Gearbox’s Aliens: Colonial Marines released this past Tuesday to less than stellar reviews.
In the time since then, the gaming press has scrambled to make some sense of what exactly happened during the development of the game, and the more that’s revealed, the worse it looks for Sega and Gearbox.
In the pre-release hype for the game, Gearbox head Randy Pitchford was front and center, notably in this “hands-on” demo released last year. However, now that the game has actually come out, it appears that Gearbox had very little, if any, development input on the game, instead outsourcing it to a handful of other developers, including TimeGate studios. Of course, this claim is in dispute and, depending on who you believe, Gearbox developed somewhere between 25% to 80% of the game. Now, it’s not unusual for certain parts of a game to be developed by different studios. Games are far too big these days for one team to complete all of the work necessary to finish a game. However, there’s a disclosure that happens in those situations that didn’t happen here, and it doesn’t seem to impact those games the way it impacted this one.
None of the semantics really matter, however. What matters is that gamers were misled during the marketing of Aliens: Colonial Marines, up to and including art assets given to press outlets for the purposes of review. In his review of the game for Polygon, Reviews Editor Arthur Gies stated that “…[A]s Reviews Editor, I could not in good conscience use assets distributed by Sega and Gearbox over the press cycle for Aliens: Colonial Marines. They bear little resemblance to the maxed-out PC version I played for this review.”
If you think that sounds suspiciously like “False Advertising,” you and I are on the same page.
The Lanham Act of 1946 is an all-encompassing piece of legislation that covers items like copyright infringement, trademarking, and others. It also covers False Advertising under Section 43(a), per this piece from Courtland Reichman and M. Melissa Cannady, published in the Spring 2002 issue of the Franchise Law Journal.
Reichman and Cannady state that most courts consider the elements which comprise a false advertising claim are as follows:
1) the defendant made a false or misleading statement of fact in a commercial advertisement about a product;
2) the statement either deceived or had the capacity to deceive a substantial segment of potential consumers;
3) the deception is material, in that it is likely to influence the consumer’s purchasing decision;
4) the product is in interstate commerce; and
5) the plaintiff has been or is likely to be injured as a result of this statement.
If we look at the case gamers would have against Sega and Gearbox, it seems as though there’s no doubt that Aliens: Colonial Marines was advertised falsely.
1) The defendant made a false or misleading statement of fact in a commercial advertisement about a product
Firstly, the primary misleading statement of fact pertains to the development of the game. Gearbox is a respected name in the gaming community, with well-received titles such as Borderlands and Brothers in Arms in its coffer. The one negative item on its resume is 2011′s Duke Nukem Forever, a game which was basically content-complete by the time Gearbox received the rights to it from previous developer 3D Realms. Having Pitchford lead the walkthroughs is particularly misleading, as his name carries an inherent assurance of quality that gamers look for when making purchasing decisions.
Secondly, the walkthrough referenced contained many elements not present in the actual game, as detailed by Destructoid’s Jim Sterling here. According to him and many other journalists who have reviewed the hands-on footage after actually completing the game, many of the elements present in that demonstration (the advanced AI, combat scenarios and lighting in particular) are either drastically different in the final version of the game or downright missing. Sterling goes into great detail in calling out which elements are misleading.
2) The statement either deceived or had the capacity to deceive a substantial segment of potential consumers
The Randy Pitchford-narrated walkthrough video has received over 300,000 views on YouTube.com, while his comments and the game’s screenshots have surely been seen by millions of potential customers. Pitchford has a large media platform, and he has access directly to 215,000 people via his social platform on Twitter.
3) The deception is material, in that it is likely to influence the customer’s purchasing decision
This is obvious on its face, but the insidiousness of Sega and Gearbox’s misleading marketing is truly on display in some quotes made by Pitchford, as detailed here by IGN. In the piece, Pitchford claims that Gearbox “got the jump on the next generation” by “providing it (the next generation) in this one (with Aliens: Colonial Marines).” He goes to great lengths to label the game’s rendering engine as something revolutionary. Meanwhile, the accompanying screenshots look nothing like the game buyers actually got their hands on on February the 12th. Pitchford’s reputation in the industry gave these statements a credence they may not have otherwise received, and a great deal of the excitement for Aliens: Colonial Marines was based on the videos provided by Sega and Gearbox, as well as Pitchford’s statements. Had they been forthcoming about the actual gameplay scenarios present in the final version of Aliens, it’s possible the game wouldn’t have sold what it ultimately did (sales numbers are not available at press time).
4) The product is in interstate commerce
This is largely related to the Commerce Clause which gives Constitutional authority to Congress to regulate commerce done across state lines. Obviously, Aliens: Colonial Marines is a product sold across state lines, with Sega’s nationwide distribution network.
5) The plaintiff has been or is likely to be injured as a result of this statement
This of course is referencing the legal definition of injury, which can be both physical as well as financial. In today’s gaming landscape, it’s impossible to receive a full refund for a product that one is unhappy with, and the review embargo (which dictates when reviews can come out) for Aliens came hours after the game was officially released for sale. Considering that a large portion of game’s sales come via preorder or in the first day or so of release, it’s arguable that all unhappy consumers who did not have the opportunity to read a review before being charged for their Aliens: Colonial Marines purchase were injured by the misleading actions of Sega and Gearbox. This could be a total injury in the tens of millions of dollars.
Even if gamers don’t band together and sue Sega and Gearbox, the release of Aliens: Colonial Marines should destroy Gearbox and Pitchford’s reputations in the marketplace and make gamers wary whenever they see either of those names associated with a game.