Rolling Blackout: The Dark Side of Updates

 

Let's take a stroll down a hypothetical memory lane and peer into an alternate universe at the dawn of gaming's golden age. Let's say that, in this alternate universe, the ubiquity of high-speed internet access didn't grasp the post-industrial world in the early 21st century but rather in 1985. Message boards, fan communities, and FAQs rose to prominence alongside the Nintendo Entertainment System, leading to a horrifying and strange universe leagues different than our own safe and familiar reality. In this other world, Konami crafted an original version of their arcade hit Contra for the NES, one virtually identical to the one you and I have enjoyed for decades.

 

Contra is so successful in this alternate reality that co-op speed-runs of the game have become an international pastime, attracting a multitude of fierce competitors from all the world's continents, each of them joining the struggle to defeat Red Falcon as quickly as possible with a friend at their side. Competition is so fierce and so common that there is significant outcry over the popularity of the so-called Konami Code. That the thirty-life cheat was included at all is seen as unsporting, downright offensive! Acting quickly, Konami distributes a patch via the Fami-Network. Contra update 1.06 removes the Konami code entirely, preserving the challenge, and face, of the world's favorite game.

 

 

Absurd, right? The entire concept of a world so enamored with Contra that they'd remove its most beloved feature is ridiculous. Just as ridiculous as a world where computer technologies were as advanced, and made as broadly accessible, in 1985 as they are now. This entire strange scenario is only made to illustrate a point. In 1985, when you bought a video game, that game was a solid. It was a defined piece of software, and in most cases, unalterable after the point of sale. You got what you paid for, potential bugs and all, and that was that.

 

This is no longer the case. The practice of patching games -- releasing code that significantly alters game software after it's publicly released -- became commonplace in the mid-'90s, proliferating alongside Internet-connected gaming PCs. For the first time, game designers and publishers had the ability to widely distribute fixes for broken software. Not only that, they had the ability to add content to their games outside of disc-based expansions. Today, the practice of patching is ubiquitous across all gaming platforms.

 

Console games, once static works of art, have become increasingly malleable. At first blush, this seems like an inarguable boon for players and developers alike. Who wouldn't want the ability to fix what might be broken, to have more of a good thing when it's offered up? Patches, however, don't always add to the games they're distributed for. Patches frequently remove content from games, and not always in subtle ways intended to increase game stability. Sometimes a patch takes features out of games wholesale, which raises a number of tricky questions. From a creative stance, does the ability to patch a game prevent its creators from making a definitive statement or from producing a truly complete work? Is the industry setting dangerous precedents for endless revisionism, making games themselves unreliable as a consistent, quality medium? And what do patches mean for players? What does it mean when a game you've paid for, a game you've been enjoying, is changed by a required patch that changes the way you played it originally?

 

 

 

Players' Rights
Another, more realistic hypothetical: Say Activision, following last fall's public outcry over Kurt Cobain's inclusion as a playable character, released a mandatory patch for Guitar Hero 5 that removed Cobain from the game. Would they have been wrong, insofar as they were impinging on a player's rights after the point of purchase? That's debatable. After you pay for a game, whether as a download or as a boxed copy, you as a consumer have certain rights regarding how you use that game. It's the question of game developer and publisher's rights to that game once it's in your hands that causes post-release alterations to be a murky issue.

 

Ed Bayley, an attorney with the Electronic Frontier Foundation, explains player and publisher rights as something of a legal tug-of-war. "Players have rights both as the owner of the physical game disk that he or she purchased and as a consumer. Under the First Sale Doctrine of U.S. copyright law, the player, as the owner of the purchased game disk or cartridge has the right to sell, lend, or give it away. In addition, consumers generally have certain rights against companies that sell defective products. In theory, an argument may be made that if a video game is so 'buggy' as to make it unplayable, it does not conform to the consumer's reasonable expectations in buying the game, i.e., that the game would actually work the way it is supposed to."

 

In terms of a mandatory patch released for a game, the publisher can either be adhering to this, fixing a game so it works "the way it's supposed to," or breaking that agreement with the player. If Kurt Cobain was taken out of Guitar Hero 5 and someone really wanted him in there, Activision would be breaking their end of the bargain.

 

It's not quite so cut-and-dried as that, though. Game publishers have a handy way of working around First Sale Doctrine. "(User) rights may be modified by 'license agreements' or 'terms of use' that accompany the games," says Bayley, "Publishers often try to take away these rights in their license agreements. Whether those contracts can trump the 'first sale' entitlements of game owners is a question that the courts are currently struggling with in cases like MDY v. Blizzard. License agreements try to change the rules, by requiring the consumer to accept the software 'as is.'"

 

When it comes to console games, the publisher may not even be legally accountable if a player is dissatisfied with a patch. According to Bayley, "Most console game updates take place as part of a separate online gaming service, such as Xbox Live or the Playstation Network. Thus, one would assume the End User Licensing Agreement or terms of use for these services would govern their ability to update or change your game."

 

Accepting a game as is, especially after it's altered by patch updates, is necessary of gamers in the current legal landscape. The short version: If you don't like what a patch has done to the game you're playing, that's tough -- legally speaking.

 

 

But what about the aesthetic integrity of game design? Business be damned, what about how patching affects the art of making games?

 

Altered States
When it comes to console games getting patches, no publisher has yet to release anything as drastic as the hypothetical Cobain patch. Still, there have been a number of notable patches since the beginning of the online-enabled console era began in 2005 -- notable in that they've removed content from the games in question after unfavorable public response to the content in question. Controversy, it seems, is the quickest route to finding a game patched.

