Tag: EA

Where Will the PC Go? -- Part 4: SaaS

2015-10-27, 3:21 pm
Categories: Games, Stream of Consciousness, Tech

So, per the last couple of posts, I find it entirely possible that, as vendors develop tablets that double as PC's, they may replace traditional desktop and laptop computers. For the common end user who just needs a web browser and (maybe) an office suite, I don't think that's going to be a tough sell.

But there are markets that rely heavily on more powerful computing hardware.

One is PC gamers. Others are the various types of media creators: people who create images, music, movies.

I've already mentioned dumb terminals and software as a service (SaaS) as a major current trend, with programs like Google Docs running in a browser and working as an effective substitute for traditional locally-run programs like Microsoft Word.

Of course, a word processor is one thing; an enterprise-quality photo editor is another, and a game requiring split-second timing is something else again.

But developers are working on it.

Photoshop

Last year Adobe released a limited beta of a streaming version of Photoshop for ChromeOS. Photoshop itself doesn't run in the browser; the app is a Remote Desktop shell that interacts with an instance of the Windows version of Photoshop running on a remote server.

So, by definition, this is no replacement for the Windows version of Photoshop -- because it is the Windows version of Photoshop. But it demonstrates a potentially compelling alternative to buying expensive, high-end hardware just to run Photoshop: what if you could buy cheap hardware, and pay a subscription fee to run Photoshop on someone else's expensive hardware?

Reactions to the ChromeOS version of Photoshop seemed generally positive; I would expect it to have some latency issues, but I also bet it runs faster on a remote server than it did on the Core 2 I had to use at GoDaddy. (Hey, when I said the Core 2 Duo was the last chip most users ever needed, I said I wasn't including Photoshop.)

Adobe has already moved Photoshop's licensing to a subscription model instead of a purchase model. (A lot of people are very angry about this, but I haven't heard anything to suggest it's led to a drop in "sales"; that's the thing about monopolies.) It's not hard to envision a transition to a subscription model where you run the program remotely instead of locally. Hell, they could even charge more money to give you access to faster servers.

A/V Club

Other media development suites could, potentially, move to streaming services, but there are caveats. Uploading raw, uncompressed digital audio and video files takes a lot more time than uncompressed images. And what about storing your source files? My grandmother puts together home movies on her iMac, and she's got terabytes of data going back some 15 years. That's the kind of storage requirement an amateur filmmaker can rack up; now think of how much somebody who does it for a living might wind up with. If you're renting storage space on an external server, on a month-to-month basis, that could get pretty costly.

But it's technically feasible, at least, that audio and video editing could be performed on a remote server.

Recording audio is another story. Anything more complex than a simple, single-track voice recording is still going to require specialized mixing hardware. And transferring your recording to a remote server in real-time, without lossy compression? You'd better be sitting on fiber.

So I think we can put "recording studios" -- even the home-office variety, like mine -- into the category of Stuff That's Not Going Anywhere for Awhile.

Games

Moving games to a streaming system is a challenge -- but I'm not sure it's as big a challenge as recording studios. It's more or less the same requirement as Photoshop: take simple inputs from a human interface device, send them to a server, have the server run them and respond accordingly, stream the video output back to the client. The trick is managing to do that in real-time with minimal loss of audio and video quality. That's the challenge -- but engineers are working on it.

The OnLive streaming service was a failure, but Sony bought it out; it sees value there. nVidia's got its own streaming solution too, in GRID. One of these things is not like the other -- Sony sells consoles at a loss and would stand to benefit from selling cheaper hardware, while nVidia makes a ton of money selling expensive graphics cards to enthusiasts and surely doesn't want to cannibalize its own market -- but obviously there's more than one type of gamer, and the people who shell out over $300 for a graphics card are in the minority.

Now, as minorities go, high-end PC gamers are still a pretty sizable minority; it's still a multibillion-dollar industry. But it's a fraction of the console gaming business, and it's expected to be surpassed by mobile gaming by the end of this year. Like the PC industry as a whole, it's still big and it's still growing, but it's growing a lot slower than other sectors and could be facing a long-term threat from new platforms.

Switching to a streaming platform could have a lot of appeal to game publishers; it combines the simplicity of developing for consoles with the superior hardware capabilities of the PC. Think about the possibility of developing for the latest and greatest hardware, but only for a single specific hardware build.

It would also, at long last, produce a form of DRM that could actually work.

While the industry has tried many, many copy protection schemes over the years, all of them are, sooner or later (and usually sooner), crackable. And there's a simple, logical reason for this: no matter what you do to encrypt the data of your program, you have to give the computer the means to decrypt it, or it won't work. No matter where or how you hide the key, if you give it to your users sooner or later they're going to find it.

But that's only true if the software is running on their computer. If the binary data is never copied to their hard drive, never stored in their memory, if the program is actually stored and run on a remote server somewhere and all the client has access to is a program that takes inputs and streams audio and video? Well, then there's no way they can copy the game, unless they actually break into your servers.

(Which, given Sony's history with Internet security, might not actually be so hard.)

I am not saying this is a good thing; in fact, I consider it something of a nightmare scenario.

Consider every problem you've ever had with an online or digitally-distributed game. Now think of what it would look like if every game had those issues.

Not just latency, lag, server outages, and losing your progress every time your Internet connection goes out. Consider that if a game is no longer profitable, they'll pull the plug. If a developer loses a license, the game(s) associated with it will go away. (Was GoldenEye ever released on Virtual Console? I don't think it was.) If a game gets updated and you liked the old version better, too bad. And remember when Nintendo ended its partnership with GameSpy and killed all the online multiplayer features of every Wii and DS game ever made? Imagine an entire generation's worth of games not working at all anymore, online or otherwise. Even though you paid for them.

Now, there's recent evidence that a strategy like this would fail. The Xbox One is still reeling from customer backlash against early plans to restrict used-game sales and require an always-on Internet connection even for single-player games, even though those plans were never even implemented.

On the other hand, there's evidence that even a wildly unpopular strategy could still succeed. Have you ever heard anyone who doesn't work for EA praise the Origin distribution service (or whatever the fuck they're calling it now)? I know I haven't, but people still use it. Because if you want to play Mass Effect 3 or Dragon Age: Inquisition, your only choices are consoles, Origin, and piracy.

And then there are examples that could go either way: Ubisoft continued to use DRM that required an always-on Internet connection for about two years, from 2010 to 2012, before finally giving in to market backlash.

It's hard to say how existing high-end PC gamers would react if the major publishers tried to force a transition toward streaming games -- or whether high-end PC gamers will continue to be a big enough market for the major publishers to care what they think. But for the foreseeable future, I think PC gaming will continue on much the same as it has for the past 15 years. There could be major changes on the horizon, but I sure don't see them happening in the next 10 years.

