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Digest Comment: How Lawyers Can Guide Independent Video Game Developers on the iPad

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In December, my JOLT Digest comment discussed the state of independent video game developers on the iPhone and the Xbox 360. This article discussed how a collective action problem plagued independent developers on these platforms. As the platform holders, Apple and Microsoft were able to foster environments that benefited their needs but often were potentially hazardous to independent developers. These hazards became realized when independent developers pursued short-term individual gains, which they are prone to doing due to their limited budgets that require turning quick profits. In order to avoid this problem, I suggested that a legal aid society should promote actions by independent developers that would benefit the class as a whole. The recent release of the iPad presents another manifestation of this problem. Through the case study of the iPad, I will discuss how this new technology presents potential for both success and failure for independent video game developers. However, this problem is not necessarily a legal one as much as it is a collective action issue. Lawyers should serve as mediators between independent developers to foster a unified strategy for the platform in order to ensure that independent developers succeed on both the iPad and in the industry.

The Announcement of the iPad and Responses to It

The iPad is a variation on a tablet personal computer (PC) and is, crudely stated, a larger iPod Touch. Like the iPhone, the iPad features a touch screen with accelerometer technology and has access to many of the programs and apps designed for the iPhone. Although the base model does not have the ability to make phone calls, every iPad comes with WiFi capabilities, and customers will have the option to purchase one with a 3G data plan from AT&T. However, its larger display (9.7-inch screen) and powerful one-gigahertz processor makes it more comparable to a laptop or a netbook than the iPhone. Jobs at the announcement press conference claimed that his product filled a gap between Apple’s iPhone and MacBook product lines by being “far better at doing some key things.” One of those “key things” was gaming. Apple emphasized the significant role that video games would have as a selling point for the iPad by inviting publishers/developers Gameloft and Electronic Arts to show off games designed specifically for the iPad. Apple targeted the iPad at customers looking for a new gaming experience and developers hoping to take advantage of a new distribution platform for their products.

Much of the positive feedback towards the iPad has come from larger figures in the video game arena. Many large publishers, including Activision, Electronic Arts, and Sega, have launched their iPad games alongside the device. Another supporter is Mark Rein, vice president of Epic Games, the studio behind the highly successful Gears of War franchise for the Xbox 360 and whose video game technology may power many iPad games. In regards to the iPad’s viability as a gaming platform, Mark Rein told Kotaku, “I think iPad will be great for gaming and I suspect we'll see many games that make use of the differentiated form factor of the iPad.” The director of mobile platforms for PopCap Games, whose release of Peggle on the App Store achieved great success, remarked, “From a technical spec, the iPad looks like it could be a phenomenal gaming machine and I would expect games to be the leading revenue category of apps.” The actions of the three major publishers and Rein’s and the PopCap representative’s exuberance demonstrates an optimism that Apple will be able to create a viable gaming platform for the experiences these companies offer.

The iPad has great potential to be a major platform for independent developers. Given Apple’s track record, this could be another device with a large customer base for developers to reach. Early sales have supported this assertion, as Apple sold 450,000 units in the first week of its release. Yet, independent developer opinion regarding the iPad has been guarded and hesitant. Kris Piotrowski, creative director at independent game studio Capybara Games, said he was “hesitant about making big statements about the 'revolutionary gaming possibilities' that the iPad may or may not offer for designers.” Piotrowski’s negative opinion arose from what he perceived to be a lack of quality games on the App Store and the inefficiency of using a touch screen as a means to control a video game. Even successful iPhone independent game developers question the benefits of the iPad. Randy Smith, whose studio Tiger Style developed the popular Spider: The Secret of Bryce Manor, expressed concerned that indie budgets would not be able to withstand developing for the iPod Touch, iPhone, iPhone 3GS, and iPad in a way that would account for the three products’ technical differences. Indie developer Chaim Gingold, despite his excitement of the iPad’s potential, expressed concerns that the iPad would not have the same strong appeal of the iPhone. Although independent developers recognize the potential of the iPad, they are hesitant to make unqualified positive claims about the device and its impact on their business.

