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January 18, 2011

Another Great Game Idea!

Filed under: Thoughts and Rants — Tom B @ 12:11 pm

I get these sort of inquiries all the time, but have never bothered to do a blog post or article about them. But I think, since most of these people check out my articles or blog before the send me an email, this post might help them get a better understanding of the the true value of great ideas for games from those outside of the industry. The names have been changed to protect the innocent.

Dear Mr. Buscaglia:

I have discovered you via your papers and videos on the internet. I am a professional working in New York, and I enjoy video gaming from time to time.
Recently, I had what I believe to be an original idea which could lead to the development of the first true Massively Multi Player Online Strategy Game (real time play, not turn based).
If properly executed by a game developer, it could bring in significant money.

I am not a game developer. I am not a publisher. I have no relationships in the these circles. I just have this idea. I am looking to determine if the key elements of the concept, the Game, can be copyrighted and/or patented. If yes, I would require help to do that. Then I would welcome further help to shop the concept around to a developer/publisher. I work primarily as an executive for a mid-size not for profit company, but I have a small S corp that could function as the owner of the game assets.

The ultimate aim would be to secure a deal transferring ownership of the game to a developer in exchange for an upfront payment, plus percentage of revenues. Possibly an advisory role during the creation phase of the game.

I am writing you to determine whether you would be interested in working on this project. Ideally, I would like for you to review the concept and give me your opinion of its worth. If you think it has legs, then I would like to retain your services to do the work presented above. It would be helpful to see how much you think this would all cost.

I look forward to hearing from you.


Clueless in NY <-- not his real name!

Dear Clueless in NY

I do not mean to be harsh…but you really should just go back to your day job. Everyone who plays and loves games has great ideas…and, more importantly, everyone who makes games already has their own great ideas for games. It’s what they do for a living and they’re pretty good at it for the most part. So, why would they pay to take someone else’s game idea and make a game from it? It makes no sense.

Moreover, an MMO takes literally tens of millions of dollars to launch and ongoing support necessary to make it a success is also in the millions each month. Not the sort of investment any sane business person is going to make in a game imagined by someone with no industry experience or credits.

Sure, this is an industry based on intellectual capital. But, ideas are everywhere and everyone who loves games has a great idea for one (maybe more than one). The real trick is making games. If you can’t do that yourself, or afford to pay someone else to do it for you, you got nothin…

Finally, if were to review all the “great ideas” that folks send my way and then deliver my expert evaluation on them for free on the outside chance they I might gain a client from the work, I could not make a living. So, while I am happy to provide a free consult to game developers interested in retaining my services…which is more than most other lawyers will do, you got to have more than a “great idea for a game” to get my time or attention.

You said you were looking for some advice…and there you have it.

Tom B

September 17, 2010

IGDA/AIAS Amicus Brief

Filed under: Thoughts and Rants — Tom B @ 10:28 am

Today counsel for the International Game Developers Association and Academy of Interactive Arts filed their friend of the court, Amicus Brief, in the U.S Supreme Court in support of the Entertainment Merchants Association and the Entertainment Software Association in SCHWARZENEGGER vs EMA. This case addresses efforts by the State of California to limit the sales of violent games to minors, a position opposed by the IGDA and the AIAS. The case is scheduled for oral argument on November 2nd and an opinion should issue a month or so after then.

A copy of the Brief is available for your review HERE.


Tom B

September 11, 2010

Game Industry Response in Schwarzenegger v. EMA

Filed under: Thoughts and Rants — Tom B @ 12:23 pm

Having taken the time to read through the Respondent’s brief in the Schwarzenegger v. EMA case, I figured a post was in order in case there were some folks out there curious about WTF is going on. The Supreme Court is reviewing the lower court rulings that found the California law restricting the sale of violent video games to minors to be invalid because it was in a violation of the First Amendment guarantee of free speech. The Supreme Court does not have to hear cases and selects only a small number of cases for review each year. Usually these are cases where there have been differing results on the same issue among the US Circuit Appeals Courts. In this case, each and every time this issue has been reviewed by a Circuit court of appeals, statutes restricting the sale of violent video games to minors has been found to be invalid. The question of why the Court accepted this case has been the subject of discussion among industry lawyers.