Then again, five years ago I was saying there was no way that streaming video would outpace Blu-Ray because there was just no way to stream 1080p video over a home Internet connection. So keep that in mind before trusting any predictions I make.

Go, Ken, Go! -- Part 6: Penders v Sega Dismissed

2015-09-24, 8:36 am
Categories: Comics, Games, Politics, Stream of Consciousness

I'm going to talk about Ken Penders for a bit, because apparently somewhere along the line my blog became the Internet's foremost resource for information on Archie v Penders. And I never did get around to writing about the conclusion to the other suit, Penders v Sega et al, so I should probably start there.

To read my previous Ken Penders coverage, peruse the handy Ken Penders tag.

The gist: Archie forgets to make Ken Penders sign work-for-hire agreements prior to his work on the Sonic the Hedgehog comic, Penders asserts that he still owns or co-owns the copyrights to all that work and will be working on his own sequel, Archie sues him and writes all his characters out of the comic, fanboys flip out, Archie and Penders settle for undisclosed terms. And that's where I left off back in 2013.

Well, there were two lawsuits: Archie v Penders, where Archie sued Penders to assert that his work was for-hire and he held no ownership stake in it, and Penders v Sega et al, where Penders sued Sega and EA over Sonic Chronicles: The Dark Brotherhood, a game which featured characters similar to the Dark Legion he had created in the Knuckles the Echidna comic.

Last I talked about this, Penders v Sega was still awaiting resolution, but I learned recently that last year it was dismissed on a technicality.

I took a look at Ken Penders's messageboard a little while ago (I'll come back to that in a future post), and he linked to a Tumblr post by TheAmazingSallyHogan, citing it as an authoritative and scholarly rundown of the case.

I have a couple of minor, tangential quibbles with Ms. Hogan's piece, such as how she defines work-for-hire; I'll get to them in a later post. But they're not relevant to the specifics of the Penders case, which, near as I can tell, she has exactly right, and describes in great detail.

And as for the conclusion of the Sega case, here's what she has to say:

On September 26, 2011, Penders’ lawsuit against SEGA/Electronic arts was dismissed, with the Judge essentially telling Penders that he needed settle matters with Archie first, and then he could re-file. Penders re-filed on September 30, just four days later. The same Judge dismissed the case a second time, saying very firmly that Penders needed to settle matters with Archie before re-filing against SEGA/Electronic Arts.

[...]

In May 2012, Penders’ council appealed the dismissal of his case against SEGA and EA. Penders’ determination to have a case in progress against SEGA/Electronic Arts, instead of just waiting to re-file, was because there is a three year statute of limitations on US copyright claims – a legal time limit intended to make sure cases are tried while the evidence is fresh. Sonic Chronicles was released September 25, 2008, almost exactly three years earlier. Filing a new case later would mean he would lose the chance to sue SEGA for Sonic Chronicles’ sales, so Penders appealed the dismissal. The importance of these dates was not stated in his appeal, an omission that would later prove crucial.

[...]

On October 11, 2013, Penders’ appeal (concerning his case against SEGA/Electronic Arts) was heard. While the judges agreed that the timeline was highly relevant and that if the case was dismissed he would largely lose the ability to seek compensation for Sonic Chronicles, his previous lawyer had failed to state why the dates were important in the appeal, and thus the judges could not take that issue into consideration. Shortly after, the court rejected his appeal and upheld the dismissal. While he could re-file, Sonic Chronicles had been released September 2008. It was now well past three years later, putting essentially all sales outside of the three year statute of limitations window. However, any new usage of the characters introduced in that game (such as an appearance in the comic), could potentially lead to a lawsuit from Penders. Late October, Penders stated “this case may yet end up in the US Supreme Court if a resolution isn’t found prior to that”.

So there it is: due to a mistake in Penders's lawyer's legal filing, Penders v Sega was dismissed, and he missed the statute of limitations for collecting any of the money generated by Sonic Chronicles. No ruling, no settlement, no resolution. While I wouldn't be surprised to see some fanboys take the words "case dismissed" to mean that Penders's case against Sega was flimsy or lacking in some way, that is not what this dismissal means; the case was dismissed due to a mistake in filling out the paperwork, and no other reason.

I wouldn't expect to see Sega re-release Sonic Chronicles any time soon, as that would open them up to a new suit.

Penders's allusions to a Supreme Court case notwithstanding, this is most likely the end of it, though he's still got his own series coming at some point, whatever form it may take.

I noted before that a lot of the other writers and artists who worked on Sonic around the time Penders did could potentially file for their own copyrights (and that Scott Shaw already had). I haven't heard anything more about that. However, given how the Penders case went, I would expect Archie to quietly settle with any other creators who made similar claims, on similar terms, without suing them, and it's entirely possible this has already happened. It's one of those things we'll most likely never know.

Meanwhile, if you're interested in the case at all, I highly recommend that you read the entire piece by TheAmazingSallyHogan. It's as good and thorough a summary of the case as you'll find anywhere.

Go, Ken, Go! -- Part 5: Settlement!

2013-07-08, 9:57 pm
Categories: Comics, Games, Politics, Stream of Consciousness

For my previous coverage, check out the Ken Penders tag. In particular, the first post has a relevant disclaimer that (1) I tend to side with creators over publishers generally and (2) I corresponded with Ken Penders in the 1990's and he was a nice guy.

Anyhow, looks like I'm a bit behind on this, but last week brought the biggest news yet: per TSSZ News, Archie and Penders have settled and the suit has been dismissed.

What I predicted in Parts 3 and 4 still holds: we'll learn some of the terms of the settlement in the coming months (we already know Ken is moving forward with The Lara-Su Chronicles so I think we can safely say he has the rights to publish original comics with Lara-Su in them); some will stay confidential. Penders v Sega and EA is still ongoing, though this puts him in a better position as it establishes that he does have standing to sue for infringement, even if it still has to be established that Dark Brotherhood infringes his copyrights.

I think it's also safe to say that Ken would be happy for Archie to continue using his characters and reprinting his stories -- so long as they pay him his share for that use. And that if, say, the echidnas stay lost in that warp ring, that's Archie's decision not to pay Penders, not Penders's decision not to let Archie pay him.

But I think there's something much bigger coming.

Penders wasn't the only guy freelancing for Archie's Mamaroneck office in the mid-1990's. And he wasn't the only guy doing it without signing a contract first.

There are potentially dozens of other Sonic alums who have been watching this case and waiting to see if they've got a shot at winning their rights back, too. Scott Shaw has already filed for copyrights on his Sonic work. He won't be the last.

