Tuesday, 3 June 2014

Infinite Shelves with Consumer Protection

For the duration of this post I am going to be riffing on this discussion with the assumption you have at least read the direct link, if not the wider context of the hundreds of videos, blogs, and news articles around it, not to mention the thousands of tweets.

I believe that the current concerns around lack of curation of digital stores (specifically meaning the demand for removal from sale of any item that fails to hit a subjective quality bar and the reinforcement of blocks on adding products to digital shelves like Greenlight) is stupid. Luckily quite a few people agree, including the previously linked to Chris. It's always good to not be in a minority of one. So I'm not going to repeat what he said, in which I'm broadly in agreement, but I want to talk more about why consumers should already be very protected and not concerned about being 'tricked' into paying for something they don't want.

Specifically, I'm going to talk about what Americans (and specifically Chris) call the Truth in Advertising laws, what constituted broken, and EULA restrictions creating as-is sales. I'm going to talk about this as a European and with links to UK law, which is mainly implementing the pan-European directives which give us a standardised market in which to sell goods. I'm also going to preface this with the IanaL disclaimer and go even further: I am talking about what is right and what the law should protect. There are edge cases and special considerations added here and there that limit consumer rights due to heavy lobbying from special interests. We are only going to ask what we think would be a reasonable global foundation for the right way to operate a digital games store (explicitly considering games as goods which are sold rather than services which are provided - digital sales come with but are not services, an example of a service they come with is a login to provide you with downloads of the data you now own a right to duplicate for personal use/to allow you to use the thing you own), using UK law as a grounding point.

The first thing to recognise is that you cannot sign away your statutory rights. The EULA is a red herring. It simply doesn't matter if someone wants to sell something as-is and 3 days later it destroys the buyer's house or ceases to function. A contract of sale was made; the purchaser cannot waive their rights and the seller cannot void them.

Originally sales were usually made in person, an item that could be fully inspected was present with both the buyer & seller and the sale could be made. Then mail order arrived and after that internet shopping came along and made sure regulations were required to deal with a sales experience where the item was not present. The standard way this is handled is for the item to be described, there to be a right to cancel that lasts beyond the delivery of the item to the buyer, and a failure to describe or inaccurate description modifies that period where the contract can be cancelled (which is distinct from a return - it is as if there never was a sale and there are no limitation on reasons for desire for a cancellation). Basically, once you buy something on a digital store you then have 7 working days (when an accurate description exists) to change your mind and get a full refund. Without an accurate description then you've got three months. "No quibbles".

So you've got some time to kick the tyres and work out what it is you've purchased. You've not been tricked because you're legally protected to cancel the purchase of this new product for any reason you like once it arrives. But what happens if the product looked good on the surface and the cancel period expired but it turns out to not be as described, fit for purpose, or degrades over time? Those are the three broad categories you'll be considering for claiming the product was defective.

Was the description given accurate? Even if provided with a sample (which we would call a demo for digital games - although not all sales made after a sample is available are a sale by sample, only ones made explicit as a sale based on previous sample. There may be cases where a 'buy now' link in a demo could be considered a sale by sample) then it is not sufficient that the product be similar to the sample (there is no "buyer beware" because a bug not described on the sales page was also in the free demo), it must also be as described. This is probably why you see clear descriptions for games that don't work well with Windows 7 or only work with XP on Steam: this is the description of the item so after that initial cancellation period you can't claim the item is defective by being not as described. The requirements section would be where a seller defends that the product wasn't defective if you can't run it. If your machine does not meet the requirements or your console fails to have the optional hard drive is says is required on the box then the description was quite clear that your expectation should not have reasonably been for functional software.

What about this fit for purpose thing? This is far less blindly pro-consumer. The regulations start out by saying that you can't assume that whatever you purchased is defective just because it isn't perfect for whatever you want. If you buy a pen and it can't keep your milk refrigerated then it may well not be fit for your desired purpose but that's not a reasonable expectation of a pen so the seller should not be required to deal with you requesting a refund (although you would have still had the right to cancel due to distance selling regulations if you purchased it online). Goods are meant to be satisfactory quality with that defined as what a reasonable person would expect; it is "fit for all the purposes for which goods of the kind in question are commonly supplied" and "free from minor defects, safe, and durable". If a seller specifically draws your attention to a defect, it's not unsatisfactory when you observe that defect in the product. In the case of a sale by sample it's not unsatisfactory when you observe a defect which was apparent on a reasonable examination of the sample. So there is plenty of space here for arguing that a product is defective and so you should get a refund. Certainly for anything that is being shouted about as being thrown off Steam, the reasonable person would be arguing for the defective nature of the product. So there should be no impairment from the legal refund request.

