grokludo)

• “I think the good metric or starting point for it is [to] look at how the game is advertised. Trying to figure out why were customers buying this game?” (The Strategy to Stop Killing Games in the EU - Grokludo)

• “So there’s a lot of room for sort-of-like “non-core” features to cut out, and also the “reasonably” works both ways in the developer’s favor where […] I think a reasonable customer understands that okay this game was originally designed to be supported online [and] it won’t be, so that means some elements of it aren’t going to be as high-quality or might be missing. So, you know, you’re removing the supports, but you can still have the semblance of what the base game is.” (The Strategy to Stop Killing Games in the EU - Grokludo)

• “I also think another metric of it is going to be […] let’s say you do something that upsets a lot of customers.” (The Strategy to Stop Killing Games in the EU - Grokludo)

• “So, if it’s the sort of thing where you’ve removed 95% of [the game], yeah, that’s going to get tons of complaints, then that would get sent to the consumer protection agencies. They would look into it and realize, yeah, this doesn’t have almost anything that you advertised. So, you did kind of remove it. That’d be a violation. But on the flipside, let’s say they removed one gun from the game for the end-of-life version and that really upset like 12 people out there and they filed complaints and they decided, ‘Okay, this is a really minor thing - maybe we’ll either ignore it, or we’ll allow those 12 people to get some money back or comp coupon or something like that.’” (The Strategy to Stop Killing Games in the EU - Grokludo)

In summary then, we're relying on:

• The definition of “game logic”

• The ability for the game to be played in “some form” by some unspecified number of players

• Multiplayer which “should be working at end of life” but may also be optional in specific cases

• The conception and expectations of a “reasonable customer” independent of any qualifying framework for this

• The anticipated volume of complaints generated after an end-of-life plan is enacted

• The nature of the game’s advertising and its perception by the audience

• A “semblance of the base game” remaining

• The provision of “repair instructions” viable for any player

• The possibility of refunding individual customers via coupons even in the event of an end-of-life plan meeting the general standard

This is just for game content or features which are under direct publisher control - the campaign has also made it clear that publishers will also be expected to attest to the "reasonable functionality" of middleware solutions in some form, and that the desired method for this will be for them to pass liability onto the providers of those solutions:

"Once we're designing our game, we're going to have to approach […] the middleware maker who is normally handling server hosting functions and say, "Listen we want to sell this in the EU - can you give us a solution where the customer can have some stripped down version of this just to run the game and not have all these other features that we're buying for that?" And if they say no…I think it's going to create market pressure for them to say yes because otherwise they're going to get more and more lost sales and they're going to move to somebody who is willing to say yes.” (The Strategy to Stop Killing Games in the EU - Grokludo)

While some campaigners may no doubt salivate at the prospect of the firm hand of regulation and the invisible hand of the market both taking turns to vigorously admonish the wider games industry, this adds yet another layer of possible confusion to the mix. Also it’s open to an obvious (if facile) criticism: if game developers are expected to vote with their wallet in this situation, why can’t we expect the same of players?

Call me crazy, but I would suggest that arguments of this complexity, distributed over a wide variety of YouTube videos, podcast appearances, public petitions, closed-door meetings and hearings, might just be liable to misinterpretation.

Let’s apply a simple test to this: how is an indie developer with limited access to legal support intended to navigate variations of this across all of the territories in which they might choose to distribute their game?

Holding the Bag of Oregano

Here's Ross Scott on the EU Citizen's Initiative:

“It’s not actually supposed to be final law. Like, did you know there’s a word limit to it? It’s supposed to be a basic explanation and your reasons for it. And you have to cite which EU directives apply to show that the EU has authority for it. [...] So we could be more specific, but it wouldn’t matter. That’s not our job. That’s the EU Commission’s job. In some ways, this slide I posted is more important than the initiative itself, because this roughly reflects the views of the organizers, the people who would be going to Brussels to discuss this with the EU.

Another layer to this is the law itself can be vague or broad. Like, you know, police officers, they have to have “reasonable suspicion” to stop someone. And they need “probable cause” to arrest someone. What does that mean? Yeah, see, you have to use some common sense because the law can’t cover every last scenario. Like, say an officer sees somebody who he thinks has weed on him. But it turns out it’s just a bag of oregano. Do we need to write a law saying that if you’re holding a bag of oregano, then that counts as reasonable suspicion?” (Giant FAQ on the EU Initiative to Stop Killing Games)

Here's a Reddit comment (yes I know) which summarises one pervasive theme in the responses to my last post:

"The writer again falls into the classic trope of believing the campaign should be writing something as specific as legislation. The EU commission has specifically advised this campaign not to do so and has highlighted Stop Destroying Videogames as the ideally written proposal. You want it broad because we're not writing the laws here, the EU Parliament writes the laws based on the concerns we raise." (EIDubzNZ - Reddit comment)

This all adds up to another rhetorical combo from SKG:

• The campaign hasn’t really been vague or ambiguous

• OK, maybe it has been vague and ambiguous but that’s intentional and good

• The EU specifically told us to be vague and ambiguous, so we can’t do anything else

Firstly, this doesn't seem to reflect the EU's own guidelines on registering a Citizens’ Initiative: supporting documentation "can be shaped freely to explain your initiative in greater depth."