Archie v Penders is over. But this is only the beginning.

Update 2015-09-24: And Penders v Sega is over too; it was dismissed in 2014. I discuss it more in Part 6.

As for Scott Shaw and other creators seeking to reclaim their copyrights in the same way that Penders did, I haven't heard any news on that front, though I suspect we won't; given how the Penders case turned out, Archie is unlikely to file any more lawsuits, and I suspect that if other creators raise similar challenges Archie will settle with them quietly without getting the courts involved. It is possible that this has already happened, though it's likely that we'll never know.

Go, Ken, Go! -- Part 4: Bibliography

2013-05-21, 6:53 pm
Categories: Comics, Games, Politics, Stream of Consciousness

I think this'll round off my Ken Penders coverage for now -- maybe I'll post more when there's news; maybe I'll write a post about why I care enough about the rights to silly mid-1990's Sonic the Hedgehog comics to spend so much time and so many words on the subject, just as soon as I figure that out myself.

Anyway, here's a list of articles about Archie v Penders and the related legal disputes. I posted comments in many of these threads myself, and it's interesting (to me at least) to watch as I go from initial skepticism -- "Penders signed a contract, he had to have" -- to eventually realizing that the root of Penders's claim is that no, he didn't sign a contract, and then slowly come to believe that he's right and Archie really did forget to make him sign one.

Far and away the most legwork on this story has been done by Tristan Oliver of TSSZ News. TSSZ's coverage has been extensive, and I intend to link a few highlights here; please understand that this is by no means an exhaustive sample of everything Oliver and his associates have written on the subject. For a more thorough list, check their Penders+Copyright tag.

By the way, though: I would advise not reading the comments section on any TSSZ News story about the Penders case. The comments section is a wretched hive of scum and villainy.

(Also: My sister-in-law owns cats named "Tristan" and "Oliver". That's kinda weird.)

Ken Penders Presents... by Ken Penders, kenpenders.com, 2010-07-07. Ken's opening salvo, where he first claims that he owns or co-owns the copyrights to everything he ever wrote or drew for Archie's Sonic the Hedgehog, Knuckles the Echidna, and assorted related specials.

Has Archie Lost Rights to Sonic Reprints? by Johanna Draper Carlson, at her blog Comics Worth Reading, 2010-07-11. This is the first I heard of the story; Ken's name was a bit of a blast from the past and I was surprised to hear it in the comics news.

Ken Penders Claims Sonic The Hedgehog Rights by Rich Johnston, Bleeding Cool, 2010-07-10. The first of Bleeding Cool's long-running coverage of the case.

Archie v Penders thread at Brontoforumus, 2010-07-12 to 2013-07-09 -- this thread is assembled from all the posts I (and others, but mostly I) have written on the subject for the past several years across multiple threads. It makes for a good quick run-down to read it all end-to-end.

Archie Comics Files Federal Lawsuit Against Ken Penders, by Tristan Oliver, TSSZ News, 2010-12-01. While there had been legal wrangling prior to this, this is where the lawsuits actually started. And it is important to remember, throughout this discussion, that while fanboys continue to misstate the basic facts of the case, Archie sued Ken Penders, not the other way around. (Penders has sued Sega and EA -- we'll get to that in a bit -- but he has not sued Archie. Archie sued him.)

Penders Affidavit Offers Intimate Look At His Sonic Comics Tenure by Tristan Oliver, TSSZ News, 2011-03-03. Oliver looks over the affidavit. This is where the meat of the dispute starts to become clear: Penders is claiming he never signed a work-for-hire agreement; Archie has submitted documentation to the contrary but Penders is disputing its authenticity; Penders has other creators from the same period who back up his story. Money quote: "First, the signatures are not believed by me to be authentic."

Inside Ken Penders's Alleged Work for Hire Agreements with Archie by Tristan Oliver, TSSZ News, 2011-03-07. Oliver highlights the contracts Archie has submitted as evidence, and notices a number of discrepancies in them.

Ken Penders Files Lawsuit Against Sega, Electronic Arts by Tristan Oliver, TSSZ News, 2011-06-01. As the name implies, this is the filing of Penders v Sega and EA, over the game Sonic Chronicles: The Dark Brotherhood, which features characters who resemble the Dark Legion from Ken's Knuckles comics.

Inside Ken Penders’s Copyright Lawsuit Against Sega, EA by Tristan Oliver, TSSZ News, 2011-06-03. More detail on the suit, notably including Penders's allegations that BioWare approached him about helping develop Sonic Chronicles, which would certainly imply they were familiar with his work and the Dark Brotherhood's resemblance to the Dark Legion is not coincidental.

The Ken Penders/Archie Comics Lawsuit Continues by Rich Johnston, Bleeding Cool, 2011-06-24. More coverage of the contracts Archie submitted as an exhibit in the case, and Penders's claim -- with support from Scott Shaw and Elliot S Maggin -- that the contracts are illegitimate.

Coming Soon in 2012, by Ken Penders, kenpenders.com, 2011-12-01; Ken's statement of intent to publish his characters in his own comics, without Archie or Sega (or Sega's trademarks). At the time of this writing the thread has posts in it on up through last October; a lot of it is just Ken going in circles patiently trying to explain copyright and trademark law to his forum trolls, but if you can get through it there's a lot of edifying information on the claims he's making in the case and the legal tack he's taking with them.

Ken Penders To Publish Sonic The Hedgehog Characters On His Own by Rich Johnston, Bleeding Cool, 2011-12-04; a response to the above post. The comments thread had some interesting discussion and links related to how Archie handled the TMNT license; the TMNT Adventures comic ended around the same time the Sonic comic started, though unfortunately it's no longer up and only part of it is available on archive.org.

Inside the Archie v. Penders Pre-Trial Report by Tristan Oliver, TSSZ News, 2012-02-13. Notes some of the names on the witness list; a number of former Archie editors and freelancers were slated to testify and corroborate Ken's claim that Archie did not make him or other Sonic freelancers sign work-for-hire agreements.

Penders Case: Scott Shaw Claims Copyright to his Archie Sonic Work by Tristan Oliver, TSSZ News, 2012-03-20. Includes an affidavit from Shaw, as well as one from Maggin saying he never signed a work-for-hire agreement for an issue he did of Archie's Super Teens around the same time.

Ken Penders Stops Diamond From Distributing Sonic Collections by Rich Johnston, Bleeding Cool, 2012-09-14. This was an early sign that Penders's claims were causing trouble for Archie; in the months since Archie has continued to put out reprints of Penders's Sonic work through Diamond, but among other measures it's altered covers so that his characters don't appear on them.