Some think that the reason was that the Court wanted to put this issue to rest once and for all because once the Supreme Court rules on an issue, it is pretty much done. But then, 7 or 8 consistent appellate court ruling pretty much does the same thing. The concern is that the Supreme Court may have seen some merit in the effort to treat games different that movies and books and regulate their distribution in a manner that is not applied to other mediums. This is exactly what the California law attempted to accomplish. Considering the composition of the court and the stakes, it is no wonder that the industry took this very seriously. After all, any restriction on the sale of games or effort to treat game as “second class” citizens on the marketplace of ideas, entitled to less protection that other form of entertainment media, would have dire effects on our industry going forward.

The Respondents Brief submitted by counsel for the EMA and ESA Friday is pretty much a masterpiece. If you’re interested in reading it in it’s entirety you can find it HERE. In addition to the Brief , Respondents submitted six games into the record: Medal of Honor: Frontline, God of War, Tom Clancy’s Rainbow Six 3, Jade Empire, Resident Evil IV, and Full Spectrum Warrior. Respondents also submitted videotapes of more than two-and-a half hours of excerpted game play from the six games and have lodged a DVD with the Court containing the game play excerpts. The Petitioner (California) only discussed one game (Postal2) and submitted about 5 minutes of video of excerpts of gameplay. Apparently, the implied satire inherent in the over the top violence in Postal 2 was lost on “The Terminator.”

Here’s an outline of the Argument set out in the Respondents Brief from its Table of Contents that will give you an idea of the scope of the issues addressed:


I. Video Games, Including Those That Depict Violence, Are A Form Of Expression Fully Protected By The First Amendment.
- A. Video Games Are Fully Protected Expression.
- B. Depictions Of Violence Are Protected Expression.

II. The Court Should Reject The State’s Unprecedented Plea To Carve Out First Amendment Exceptions For “Offensively Violent” Video Games.

- A. The Government Does Not Have Unfettered Power To Ban Speech To Minors.
- B. California’s Claimed Right To Censor “Offensively Violent” Expression Directed At Minors Is Historically Baseless And Constitutionally Improper.
- C. There Is No Support For The Claim That Minors’ Access To Violent Video Games Is A Significant Societal Problem Justifying Exempting Them From Constitutional Protection.
- - 1. California Has Failed To Show That Parents Need Government Involvement In Monitoring The Video Games Their Children Play.
- - 2. California Has Also Failed To Show That Violent Video Games Are Harmful To Minors.
- - 3. Instead Of Identifying A True Harm To Minors, California Is Repeating The Same Failed Arguments That Have Been Used In The Past To Attack New Forms Of Expression.

- A. California Cannot Show That The Act Materially Advances A Compelling Interest.
- B. The Act Is Not Narrowly Tailored.
- C. The Act Is Not The Least-Restrictive Means Of Accomplishing California’s Goals.

- A. This Court Has Repeatedly Struck Down As Vague Statutes That Purport To Regulate Offensive Expression.
- B. The Act Is Inherently Vague.

That should give you a basic idea of the scope of the Argument…but it’s no substitute for reviewing the entire 78 page brief.

I have been involved in the drafting of the IGDA and AIAS Amicus, “friend of the Court,” brief which will be filed on Monday. I’ll post a link to that once it is filed.

Argument in this case is set for November 2, at 10 AM…after which we will all wait, with baited breath, until the opinion is issued, which can take from weeks to months to issue.

GL & HF!

Tom B

June 12, 2010

Some Thougts on the Activision Indie Game Contest

Filed under: Thoughts and Rants — Tom B @ 8:07 am

A read a lot of development deals. Some contracts from nice folks and others from no so nice folks. It is a great part of what I do. So, when fellow IGDA Board member Darius Kazemi emailed me about a week ago to help clear up some of the issues regarding the Official Rules behind the Activision Independent Games contest, I agreed.


As you may know, like many gamers, I am no fan of Activision and their, what many consider to be, onerous business practices. I even took a pretty broad shot at Activision head, Bobby Kotick, after his too cute DICE speech in light of the whole Infinity Ward terminations. Also, I have always been a huge supporter of Independent developers. So, reviewing the rules of the contest seemed like a good thing…and after reading many of the public discussions of it on the interweb, I think a little clarification is in order.


