Shops "defrauding the industry" - Braben Comments by Oli Welsh

I have no time for retailers, who take a bigger cut than anyone else while doing less work than anyone else, even before resales are taken into account. But if there's one thing I like less than retailers, it's whining hypocrites. If you live by the market, don't bitch when you die by the market.

We all live by the market, apart from the lucky few in North Korea and Cuba.

Works of art sold at most auction houses around the world give a percentage of the resale value back to the original artist in the form of royalties.

Music played on the radio, telly, and in public places pay a royalty to the original artist.

Films shown on TV have to pay royalties. DVD rental shops have to pay royalties. TV show rights are bought from the production company when shown on other channels.

What makes game developers so special? Why do you maintain they're bitching about nothing if other forms of art and entertainment have had similar agreements in place for years?

Dan234 Wrote
I'm sure Tescos, Smiths, Waterstones, other shops could manage to sell products which HMV is too good to stock at a more accessible price in return for agreeing not to have a pre-owned section (they probably wouldn't want to do it anyway). Then later on when HMV and Game start complaining they can have a chat about this pre-owned malarkey.

You appear to be bravely standing up for the downtrodden rights of giant intermediaries who are in a near-monopoly position in their sector and have managed to find a way to wring e.g. 5 times the profit out of one item of stock without compensating their producers of said items.

After you've finished with the games sector, maybe you could start singing the praises of renting phones off BT.

Lots of right! There's always another retailer happy to sell your products the way you want when you pull the rug from under the parasites.
Also - very right about this being an attack on "giant intermediaries" and not a broadside against the rights of "the poor punter"

Good stuff!

What makes game developers so special? Why do you maintain they're bitching about nothing if other forms of art and entertainment have had similar agreements in place for years?

Where are you getting these fantasy agreements from? Percentage of art re-sales back to the original artist? I've never heard anything so absurd.

Use teh Google...

http://www.google.com/search?hl=en&q=res...

So why is it that developers should not receive the reward that other forms of art and entertainment receive?

"most auction houses around the world" != UK, Australia and California.

Even then, art is an anomaly, which isn't comparable because it deals in single originals, not infinitely-duplicateable copies. Most duplicated items - CDs, DVDs, books - receive no such resale payments. Performance rights are a totally separate issue.

And when did developers come into this? We're talking about publishers. They've over-priced software, alienated consumers and antagonised retailers, and are getting what they deserve for it. Fuck 'em.

Nice day for it.

That would be because if you search for the string 'resale royalties' you will, in all probability, find that the majority of results are for English speaking countries.

From the Australian fact sheet (PDF warning)...

Other countries that acknowledge a resale royalty right for visual artists:
Algeria, Austria, Belgium, Bolivia, Brazil, Bulgaria, Burkina Faso, Congo, Costa Rica, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Germany, Greece, Guinea, Holy See, Hungary, Italy, Ireland, Ivory Coast, Latvia, Lithuania, Luxembourg, Madagascar, Mali, Malta, Mongolia, Morocco, Netherlands, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Russian Federation, Senegal, Slovakia, Slovenia, Spain, Sweden, Tunisia, Turkey, United Kingdom and Uruguay.

Even then, art is an anomaly, which isn't comparable because it deals in single originals, not infinitely-duplicateable copies.

Then you haven't heard of Damien Hurst's workshop banging out works of art like a Japanese car assembly line and he receives royalties from auction houses.

Most duplicated items - CDs, DVDs, books - receive no such resale payments.

Because the pre-owned videogames section is unique on high street. If it existed for other media, we would be having this argument about CDs, DVDs, and books as well.

And when did developers come into this? We're talking about publishers.

Unfortunately developers need a publisher. Many developers also publish.

They've over-priced software, alienated consumers and antagonised retailers, and are getting what they deserve for it. Fuck 'em.

The argument is that perhaps the software is over-priced because of the pre-owned section. The customers are there, but a large percentage buy from the pre-owned section which does not compensate the developers (and publishers). If for every one game the developers receive, 5 are sold in the pre-owned section, you can see that prices are higher than they otherwise would be.

Of course we can never talk about concrete figures because the likes of HMV and Game like it that way. It's a small step from saying 'we ordered in X copies of Advanced Lawnmower Simulator and sold Y copies of ALS in the pre-owned section that month' to the developer replying 'that took us 18 months to write, why can't we be paid for X + Y instead of just X?' It's a perfectly reasonable request. I've still yet to hear any rational argument against it, apart from terse comments such as 'live by the market, die by the market' and 'fuck 'em' which don't advance the debate in any meaningful way.

