Tuesday, May 21, 2013

Xbox One and PS4, New Consoles, Old Ideas

Tuesday, Microsoft revealed their new console to the public called the Xbox One. Although they did not give an official release date they did clue us all into some of it’s features, and in more than a few ways gamers are getting fucked.

When Microsoft released it’s first Xbox back in 2001, they wanted to compete with Sony’s Playstation 2, but gamers found that the Xbox was more of a problem than they had bargained for. For one, it was buggy as hell. Much like most Microsoft software of the day, the OS that ran on the Xbox first generation was prone to game freezes and the occasional kernel panic. Many modder’s who have examined the APIs noted their similarity to Windows 2000, and it was believed Microsoft had modified the OS to create a version just for the XBox.

Although the Xbox was a moderate success, the XBox 360 released in 2005 was a bona fide hit. Over the past eight years it has dominated the gaming console market, but with the announcement of Sony’s PS4, gamers wondered if Microsoft would be able to repeat their success with the XBox competing against the proposed PS4. Gamers wouldn’t have to wait very long, Microsoft immediately announced they were developing a new generation of XBox, and rumors aside today’s reveal tells us a lot about the direction Microsoft is heading in, and for the gamer—it’s a downward spiral.

The Past

When Microsoft released it’s successful XBox 360, they were primarily competing against the proposed, Sony Playstation 3 console, which featured, at the time a cell processor capable of nine independent threads of execution, unheard of in console gaming. But where the PS3 relied on Sony’s proprietary architecture, Microsoft went straight to Intel for theirs. This alliance benefited Microsoft greatly because it meant that developers would be able to access a CPU core architecture they would be somewhat familiar with.

Unfortunately, for Sony the cell processor proved to be difficult to develop for, and costly. Games that might otherwise be released across platforms would instead be limited on release to either one or the other, and depending on the partnerships, this could benefit or hurt them. What it meant for gamers was that most of the games they wanted to play were being released a lot faster on the XBox than on the PS3. And although the PS3 featured a blu-ray player the XBox did not, Microsoft focused on their online sales, after the failure of HD-DVD as a standard.

It also did not help that Sony was incapable with keeping up with the demand in production their blu-ray players would need, and by the time Sony was able to get a successful release and run of the PS3, the XBox 360 had already sold more than 10 million units.

While over the years most gamers would end up buying a PS3 and an XBox 360 because of exclusivity release agreements, generally most gamers prefer the XBox 360 for their gaming needs.

Whether Sony lost the 7th generation console war or not is debatable, but they seem poised to win this war if Microsoft’s planned release of the XBox One continues without any significant changes. When Sony announced it’s proposed PS4 earlier this year, they wanted to make sure there would be no confusion as to what the PS4 was.

As such, the PS4 is a gaming console, marketed to gamers, and designed for gamers. And although it features some of the usual stuff included with gaming consoles today, like online features and video and audio streaming, it’s primarily designed to be a gaming machine.

The New Generation of Consoles

Along with ditching the cell processor and moving to the X86-64 architecture found on modern PCs, which will allow developers to more easily develop on multiple platforms, the machine itself features 8-cores, and 8GB of ram along with a GPU capable of 1.84TFLOPS which puts it higher than most modern graphics processors of today. The GDDR5 ram that will clock in at around 5.5Ghz along with the GPU will make the PS4 one of the most advanced, and fastest gaming machines of it’s time.

Unfortunately for Microsoft they seem to have gone a different route with the XBox One. Although the XBox One is a gaming console, this is not it’s primary feature, a fact conceded by Microsoft during a recent interview with Wired Magazine.

“The decision wasn’t ‘we need a gamebox,’” Xbox executive Marc Whitten told Wired.  So in the grand scheme of things, Microsoft isn’t any more interested in hardcore gamers than it is any other potential consumer.

So if Microsoft isn’t really interested in gamers per se, what are they interested in. Well according to their big reveal, the XBox One is a multimedia machine that is capable of doing all sorts of things, but in general it will be an entertainment machine capable of playing games, as opposed to a gaming machine capable of other types of entertainment.