The Activision Contest rules are less onerous than many have portrayed them to be, but they are also extremely limiting in many ways that make submitting problematic for any developer looking to get a start in the industry and pretty much impossible to comply with for anyone already making games.


First off, I think I should dispel the misconception that entries become the property of Activision. I just don’t read the Rules to say that. Lets take a look at the operative section…

Sending in a Submission constitutes entrant’s consent to give Sponsor a royalty-free, irrevocable, perpetual, non-exclusive license to use, reproduce, modify, publish, create derivative works from, and display such Submission in whole or in part, on a worldwide basis solely for purposes related to the Contest (including judging, advertising, and publicity related thereto).

The first part sounds very onerous for sure…the whole “royalty-free, irrevocable, perpetual, non-exclusive license to use, reproduce, modify, publish, create derivative works from, and display such Submission in whole or in part, on a worldwide basis” part seems to convey all rights to the game to Activision. However, the following language, “solely for purposes related to the Contest (including judging, advertising, and publicity related thereto)” is a limitation that makes it acceptable. So, Activision does not end up with your game. But they can do pretty much whatever they want with it in conjunction with the Contest. It does not, however, allow them to actually publish or sell the entrant’s games. At least not by the act of merely entering them in the contest.

They also want a right of first negotiation for any publishing deal. No problem there. If their deal sucks you would not take it anyway…and I am pretty sure their deal would suck…so that’s not really much of an issue.

So, it’s all good, right? Well not really…read on.


The actual limitations on what comprises a Game Submission is the real problem.

Game proposal materials include: 1) the game concept or design (maximum of ten (10) pages); 2) may include a video or game play demo (must come with extensive instructions on installations and use or it will not be considered); 3) must include an expected schedule, budget, team make up for development of the game, and execution plan.

So, they are not really looking for Games…they want a 10 (or is it 20 - see below) page GDD (Game Design Doc), a demo (optional!) and a development schedule and budget. This seems at odds with all the other contests out there where actual games are judged. And while it might be worth taking a shot at, it is not the same as IndieCade or the IGF, that’s for sure. And there are further limitations as they drill down a little into the details of what a submission is, and more importantly, is not!

Submission Guidelines:
• All of the Submission materials together must not exceed twenty (20) standard 8.5 x 11 pages and no more than one hundred (100) megs of digital material on CD;
• The Submission must be in English; and
• The Submission cannot have been submitted previously in a promotion of any kind or exhibited or displayed publicly through any means.

That last one cuts pretty deep for anyone other than a kid with “a great idea for a video game!” And I doubt that a kid like that would be very competent to draft a development schedule and budget to develop a game. I mean WTF? The last one is the kicker as it pretty much excludes anyone from submitting a finished game, unless they are so sure they are going to win that they would not want to submit it anywhere else or even show it on their own web site. Black box games only please…how dumb is that? IMHO very dumb!

There it is in nutshell…a contest not worth entering…


Oh yeah, one more thing. I have been horrified by the fact that a very few Game Schools actually require their students to sign over all intellectual property rights to the games they develop while in school to the school. That’s right, the school owns all the games their students create! The last time I checked, only Digipen and Guildhall were doing this…but I think it is a dastardly practice and am opposed to it on mortal grounds. But in this contest, since the owner of a game is limited to only one entry, it seems the only one game fro Digipen and one game from Guildhall students would be allowed entry…so at least that’s a good thing. Though it may be the only good thing about this contest.


It seems more like a superficial attempt to cash in on the interest of so many gamers to make games. This is a good thing as this is the future of our industry. But the ham handed effort to exploit that passion misses the mark. If Activision is serious about wanting to do an effective contest to actually stimulate the Independent game community, they should have taken the time to research and learn about the community first instead of doing this lame-assed contest…but then it did get them a lot of press coverage at a time when they needed it…but I suspect that is all they, or Indie developers, will be getting out of this.

GL & HF!

Tom B

February 12, 2010

The Name Game: Life on the Edge!