You do seem to like the poor antagonised high-street retailers, so much so that you can feel that they have the right to pocket the everybody else's cut for videogame resales. There appears to be something special about videogames because Blu-Ray has a comparable price point yet does not have a pre-owned section. You say the market isn't there to support a pre-owned Blu-Ray section, but there will be approximately 1.75 million Blu-Ray players and PS3s sold by the end of this year in the UK. The real reason is more likely that Sony and the film industry wouldn't stand for it.

The idea floated by Braben (share proceeds of pre-owned sales) is not be like the film industry's answer (wheel out the lawyers). It's meeting retailers half-way. How is this antagonising them? If anyone's antagonising anyone it's the retailers antagonising the developers because they've decided that they're entitled to the developers' cut simply for putting something on a shelf a few feet away from another shelf which holds the original product ordered in from the supplier.

Your argument is based on separating developers from publishers and slating publishers, but if games are to be sold on physical media then publishers are a necessary evil. I'm sure games journalists have a special relationship with publishers and know all sorts of horrible things about them, but anyone who works inside any industry knows all sorts of horrible things about someone else in that same industry. It doesn't bother or interest everyone else. But what most reasonable people recognise is that the creator of any product or service deserves to be paid for it.

Edit: Can't type (again).

But what most reasonable people recognise is that the creator of any product or service deserves to be paid for it.

They do get paid for it. They get paid when they sell it, the same as everybody else who makes anything. And like everybody else who makes anything, that's the end of their transaction. It's no longer their property, and what happens to it afterwards is none of their business. Sony, or anyone else who tried to interfere with the sale of things which are not their property any more, would be told to fuck right off and would lose a fortune, which is why they don't do it. Otherwise, why don't Sony do it right now with games, which is a much more lucrative area than Blu-Ray? (Blu-Ray prices are NOT comparable to games, as you inaccurately claim. They're fractionally more expensive than DVDs, and about half the price of games.)

All your other straw-clutching nonsense (Damien Hirst LOL) has been rehashed and refuted numerous times already. Nobody's offering to "meet retailers halfway", they're demanding money that they have no legal right to whatsoever, in return for absolutely nothing. That's not a "compromise", it's a protection racket.

You've been told repeatedly why developers have no right to repeat payments for preowned sales, yet bizarrely claim not to have heard the arguments. Since you're not listening, I can't be bothered any more.

There appears to be some debate as to whether you can legally sell your games once you have finished with them. The answer is no you probably cannot. There is no definitive answer as it is dependent on how the game is licensed. When you purchase a game you are buying a) the physical product, disc case and instructions and b) a license to use that game. It is the terms of the licence that decides whether you can re-sell the game. I have has a quick look at a few of my games and most but not all state the license granted is 'non-transferable' therefore I cannot sell it on without their permission. There is a question as to whether all terms of these licences are enforceable as you need to buy the game, break the seal (making it non returnable) before you discover the terms of the license, as such it is arguable that these terms were not incorporated into the contract.

In reality though no publishers have tried to enforce the non-tranferable provision against individuals, it is far too difficult for them to police. It may be that they turn to the retailers to try and prevent them reselling, however, there is a reluctance to do so as a lot of gamer sell on to be able to buy their next game and the retailers are powerful. If publishers prevented retailers selling used games fewer games overall would be sold.

Sony, or anyone else who tried to interfere with the sale of things which are not their property any more, would be told to fuck right off and would lose a fortune, which is why they don't do it.

It's already been explained that there's a difference between film media for rent and for sale while you maintain there isn't; you only need to look on the small print on DVDs in shops to see that some are for sale and some are for rental only and all are for personal use. That legal agreement has already been worked out between studios and retailers and pre-owned doesn't form a part of it. If some high street retailer were to set one up, they'd need negotiate with studios and update that agreement.

(Blu-Ray prices are NOT comparable to games, as you inaccurately claim. They're fractionally more expensive than DVDs, and about half the price of games.)

It's true I can't make you look at RRPs (Amazon) or List Price (HMV's website) for Blu-Ray discs and see comparable prices to videogames but discs are sold for those prices on the high street. We're talking about high street prices because pre-owned only exists on the high street.

