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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!

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