I'll concede that doesn't extend to drafting legal documentation: after all, it would be a huge overreach for a Citizens’ Initiative to show up with its own proposed legal text, particularly for such a technical and legislation-focused initiative…

"You can submit a proposed legal text to accompany your European Citizens’ Initiative. While optional, this can be particularly useful for technical or legislation-focused initiatives." (https://citizens-initiative-forum.europa.eu/document/how-draft-initiative-legal-requirements-and-practical-advice_en)

Oh, ok.

Nitpicking aside, this move represents a repeated attempt to elide all of the campaign's public comms across every channel with the registration of the EU Citizens’ Initiative: just because the submission requires some constraints, that doesn’t mean that you can’t provide concrete detail elsewhere. Also, the Initiative was successful - there’s no need to be constrained by its requirements any further.

SKG seems to occupy a perpetual quantum superposition between handwaving the details so as to "leave them to regulators" and then making specific, sudden, granular and opaque statements about what it will and won't "accept". It’s enormously hard to keep track of all this across all of the campaign’s activities - ironic given their stance that eventual compliance should be straightforward for well-intentioned developers. There seems to be a very persistent idea that leaving “reasonable playability” undefined will somehow benefit publishers, even though both publishers and legislators have pushed back against this - vagueness in regulation does not mean you get to interpret it however you like!

The “reasonable suspicion” and “probable cause” point is a related oddity. Ross Scott has referenced these US-centric criminal procedural constructs, as well as the more broadly used “reasonable doubt” standard in criminal trials several times. I’m certainly very much neither a lawyer nor an American, but my understanding was that these principles tend to be interpreted through the lens of both constitutional doctrine and case law, often requiring specific court hearings in order to be worked out in individual cases: is that really what we’re shooting for here? Surely some further specificity would be helpful, as is customary for consumer law which tends to embed “reasonable”-type language in a more detailed explanatory framework?

In fact, it seems that this type of confusing demand led the EU to baulk at the campaign's core ask. The EU Commission found that "a proposal […] for a legal act establishing an obligation for publishers that sell or license video games to consumers in the European Union to keep them in a playable state […] would not be proportionate."

At the end of the day though, this is apparently just how negotiation works:

“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.” (The End of Stop Killing Games)

This sort of zero-sum Art of the Deal hardball posturing should have died with Gordon Gekko: it rarely works in situations where you are looking for a long-term mutually viable solution. “The industry’s position is going to be against whatever we write” is an almost Manichean framing - especially strange given the amount of common ground here.

Perhaps most importantly, the campaign isn’t a scrappy underdog any more - it has much greater power to impact guidelines and regulations binding the games industry than, say, any given indie developer - there’s simply no need for a smokescreen. The ultimate goal should be clarity:

“In Europe, the rules must be clear and foreseeable. This way, citizens and businesses know what their rights and obligations are, allowing them to act accordingly. By upholding this principle, we protect the rule of law in Europe.” (https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/what-rule-law_en)

Max Pain

Perhaps the real problem is that SKG truly doesn't understand the somewhat binary predilections of regulators (or more specifically their political overlords) when it comes to social and consumer issues? Supporters may genuinely believe that a fair and workable resolution will be found simply by putting the ball in the regulatory court.

In the UK particularly, there is a propensity to either ignore problems or shoot at them with a flamethrower to avoid becoming entangled in any bothersome nuance: look no further than the utterly bonkers and unworkable social media ban, for example. Concerns from game developers (even larger studios) around this have so far been completely ignored, and thus the eventual implementation is liable to have deleterious downstream effects on the games industry.

Framing regulation which is actually oriented at solving a social or economic problem - rather than simply blasting the electorate with a political air horn - is a torturous process and is best supported by specificity and clarity. If you don't define your terms, that is functionally the same thing as asking for the most punitive resolution possible.

"I've heard complaints this [wording] isn't specific enough - okay, but you know what the alternative to this would be? Here, I'll show you: "the game must be fully functional and contain 100% of all features as advertised." So, as a publisher, which requirement would you rather meet?" (The End of Stop Killing Games)

"You can either open the Box that Always Kills You or the Big Scary Question Mark Box! Frankly, you’re lucky that I’ve given you a choice at all!”

Is this all just ignorance balanced atop a naive technocratic fantasy of government? Given the sophistication of the campaign, that doesn't seem at all likely:

"Ever since we got the signatures for the initiative, we picked up some more help from political insiders who are far more familiar with this sort of thing. I've practically been taking orders from them. I mean, and that's been my own choice because, you know, I'm not the wisest on this, but I'm wise enough to know when I have just no clue about something, but somebody else has much more of a clue. So […]I just defer any political decisions to them." (The Strategy to Stop Killing Games in the EU - Grokludo)

The campaign's major victory to date, California's Assembly Bill 1921 - the Protect Our Games Act, manages to combine both ambiguity and regulatory maximalism. By my reading, it requires clairvoyance around the ongoing availability of third-party services, the provision of documentation to somehow allow any purchaser to host a "private server" on "reasonably attainable hardware", and many other conditions which reflect the worst "misinterpretations" of campaign critics, including concerns about possible costs. Mind you, as an indie developer, I couldn’t afford to pay a lawyer to analyse it just for the purposes of writing this post, so I could well be wrong.