Settlement Terms Reached in Archie v. Penders Copyright Case by Tristan Oliver, TSSZ News, 2012-12-04. For a minute there, it really looked like it was almost over.

Flynn Addresses Altered Sonic #244; Fans Look To Penders Settlement by Tristan Oliver, 2012-12-27. A recent issue of Sonic the Hedgehog has most of the Knuckles the Echidna supporting cast sent through a Warp Ring and effectively written out of the series indefinitely. Notably, the characters in question are among those Penders created and is seeking to claim copyright on.

Archie Fighting Proposed Dismissal of Penders Copyright Case by Tristan Oliver, TSSZ News, 2013-03-27. And then the talks broke down and Penders moved for dismissal. In one of my favorite legal filings ever, Archie's lawyer argues against dismissing the case with prejudice because this would be, and I quote, "greatly prejudicial".

Penders Counsel Asks Court to Ban Knuckles Archives #4 Sale, Related Material in Dispute by Tristan Oliver, 2013-04-19. Ken's tightening the screws and pushing for an injunction; the judge has not made a decision yet.

Archie Desperate To Settle, But Can’t Without Sega – The Latest In The Ken Penders Sonic Comics Case by Rich Johnston, Bleeding Cool, 2013-05-09. A fantastic transcript of a May 2 court session; the judge quotes Laurel and Hardy but the transcript reads more like an Abbott and Costello routine. Counsel for both Archie and Penders state that they want to settle but that they haven't been able to get Sega to sign off on their terms.

And here we stand -- there's been no news since. The judge granted both parties more time to bring Sega to the table to approve their settlement, and that's the last we heard; neither Bleeding Cool nor TSSZ News has posted any updates on the case since.

I suspect all sides are hoping to settle rather than go to trial. If they settle, most of the terms will be private. But if talks break down, the case will go to trial. And from there, probably an appeal by whichever side loses. This could stretch on for years more. But like I said yesterday, I hope it doesn't -- I hope it gets settled on terms that are favorable to Ken.

Of course, while that would close the book on Penders's case, it wouldn't preclude all the other Sonic freelancers from that era from coming forward with claims of their own. As we've seen, there are lots of creators making the same claims Ken has -- and if he gets a settlement, they'll be angling for settlements of their own.

Stay tuned...

Update 2013-07-09: Archie v Penders has been settled. Two more related links:

It's Over. by Ken Penders, kenpenders.com, 2013-07-01. Ken announces that he is moving forward with The Lara-Su Chronicles.

Judge Officially Dismisses Archie v. Penders Case by Tristan Oliver, 2013-07-02. TSSZ News confirms that the case has been settled and the suit dismissed.

Update 2015-09-24: I'm late on this, but I recently found out that Penders v Sega et al was dismissed (due to a mistake in how the paperwork was filed, not due to any decision on the merits of the case itself).

TheAmazingSallyHogan has the most thorough summary of both cases that I have seen to date; it is well worth reading in its entirety.

Go, Ken, Go! -- Part 3: The Stakes

2013-05-20, 9:45 pm
Categories: Comics, Games, Politics, Stream of Consciousness

My Penders coverage continues. See previous installments under the Ken Penders tag.

So what's actually at stake in Archie v Penders?

What does Ken want?

Penders wants a court to rule, decisively, that he never entered into any contractual agreement with Archie Comics beyond first print rights, and to grant him sole ownership of every story that he both wrote and drew, and co-ownership of every story where he did one or the other but not both.

This includes various Sonic stories from issue #11 all the way up to #140, some specials, and the entire Knuckles series, and any original characters and locations introduced therein.

Contrary to how the enraged fanboys would have it, this does not mean that Archie would not be allowed to reprint those stories or reuse those characters -- it just means that Archie would have to compensate him for that use.

First of all, in many cases, Ken wouldn't have full ownership over those stories, characters, and locations -- as mentioned, he would only gain full ownership over stories that he wrote and drew; he would only gain co-ownership of stories where he worked with other writers or artists. (Usually half-ownership, because a comic typically has two creators, writer and artist -- but some of the stories had multiple writers and/or artists.) Sega would retain the remaining share of the rights -- at least, until and unless Ken's partner(s) on a story came forward making similar legal claims and asserting their co-ownership -- and retain the right to do whatever it wanted with them, so long as it compensated Ken for his portion of ownership.

And secondly, it wouldn't be in Ken's interest to halt the reprinting of any of those stories or the reuse of any of those characters. He wants Archie and Sega to continue using them -- so that he gets paid for their use.

Ken also wants to continue the stories he began in Knuckles the Echidna. He wants to be able to use the original characters he created and continue to build that world, through a publisher of his choosing, without oversight or approval from Archie or Sega.

The rub is, even if Ken gets all the copyrights he's seeking, he won't get the trademarks. Even if he can use Rob o' the Hedge, he's going to have to make him look a lot less like Sonic the Hedgehog. Likewise, his echidna characters are going to have to look significantly different from Knuckles.

Also for trademark reasons, while Ken will have the reprint rights to everything he wrote or drew for Archie, in the vast majority of those cases he won't actually be able to exercise those rights without permission from Sega. He'll be allowed to reprint any story that doesn't have any of Sega's characters or anyone who looks like Sega's characters in it, but nothing with Sonic, Tails, Knuckles, Sally, et al, and if he wants to reprint stories with Locke, Rob o' the Hedge, or other trademark-derivative characters, he's going to have to redraw them first.

A decisive victory for Penders would include damages and back pay for all the years Archie has continued to exploit his copyrights, and would lead to a ruling in his suit against Sega and EA that those companies had likewise violated his copyrights and owed him back pay and damages for Sonic Chronicles: The Dark Brotherhood.

What does Archie want?

Archie wants a decisive declaration that Ken signed a work-for-hire agreement and that all his work was produced under for-hire conditions, that he agreed to a flat page rate, and that it was paid. Archie wants the court to rule that it doesn't owe Ken anything more than what it's already paid him, and is free to continue reprinting his back issues and using his characters without any additional compensation.

Short of that, Archie wants to minimize any potential payout it may have to make. It's already gone to some efforts to remove the disputed characters from the covers of reprints and to write them out of its universe. If Archie has to pay Ken, it will want to pay as little as possible, and have as little obligation to him going forward as it can get away with.

How big could this be?

The smallest impact this litigation could possibly have is, well, the impact it's already had: Ken's characters get benched awhile until this gets sorted out, and Archie eventually brings them back. A ruling that's favorable to Archie would pretty much ensure this happens.