Independent Games versus Traditional Games on the iPad

To account for this discrepancy in opinion, one needs to look at how Apple is positioning the iPad. As mentioned in my previous article, Apple maintains complete control over its platforms and can dictate how it wants developers to respond. In this case, Apple appears to be soliciting a type of game that may not be sustainable for independent developers. At the announcement of the iPad, Gameloft and Electronic Arts showed off, respectively, a new first-person shooter called Nova and a Need for Speed racing game. Coming from two major entities in the mobile game market, both of these video games were high-definition, full-sized video games that could easily be a disc-based product for the Xbox 360 or Playstation 3. In that sense, customers and developers would view these products as “traditional gaming experiences.” Apple most likely included these two games at the conference to demonstrate the power of the iPad and to show that a more traditional gaming experience could be had on its new platform. Apple has continued this up to the launch of the iPad. On the Apple website, the featured apps for the iPad include descriptions for two racing games that tout their high definition graphics, multiple game modes, and responsive controls. Such advertisements identify iPad games with qualities that people usually associate with traditional gaming experiences.

The nature of the iPad also dictates a different type of use from the iPhone. By expanding the size, Apple has compromised the portability of the iPad and prevents it from being something that is easily carried in a pocket or a purse. Since it lacks the phone capabilities of the iPhone, the iPad is not necessarily an essential item that someone will carry at all times. People are not likely to form the same constant connection with their iPads as with their iPhones. Neil Young, the founder of iPhone game studio Ngomoco, labeled the iPad “an in-home venue device as much as it’s a mobile device” that will allow Apple to “get into the living rooms.” Peters’ statement exemplifies the popular conception that the iPad is a less portable entertainment device than the iPhone and more likely to be enjoyed in traditional settings like a living room.  Before its launch, the iPad was already being implicitly compared to gaming devices such as laptops, desktop PCs, and video game consoles more than mobile devices. To compete with these devices, Apple and the market may encourage iPad developers to attempt to provide similar experiences to these systems with more processing power and different control schemes. The Gameloft and Electronic Arts titles shown off at the iPad announcement event certainly highlight this possibility.

These considerations should concern independent developers. As mentioned in my previous comment, independent developers are small studios with limited resources. They often seek to create a smaller and more unique gaming experience that can be produced with less manpower and capital. However, these types of games have greater potential for success on the iPhone. Since most users habitually carry their iPhones as their primary cell phone, they have easy access to it should they want to play a game for a short period of time wherever they are. Independent developers have tried to fulfill the bite-sized gaming niche. Randy Smith described the games his company makes as encouraging “bus stop play,” meaning that consumers can engage with his products for “3 minutes or 30 minutes.” Also, due to the small screen size of the iPhone, independent developers do not have to devote large amount of resources to the visuals of their games.

The pricing structure of independent games also encourages this trend towards smaller games. Developer Jeff Ward states that independent games on the iPhone must be priced around a dollar in order to encourage impulse buying. Such low prices encourage iPhone users to risk buying a game that they will only play for a short amount of time. This leads independent developers to release smaller games with more simplistic visuals that require a smaller budget. This process is aimed at turning a profit as quickly as possible while operating under the lowest price possible for their products.

One independent game that exemplifies these characteristics is Firemint’s Flight Control. This one-dollar game’s simple mechanic of directing the landing of airplanes has appealed to consumers, helping it sell 1.5 million copies in 2009, making it the seventh best selling game on the App Store. By creating small and inexpensive games that can be enjoyed for short periods of time, independent game developers have created a blueprint for success on the iPhone.

