Note: I feel the need to add this note as an attempt to disarm all of the internet crazy people who have a gigantic 2x4 up their butt. This is not meant to be the basis for actual legal action. This has legal facts and analysis, but it is only "serious" in a tongue and cheek manner! I've had too many people go "oh you're not a lawyer...," "a real lawyer would contact bungie..." "a real lawyer wouldn't have grammar errors." Well its a forum post... One which I simply want to show how this charade AAA game franchises have been pulling in increasing frequency over the years and of which Destiny is the latest example. I am a bit of an idealist and want to see people fight for their rights and try to win back a little power for themselves (you can make fun of me for that because even I admit how sappy that is).
So if you have a stick up your butt, move along, this isn't for you. If you want to learn about ONE interpretation of the law and how it may benefit you. Please continue.
So this long letter written over thirty years ago fits so squarely into the TLDR category I almost didn't bother posting it. However, as we are all angry video game fans here, I thought it would be informative for you all. I would like to begin by saying I am a licensed attorney and have spent some of my free time looking into this matter (purely out of anger at Bungie, thanks for the motivation guys!).
I want Deej to respond to this, because I feel Bungie would much rather have him defend why this game doesn't fit the bill for false advertisement than Bungie's legal department.
I'll start with a brief overview: Federal law set up the Federal Trade Commission and directs it to "prohibit entities from engaging in unfair or deceptive acts or practices in interstate commerce." The letter linked above outlines the standards the commission is to use in fulfillment of its mission.
The FTC Policy Statement on Deception states that the Commission analyzes deceptive business practices under the following criteria:
There must be a representation, omission or practice that is likely to mislead the consumer. This includes the "use of bait and switch techniques."
The practice is examined from the perspective of a reasonable person in the circumstances. If the practice "is directed primarily to a particular group," such as Internet users, "the Commission examines reasonableness from the perspective of that group."
The representation, omission or practice must be a material one, i.e., it is likely to affect the consumer's conduct or decision regarding the produce or service.
An act or practice is unfair, also in violation of the FTC Act, if it causes injury to consumers that: (1) is substantial; (2) is not outweighed by countervailing benefits to consumers and competition; and (3) consumers themselves could not reasonably have avoided.
So what does all this legalize mean, exactly?
Lets start at the beginning with the hype. Destiny was one of the most hyped games in recent memory. Bungie teased us with trailers, game play footage, and developer interviews. All of these media releases built expectations as to what was in the game. We could see that certain features and mechanics would be in the game. We were explicitly told certain things would be int the game, and that we could expect others. This media frenzy satisfies two prongs of the test outlined above. The practice (of marketing a video game) was directed specifically at a group of people, i.e. video game players. We as gamers "reasonably relied" on Bungie's claims. They told us- "hey this is what you can do in Destiny, these are the features it will have. Aren't they great." Is it unreasonable for us as a group of people excited to play this game to expect that those features be in said game? Of course not! Now the big question is are these omissions, i.e. the stuff we were told would be in the game but wasn't, a "material omission"? This means that had you known about the games short comings before it was released would you have bought it? This speaks specifically to the people who relied on Bungie's claims and pre-ordered the game or bought it on the release date. There was no information to rely on at that point other than what Bungie was spewing out about how awesome the game was. Once reviews start to come out, you as a consumer can make a more informed decision about whether the game lives up to the hype. So I can honestly say, had I seen a review about the game I would not have bought it. That, in the legal world is the definition of a "material omission." Because the information contained in the review would have prevented me from buying the game, the omissions from Bungie about the game's content and features is a "material omission."
Finally, we must decide whether there was "substantial injury." Well because I bought the blasted game, I am out $70 dollars I wouldn't be otherwise. We can quibble about whether that is substantial, but as someone on a tight budget, I am going to say it is.