Even in the case of a ruling favorable to Penders, Archie could still bring the characters back and continue to issue reprints of Penders-era stories; all it would have to do is compensate him for their use. I have to stress, here, that Penders is not seeking to halt Archie and Sega from profiting from his work -- he just wants a cut. If Archie does permanently drop Penders's characters and cease reprinting his comics, make no mistake: that's out of spite, not legal obligation. That's not Archie being forced to stop using those works, it's Archie choosing not to use them so it doesn't have to pay Penders for them.

As for the biggest potential impact? Well, it involves the character Robo-Robotnik.

Robo-Robotnik is a character who first appeared in Sonic the Hedgehog #19, by Penders, Mike Kanterovich, Dave Manak, and Art Mawhinney. He's a parallel-universe version of Robotnik.

Now, the "original" Robotnik -- the one who resembles the version from the Saturday morning cartoon -- dies in issue #50.

In #75, a new Robotnik steps in; as you'd expect, he more closely resembles the Robotnik from the games (and as the games gave up the "Robotnik" name for the original Japanese "Eggman", the comics followed suit).

But here's the rub: the new Robotnik in #75 is Robo-Robotnik, hopping from his parallel universe to Mobius Prime and creating a new body for himself.

So the ramifications of this are potentially huge: technically speaking, the Eggman who has been the main antagonist in the Sonic the Hedgehog comic from issue #75 to present was co-created by Ken Penders. Best case for Ken and worst for Archie, a court agrees that Ken co-owns the rights to this version of Eggman.

Now, Archie could still kill him off and have yet another parallel universe Eggman take his place; that'd be trivial enough and would keep them from having to compensate Penders for Eggman's future appearances.

But that would still leave the entire run of the Sonic comic from #75 to today -- approaching issue #250 -- featuring a Penders-derived character in a primary role.

Now, Archie is big on reprints. Huge on reprints. And they can choose not to reprint any stories containing, say, Julie-Su the Echidna -- but they can't refuse to reprint any issue containing Robo-Robotnik; that would gut their back catalog. They would have to play ball and offer Penders compensation for reprints.

What would a settlement entail?

Of course, the thing about out-of-court settlements is that they're typically not disclosed to the public. If Penders and Archie do settle, we'll never know most of the details.

But what we do know, because it's been mentioned in the public record, is that both sides are seeking an agreement where Penders is allowed to publish his own comics featuring his original characters, provided he alters their appearances to avoid infringing on Sega's trademarks.

Other than that, all I can offer is conjecture.

At a guess, Penders will allow Archie to continue to use his characters, and probably allow Sega co-ownership rights. (This will be useful to Sega and Archie in case their other co-creators come forward seeking the copyrights.) Archie will want to offer him a one-time payment for these rights; Penders will be seeking co-ownership and a guarantee of royalties or at least some form of profit-sharing agreement. It's unclear which of those will happen.

Given the leverage Penders has with Robo-Robotnik, I think Archie will push for him to sign away the rights to that character in particular, guarantee that he will never try to claim an ownership stake in him, and that he is indeed the same character as Sega's Dr. Eggman and not an original character at all. I think Penders is likely to agree to this -- while co-ownership of Robo-Robotnik could be one of the strongest victories he could make, it's also going to be one of the trickier ones in court. My guess is Penders will give up his claim to Robo-Robotnik in exchange for something else he wants -- either a reasonably-sized one-time payout, or a stronger position with the rights to the other characters who he can actually use in his own comics. (Robo-Robotnik is, of course, a complete non-starter for use in Ken's own comics; he's so fundamentally tied to the character of Eggman that Ken would have to change him so substantially that he might as well just create a new character anyway. The only reason Penders would want Robo-Robotnik would be for reprint royalties.)

What does Sega want?

To crush freelancers, see them driven before them, and to hear the lamentation of their women.

Sega doesn't want to give Penders anything. It wants him to lose, decisively, and serve as a lesson to any other freelancers with any bright ideas.

Archie might convince Sega to agree to a settlement -- but there's no way Sega will do that unless Penders agrees to drop his litigation against Sega and EA. And there's no way Penders will do that without some sort of payout. While I believe he's totally sincere in wanting to keep his original characters and continue Mobius: 20 Years Later on his own terms, Sega and EA are the biggest fish here and he's not going to drop his case over Dark Brotherhood without receiving some form of compensation.

Realistically, I think if a settlement is reached, it will involve Sega (and possibly EA) giving Penders a one-time payout with no admission of wrongdoing, and Penders signing documents to the effect that he recognizes the Dark Brotherhood as distinct from the Dark Legion and will never claim otherwise again.

I think this would probably work out all right for all parties -- Dark Brotherhood was years ago and no sequel appears to be forthcoming. Penders might be better off taking a one-time sum than gambling on future royalties that may or may not materialize; Sega, on the other hand, will want to keep the option of using the Dark Brotherhood again even if that never actually happens.

But again -- all of this is conjecture on my part. I don't know what Sega's, Archie's, EA's, or Penders's lawyers are thinking on this. If there is a successful settlement, we'll know a few of the terms -- like copyright assignments, whether Ken ends up making his own comics with Knuckles-derivative characters, whether Archie brings back Ken's characters in its comics universe -- but we won't know any financial agreements, or specific restrictions on the use of the copyrights.

Still, I'm hoping for a settlement that treats Ken decently and allows him to make a living. He's really put a lot on the line in bringing his case this far; if it goes to jury I hope he wins, but I hope he doesn't have to go through that ordeal (and the appeals that would inevitably follow). Here's hoping for a resolution that works out well for him.

Go, Ken, Go! -- Part 2: The Curious Case of the Contracts

2013-05-17, 7:50 pm
Categories: Comics, Games, Politics, Stream of Consciousness

Archie is the most anti-creator publisher in the comics industry.

DC's bad. Marvel's worse. But Archie is the worst.

To this day, Archie's official company line is that Archie (the character) was created by company founder John Goldwater, while Bob Montana merely created "the original characters' likenesses". And it took an out-of-court settlement for Bob Montana to get even that half-assed credit.

And talking of court cases, what happened when Dan DeCarlo tried to get a piece of the Josie and the Pussycats movie? He was fired. After freelancing for the company for forty years and becoming the definitive Archie artist (and indeed the definitive "good girl" artist). And firing him apparently wasn't enough -- Archie actually started removing his name from reprints.

Archie has the gall to continue to claim that Dan DeCarlo didn't actually create Josie -- a character who is named after his wife.

Archie creators don't even get royalties or any form of profit sharing -- you get a page rate and that's all.

So it was against this historical backdrop that I heard Ken Penders claim that his Sonic comics had not been work-for-hire, and I was skeptical. Well, "skeptical" is one of the politer words I used at the time -- I also said his claims "strike me as some legitimately crazy shit".