Did the SKG "political insiders" get it wrong somehow and accidentally trigger a punitive legislative response which doesn't reflect the campaign's true objectives around flexible, straightforward compliance for publishers? Let's give them the benefit of the doubt and suggest that their actions have been intentional.

Be Reasonable

All this raises the question as to where the campaign is really heading. The purpose of a system is what it does, and currently the emergent mission seems to be somewhere between punishing the wider games industry for the past transgressions of its worst actors and maximising a political high score.

Maintaining "misinterpretation" as a defense is certainly strategically beneficial in this context. When a governing body returns with a balanced response (as in the case of the EU Commission) the campaign can immediately pivot to "well they just didn't understand" and then escalate further. It enables SKG to dip in and out of policy details at will, morphing their ask continually to achieve maximum impact and draw out the endgame. If your response to that is just "good - fuck game publishers" then I'd suggest you forfeit your right to pretend that this effort is for everyone’s long-term benefit.

I've raised the issue of the potential compliance burden impact on small indies many times, so I was surprised to hear Ross Scott suddenly dip into the specifics of this territory on a recent podcast appearance:

“But let’s say they wanted like a real carve-out for small developers if they earn less than €100,000 or something from their game - they want exemptions for those. It’s like, well, that’d be ceding some ground, but the most of the offenders of this are larger companies anyway. I would take that as a compromise” (The Strategy to Stop Killing Games in the EU - Grokludo)

Who is compromising with whom here? Where is this argument being made - it certainly wouldn't be made by a large trade organisation in a regulatory consultation, so how do smaller indie devs actually get to make this case? Why is a campaign that constantly says it can't get involved with the micro detail showing up in public with an (extremely restrictive) revenue threshold which isn't linked to the compliance burden involved, then making no other mention of this elsewhere?

There are countless similar examples and, every time it happens, I struggle to reconcile it with the campaign's stated objectives. One route to resolution would simply be publishing a comprehensive policy paper, but for some reason that still hasn’t happened and these statements continue to be scattered across a wide array of different venues and channels.

My plea to SKG supporters is that, if you earnestly care about game preservation, you need to truly challenge the campaign on whether or not it has co-opted your goodwill in order to become a vehicle for something else. Why won't the campaign clarify (or even collate) its specific positions? Why is it relentlessly pushing for remedies and solutions that are transparently unworkable? Why is it refusing overtures from sympathetic games industry entities who share a common goal?

If you even begin to question the campaign, you’re immediately called an “industry apologist”. You’re also obviously an idiot who doesn’t understand anything, because the campaign is perfectly clear, even though it is also still required by the European Commission somehow to be intentionally opaque. You’re a bad actor who hates players and loves only money, even if you advocate for keeping games alive. Taking the time to seriously engage with SKG is a huge drain - it requires sifting through a mass of confusing material, trying to represent it as accurately as possible, knowing that your only reward is likely to be some measure of harassment and vitriol, and the inevitable cry of “misrepresentation”.

This aggressive pushback is very strange: the overwhelming majority of people who make games want to solve these problems along with SKG - indeed the games industry is represented significantly within its membership. If this is about achieving a solution, rather than just an abstract victory, perhaps dropping the weird hostility would be a good start?

If you are in a position to make or influence policy on these issues, consider that most game developers simply want a set of unified workable rules that they can easily understand and adhere to in this domain. The campaign’s attempt to smear the entire industry with claims of “planned obsolescence” is an absurd overstatement, taking an edge case around a handful of historical titles and then generalising out from there.

The games industry is so much more than the big AAA publishers and their trade associations: it is a vast and diverse constituency of creative people around the world. These people want to make games for players to enjoy and they actively want to keep their games alive wherever that makes sense: they shouldn’t be shut out of closed-door consultations and their views need to be represented. Stop Killing Games wants to have a negotiation, so let’s create one which involves the people who will actually be impacted on a day-to-day basis.

Game developers don’t want to spend their time debating the applicability of an ambiguous consumer standard to complaints that their multiplayer infrastructure was turned off when Sony decided to deprecate an online service 15 years after a game’s release. They don’t want to pay lawyers to crawl through technical documentation for their servers to offset the risk that it might not be comprehensible to a given player. They don’t want to argue with middleware vendors about liability wording in their service agreements. They certainly don’t want to anticipate all of the costs and complexities of this in all of its various regional permutations while they are busy trying to create something.

If we truly want to preserve games, we need to preserve the creative conditions under which they have always been made. That’s something every reasonable person should agree on.