 

In late 2008, LittleBigPlanet's release was delayed, not because of broken or questionable play or graphical content, but because of a song. Toumani Diabate's "Tapha Niang," used as background music in Media Molecule's playful platformer, includes recitations of two Qu'ran passages. Sony, wary of any possible controversy brought on by the always-delicate issue of using Islamic iconography in media, delayed the game by a scant few days so that a patch could be developed and released alongside the game. LittleBigPlanet update 1.02 was installed automatically when players bought the game across the world. It removed the spoken portions of Diabate's song, but left the instrumental track.

 

 

Given the momentary furor surrounding the inclusion of Diabate's song in 2008 -- Diabate was brought on to the BBC to debate the song's merits with a head of the Muslim Council of Britain -- Sony was probably wise to remove the song from the game. If they hadn't had the option to release patch 1.02, they would have had to recall the game. In 2003, well before the launch of Xbox Live, Microsoft had to do precisely that with their fighter Kakuto Chojin as its background music contained elements of Qu'ranic verse. Still, given Media Molecule's devotion to detail and LittleBigPlanet's focus on artistic expression, it's hard not to wonder if even this small of a compromise impacts the game's artistic integrity. If a game maker's voice is so easy to quiet, if not silence, what power does it have?

 

On the other hand, Diabate's song ultimately remained in the game, and faithful members of a major world religion were spared potential offense. In all likelihood, every game player on the planet can agree that this is a good thing. This is ultimately the case with most patches that remove game content. Were any gamers really upset when these lyrics were removed? Take 2008's Turok as another example: When developer Propagada Games revealed that game's Achievements, one of them was called "Grab Bag." You earned "Grab Bag" by killing one enemy, one dinosaur, yourself, and one teammate in a multiplayer match. They were, albeit indirectly, encouraging team-killing in their game. The Internet was naturally horrified, Computer and Video Games magazine called it the "worst multiplayer achievement in the history of games," and Propaganda promised, weeks before the game launched, that they would release a patch to remove the achievement. The patch was released and the issue was promptly forgotten. Even if it hadn't though, would a team-killing achievement have really impinged on Turok's artistic merits? Probably not.

 

So it may ultimately come down to a question of taste. The inclusion of Qu'ranic verse in game music could potentially anger the deeply religious. Encouraging team-killing is noisome to even the most basic gamer sensibility. Kurt Cobain was a mentally disturbed genius who took his own life, and forcing his digital likeness to sing "Only Happy When It Rains" is disrespectful. Consider, though, December 2008's Fable II patch. This patch was mostly used to fix game-breaking bugs. It also changed the game so that the player's in-game child could no longer be targeted by Albion's assassins.

 

Killing children is in bad taste, certainly -- but in this case, the patch goes against the very heart of the game. It's contrary to all of Fable II's goals as a work of art. If Lionhead's game is about creating a truly immersive game world, where the player is allowed to and encouraged to make game decisions not on fail-succeed scenarios but on their emotional responses, any alteration that prevents possible emotional experiences is damaging to the game itself. That there was a possibility for the player to have a child and that he or she could potentially be taken away, violently, based on the player's role as a villain or hero in the game world created a powerful, lasting emotional scenario in that game. Patching the game because of perceived controversy is a questionable move on its own, but making it impossible to play Fable II online without installing the patch is downright ugly. This is the literal embodiment of the perils that come with patching games.

 

 

Guild Wars
The examples discussed to this point are all single-player and limited multiplayer games, modern creations that are relatively simple when compared to the ever-evolving complexities that are MMOs. No debate on the relative merits of content patches is complete without also bringing up persistent, massively-multiplayer games. For every story of a World of Warcraft update bringing in thousands of new players, there are five stories about how that same patch destroyed someone's game. There is no end to the tales of the nerfed.

 

Nerfed character classes through patching is something that long-time MMO players, whether in WoW or in any other number of heavily populated games, see as watering down the core experience of their chosen game. But they're ultimately incomparable to the sorts of alterations discussed above, especially the Cobain scenario. MMOs are even less of a defined quantity as the games discussed above. By its very nature, an MMO must constantly be reconsidered and rebalanced due to the constant fluctuation of the the player population. The concept of diminishing a Priest's skill set in WoW is a completely different matter than the removal of Qu'ranic text in LittleBigPlanet. The latter affects public perception of a game and makes concessions to its cultural impact, whereas the former is a change made to account for a population of players constantly testing the boundaries of how a game can be played.

 

 

The difference here illustrates the evolutionary crossroads the entire video game medium finds itself at in 2010. Multiplayer games have always been a different art form than single-player, but never more different than now, when many MMOs are built to host literal millions of players in the same virtual space. The question of patching an MMO is moot; they have to be changed, and often, to keep going. Games that cater to more exclusive populations, however, are a different matter. Almost every game sold to the public today is built on platforms that allow for publishers to change those games via downloadble patches. That there is a dialogue between players, publishers, and creators at all is good. It is a good thing that the Kurt Cobain patch was something that could be considered. It is dangerous, though, that there is no real legal ground for players to preserve the games they have paid for, even when it's an MMO.

 

Would it have been wrong for Cobain to be patched out of Guitar Hero 5? Yes and no. Yes: The man killed himself! Don't turn him into a dancing monkey, virtual or not. No: Maybe someone wants to make Kurt Cobain dance around like a virtual monkey. Maybe they paid for the game for precisely that reason. The future of gaming is contingent on a level of mutual trust and respect between gamers and creators. For that future to be secure, players need assurance that they can play the games they've paid for without fear of being locked out from the features they're entitled to -- whether that assurance comes from publishers themselves or, perhaps, from an outside agency.