Lastly, we look at some counterbalance criteria: the last to bullet points say that despite all the bad stuff Bungie did in coning me out of my $70, if I benefited from the transaction or the transaction could not be reasonably be avoided, then Bungie may get off the hook. While it's true, I did get some entertainment out of the game, that is a far cry from saying I benefited from my purchase. The benefit was not such that it makes up for the fact I would not have bought the damn thing in the first place. The second prong, that it could be reasonably avoided, goes to pre-orders. There is no reasonable way to avoid the problem when you pre-order, other than to not pre-order, and in this day and age when developers offer unique items and limited edition content for pre-orders, there is a huge incentive to take that risk. Not to mention being the first to brag about your conquests in the game.
So, in summary, I would ask Deej to defend Bungie and this game. Explain to me and the community how you have not violated this law in executing this sham on us. It is irrelevant that Bungie may have had its hands tied or have a story writer leave. You told us this game would be legend and it is barely a peon.
Thank you,
Spartan089
-
TL;DR: You're not an attorney, and Bungie's trade practices were perfectly aboveboard. [quote]I would like to begin by saying I am a licensed attorney and have spent some of my free time looking into this matter (purely out of anger at Bungie, thanks for the motivation guys!). [/quote] So the first sniff test is your handle--Major Payne89 implies you were born in 1989, which makes you about 25. The typical age of college graduation is 21-23, which means if you went straight from university to law school you've just barely finished. So it's not impossible that you're a "licensed attorney", but if so you're a very inexperienced one. [quote]I want Deej to respond to this, because I feel Bungie would much rather have him defend why this game doesn't fit the bill for false advertisement than Bungie's legal department.[/quote] And here's the second sniff test. Actual attorneys don't post actual legal threats on Internet forums, and they [i]definitely[/i] don't post legal threats and then ask the PR guy to address them. So you're not an attorney, and the first two paragraphs of your post are lies. [quote]I'll start with a brief over view...[/quote] Someone with a couple of years of practice briefs behind them would know that "overview" is a single word. [quote]Federal law set up the Federal Trade Commission and directs it to "prohibit entities from engaging in unfair or deceptive acts or practices in interstate commerce." The letter linked above outlines the standards the commission is to use in fulfillment of its mission. The FTC Policy Statement on Deception states that the Commission analyzes deceptive business practices under the following criteria: There must be a representation, omission or practice that is likely to mislead the consumer. This includes the "use of bait and switch techniques." The practice is examined from the perspective of a reasonable person in the circumstances. If the practice "is directed primarily to a particular group," such as Internet users, "the Commission examines reasonableness from the perspective of that group." The representation, omission or practice must be a material one, i.e., it is likely to affect the consumer's conduct or decision regarding the produce or service... So what does all this legalize mean, exactly?[/quote] It's "legalese", and you're correct that it means is there's a three-pronged test. Unfortunately, you fail to meet the test at any point. [quote]Lets start at the beginning with the hype. Destiny was one of the most hyped games in recent memory.[/quote] Citation needed. [quote]Bungie teased us with trailers, game play footage, and developer interviews. All of these media releases built expectations as to what was in the game.[/quote] "All of these media releases" are also common industry practice for AAA games, as well as analogous entertainment products. Holding Bungie liable on that basis would set a massive precedent, and therefore sets a very high bar for the case you're trying to build. Keep that in mind as we explore the remainder of your claims. [quote]We could see that certain features and mechanics would be in the game. We were explicitly told certain things would be int the game, and that we could expect others. This media frenzy satisfies two prongs of the test outlined above. The practice (of marketing a video game) was directed specifically at a group of people, i.e. video game players.[/quote] That's a tautology: you're saying their marketing was directed specifically at a group largely defined by its interest in the type of good being marketed. If this were held to satisfy the first prong of the test, the test would be meaningless. But even worse, accepting your argument for this prong of the test weakens your claim elsewhere. We proceed: [quote]We as gamers "reasonably relied" on Bungie's claims. They told us- "hey this is what you can do in Destiny, these are the features it will have. Aren't they great." Is it unreasonable for us as a group of people excited to play this game to expect that those features be in said game? Of course not![/quote] This is actually where your argument is strongest, although that's damning with faint praise. The linked Policy Statement on Deception says this: "Certain practices, however, are unlikely to deceive consumers acting reasonably. Thus, the Commission generally will not bring advertising cases based on