You've been told repeatedly why developers have no right to repeat payments for preowned sales, yet bizarrely claim not to have heard the arguments. Since you're not listening, I can't be bothered any more.

I've only jumped in the last 20 posts or so. You on the other hand appear on the first page and appear on this one.

I've explained why pre-owned is not like second hand (which I do support) because it is used by high street retailers to divert money which should received by other parties to the high street and you seem unable to respond to that.

A little bit above you said that's not a "compromise", it's a protection racket yet I've highlighted performance rights and auction house royalties as similar examples where agreements have been arrived at; another party is obliged to compensate the creator of the work for selling or performing it. Quite plainly it's not a protection racket as practically all forms of art or entertainment have it.

Your argument is basically that videogames can't be compared to other forms of art or entertainment and as no legal framework has yet been worked out for videogames, unlike with other media, developers shouldn't receive that money. That's true, if no legal framework exists, they shouldn't.

However the debate is if it should exist. You can dismiss debate by saying that no legal framework exists, but the debate isn't about if it does or doesn't exist (we already know the answer), it's about if it should or shouldn't exist. In that case, we need to look at other media and when we do we find that similar agreements exist.

It's quite possible to say 'why should videogames receive money, it's not like a piece of music' in the same way that you can say 'why should music performance receive money for performance, it's not like a tangible piece of art' but the point isn't what form the piece of art or media takes, it's if a company selling or performing something derives a benefit from it. If it does then the original creator also deserves some of that benefit. This problem has reached a point where it can't be ignored with videogames because they have a short shelf life, the retailers (re)selling them have a dominant market position, and a substantial part of the profits that should have ended up with developers have ended up somewhere else.

You can say And like everybody else who makes anything, that's the end of their transaction. It's no longer their property, and what happens to it afterwards is none of their business. but this is quite plainly not true, it's why copyright and patents exist and have done for hundreds of years.

There is some vast reading here. Some quite entertaining. But it's down to economics as every.

Perhaps Braben wants us to play new games full whack and not play old ones? He didn't say directly but I am reading between the lines.

If I buy a game new, I have a license ok? Then if this game comes out on XBLA or whatever in the future I should get it for free. Fact.

Quite plainly it's not a protection racket as practically all forms of art or entertainment have it.

"Practically all"? You've identified ONE - the sale of unique artworks - which is plainly not comparable to mass-duplication media like games, and which didn't have any resale royalty until very recently, after hundreds and hundreds of years without one.

@Rev. Stuart Campbell

You utterly fail to include economies of scale in your reasoning. If you didn't have me on ignore you might have realised this.

ECONOMIES OF SCALE! Its important. Look it up.

Good discussion this.

retibra, you make some good points re revenue streams.

I even find myself admitting that Rev Stu is making plenty of good points, and bizarrely seems to not be insulting everyone out of hand at the same time :)

"Practically all"? You've identified ONE - the sale of unique artworks - which is plainly not comparable to mass-duplication media like games, and which didn't have any resale royalty until very recently, after hundreds and hundreds of years without one.

I'm not sure why we're going round in circles here. My point, which you continually fail to address, is that every form of entertainment media's got its own peculiarities with regards to distribution and with that its own royalty scheme worked out to address them when a third party derives benefit from distributing it. As far as I can tell you still haven't been able to say why videogames are different and why that difference excludes them from a similar royalty scheme.

And, economies of scale.

I've not read all the posts on this cos alot of them are inane drivel but I wanted to voice my opinion none the less. Alot of people are missing the point, he's not complaining that people sell their copies of games as second hand, it's that retailers are actively encouraging the sale of preowned over new. I used to work for a games retailer and we were told if someone came to the counter with a new copy of a game we were to try and push the preowned copy instead, and that was five years ago. Having second hand material available isn't the problem it's the fact that it's so prominantly promoted in retailers. Notice he doesn't mention ebay at all, probably the ultimate source of second hand material, and that's because they are predominantly second hand whereas (until now) HMV have been predominantly new.The reason he's concerned is that now HMV will start to push preowned over new just like GAME and Gamestation, and that WILL hurt developers.

If a game costs £40 and £20 goes to the publishers and £20 goes to the shop and on average a game is reselled 4 times or more. That means that if a game cost £25 with £5 going to the publishers and all sells are new then everyone (apart from the shops who make more money from us by selling us second hand games) make the same amount of money. Its the shops trying to be greedy that has push the prices of games so high.