If this really is the case, and gaming is to take a backburner to all the other stuff Microsoft plans to do with the XBox One, than Sony has a real chance at cutting into Microsoft’s sales, and defining itself as real competition, and maybe thus far the only true 8th generation gaming console.

Now in either case, Sony or Microsoft both consoles look like an advanced piece of hardware, and many gamers are chomping at the bit to get their hands on one, but any true gamer, should reconsider.

Microsoft’s XBox One

Tolkien's DRM: One Console to rule them all…

When Microsoft announced their new console a few things were leaked about it, and in the modern post-DMCA error following suit after EA’s always online nonsense, Microsoft seemed likely to also feature just such a thing with their new device. When gamers caught wind of it, of course there was a huge backlash, and an internal leaked memo later stated that an “Always online” feature was merely hogwash… or is it?

Well for one, XBox One will feature direct access to Microsoft’s Azure cloud-computing model of 300,000 plus servers giving developers the ability to transfer computing directly to the cloud, rather than using the XBox to handle it’s processing. Although this may sound really cool, and may open your gaming experience up to many new possibilities, it also limits you as well. Because of Azure’s always online requirement, any game developed to take advantage of this feature will also be required to be always online.

A Microsoft exec recently admitted that although this does not mean that game developers are required to use this feature forcing users to remain online, the ability to compute in the cloud gives developers advantages they might be willing to take. I would even go so far as to say that Microsoft will likely encourage it’s developers to use this Azure cloud computing over computing on the XBox, which means for gamers you will have to be online to play your favorite game.

But most startling was the announcement by Microsoft that games purchased on disk in stores will require being installed to the XBox One, something the XBox 360 makes optional. This proposes two main problems.

1. The XBox One will feature a 500GB HDD which although seems like a lot, modern games can be very large especially when you include content that must be downloaded over the internet after install. This can make a game that is 8 to 10GB bloat to 30 or 40GB.

But since the XBox One features a blu-ray player instead of a DVD drive games are no longer limited to 8GB, and can be as large as 25 or 50GB. That means that the default hard disk that comes with the XBox One will run out of space fairly quickly, requiring either an upgrade, or an uninstallation of installed games.

2. And most egregious, Microsoft has disclosed that users who install the games on their XBox One will find the game becomes tied to their XBox, or XBox Live account. A person who then tries to install the game a second time on a different XBox will be prompted to pay an additional fee, now being called a “pre-owned fee.”

What makes this problematic is that such action first, decimates the the pre-owned gaming market, and  second prohibits the doctrine of first sale, which would allow a user the ability if they have the disc to be able to play it on any machine, and third violates anti-tying law as I will explain.

If Microsoft is allowed to apply a fee and lock your game to your console, in the event you choose to sell your game, you will no longer be able to do so or be able to do so by paying an exorbitant fee, which will surely be covered by you, the seller. Because of this, companies like GameStop will be forced to change their model, which will then kill their sale of pre-owned games. Less and less pre-owned games will be sold, which will most likely contribute to the demise of such companies like GameStop.

Imagine for example you spend $60 on your new game. You play your game but it sucks, or you get bored, it’s not your thing, or you just want to try something else out. So you decide to sell your game at Gamestop. Now normally they might give you $10 value on said game so they can then resell said game for around $40, a significant discount over a new game purchase of the game.

Except Gamestop will not be able to give you $10 value on your game now. Let’s suppose that Microsoft applies a 60% pre-owned fee to all games. That means buying that $60 game new would instead cost $36 pre-owned. That is the fee that Microsoft would apply to the game, 60% of its retail value. This poses quite a problem now, because in order to sell that game, Gamestop will either have to charge that fee as part of the sale of the pre-owned game, reducing their profit margin, or charge you that fee, which becomes impossible if you are only get 25% of the value of whatever they would sell it for.

This means that if that $60 new game were then sold by GameStop at $40 which they might normally sell it for, they only make $4 on that sale instead of the $30 they might make, losing 65% of their margin to whomever gets this said fee.

