Empty-Handed Products: How the Digital Download Is Redefining Ownership

The legal and oft cited adage “possession is nine- tenths of the law”, while never intended to be used as a universal rubric for determining ownership, is nonetheless a reasonable application of common sense suggesting that what we possess in hand greatly lessens, if not entirely negates, a claim of ownership by another party.

I have it in my possession, thus it is most likely mine.

Enter digital wares, a type of product that is, by design and delivery method, an entity that defies the notion of everlasting protection via possession by employing a model that makes these product types seem almost ethereal when contrasted with the stark, concrete tactility of physical media. Up until the last decade, purchasing a game meant owning a hard copy of the software that could never be taken away or limited in any fashion. Digital copies however afford no such promise of permanent ownership and instead often come infused with parameters and conditions that suggest digital software may be little more than an extended and highly-conditional lease.

The concept of limited ownership is hardly new. Copyrighted material has always occupied a space that is far more abstract when compared to the acquisition and ownership of most other goods. The flurry of FBI warnings and anti-piracy ads serve as persistent reminders that while we may purchase a film, game or song, we are generally not granted free and full rights of these materials beyond personal use.

These conditional limitations on ownership, while present in various copyright laws, have been unevenly applied in terms of enforcement for reasons of practicality along with counterbalance doctrine such as Fair Use, a legal policy that ensures consumers are given a fair and reasonable breadth of options when purchasing copyrighted products. Such laws have ensured that people can re-sell their copyrighted material and that used markets and those who profit from these markets can conduct business without the threat of litigation. In response, various industries have strived for a model that would limit the ownership of copyrighted materials in such a manner that the transfer of ownership from the original buyer to another would become much a more difficult - if not outright impossible – task while simultaneously eliminating the secondary market altogether.

In many ways digital distribution, agreed by most to be the inevitable future of all retail media, is the “white knight” model that industries have been envisioning for decades: a construct that delivers a product at a premium price but limits the ownership and options of the consumer. While I have no intention of espousing some sort of knee-jerk doomsday scenario where the customer is robbed of all choice by the greedy publishers looking to limit their collective options, the evolving notion of ownership in the digital age is one that begs serious consideration as the technology that fuels it ushers us rapidly toward an era where physical media could become the exception rather than the standard.

When looking at the contemporary model of digital distribution as it relates to the gaming industry, there are several key issues which need to be addressed by publishers and developers sooner rather than later to assuage the valid concerns of those consumers who feel software ownership slipping through their fingers.

Issue One: Internet connectivity as a requisite to play.

This issue has reared its head many times and seems to draw a great deal of ire from consumers who feel chained to online connectivity even when playing single player modes. The requirement of an internet connection to play a game has been a popular form of DRM for years but has been consistently met with derision from a large segment of the gaming populace who see such restrictions as draconian and overbearing. Even many non-digital titles are subject to this “verification” process and the reality is that any type of connectivity issue, be it on the end of the user or the provider, effectively means that a person could conceivably be unable to play a game they paid for merely because the online verification isn’t working.  The notion that a consumer might be denied single-player access to a legally purchased game is a difficult concept to accept and further compounds the notion that much of the software being sold is actually more akin to a lease or even a rental, effectively minimizing ownership even when a premium price for the product has been paid.

Issue Two: Where Does it All Go?

I personally own hundreds of dollars of games downloaded through the various console online stores. While these purchases individually amount to small investments, they collectively represent a large part of my personal gaming collection, all of which are intrinsically tied to my respective consoles. These games are legally purchased goods but my ability to play them fully and as intended is predicated upon the continued support of Microsoft, Sony and Nintendo. While it seems reasonable that all three companies will make the necessary applications and utilities to ensure my games are transferred to the next batch of consoles, the reality is that I am merely assuming this and if such a transference utility does not occur I would need to retain my older hardware merely to play these games, many of which are quite good and warrant a permanent place in my collection. The point is that these digital games are vastly dissimilar from the game discs that I also own, which can play in any console without my account being active.

Nor is this issue confined to consoles. As amazing as Valve’s Steam service may be, a close look at the user agreement reveals a rather startling fact:

“Valve does not guarantee continuous, error-free, virus-free or secure operation and access to Steam, the software, your account and/or your subscriptions.”

While I don’t anticipate the Steam model or Valve going anywhere anytime soon, it is interesting to note that this user agreement basically states that you have no promises that the software you buy will be yours indefinitely. If Valve was to go under and Steam along with them, the only hope for recompense would be the publishers. This again spotlights the notion that digital distribution is gradually redefining what consumer ownership of software truly is and underlines the reality that nothing digital is entirely owned by the consumer. If the requisite for digital software to function properly is forever linked to a certain service or company for the sake of verification, then that ownership will always be something precarious and potentially finite.

