The Colonial Marines Lawsuit: How it Could Affect the Industry

Let me open this by saying the following: I’m not a lawyer and I don’t know anything about lawsuits so my concern could be entirely invalid – but I think this is something worth discussing even if I’m completely wrong.

First, you should read this article over at Polygon (http://www.polygon.com/2014/9/3/6102035/sega-gearbox-lawsuit-aliens-colonial-marines) - if you’re like the hundreds of angry gamers on the internet, you’re probably just shrugging your shoulders and saying “Gearbox deserves it.” You shouldn’t be saying this. If you’re making games, you should be concerned. Why? This case sets a precedent. If this settlement goes through it will undoubtedly open the floodgates for many more frivolous lawsuits just like this.

Every time Ubisoft releases a bullshot – lawsuit.

Every time an indie developer promises a feature and doesn’t deliver – lawsuit.

Every time a designer talks about how a game will be better than it actually ends up being – lawsuit.

We would have to become significantly more conscious about what we say about our games and we would have to wait until the game is almost completely done to release screenshots. The only way to be totally protected from lawsuits would be to completely avoid talking about our games at all. This is not good, especially as indies are being increasingly more open with their development.

I don’t know the whole picture of what happened with Colonial Marines – maybe the graphical fidelity in the 2012 demo didn’t produce consistent performance and it had to be toned down. This could happen to anyone. Iteration and change is constant in game development – a game can look and play completely different from one month to the next. If this lawsuit is successful people would be able to sue you for iteration and necessary changes. The small choices you once made to improve your games may now carry much larger consequences.

If your game is only going to make a few bucks, don’t worry, you won’t get sued (you aren’t worth their time) – but if you end up with a runaway success your chances will rise exponentially. If you are the kind of dev who shares information about the game from start to finish (as most indie developers are), your chances will rise even more because your pool of “false advertising” would likely be full. Features you wanted to put in but had to cut, screenshots that don’t match the final product, and so many other things that could be argued as being the reason the consumer (the person suing you) bought your game.

What also concerns me about this case is that Sega is passing the blame for the marketing on to Gearbox. I don’t know the full details here, so I can’t say one party is more guilty than the other – but I know from personal experience that the publisher (and their associated PR group) usually has the final say on the assets that go out to the public. I don’t want to be held accountable for something I, as a dev, often have so little control over. Mighty Rabbit (my company) has had publishers promise features that ultimately did not ship. I don’t want to be sued over that. I was given no choice in the matter of revealing those features – it was purely at our publisher’s discretion.

It’s also concerning that oftentimes the creation of tradeshow demos is a publisher mandate. These demos are incredibly hard to create and many times shortcuts have to be taken by the developer to deliver. Publishers will not accept “we can’t create something that will accurately represent the product” as an answer. They want a demo and you have no choice (oftentimes funding – paychecks – are tied to deliverables like this). If this lawsuit is successful and Gearbox is found responsible, future publisher/dev relationships could become very scary for everyone.

You do not want this lawsuit to be successful – regardless of the final quality of Aliens: Colonial Marines, neither Gearbox nor SEGA should concede in this case. This could set a very dangerous precedent that we should all be very cognizant of.