subjective claims (taste, feel, appearance, smell) or on correctly stated opinion claims if consumers understand the source and limitations of the opinion... The Commission generally will not pursue cases involving obviously exaggerated or puffing representations, i.e., those that the ordinary consumers do not take seriously." A "reasonable person" who has played other video games--that is, the video gamer at which Bungie's marketing push was specifically directed--could be held to understand the source and limitations of that marketing push, namely that the content and gameplay of an early preview may not reflect the final product. In fact, it would be your responsibility as the plaintiff's attorney to demonstrate conclusively that a typical consumer of video games would [i]not[/i] understand that there may be differences between the previewed content and the final product. I doubt that claim would hold up under scrutiny. [quote]Now the big question is are these omissions, i.e. the stuff we were told would be in the game but wasn't, a "material omission"? This means that had you known about the games short comings before it was released would you have bought it?[/quote] Presumably "had you known about the games short comings" means "the game's shortcomings", and I promise I'll stop harping on your errors in spelling and grammar just as soon as you admit that you're lying about your qualifications. Moreover, however, you're underestimating the bar for this test. Again, from the Policy Statement on Deception: "Injury exists if consumers would have chosen differently but for the deception. If different choices are likely, the claim is material, and injury is likely as well. Thus, injury and materiality are different names for the same concept." Accepting for the sake of argument that Bungie's marketing was deceptive, you would need to identify specific aspects of their marketing that were deceptive, forge a causal link between those deceptive practices and the purchase, and then bridge from the purchase to a specific, actionable injury. In other words, you would have to prove (as an example) that people bought the game because they thought they'd be able to swap between two primary weapons. In that case, the injury you've identified is that people own a game where they have three weapon choices instead of four, which falls fairly low on the scale of materiality. Any injury stemming from Bungie's "deceptive" claims has the same problem: you'd have a difficult time convincing a judge or jury to buy the idea that Bungie owes you anything other than what you purchased. [quote]This speaks specifically to the people who relied on Bungie's claims and pre-ordered the game or bought it on the release date. There was no information to rely on at that point other than what Bungie was spewing out about how awesome the game was. Once reviews start to come out, you as a consumer can make a more informed decision about whether the game lives up to the hype. So I can honestly say, had I seen a review about the game I would not have bought it. That, in the legal world is the definition of a "material omission."[/quote] Have I mentioned that you're not an attorney? Because you quite definitely aren't an attorney. You've just torpedoed your entire case by admitting that you could have waited for reviews but didn't. Remember the earlier bits about the "reasonable" consumer? You made a rash purchase based on marketing--that is, opinion claims and puffery--despite the fact that you were in no way compelled to make a pre-release purchase. If you can honestly say "had I seen a review about the game I would not have bought it", you're demonstrating that to the extent an injury exists, it was [i]entirely[/i] avoidable, and you have no claim.
-
TLDR they didn't violate it because you waived your rights to complain by accepting the TOS we ALL had to accept before we made our first character. /end thread
-
Because video documentaries ARENT paid advertisements.
-
I'm not a lawyer, but I'm a paralegal. I enjoyed the read, well thought out. I look forward to the responses. I don't think there will be any though. It will just need someone to take action instead of waiting for the answer we already know exists. Almost everyone here is unqualified to debate such a complicated issue. I can't imagine a high % of Destiny players are class action lawyers.
-
Explain to me how you still haven't edited the topic title.
-
1) Yes, this game was miss-sold, we were show content that was clearly not in the game. its like ordering a car with all the bits but then being given just the car... there is clear miss selling of product ... this could possibly lead to a law suit however i am too busy for that shit and also..... too poor. 2) This guy clearly isn't an attorney or not a very good one if he is... far too many problems with his letter like: - An attorney would actually send a letter to bungies management and press it as if they had a case they could earn shit loads of dough - Deej's name is known, use his full name if you wish to out him. - He claims to be an attorney yet $70 is allot of money..... clearly not an attorney. Bungie needs to answer.. but faking to be of the law wont make that any more likely
-
I am a theoretical physicist with multiple phds from several Ivy league schools, and pioneered a new theory around quantum entanglement of decoherent photons. Based on this I have deduced that Destiny is great. Oh sorry wait...you actually think you're making a point....I thought this was a lie about our qualifications and then make a comment about Destiny thread. My mistake.