Filed under: Thoughts and Rants — Tom B @ 2:43 pm

The game industry has opened up in a big way over the past few years. In addition to traditional PC and console platforms, we have new iPhone and browser based social games being released every day. These new platforms have the advantage of being relatively simpler to develop for, at least to the extent that they do not require a huge team of developers to create a successful game. As a result, there are more and more small studios making small games for a broader market. This is liberating for individual developers frustrated by being a small cog in the vast faceless machine that many of the largest studios have become. It is also a low barrier of entry into the industry for new teams wanting to make a living making games.

These expanding markets for games means that now instead of three or four thousand games coming to market every year tens or possibly even hundreds of thousands of game are being released annually. As is often the case, new opportunities bring with them new challenges. The one I want to address here is, “With all these games out there how can I be sure the name I pick for my game will not get me into hot water?”

The name used with a game is, in legal terms, a “Trademark.” Basically, a name used to identify goods (or services) in the market place. A trademark can be registered with various government agencies. But it is the use of the name in commerce that actually creates the trademark, not the registration. The registration allows the holder of the trademark to better enforce their rights. If the name you select for your game is already in use, you may well be forced to rename your game, pay the trademark holder a license fee for the right to continue to use their “mark” or fight it out in court in a effort to clear their claim in favor of yours. None of these are good options for a small studio looking to get a solid financial start.

As with many questions, the answer is,”It depends.” The cost benefit analysis is always something that should be taken into account. Ideally, a full commercial name search would be obtained and then analyzed by a qualified intellectual property attorney, who would then provide a written opinion letter as to the viability of the name before moving forward. A comprehensive search that includes the Federal, state, Domain Name and expanded common law databases, which includes, Dun and Bradstreet, Brands and Their Companies, Thomas Register, Library of Congress, News File, Domain Names and Digital Common Law - Internet Content reviewed by counsel could easily cost thousands of dollars. For a small company this may not be an option. But there is really no excuse for not doing a search of the U.S. Patent and Trademark Office, MobyGames, domain names and Google.

And when you are searching keep in mind that a trademark only applies within a specific class of goods or services. This means that if there is an auto shop, consulting firm or other business outside of the game industry that uses the name you are interested in, you are still most probably clear to use it. Also remember that it is the use of the name in connection with goods or services “in commerce” that triggers the trademark status. So, your internal use of the name or even an announcement that you intend to use the name on your game in the near future may not be sufficient to protect that name from use but another who gets their game to market first. The only way to secure a trademark in advance is my registering it with the Patent and Trademark Office under an “Intent to Use” status which gives you from six months to a few years to get your game to market while protecting the intended Trademark.

There is a great deal of information on trademarks available, from the simple to the arcane. This article I wrote several years ago entitled, “Just what are these games made of . . . legally speaking?” might be a good place to start. It’s really a good idea for anyone who makes games - which are, after all, comprised entirely of intellectual property - to have a decent understanding of exactly what that means. It’s also a good idea to know who to go to for more information when you think you may be getting in over your head and close to the edge!

GL & HF!

Tom Buscaglia, The Game Attorney
© 2010

January 13, 2010

IGDA and Rockstar Wives

Filed under: Thoughts and Rants — Tom B @ 2:05 pm

Quality of Life in the game industry suffered another black eye with the posting of an open letter by a group who identified themselves as Rockstar’s Wives on Gamasutra. It looks like the wholesale exploitation of impassioned developers in our industry is alive and well and living in beautiful San Diego. This is sad, so sad. With all the research and anecdotal data supporting the fact that overwork is actually counterproductive, the burn out factor that deprives our creative industry if talent (its most valuable asset) and just the simple immorality of the whole exploitation of artists and workers by managment…all I can say is shame on you Rockstar for being stupidly greedy and, apparently, completely unenlightened about state of the art employment practices (see, e.g., Google.).

The IGDA has a long standing position on Quality of Life issues and even has a QOL Special Interest Group that does things like white papers and surveys on work place issues. The IGDA also has a long standing position against the exploitation of workers by management in our industry through excessive overtime and other workplace abuses. But the IGDA is also run by a 12 person Board of Directors that has been characterized at times in the past as being out of touch and slow to respond to issues in the industry.

