'Tis the season for humiliating Sony, and it just keeps going. First, the company was hacked and embarrassed publicly with its own incompetence. Next, they were besieged by class action lawsuits against them for data breaches. Then, they announced they were pulling the movie that everyone believes is responsible for the hacks. Finally – and this is the only tidbit that I actually find interesting in any way – a previous class action lawsuit about false advertising for one of the PS4 release titles has been allowed to proceed.

It might be fair for most people to miss a potentially important development in gaming, given the activity legal lately. The final item – the now-proceeding class action lawsuit – is based around false advertising in the gaming console wars. Killzone: Shadow Fall, one of the launch titles for the PS4 and the first PS4 title to break the million copies sold mark, is the game at the center of this class action lawsuit. The game was released in the US on November 15, 2013 and, according to the lawsuit filed in August of this year, it highly advertised the improved graphics over the Xbox One, specifically the multiplayer mode that was supposed to natively support 1080p60 for players.

As our game benchmarks have routinely shown, high-quality graphics at a high FPS is not always easy to achieve; this is true moreover in multiplayer games, where synchronization of numerous high-poly actors and network negotiation become inhibitors to fluid play. The main focus of the lawsuit is based on the multiplayer mode and Sony’s advertising for it.

“Plaintiff Douglas Ladore filed this putative class action against Defendant Sony Computer Entertainment America LLC (hereafter Sony) regarding allegedly fraudulent or misleading representations Sony made about its video game Killzone: Shadow Fall (Killzone). Specifically, Ladore claims that Sony represented that Killzone’s “multiplayer” mode renders graphics in full (or “native”) 1080p resolution, when in fact Killzone’s multiplayer graphics are rendered with significantly less resolution than advertised.”

Needless to say, Sony had its corporate lawyers do their best to get everything dismissed. This is standard process for most lawsuits and generally requires lots of filings back and forth and is the basis of what baby tort lawyers grow up hearing in place of fairy tales and nursery rhymes. The judge, Edward Chen, actually did a good job of taking this lawsuit seriously (good news for the game industry) and gave what we think is a fair judgment, deciding to dismiss only 1 of a number of the parts to this lawsuit:

“The substantial majority of Sony’s arguments are premised on an unduly narrow reading of Plaintiff’s complaint, and suffer an additional fatal flaw – to grant Sony’s motion, the Court would need to draw all reasonable inferences in favor of Sony. Indeed, only one of Sony’s arguments has merit: Plaintiff’s negligent misrepresentation claim, as currently pleaded, is barred by the economic loss rule. Thus, Sony’s motion is denied in significant part.”

If you have never had the fun of suing lots of corporate entities – and, let’s face it, that is as much an American pastime as football – it's important to know that the court will generally start by siding with the consumer. The court recognizes that corporate lawyers know what they are doing and won't leave wiggle room in their protective clauses and massive contracts, including those signed upon registration with PSN. This has granted us great opportunities to roll our eyes at courts that allow common sense subjects to move forward; however, it does also give the benefit of the doubt to the consumer.

This Lawsuit Matters to the Gaming Industry

First and foremost: there's a lot of talk about reviewers receiving different items than what is sold to the general consumer to improve reviews. We have touched on this a number of times and do our best to help explain the difference between media samples of products and the go-live copy that the consumer can purchase. A major portion of this lawsuit is tied-in to press releases and statements from Sony, as reported on news sites, whereupon the company made claims to higher native resolution than what may have been delivered. The lawsuit challenges these claims by pointing toward upscaling in place of native 1080p60 output, which results in unarguably lower quality if it is the case.

This legal battle could set a precedent for going after game publishers using bait-and-switch marketing tactics. Aliens: Colonial Marines is another example of class action suit due to misrepresentation of graphics during advertising. Both lawsuits will hopefully be a wake-up call and warning to gaming companies to either follow-through on their claims or be more careful with what they say in official formats. It would be nice if this caused companies to start polishing-up their products more so the massive onset of recent games with major bugs goes away, but that’s probably as likely as me winning the lottery. And I don't play the lottery.

Finally, the Sony battle could also see a push for more streaming/downloadable games from major gaming companies. This might be a bit of an odd takeaway from the lawsuit, but the fact that the client purchased the game on a disc, inside a box, at an actual store, is heavily referenced in why it is OK to go forward with a significant portion of the lawsuit.

“Sony argues that software, software licenses and/or online [video] game features are not 'goods,' and therefore Ladore’s CLRA claim fails. As an initial matter, this argument ignores the critical fact that Ladore did not simply buy or download (arguably) 'intangible' software, or otherwise play an online game. Rather, Ladore went to a brick-and-mortar store (Best Buy) where he paid for and received a tangible product – namely the Killzone game disc, which came in a Killzone box and was accompanied by various tangible pieces of documentation. As Judge Tigar recently explained about 'Norton Antivirus' computer software, '[a] consumer can purchase Norton Antivirus in a store, pick it up in her hands, and carry it home. It is in that way the same as most commodities considered to be ‘goods’ under the CLRA, and distinct from the sorts of commodities that are considered not to be,' such as insurance or credit contracts.”

By acknowledging that the physical copy allows this lawsuit to happen, it wouldn’t surprise me to see companies start releasing less physical media in order to get away from the legal definition of a “good” and focus on downloadable format only.

If this does start forcing companies to release more in a digital-only format (something we're trending toward anyway), it'll be interesting to see what happens to consoles, as PCs have long been moving to that format for years with Steam, GOG, and similar companies; HTPC systems, like the mythical Steam Box, are becoming more prevalent. Such a trend will also bolster importance for net neutrality to be sorted out. The changes happening to the gaming, software, and hardware industries in general should be interesting in the years to come, and they will probably wind up creating an entirely new segment of laws and law enforcement for the digital world.

Scary thought, huh?

To read the judge’s ruling (in case you haven’t had enough legalese yet): http://www.courthousenews.com/2014/12/16/sony%20MTD%20ruling.pdf

- Scott "Abibiliboop" Griffin.