Issue Three: There will be no sharing and no selling in this market.

As much as I welcome the notion of a centralized gaming account and profile where all of my virtual exploits and statistics are tallied and displayed, the consequence of this is the tethering of my game purchases to this account. The simple notion of bringing a game over to a friend’s house becomes a far more complicated endeavor when attempting to import a digital title and as the technology progresses it seems possible, even probable, that publishers will look for ways to further increase the potency of that thumbprint and make it difficult (if not impossible) to share software that has been downloaded.

Perhaps even more important is that the secondary market will be inevitably dismantled since it seems unlikely that any genuine provisions will be given to consumers that would allow them to transfer their wares to someone else. The reality is that no industry has a strong affinity for a used marketplace and given the increasingly verbose lamentations by developers and publishers alike accusing the used game market of being a revenue siphon,  the industry has a strong motivation to make digital distribution the primary way to access software. It also goes without saying that the rental market for physical media would also be extinguished, essentially eliminating two constructs that publishers have rallied against for decades, labeling them as parasitic and damaging to the industry.

The Future of Ownership: Why Consumers Will Decide if the Industry Cannot

As I mentioned earlier, I don’t wish to be a doom and gloom prognosticator but rather want to discuss some very real issues that have and will surface as the digital distribution model continues to expand. While it would be easy to read these words and assume the worst, the one irrefutable fact of this and any industry is that ultimately, retail policies and practices can only work when the consumer allows that success to occur by validating these retail models through purchases.

One of the business models often compared to gaming is the music industry and in many ways the current download model employed by Steam, XBLA, and PSN follows a modality similar to iTunes. What is most interesting about iTunes however is that once a song is purchased, it effectively belongs to the customer, even allowing them to burn copies of the song (or album) on blank physical media. Ownership is permanent and uncontested and while some might scoff at giving consumers such freedom and flexibility, the revenue from iTunes and the music industry as a whole suggests the model effectively serves the consumer while maximizing revenue. (Please note that currently videos on iTunes do not enjoy the same flexibility in terms of ownership)

Of course videogames are a more complicated media, including console proprietary issues, the shifting of IP ownerships, and the fact that nothing lasts forever, including online services that provide us access to our gaming library. And this is precisely where the dichotomy of ownership between this generation and previous generations becomes so readily apparent:

 If a person owns a NES, they need only remove it from the closet, dust it off, and plug it in to enjoy their library. By contrast, in two decades, if XBLA no longer exists, I probably won’t be able to plug in my XB360 and play Limbo or Bionic Commando Rearmed, even though the former is an amazing and divergent experience and the latter one of my favorite games of all time.

The ultimate message here is that digital distribution should not be allowed to strip consumers of the comfort of ownership merely because the emergent technology, coupled with the fervor of publishers, favors this distribution model. Even as the push and implementation increases, publishers need to be aware of the inherent distrust many harbor for goods that do not occupy the physical realm and this can, in the long term, act as a detrimental force to revenue. Simply put, people don’t like to feel ripped off, especially when paying for something they were supposed to own outright, only to discover later that ownership was conditional and perhaps fleeting.

The most intelligent course of action the game industry can take is to be proactive and examine the glaring flaws within the digital distribution model that could potentially slow down or halt it entirely and address these issues to ensure that consumers are given products that conform to a fair and reasonable standard of use . If the game industry (or any other for that matter) rushes to institute this model in the hopes of thickening revenue streams while removing features and decreasing consumer ownership, I would postulate an inevitable backlash that could eventually negate any short-term increases in revenue.

As the music industry discovered, acting like the equivalent of a retail Gestapo will only be tolerated for so long. Companies should embrace change and ride the incoming wave of technology but this innovation should not be employed as a justification for consumers to be marginalized and abused by a retail model where such mistreatment could very easily occur.

Coda: A Classic Erased

While my own experiences with digital media have been largely positive, I did wish to share this anecdote to demonstrate that these potential problems are not necessarily regulated to some distant future but have already begun to occur.

XBLA has seen the removal of several titles from the service, including Double Dragon, an arcade classic and progenitor of the beat em’ up genre that I was forced to delete when my copy quit functioning properly after the game was taken down for undisclosed reasons. While I was eventually given a refund of MS points, the unfortunate fact remains that I was stripped of a game I previously owned and that particular title is (currently) irreplaceable.

 In retrospect, did I ever really own the game at all?