In either case, either you will be unable to sell the game to GameStop, or GameStop will be unable to sell it at a discount, effectively killing their pre-owned sales, something companies like GameStop rely heavily on.

With respect to the doctrine of first sale, it has always allowed the exclusive transfer of media from device to device as long as the device is playing it. What Microsoft hopes to do here is destroy this doctrine by forcing gamers to install the game to the XBox One instead of allowing it to be played from the disc. Since the days of VHS corporations whose sole business model relies on intangible items they can freely copy, but restrict others from doing, have tried, unsuccessfully to restrict people from sharing, as long as only one person possesses the media on which the copy resides.

This means that if I buy a CD listen the shit out if it and want my friend to enjoy it as well, I have to physically let him borrow the CD so I no longer possess it, to allow this. This is the fundamental scheme that allows things like video rental, and even rental of games to be allowed as a business model. Blockbuster would not even exist if this doctrine wasn’t in place.  USC section 17, 109, A reads:

“Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”

Interestingly enough an exemption exists in section b(1), B ii. that reads:

“a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.”

Unfortunately for Microsoft although the first generation XBOX may qualify for this exemption, it was meant solely for gaming consoles like the NES, or Genesis, maybe even the Playstation 1 and 2 class of consoles, which were legitimately limited to playing games.

However, no coherent argument can be made in favor of extending this exemption to consoles like the XBox 360, or PS3, and certainly not the PS4, or XBox One, which by their own admission is anything but a gaming console. When Microsoft and Sony decided to bloat their consoles into something that more resembled a modern PC, they were no longer allowed to claim this limitation.

Because of this they too must adhere to the law of first sale, which states that you are authorized without the authority of the copyright owner, to sell or dispose of the possession of your copy. And although the law was written to apply to records it has as since been applied to Compact Discs and other media with the time. After all, if copyright holders can adapt a three-hundred year old law written to protect the author of books alone, to mean “anything I create,” so too must they allow adaptation of laws to apply to new technologies.

And on the point of Anti-tying laws, and this is where it gets hinky folks. The term "tying" is used to refer to a situation where one benefit is tied to the person or entity doing something else. In 1970, Congress attempted to limit unfair competitive practices by providing that a bank shall not extend credit to a borrower on the condition that the borrower obtain some other service from the bank or an affiliate of the bank. This has since been applied to U.S. code and is found in almost every state of the union to apply to all forms of tying.


This prevents any company from tying a product to another product thereby requiring the purchase of said product to use another product. Now before I go into this, I’ll play devil’s advocate and say, “Well what about the XBox 360? You would have to purchase an XBox to be able to use an XBox game right?

Well someone would, but you specifically wouldn’t have to. And that by it’s nature defeats said practice, also in no way does this game become tied to said device, thereby being part of its altogether defacto purchase price after the fact. If Microsoft intends to tie games to an XBox One, then by it’s very nature the sale of an XBox with games tied to it become mandatory as one cannot be disjoined from the other. A person trying to sell their XBox or their game, cannot without selling the other, or paying a fee, both of which are not allowed by anti-tying laws.

If Microsoft continues on this course, and they so far appear to be doing so, they may find themselves in court, and it wouldn’t be the first time for such things. These kinds of unfair practices have been fought by them before, and they have lost previous cases, an example of which is the case in which they were sued for tying Internet Explorer to Windows 98 and claiming that one could not exist without the other, a fact dismantled in American court, and later by the EU forcing Microsoft to unbundle Windows Media player from Windows.

As Microsoft is no stranger to court, it is unlikely that a lawsuit would dissuade them from moving forward with this nonsense, however, as they have buckled previously to public opinion, gamers might still affect this outcome.

Microsoft whose attempts to often push software on to the public has often been rebutted in terms of loss of sales, something that will affect their plans as it did with Windows ME and later Windows Vista, and the recent flop Windows 8.