Indie games that have succeeded on traditional gaming platforms are often bigger releases with more money and marketing power behind them. For example, Braid, which has been a success both critically and financially on the Xbox 360, required its creator Jonathan Blow to invest $180,000 of his own money and benefited from a major Microsoft marketing campaign. By comparison, most independent developers do not have similar marketing support from Apple. Ward claims that a developer needs to sell 57,000 copies of a one dollar game per year to support itself, which would generate $39,900 in revenue after Apple’s take. This demonstrates that Blow’s investment would not be feasible for most iPhone developers. Braid also was priced at fifteen dollars upon its release, which caused much debate on Jonathan Blow’s blog whether the price was justified. Higher price points remove the game from an impulse purchase to a product consumers are going to more closely evaluate before purchasing. These are not necessarily a barrier to sales, as both Braid and another fifteen-dollar game, Castle Crashers, were in the top three most purchased downloadable titles for the Xbox 360 in 2008. Both games were critically acclaimed and have gameplay and depth similar to that of more traditional games. If Braid is emblematic of what will be expected from independent developers on consoles in terms of price and quality, then independent developers may no longer be able to rely on their previous strategy of attracting impulse purchases of smaller games with lower price points.

Collective Action Problem on the iPad

Since the iPad does not cater to what made independent developers successful on the iPhone, developers are not assured success by placing their products on this platform. Due to Apple’s positioning of the platform, independent developers have to evaluate what decision will foster the most success for their businesses. Independent developers are left with three choices regarding placing their products on the iPhone: continue their current development strategies, attempt to create more traditional video games, or just avoid the iPad altogether. All of these strategies have advantages and disadvantages due to the aforementioned positioning of the iPad, but their potential harms are increased by independent developers pursuing practices that may benefit them in the short-term and hurt the industry in the future. Since the iPad is a completely new platform, independent developers have no precedents to guide them. How the independent developers react to the iPad will define how future developers approach it. If independent developers do not consider the long-term ramifications of their action, they could prevent the iPad from becoming a viable platform for others.

Avoiding the iPad is a sensible strategy from a financial standpoint. Independent developers still have room for economic growth on the iPad, as Flight Control was the only independent game to make the top ten highest sellers for 2009. Even its 1.5 million unit sales pale in comparison to the 7.4 million iPhones that Gizmodo reported were sold in the 2009 fiscal year fourth quarter alone. Developers could focus solely on the iPhone and maintain a stable business. However, avoiding the iPad completely eliminates a potentially lucrative market for independent developers. Instead of taking risks, future developers may assume that the iPad is a hostile environment and avoid it, depriving them of additional revenue and customers. This could also be short-term plan until independent developers have a better idea of how to approach the platform. A minority of independent developers who want to take advantage of this vacuum could ruin this plan by rushing their products on the market. This situation would force independent developers to choose between following their plan, which would grant these market entrants an advantage, or rushing to the market before they are ready.

Continuing with the current development strategy would involve a low economic risk, but not much chance for gain. Most iPhone apps will be compatible with the iPad, but the platform’s positioning as living room entertainment is less suited for indie titles. Developing a game specifically for the iPad utilizing the same strategies as an iPhone game is risky. If the developer just designs for the iPhone and its smaller screen, the game will either play in a small window in the middle of the iPad screen or it will be stretched and distorted to fit the entire screen. Either solution will make consumers compare these types of game unfavorably to those designed specifically for the iPad. If the majority of independent developers follow this strategy, they may obtain a reputation for having games that are visually inferior to those designed specifically for the iPad. In order to combat this, independent developers could also design new games whose visuals take advantage of the iPad’s increased power and screen size. However, if developers adhere the same simplistic gameplay style they used on the iPhone, improved visuals may not be enough to draw customers away from traditional gaming experiences with more complex gameplay.