Finally we should talk about time and how quickly all this has to happen. We've covered the first 7 working days and the right of cancellation. What if the product defect was hidden and you're using the right to a refund/repair/replacement we outlined above? Within the first six months of purchase, a product deemed to be defective by the buyer on the grounds given above is assumed to have been shipped defective so there is no issue of claiming it has outlived the expected lifespan of the product. The burden of proof is on the seller to explain why the product is not defective. It's rather explicit: "goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so conformed at that date." After this date it is not assumed by default that a defect found today was always there (luckily for software we can create quite an easy argument to 'prove' our case based on software patch history and reports of a defect on gaming forums) but you do have a full six years to conclude your dispute about the purchase. Software should function as described (if you exceed minimum requirements then you can run it and not be unreasonably hit with minor defects or so on detailed above) for quite some time due to the lack of much bit rot and the perfect digital duplication of the actual information. So you've probably got a good case for arguing the product as defective most of the way up to this six year barrier.

All of this is why we need to ensure our irrevocable statutory rights are not trampled by digital stores who wish to break the law or question the edge cases and language of how our protections were designed to work to create consumer confidence in distance selling. These protections are just as much about protecting them from the consumer fear (we see in claims that curation needs to be about policing the quality of items on the shelf) as protecting the consumer from buying products of unacceptable quality and rewarding the creator of goods of unsatisfactory quality. With digital stores then shelves are infinitely large and we can stock everything (just like Amazon does) and that makes curation about how we surface the goods we think each consumer is most likely to be delighted by purchasing.


  1. I bristle any time someone wants to apply material-goods laws and logic to intellectual goods. Partly, that's because that sort of rationalization has been used to implement some really harmful, anti-consumer, progress-stifling property laws. But it's also because that sort of reasoning almost never holds up if you try to apply it to the real world in any sort of practical, meaningful way.

    I will also add my own IanaL preface, but I don't see any actionable way to enforce Truth in Advertizing laws on a developer who really decides to fight them. That's because the law was written for physical goods, which have inherent properties we take for granted, but which make a big difference. To follow your example, if I buy a pen, an find it unsatisfactory under the law, I can take that pen to the courtroom, and it will be the same pen. It will be made up of the same atoms, it will take up the same volume, and it will not fundamentally change it's inherent nature as I pass it to the bailiff. The properties of the pen are determined by the immutable laws of physics, upon which I can build my case for the pen's inadequacy.

    Software, on the other hand, has no physical presence. It is an idea, an ethereal concept that only takes meaningful form when filtered through a machine that can interpret it, process electrons, and make photons on a screen. It has no independent features to examine, it can only be observed through proxy, by the effects is has on a computer. That means any observation you could ever try to make about the software inherently depends on not only the hardware you chose to run it on, but all of the other software present on the system. That makes "fit for purpose" an inherently invalid argument for any consumer, because the developer can always counter that the consumer is not trying to run their software within the right environment. I mean, six years? How many programs do you suppose you can pull out from six years ago, that will run on today's machines? The bits don't change, but the environment does, and software is nothing without an environment to operate in.

    Furthermore, the mutable nature of software, with its revisions and modifications that can affect the product itself at a whim, there is no guarantee that the product you bring with you to court will be the same product which exists and is being sold by the time you get your court date. What happens to your standing, if you come in with a complaint that there is a falsely misleading screenshot on the store page, only to find out the developer added the assets to the game the day after you filed? Or that they always had the assets present in the game files, they just aren't used in the game proper? Or that the assets are in the game, you just have to unlock them through play? How would proving such a thing even be done--would you have to play through an entire 40+-hour game in front of the judge to prove the misleading material is not in the work?

    I want there to be consumer protections. I want Truth in Advertizing to work. But from what I see, right now we're at a sort of stalemate--yes, you don't give up your rights when you sign the EULA, but in what practical way could you ever assert those rights to begin with?

    1. Thanks for your comment.

      You may note I said that the starting point was games as goods. This is because the specific combination of 0s and 1s is the copy, you can bring a pen to court and you can bring a storage medium with that exact sequence of 0s and 1s too (in fact, this is the primary form in which games are still sold to this day - that we have managed to change their storage system to a cheaper digital duplication process does not make ethereal their very nature and make them beyond reproach as goods).

      As I mentioned in regards to bit rot, there is a reasonable expectation that my console game works on all consoles (baring the HDD requirement as stated) and that if my PC is configured within expectations and meets the requirements then the software should run. This is not a controversial stance and software companies cannot get away with selling things that do not function by claiming there is no way to 'really' tell if they sold functional software. There is case history to back up this point.

      Due to the logging nature of computers, we have a history of every modification and edit to a digital release on Steam. Valve retain logs of every patched edit, users have patch notes, lawyers can demand access to the developer's logs. It is far more trivial to understand every change that happens to some software over time than to peer back into the history of a single copy of a physical item and work out from the current state what states is was in previously. This is not a weakness of software to inspection but a strength.

      All that needs to happen for this to be enforced is for the store provider (like Valve) to update the sales agreement for the developers to explain how dispute resolution and refunds would be processed and then apply these tests when a consumer requested a refund. Other providers of digital and physical goods often take a pro-consumer stance and ensure their internal guidelines match these (European) legal requirements. Once it is in the contract with the seller then it is trivially executable on the sale and failure to comply would result in seizure of sales revenue, possible legal action from the store provider, and certainly blacklisting. This is part of the expected services that a store creator is expected to run, for which they are handsomely rewarded with about 30% of all revenue from sales.