(I suspected for awhile that this was why I was never approved to post on Ken's messageboard; now I'm more inclined to believe it's just an automated system that filters out four-letter names as probable spambots. At any rate, it was still a rude thing to say and I now believe it was factually inaccurate besides.)

That was my read on the case for the first couple years it ran, but not long after that, the other shoe dropped and the scope of what Penders was really claiming became clear: Archie never made him sign a contract. If you look through my posts from around that time (and I'll have a bibliography post in the next couple days), you can watch the scope of the claim begin to dawn on me and my view of the case start to shift to Penders's favor.

Hard as it was to believe, it was starting to look like Archie, the company that had been so iron-fisted in its treatment of its own creators over the past 70 years, really had dropped the ball. Ken wasn't the only creator making these claims. Scott Shaw, Elliot Maggin, and a laundry list of others were too.

Here's the thing about work-for-hire: under the Copyright Act of 1976, work-for-hire agreements must be made in advance, in writing. If Ken did not sign a contract before producing his work, then it was not work-for-hire.

Which still doesn't necessarily mean, in and of itself, that he didn't transfer the rights to Sega by way of Archie -- he could have sold the rights, even if the work wasn't produced for-hire.

But that doesn't seem to have happened.

Archie has produced some contracts which appear to have Penders's signature on them -- but they're sloppy, incomplete photocopies, and they're dated years after Ken first started writing and drawing Sonic comics. Ken has implied, though he's been very careful not to say it outright, that his signature may even be forged on them.

And personally -- and please note that this is pure unsubstantiated conjecture on my part -- I think he's got proof. Because by the end of last year, Archie was talking settlement.

Indeed, Archie's lawyer recently said the company was "desperate" to settle. But it hasn't.

And that's because this isn't just about Ken Penders and Archie. Sonic is a licensed comic; Sega owns the rights. Not just to the original characters, but to all the comics and everything in them. If Archie lost the license, Sega would retain the rights to reprint everything through another publisher (like how Dark Horse can reprint Marvel-era Conan and Star Wars).

At least, that's how it's supposed to work. But, if Ken is right and Archie never made him sign a contract, that means he owns, or at least co-owns, all the material he wrote or drew.

The way the contracts were supposed to work is that the writers and artists sign them and immediately give up the rights to Sega. According to Penders, Shaw, Maggin, et al, that didn't happen.

So Sega is denied the ownership it expected, because Archie screwed up the paperwork.

And, not to put too fine a point on it, Sega's been sued over it. And might be again.

Because I've been talking about Archie v Penders here, but there's another suit out there: Penders v Sega and EA.

The Sega/BioWare game Sonic Chronicles: The Dark Brotherhood included villains who resembled Penders's Dark Legion characters. I will grant that I've never played Dark Brotherhood -- but I'll also say that the very first thing I thought when I saw the advertising materials was "Oh, it's the Dark Legion."

So Archie v Penders has a direct bearing on Penders v Sega and EA -- because the outcome of Archie v Penders will determine whether Penders owns the Dark Legion and has grounds to sue for their appropriation in the first place.

If I were representing Sega, I'd be pretty angry at Archie for fouling up the paperwork and putting my company into this position. And I'm willing to bet that Sega is a lot less interested in settling than Archie is. Because even if it reaches an arrangement where it pays out a small, one-time settlement fee and doesn't have to worry about paying Penders for reprints or for any future games or reissues, a settlement opens the door for more writers and artists to assert their copyrights and pursue compensation.

So that's where things stand as of last week. Archie wants to settle but Sega hasn't granted approval for a settlement.

The judge is pushing to bring Sega in on the negotiations ASAP, and that should determine whether the suits are settled or go to trial. There should be more news any day now.

Update 2013-07-08: Archie v Penders has been settled; see Part 5 for my thoughts.

Peter Moore Gives a Master Class in Bullshit Internet "Debate"

2013-04-09, 9:21 pm
Categories: Games, Politics, Stream of Consciousness, Tech

Yesterday, in a discussion about bullshit argument tactics employed by corporate mouthpieces defending bad policies, I quoted a bit of EA COO Peter Moore's asinine response to his company's commanding lead in the Consumerist's annual Worst Company in America survey.

I picked one particular bullet point, but really the entire thing is an amazing example of what I'm talking about. Logical fallacies piled on top of terrible metaphors wrapped in insults to the reader's intelligence. I think the whole piece really deserves a going-over, piecemeal.

The tallest trees catch the most wind.

That's an expression I frequently use when asked to defend EA's place in the gaming industry.

You know, I used to live in a house that had a tall tree out back.

It's true that it caught a lot of wind.

It's also true that that wind made it pretty fucking hazardous. One time during a storm, one of its branches broke off and smashed through a block in our fence.

We were lucky it just hit the fence by the alley, and not power lines or our roof or our neighbors'.

You know how it got so tall?

By digging around in shit.

Its roots grew down through our sewage pipes. The place had serious plumbing problems for years and years.

Finally, before we moved out, my roommate (the owner of the house) had the tree taken out. Then he dug a trench in the backyard, and had the pipes replaced. The long day of digging coupled with the exposure to sewage made him seriously ill.

So, you know, "The tallest trees catch the most wind" is one way of putting it.

Another way is, the tallest trees are dangerous, expensive, and may leave you covered in shit and physically ill.

And it comes to mind again this week as we get deeper into the brackets of an annual Web poll to name the "Worst Company in America."

This is the same poll that last year judged us as worse than companies responsible for the biggest oil spill in history,

I'ma stop you right there, Pete.

I mean, nice weaseling on the plural there, but you're talking about BP.

I wonder why British Petroleum didn't win the Worst Company in America poll.

the mortgage crisis, and bank bailouts that cost millions of taxpayer dollars.

Now, here Moore makes what may be the only reasonable point in this entire piece.

And that's, yes, it is fucking ridiculous to suggest that EA's the worst company in America.

It's not even in the running.

EA may be terrible, but anyone who tells you it's the worst company in America is stupid, lying, or both.

The complaints against us last year were our support of SOPA (not true),

Moore is technically correct here, but it's a bit misleading. According to techdirt, Sony, Nintendo, and EA never actually endorsed SOPA -- but they did sign on to a letter from the Global IP Center that suggested something a whole lot like SOPA.

and that they didn't like the ending to Mass Effect 3.

Yeah. That's why people are calling EA the worst company in America.

That and they hate gay people. But I'm getting ahead of myself.

This year's contest started in March with EA outpolling a company which organizers contend is conspiring to corner the world market on mid-priced beer, and (gulp) allegedly waters down its product. That debate takes place in bars -- our audience lives on the Internet. So no surprise that we drew more votes there.