-
Find better uses for your time man.
-
I'm happy to donate to a refund pool so that every "70 dollars of my hard earned dollars owes me personal service" type can be handed their money back - never to return.
-
Bungie to consumer: "first week reviews will not portray the whole game....." are you serious bungie? How long until a review is acceptable?
-
You do realize that this isn't just bungie, advertisements and marketers constantly lie and stretch the truth? Truth in advertisement is basically non existent, and their lies have been protected by it under the first amendment.
-
-blam!- Activision.
-
How explain how. How explain how. How explain how. Who gives a shit, its not a world crisis
-
What proof do you have that content is missing, all that was shown before the game was out was a working progress not a final build, a demonstration is called a demonstration for a reason the same as alpha builds and beta builds.
-
Overview is one word nerd
-
Cue fart noise
-
Edited by Neo Martyr: 11/13/2014 6:45:51 PMI think one aspect that most people fail to take into consideration is that no one is forcing anyone to buy video games the day they come out. I think as a gamer culture, preordering big hype games and picking them up at midnight or the day of release is so common that we forget that [i]the development studios do no require you to do that.[/i] To pull from the OP: [quote]An act or practice is unfair, also in violation of the FTC Act, if it causes injury to consumers that: [...] (3) consumers themselves could not reasonably have avoided.[/quote] I truly feel that in a court of law, a lawyer could easily argue that consumers can REASONABLY AVOID "injury" by not purchasing the game the first day it came out. The consumer could EASILY have chosen to wait and learn about the product, read reviews, make an informed decision on whether they would like to spend money on the product. I believe a lawyer could also make an argument that there is an inherent unknown and risk of disappointment that the consumer chooses to accept when preordering and purchasing a game on the day of release. Do I think the consumer is wrong for not enjoying the game? No. It is terrible that the game didn't turn out the way you hoped. It would be amazing if it were better! If you could go back in time and not buy the game, maybe you make a different decision. But by choosing to buy a game on the day of release before adequately forming a full picture of whether you would like it or not, that is on you, not the game developer, no matter how bad the game might suck. Remember... preorders can be cancelled.
-
Edited by quicktango: 11/13/2014 6:42:55 PMSo, I've read the document and being a business law student I'm quite familiar with it already. So, here's the deal. It could be probably could be proven that the consumer had been fooled by bungie. This is mainly because the law favors the consumer in most cases. However, it would take a majority of those who purchased the game to file before the FTC would look into this to the degree necessary. If then, it is proven, the result would be compensation in the form of a refund (per the terms of use of the game), except in the case of those who bought a bundle in which case they could be entitled to a refund of the bundle's cost. In any case, there's not a lawyer in the known universe that would take this case, because it wouldn't payout enough. So we're back where we started. Edit: FYI, a majority is 51% and up. So if you take only the first week of sales, then 2.5 million people would have to file some kind of complaint to be a majority.
-
Edited by VisageOfAnAngel: 11/13/2014 6:27:02 PMShut up and run a bloody spell check. If you are too lazy to run a spell check at least make sure the topic makes grammatical sense.
-
A lawyer on a tight budget? You are a damn fraud.
-
Better call Saul. Or even better use my guy. I broke a mirror & got 7 years bad luck, he got it down to 4.
-
EULA.
-
Edited by dicjones: 11/13/2014 5:12:28 PMNot to mention Bungie didn't allow reviewers to play the game before us, did they suspect that the reviews might not be good and the reviews would reveal the lack of content, so they needed to extend the window of opportunity to reel in more customers? Probably not, just a thought though.
-
Squirrel!!!!!
-
Does anyone actually pay attention to the fact that the videos were shown when the game was in a state of development? It's pretty much a given that any footage from a game in development is not representative of the final product.
-
You can't sue someone because you didn't like the product... These threads need to go away. I don't like the new COD, can I sue the developer?