If independent developers see more traditional games succeeding on the iPad while their own products stagnate on the iPad or if they are not on the platform, the desire to make such a game may be quite substantial. This step is also fraught with collective action concerns. Several independent developers may then rush their more traditional games to market in order to maximize their profits and avoid the eventual flood of products on the market. Should independent developers attempt to make traditional games for the iPad, they will be positioning themselves directly against the larger publishers and developers. The large amount of manpower and capital these entities have will make it easier for them to produce high-end games for the iPad. A rush to market may further foster a slapdash product whose inferior quality will only be amplified by the products generated by larger entities, whose quality or larger marketing budget could overshadow such attempts by independent developers. Should these first few games fail, independent developers may declare the iPad to be a failed platform and avoid it entirely. Should these first attempts bring success, many independent developers will attempt to follow suit, flooding the market. Since independent developers have limited resources, this focus on iPad-specific games may lead to less iPhone-centric games being made, thus destroying the niche that these studios had made for themselves. Also, if a good deal of these games are of lesser quality, independent developers could still run into the perception issue that their games are not as polished as those from larger studios.

The Role of a Legal Aid Society for Independent Developers

In my previous comment, I mentioned that a legal aid society should help foster more developer-friendly Apple and Microsoft platforms. The concept of a legal aid society invokes images of lawsuits and legal tools actively creating a better situation for the society’s constituents. A legal aid society for independent developers should serve a similar role for independent developers. Should a platform holder like Apple threaten a developer’s free speech, threaten intellectual property rights, or engage in illegal business practices, then lawyers should assist developers in pursuing legal means to establish a more favorable situation. However, the issue presented by the iPad is not a legal one as much as it is a product positioning and collective action issue. Apple’s attempt to market the iPad as a traditional gaming device fosters the potential for self-interested actions by independent developers, which could damage the platform for their peers. This situation can not be solved through traditional legal means or by the main understanding of what legal aid societies do.

A legal aid society could assist independent developers on the iPad by adopting a strategy similar to that of cause lawyering. In their work Something to Believe In: Politics, Professionalism, and Cause Lawyering, Professors Stuart A. Scheingold and Austin Sarat define cause lawyering as “using legal skills to pursue ends and ideals that transcend client service-be those ideals social, cultural, political, economics or, indeed, legal.”[i] The authors assert that cause lawyers can engage in both legal or political strategies, the latter of which includes lobbying or engaging in “social movements-both as movement activists and as attorneys supporting direct political action.”[ii] Although this work is aimed at larger social movements like the pursuit of racial equality, the concept of cause lawyering is applicable to independent game developers. The legal aid society assisting these developers should go beyond just providing legal assistance to the developers; it must actively engage with this community in order to ensure its present and future success. Like cause lawyering, lawyers in this legal aid society should promote the goals of independent developers through non-legal means. The social movement aspect of political strategy is crucial for the purposes of this comment, as it indicates that cause lawyers can help direct how social movements proceed. Such a role demonstrates that lawyers can effectively serve as important figures in guiding movements. It is that role that the legal aid society should play for independent developers.

The iPad provides the most ideal situation for the legal aid society to utilize the non-legal aspect of cause lawyering to help independent developers. Lawyers should take the lead in promoting a strategy for independent developers to follow in placing their products on the iPad. They would serve as mediators among independent developers, helping each studio evaluate its own strengths and weaknesses and determining which of the aforementioned three options each should take. The legal aid society should respect the opinions of the developers as much as possible when helping to construct this strategy. If developers disagree on what path they should take, the legal aid society should present its unbiased evaluation of the developers’ positions and help the disputing parties come to a reasonable agreement. By mediating between developers and coordinating a unified response, the legal aid society can avoid the collective action problems caused by developers acting solely out of short-term interests. This will allow independent developers to operate as effectively as they can under Apple’s positioning of the iPad and give them an opportunity to carve out their own space on the platform.

[i] Austin Sarat & Stuart A. Scheingold, Something to Believe In: Politics, Professionalism, and Cause Lawyering 3 (Stanford University Press 2004).

[ii] Id., at 19.

Andrew Segna is a first-year student at Harvard Law School. He is interested in intellectual property law and the legal rights of video game and app developers.