Let me cut to the chase: it appears EA is going to "win." Like the Yankees, Lakers and Manchester United, EA is one of those organizations that is defined by both a legacy of success, and a legion of critics (especially me regarding all three of those teams).

Again, Moore makes a fair point that there's an echo chamber here. The kind of person who hates EA is exactly the same kind of person who likes to game stupid online popularity contests. EA keeps getting voted the worst company in America for the same reason that Time's list of the most influential people in the world spells out "KJU GAS CHAMBERS".

But once again Moore brings up an analogy that maybe works on a level besides the one he intended.

Because hey, Pete -- when people say they don't like Kobe Bryant, maybe it's not just because he's so goddamn good at basketball.

Are we really the "Worst Company in America?" I'll be the first to admit that we've made plenty of mistakes. These include server shut downs too early, games that didn't meet expectations, missteps on new pricing models and most recently, severely fumbling the launch of SimCity. We owe gamers better performance than this.

Moore may be willing to admit EA's made mistakes, but sure doesn't seem to keen on acknowledging what those mistakes actually are. Watch him trotting out the company line that the problem with the SimCity launch was that they didn't implement its always-on requirement correctly, not that the always-on requirement was the mistake.

Some of these complaints are 100 percent legitimate -- like all large companies we are not perfect. But others just don't hold water:

  • Many continue to claim the Always-On function in SimCity is a DRM scheme. It's not. People still want to argue about it. We can't be any clearer -- it's not. Period.

Oh boy, now we're getting into the real nutmeat of the bullshit here.

I covered this one yesterday, but to review:

  1. Yeah, it is a DRM scheme. It's the same kind of crap EA pulled with Spore's periodic authentication and the stories about players being denied access to legally-purchased copies of Dragon Age 2 for criticizng EA on messageboards, cranked up to 11. The always-on connection is not required to play the game, so why the fuck is it there if not as a DRM scheme? Which brings us to:
  2. Even if it weren't DRM, it would still be a terrible fucking idea that prevented people from playing a game they paid for. In fact, if it's not intended as DRM, then EA is even stupider, because they stuck an always-online requirement into a game that didn't need it for no reason instead of for a stupid reason.
  3. And finally: If you follow up the phrase "We can't be any clearer" with an argument that is literally just a slight paraphrase of "Nuh-uh!", maybe you should hire some people who can be clearer.
  • Some claim there's no room for Origin as a competitor to Steam. 45 million registered users are proving that wrong.

Okay, first of all, who is claiming that?

The problem isn't that Steam couldn't use a little competition. The problem is that Origin is a system whereby people's ability to play their legally-purchased games is contingent on whether or not a forum mod somewhere gets pissed off at something they say. Or possibly just gets pissed off when they ask Amazon for tech support.

Anyway, I'll get on the "45 million people can't be wrong!" fallacy in a minute. You had a little more mileage you wanted to wring out of it first?

  • Some people think that free-to-play games and micro-transactions are a pox on gaming. Tens of millions more are playing and loving those games.

Well, Mr. Moore, since you're the one who brought up banks and oil companies, let's talk about that for a minute.

A shitload of people still buy gas from BP and keep their money in Chase banks. Enough to make your "45 million" brag look like loose change in the ashtray of the car they're filling up with BP gas using their Chase credit card. And hell, speaking of ashtrays? Hundreds of millions of people are smoking and loving cigarettes, too. Does that mean everyone who thinks lung cancer is bad must be wrong?

  • We've seen mailing lists that direct people to vote for EA because they disagree with the choice of the cover athlete on Madden NFL. Yes, really...

I don't doubt it. The Internet is a big place. You can find someone who will say absolutely any kind of dumbass thing.

This particular rhetorical tactic is a close cousin of the strawman, with the added benefit that it allows people to act indignant when accused of invoking a strawman. "It's not a strawman! A guy totally said it!" All you have to do is point to the craziest person you can possibly find and pretend he's a representative example of everyone who disagrees with you, and presto!, you can just ignore all the people making well-reasoned and -informed arguments!

  • In the past year, we have received thousands of emails and postcards protesting against EA for allowing players to create LGBT characters in our games. This week, we're seeing posts on conservative web sites urging people to protest our LGBT policy by voting EA the Worst Company in America.

That last one is particularly telling. If that's what makes us the worst company, bring it on. Because we're not caving on that.

I love that one.

Seriously, it is a really tough call whether my favorite part of that bulleted list is the "It's not. Period." part, or the part where Moore straight-up implies that if you don't like EA, it's because you hate gay people.

On a related note: can anyone name an EA game that allows you to play as a gay character that isn't made by a subsidiary that was letting you play as gay characters before EA bought it?

We are committed to fixing our mistakes. Over the last three weeks, 900,000 SimCity players took us up on a free game offer for their troubles. We owed them that.

Ah yes, that would be one of the small, arbitrary selection of free games you made available, of which Ars Technica said:

It's a curious mix of titles, not least because only one of the games is likely to have any particular appeal to SimCity players: SimCity 4. And even that is an odd choice. Many SimCity players already own--and love--the old game, and many regard it as the benchmark against which all city-building games (including the new one) are judged. The problem is that those comparisons aren't necessarily favorable to the new game.

Seeing Warfighter on the list, one wonders if EA wants to be hated even more than it currently is. The game is a stinker.

But back to Moore:

We're constantly listening to feedback from our players, through our Customer Experience group, Twitter, this blog, or other sites. The feedback is vital, and impacts the decisions we make.

If you were listening to feedback, you would have cut this shit out after the Spore backlash. Or the Dragon Age 2 backlash. Or the Battlefield 3 backlash. Or the every single fucking game on Origin backlash. Or the other Battlefield 3 backlash. Or or or windy trees! Windy treeeeeeeeeeeeeeees!

But Mr. Moore, you've made yourself abundantly clear: EA does not give a fuck how many of its customers are dissatisfied, all it cares about is how many of its customers are still happily paying money for its games. As long as games like Spore and SimCity are bestsellers, EA has no incentive whatsoever to back off its terrible, anti-consumer policies.

...and after that there are two more paragraphs of Moore pretty much saying exactly that, another vague "we can do better" that doesn't actually acknowledge what they've done wrong, and a restatement of the thesis because Peter Moore learned in high school English that you're supposed to close an essay by restating the thesis. Fuck it, you get the idea, I don't need to go on.

Obfuscation

2013-04-08, 7:29 pm
Categories: Games, Stream of Consciousness, Tech

Continuing from Friday's post about a Microsoft employee's total disdain for Microsoft customers' concern about the next Xbox's rumored always-on requirement:

I want my game console to only be playable online, said no one ever.
Image via Quickmeme.
My Internet connection went down while I was trying to find it. I'm not kidding.