So, why hasn’t the IGDA made a public statement. As a volunteer organization with a large Board, it takes a little time. Quite simply, the logistics of getting the statement drafted by members of the Board and the QOL SIG, and then securing unanimous consent from all 12 Board members took a few days. But if you are wondering where is the IGDA public response on this issue, it was posted today.

Personally, I am sorry to see these reprehensible employment practices persisting in our industry. But I am glad that they are back in front of the industry at large as these issues need attention. The burden of the current economic slow down should not be put onto the backs of employee developers. Moreover, these sort of exploitative work place practices seldom if ever go disappear once instituted without some external stimulus, like the harsh light of negative public opinion. Of course, it is also up to developers to stand up and object when abusive workplace issues arise. As an industry, I firmly believe that we are better than this!

It will be interesting to see just how Rockstar responds, both in public and in practice, and if they come to their senses and start feeding, instead of consuming, their talent.

Tom B

October 29, 2009

Yumm..Humble Pie!

Filed under: Thoughts and Rants — Tom B @ 1:15 pm

I sure screwed the pooch on that one…I am, of course referring to my prior posts taken by many to be in defense of Langdell and much of the communication with his numerous critics that followed.

The whole thing seemed pretty simple…trademark, alleged trademark violation, legal dispute…heck, this is just part of the world I live in every day. So, I was insensitive to the mood of things and ended up getting seriously trashed on many of the indie game boards like TIGsource and the Chaos Engine for saying that maybe Langdell had a point. Yeah, I did smell a lynch mob forming and I responded very defensively to the trashing of the IGDA, an organization that I support and believe in, but that’s not much of an excuse. And I took more than a few lumps for speaking my mind. I have since realized that I may well have appeared to be on the wrong side of the dispute, though I never really did feel I was taking sides, just advocating for a fair fight. That’s not the point of this post though…the point is that I did not really comprehend the impact of my actions had on my relationship with many of the indie developers who don’t know me until later.

When I got to Austin GDC a few weeks ago I found that there was an Independent Game Summit going on there. I was surprised that I had not been informed of it as I have spoken at the past two IGS programs and even was honored to be an IGF judge last year. I have also been a “prize” in the IGF at GDC at the suggestion and request of the organizers, contributing over $14,000 in products and legal services to the finalists and winners each year for the last two years. But in Austin, not even a heads up.

As I walked toward the room where the indie sessions were happening I got a horrible hollow sinking feeling in my gut. When I entered the room and walked over to Matthew Wegner, the IGS program director to ask him what was up, the dread on his face as I approached confirmed my suspicions. He was honest enough to tell me that to some indies I was a persona non grata. I am also pretty sure that Simon Carless, the publisher and editor who runs Gamasutra, Game Developer magazine and GameSetWatch, as well as being Chairman of the Independent Games Festival was none too happy with me either. I was sick about it and still am.

I am not going to go into how committed and devoted I am to indie developers too much here…but it is a core mission for me in my legal practice and in my life. I contribute time every day to “my peeps” giving advice and counsel to indie developers without charge and writing articles to help indies avoid getting screwed.

This quote from my email sig pretty much says it all:

“There’s been this tradition in the [video-game] industry that everybody gets screwed on their first deal, I’m doing my best to make sure that that becomes a historical anecdote instead of the way we do business.”
Tom Buscaglia, The Game Attorney - Lawyers Weekly, December 3, 2007.

Sure, when I reach out to independent developers or provide them with free advice I am building relationships that may result in work later…but then, making a living doing what you love for people you like is a good thing, right? Besides, that’s not the reason I do what I do. Nor is it the reason I developed the Game Dev Kit, write articles, do free webinars, contribute my time to the IGDA or give legal services to the IGF winners each year. I am driven by a passion for indies, just like they are driven by a passion for making games. You can imagine my dismay and disappointment at realizing that I had damaged my relationship to a community that I have dedicated myself to.

I am not sure if I will ever be able to get back the cred I have lost or heal some of the relationships I have damaged. I have decided that all I can really do is keep doing what I do and hope that those who may need my help or counsel will see through this stuff and still take a listen or give me a holler…

As for anyone I offended with my thoughtless, blunt and often surly manner, I sincerely apologize if I offended you…it was not my intention.

