Two stories in the past week have called attention once again to the growth of the service industry and a corresponding decline in the amount of products/property available to the public.
Maxis, a video game developer and subsidiary of video game giant Electronic Arts, released the first iteration of the renowned and beloved SimCity franchise in nearly 10 years, to resounding disgust and anger. While Maxis had made some gameplay changes that disappointed long-term fans of the series, the most egregious mistake in the eyes of consumers was the requirement of an active Internet connection to play the game at all times, including as a single player. Maxis originally stated that the internet connection was necessary to outsource SimCity’s supposedly robust artificial intelligence and simulation calculations to more powerful, company-owned servers, but gamers soon found those claims overblown at best: the game could be hacked to play offline with no significant drop in performance. EA’s attempts to respond: improving server performance, disabling certain game features, and handing out free games to disgruntled purchasers, have not met with much gratitude.
Meanwhile, Google made two controversial decisions of its own: shutting down its relatively dominant RSS aggregator, Google Reader, and pulling AdBlock (an app that, well, blocks advertisements) and other, similar software, from its mobile app store, Play. Google’s stated reason for the Reader shutdown was a declining user base, but there is widespread speculation that this is yet another attempt to bolster Google+, Google’s social network.. The AdBlock decision was ostensibly a means of preventing unauthorized access of other services or products, but considering Google’s heavy dependence on online advertising, concerns over the true motives for restricting access to programs that prevent those ads from reaching consumer eyes are not ungrounded.
Whatever their stated reasons, the Maxis and Google decisions are further evidence of how far afield the state of online and cloud business has come from more traditional notions of property and consumer rights. Much of what may have been “infrastructure” or “property” in earlier times are now considered “services,” and are owned not by the eventual purchasers, but by the suppliers and producers. At some fundamental level, the process of handing over money for a copy of a game like SimCity (even a digital copy), feels like a purchase of property. The vast majority of purchasers would likely understand this to be an exchange of ownership, yet from a legal standpoint, they are increasingly licenses. If one purchases a “copy” of SimCity, one is actually purchasing a license to use the program on Maxis’ and EA’s servers; there is no usable copy without server access, unless one wants to break the shrinkwrap licensing contractual agreement and mod or hack the game.
The “property rights” gained by the consumer in such a transaction are severely limited: there is no opportunity to resell (as in Vernor v Autodesk, a 9th Circuit opinion on which the Supreme Court denied certioari). Vernor actually represents a dangerous precedent for consumer rights in such situations, as one of the criteria for determining whether the transaction was a “sale” or a “license” was the imposition of notable use restrictions on software. Restricting SimCity gameplay to online-only thus operates to prove the very reason the usage restriction exists in the first place: it becomes a license, with attendant restrictions on resellability, fair use, digital rights management circumvention, and the like. How much of what they purchase do customers actually own?
Similarly, the Google decisions are stark reminders of how little dependence the public can have on the continued existence of useful and (often) necessary services. Much like SimCity, the unilateral decision to pull Google Reader is a reminder of how little the public owns the cloud services it spends considerable time and energy investing in.
The Google Play store is ostensibly an open platform for innovation and consumer choice. This decision, like those previously made by Apple to pull apps over fears of moral conduct, are proof that these platforms are not quite as open as the public might want. This is as equally injurious to businesses as consumers: AdBlock is free, but other companies depend on the revenue earned by selling their software on an easily accessible platform like the Play store. Critics of the move, like the Electronic Frontier Foundation, argue that this is de facto censorship. At some point, Google and Apple’s utter and complete control of platforms that are increasingly functioning like utilities, but treated as services, might feel less like a welcoming hand, and more like an iron glove.
At some point, the legal characterization and treatment of these online services has to change. Platforms that have become necessary for mass communication might be better classified and regulated as utilities instead of services, at least as far as the public interest is concerned. Intellectual property laws will have to address the growing use of licensing as an alternative to sales. Meanwhile, the list of rights the public has in the software it consumes and the platforms it employs for business, entertainment, and communication is shrinking rapidly.