That's the crux of it, isn't it?

From a consumer standpoint, there is no benefit to an always-on requirement.

Now, people may try to obfuscate this point. They may list off all the benefits of an always-on option. And there are some! Cloud saves are pretty cool! So's online multiplayer! Having those things as options is great!

Making them mandatory, for all games, is not. And therein lies the disingenuousness of the argument.

EA COO Peter Moore recently shared this gem:

Many continue to claim the Always-On function in SimCity is a DRM scheme. It's not. People still want to argue about it. We can't be any clearer -- it's not. Period.

As difficult as it is to argue with the unassailable logic that is "It's not. Period.", there are two problems here:

  1. It's clearly DRM.
  2. Even if it weren't DRM, it would still be legitimately terrible game design.

This is one more case where a company representative is deliberately obfuscating the difference between a nice option and a good requirement.

The idea of an entire world of SimCities interacting with one another? That does sound pretty great! It's really a neat idea!

Is it integral to the gameplay?

Well, Peter Moore will tell you it is. Because Peter Moore is paid to tell you it is.

But it's turned out to be trivial to modify the game for offline play, and quite a lot of people have noted that the game plays just fine that way. The interaction with other players and cities is a nice option -- but it's not required to enjoy the game.

Indeed, it proved a pretty fucking considerable detriment to customers enjoying the game.

So beware this argument tactic -- "[X] is a good requirement to have, because of [features that could be implemented without making it a requirement]."

And its close cousin, "DRM is a benefit to the end user, because of [features that could be implemented without using DRM]."

DRM is never a benefit to the end user. No end user has ever said, "You know, this game is great, but it would be better if it had DRM."

Similarly, as the image above so succinctly notes, nobody has ever said "You know, offline games are great, but I sure wish they were as unreliable as online games."

More Stupid Ideas in Digital Distribution

2013-03-12, 9:39 am
Categories: Comics, Games, Politics, Stream of Consciousness

Stop me if you've heard this one: a media company does a promotion, is totally unprepared for the traffic it generates, the servers are obliterated so that legitimate customers can't access their stuff, and all the while pirates are still able to trivially obtain the media in question.

I'm talking about Comixology and Marvel, but I could just as easily be talking about EA ('cept that last part I guess; to my knowledge there's no crack to run SimCity without a network connection as yet).

Marvel started a big promotion the other day: 700 free issue #1's through Comixology.

The demand took down the Comixology site for two days. And it's still running slowly.

To blame for all this? Two things:

  1. a client-server distribution model with only a single website available to download from, and
  2. DRM on the files to make sure nobody else can set up a mirror.

Well, I should say "to make sure nobody else can set up a legal mirror", because, well, if you've been on the Internet for five minutes and are not a complete dumbshit, you're probably aware that anyone who wants those comics can trivially find pirated copies.

Go the legal route, with Comixology? You get a proprietary file that you can only read in their program. Provided you can access their fucking website at all.

Go the illegal route, through some dodgy website? You get a CBR, or a CBZ, or a PDF, which you can read in any program that supports that format. And you don't have to worry about whether a single specific website is actually working in order to acquire that file.

It doesn't take a fucking genius to see which is the superior, more customer-friendly option.

Let's talk about what customers want. Hey, I like comics. Let's start with me. Here, maybe this will help you get a feel for just how much money you could potentially squeeze out of me:

27 shortboxes, a long box, and a stack of bags a couple of feet high of books I haven't boxed yet

Not pictured: 14 more shortboxes, plus about 2/3 of a bookcase taken up by hardcovers and trades.

My point is, I have spent a fuck of a lot of money on comics over the course of my life.

You know how much I've spent on Comixology? Zero. The Dark Horse digital store? Zero.

And make no mistake: that's not just because I prefer physical comics. I do, but I've downloaded any number of free comics from both those stores. I've read them and I've enjoyed them. I'd be adding those 700 Marvel #1's to my collection right the fuck now if the website were functional.

But free is the amount I am willing to pay for a DRM-infected book, comic or otherwise. If you won't let me read the file on whatever computer I want, in whatever program I want, then you're not getting a damn dime from me.

I realize I'm not the guy Comixology's trying to appeal to here -- they're trying to draw in new readers, not people who know what happens on Wednesdays. I get that. I'm not the target audience here.

But the target audience is getting timeouts too. Not just new readers coming for the Marvel promo, but existing customers who can't access their accounts.

So, here are a couple of points to start with that I think should be blisteringly obvious:

The very idea of restricting access to a free digital giveaway is completely fucking insane.

Why put DRM on something you're giving away for free? What conceivable reason is there for this? Why would you want to restrict copying of a free promotion that you are doing?

And why only make it available from a single distributor?

I mean, I get the reasoning behind that one, at least: they want to turn people into Comixology customers. They don't want people to just grab the free comics and never bother coming the the Comixology site. I get the theory.

But in practice, well, how's that working out for you guys? You getting any customers out of this thing?

Here's the right way to do it: just post all 700 files in a big torrent file. Make them CBR/CBZ format. And stick an ad for Comixology in every file.

Ever see a popular torrent collapse under the weight of high demand? Of course you haven't. Because that is the opposite of how BitTorrent works. BitTorrent is at its absolute best on files that are in high demand.

Now, I know why media companies don't take advantage of BitTorrent: because that would legitimize BitTorrent. As far as the publishers are concerned, BitTorrent is synonymous with piracy. They want the protocol banned entirely -- so of course they're not willing to acknowledge that it can be used as a tool for legal distribution, and a very very good one at that.

So instead, they opt for DRM-encumbered files distributed through a traditional client-server model -- and create this gigantic fucking debacle. And you know what their takeaway from this is going to be? "Well, obviously we need to make sure we've got more bandwidth next time." They're going to think that the problem is that their stupid distribution model wasn't implemented correctly, not that their stupid distribution model is stupid.

"Let's just make sure we've got more bandwidth next time" was EA's solution to the authentication problems that Spore users faced in 2008. 5 years later, did it work?

As long as you're thinking that the fix is a better delivery mechanism for DRM-infected content, you're doing it wrong. The problem will persist.

But you know, there are lots of great digital comics out there that aren't from Comixology and aren't DRM-infected. I've gushed about Mark Waid's Thrillbent before; those are all DRM-free and free to download. I also enjoyed the first issue of Dracula the Unconquered by Chris Sims, Steve Downer and Josh Krach; it's DRM-free and only costs a buck.

The point here isn't merely to castigate companies who do it wrong -- please reward the ones who do it right.