What strikes me isn’t that Microsoft doesn’t bend to public opinion but that they have not learned from their mistakes yet, which makes me think that even if they bow to the gamers and release this next XBox DRM free, it is only a matter of time before they can convince them it’s in their best interest.

PS4, Maybe the Answer After all?

If Sony wants to pivot themselves into a great position here as the anti-Microsoft, something they have always been happy to do, they need only advertise their PS4 as DRM free, free of “always online” gaming, free of pre-owned fees, and they will kill the XBox out of the gate. Although you may not think it a  big deal, just imagine if Sony said “we’re not going to force pre-owned fees,” and then entered some kind of deal with companies like GameStop.

GameStop would be forced to sell more PS4 games as opposed to XBox One games, and could legitimately explain why the PS4 was a better choice for gaming.


It would not take long for Microsoft to drop their DRM requirements from the XBox One, or face dismal sales, and another round of firing executives. Sony has a real chance here to do something correctly, and not repeat the mistakes of the past. We are not talking about piracy, we are talking about fairly selling something you purchased, and not being forced into a DRM scheme that will not only turn people off to your console, but have the opposite effect, causing people to turn to piracy and cracking mods to make the console they purchase run the way they want.

Possible look for Sony PS4

Why This Kind of Nonsense Hurts all of Us?

Imagine for a moment that you buy a car, but when it comes time to sell it, Ford or Honda want a piece of the action? Do you think you would stand for that? How is this any different? Game developers want to hide behind EULAs and say you don’t purchase a copy of the game, you purchase a license to play it. Really? So this seems fair to you? Sorry guy, you didn’t buy that car, you bought the right to use it, and only I can sell it for profit. It wouldn’t work in real life, why do we allow these dodgy asshats to force us into this nonsense?

The funniest thing about EULAs is they are mostly invalid on principle alone. Should anyone ever challenge one, they should win, if they properly challenge it. Example: I walk into a store and buy a copy of some software off the shelf, go home, begin to install. Suddenly, I’m presented with a EULA, to which I can agree and install or not agree and… ?

That’s right, they already have your money. When you purchased the product that is a contract, you agree to hand them money, they agree to give you some software, at no time do you need to agree to any EULA. Once you begin to install the software and are presented with the EULA, they are attempting to modify the contract which is not allowed. Therefore the contract becomes invalid if I choose to disagree. Once this happens I am entitled to a refund. So go ask for one, see what they tell you…


If they refuse, they are in breach and the entire contract goes poo-poo, at which point you may disagree with the EULA and install said software, or they can give you a refund. Once they are in breach they can’t hold you to the contract. Every contract requires a meeting of the minds, whereby each person is getting something. I get software, they get money, at no time is EULA discussed, therefore it is invalid.

Please forgive my little tangent here, but it provides a valid point for the sleazy lengths at which a corporation will go to take your money and give you the least possible services they can get away, sometimes even violating the law, because it only counts if it is challenged and they lose in court.

It’s been 15 years since the DMCA was signed into law, and since that time we as consumers have been forced into DRM as a consequence. As long as we are willing to suffer the ill of deficient gaming, and a hard-coded craptastic forced medium, nothing will change. And maybe the worst has yet to come.

I’m reminded of A Christmas Carol, the character of Scrooge who suffers blindly a terribly selfish, and lonely life, given the chance to see his past mistakes, and the future to come, ultimately deciding to correct his fate before it’s too late. This can be corrected, we are not too late. As consumers we have the all the power. So long as corporations, no matter how much they spend to develop, must still yield to consumers to purchase their products, we have the control, we have the power.

We can say “yes” and we can say “no.” What has become the norm is that we are more apt to say “yes” not because we want said product, but because we are too lazy to know what we are buying, and apathetic to knowledge. If you doubt what I am saying, consider for a moment Windows 8. Referred to as mostly the OS for noobs, it’s geared toward those not with an interest in technology, but rather an interest in convenience, and sadly, Microsoft believes the majority of you fit this description.

Ignorance isn’t the end of knowledge. The end of knowledge, is indifference.

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