Tom B

October 28, 2009

Tom Does His First IGDA Webinar!

Filed under: Thoughts and Rants — Tom B @ 3:13 pm

Well that was fun. I had the pleasure of doing my first Webinar entitled Indie Gold: Downloadable Content Models for Core Casual Games, as part of the IGDA Members Only Webinar Series. This program is something that the IGDA board had talked about from time to time but never really got anywhere. The new IGDA Executive Director, Joshua Caulfield, had the same idea as the org doing webinars as a way to deliver real member value. The difference being, instead of just talking about it, Joshua made it his mission to actually make it happen!

The Webinars are offered to IGDA members only. But as a presenter, I am able to offer the recording here to my faithful minions and anyone else with an interest in the game business and running a successful Indie studio!

I hope you find it of value. So, check it out!

You can get it HERE.

GL & HF!

Tom B

October 14, 2009

Some Thoughts on Steam

Filed under: Thoughts and Rants — Tom B @ 4:47 pm

Randy Pitchford, from Gearbox, the creators of Borderlands, recently did an interview for Maximum PC in which he took a shot a Steam, saying that it amounted to a conflict of interest and that Valve was taking advantage of small studios. I could not disagree more. Steam provides independent developers access to the market place on an even footing with major publishers. Royalties from Steam are easily 5+ times more than they would be through traditional publisher dominated retail distribution channels like Wal Mart (which apparently Randy seems to like). It is hard for me to under where he is coming from, as it makes no sense to me. I have several clients who would not be the successful studios that they are today without their relationship with Steam.

I thought it might be relevant if I reposted in its entirety an article I did on digital distribution that first appeared in Gamasutra in March 2006.

The Good News About Digital Distribution

Last year at GDC, I met the guys from Tripwire Interactive. They had just put their studio together from the team that created the Red Orchestra mod that won the “Nvidia $1,000,000 Make Something Unreal” contest. Their mod had also garnered a bunch of “Mod of the Year” awards. Since they needed my legal help, but were tight on cash, we worked out a deal where I agreed to represent them for a percent of revenue. Sort of like an agent, but at a much lower percentage.

I do this from time to time with teams that I really believe in. And, I had even done a similar deal with Trauma Studios, the creator of Desert Combat, the prior year’s “Mod of the Year.” So, it seemed fitting. (Hmmmm…I wonder who got “Mod of the Year” for 2005?)

There was a great deal of interest in the commercial version of the game from several publishers including Midway. And we worked for months trying to close a deal. But eventually it became apparent that even though the folks on the product acquisition side were very interested in the game, the marketing folks were not going to green light the deal because their retail buyers had not heard of the game and would not put in significant initial orders necessary to minimize their risk. So, no deal.

The Red Orchestra Deal

Fortunately, as part of the contest winnings, Tripwire had an Unreal Engine 2.5 license. So, although they did not get the whole million dollars for winning (the total prize money in products, engine licenses and cash totaled $1,000,000 over the entire contest), they had an engine and some cash. So, they put what they had into finishing the game however they could. We continued to look for a publishing partner and began discussing the digital distribution possibility.

We looked into a bunch of digital distributors including IGN Direct 2Drive, Trymedia’s Digital River Distribution network, GarageGames and Valve’s Steam. I assumed that Steam was limited to only Source Engine games and that there was no way the Valve would want Red Orchestra, a WWII FPS game made with Unreal technology, competing against Valve’s own Day of Defeat. But to his credit, John Gibson, the head of Tripwire got in touch with Valve anyway. To my surprise, the folks at Valve were not only interested, they were straightforward and easy to work with. A real pleasure. So, in short order we had our digital distribution deal in place.

Of course, with a digital distribution deal, there is usually no big marketing push from the distributor like there is with a big publisher. But, through Steam we would be selling into the hardcore FPS gamer market. And as a result of the Valve deal, Red Orchestra got solid editorial exposure in major PC game publications, including two page “preview” articles in PC Gamer US and UK. The buzz from the Valve deal resulted in a retail distribution deal with Destineer as well. No advance. But access to the retail distribution channel and a solid chance to succeed. And most important, no need to give up the IP rights to the game.

That means Tripwire has a chance, maybe not a big one, but a chance to retain the IP to a franchise that they built. And that means long term IP value to the company. And it was the digital deal that made it all happen. So, Tripwire Interactive’s Red Orchestra: Ostfront 41-45 is set for release in March 2006 via digital distribution on Steam followed by retail as soon as the media gets manufactured, through the retail pipeline and into stores. Wish them luck!

The Digital Distribution Advantage

Once the digital deal is in place, a retail publisher is in a much less advantageous bargaining position, especially where it comes to IP ownership issues. Digital distributors, at least for the present, have no interest in obtaining IP ownership for the games they distribute. The so-called casual games, or “Pop Games” as I like to refer to them, have been building this model in the PC market for several years. And with the present broadband penetration, the download of full-blown PC games is a reality. I recently purchased F.E.A.R. digitally, and that’s an over 1GB game, unzipped. And we all know of Valve’s success with distributing its games via Steam.

Digital Distribution for Console Gamers

Up until now digital distribution has been something unique to the PC market. But the Xbox Live Arcade (“XBLA”) is changing all that. The size of the game that can be downloaded on XBLA is limited to the size of the 64MB memory card, which limits things somewhat when compared to PC downloads. But it is a huge potential market. Of course, access is also an issue.

If access to the XBLA pipeline gets clogged with aggregators who are already XBLA certified, we could potentially end up with some of the same issues we have now with the retail channel. For example, although MS has no interest in game IP ownership, at least one of the XBLA aggregators is looking to acquire IP rights to the games it distributes through XBLA. But hopefully this one distributor is an aberration and there will be enough less greedy options for developers to just go elsewhere. After all, the marketplace is a great influencer of predatory policies like this.

The big question is, will the PS3 and Nintendo Revolution also have a digital distribution capability? I suspect they are considering this right now since XBLA is doing a brisk business and leaving this potential market open to a fierce competitor like Microsoft could be a huge blunder. So, it is at least possible that Sony and Nintendo will also do some sort of digital distribution in their next gen consoles. And they may even do it better that MS.

The Bottom Line

So, I have become a believer in the digital distribution of games. The developer’s royalties are usually two to four times greater than what they are in a traditional publisher deal. This means you can sell fewer units and get by and if you get a hit, you get much more return, even at a significantly lower price point. Also, in most cases the developer retains the IP. This help builds long term value in the studio, something you cannot get otherwise unless you develop some sort of patentable technology or other licensable tools and technology while your making your game.
The digital distribution model also opens the door to pure funding deals that do not involve publishers who, frankly, charge much more than the value of the money for the funding they provide. But most important, digital distribution means more ways to get your games directly to the players with as little “middle man” action as possible. That has always been the great promise of the Internet and it’s great news for developers. Heck, higher royalties, you get to keep your IP and direct access to your user base. It’s hard not to believe!

June 5, 2009

E3 is Back!

Filed under: Thoughts and Rants — Tom B @ 10:27 am

I just got back from LA and E3. I have to say that as much as I have been offended by the excesses of E3, it is great to have it back on the annual schedule of events. After spending a great deal of time and effort working to get a extra dollars, seeing the amount of money wasted on the marketing magilla that is E3 has always grated against my sensibilities. But that said, it is an awesome spectacle, that is always both inspirational and mind numbing. The socializing there also is a bit mind numbing as well!

This year’s return was certainly smaller in size and scope that in past years. But it was still enough to take a day or two to absorb. The usual high def CGI videos of projects that have yet to made. Tons of medioctraty and “crap in a box” that always makes me wonder why anyone would fund or try to sell. And a few gems.

As expected, Infinity Wards upcoming Call of Duty release looked awesome. Seems like they will be going for Game of the year again. My buddies from THQ’s Chaos studio look to be on their way to making an awesome game, in Homefront. Just a short demo was available and I do not think it will be released until late 2010….but I like where they are going with it.

I also met some nice folks along the way…all and all a good trip and a lot o fun.

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