A customer who bought Guitar Hero Live late last year has brought a proposed class-action lawsuit against Activision accusing the publisher of false advertising and other violations regarding the coming December shutdown of the game’s online streaming “Guitar Hero TV” (GHTV) mode.
Activision announced that shutdown back in June, and we noted at the time that the move will make 92 percent of the game’s playable songs permanently inaccessible. In the federal lawsuit, filed this week in Los Angeles, plaintiff Robert Fishel argues Activision’s marketing led him to believe the game would be “playable online indefinitely or, at least, for a reasonable length of time from the date of release.”
The lawsuit highlights Guitar Hero Live marketing that describes the Guitar Hero TV mode as “an always-on music video network… running 24-hours a day, seven days a week” with “a continuous broadcast of music videos” and “new videos continually added to the line-up.” Marketing materials also promise that “you’ll be able to discover and play new songs all the time.”
But the lawsuit does not make mention of an important disclaimer that appears in fine print on the Guitar Hero Live box: “Activision makes no guarantees regarding the availability of online play or features, including without limitation GHTV, and may modify or discontinue online services in its discretion without notice.” The same notice has appeared on the Guitar Hero website since mid-2015. Still, the lawsuit argues that information about GHTV‘s eventual shutdown was not “disclose[d] prominently and conspicuously.”
Fishel, who purchased the game and a guitar controller for the discounted price of $22.43 on September 22, 2017, argues in the lawsuit that he “would not have purchased the Product or paid the price he paid for the Product” had he known GHTV was in danger of shutdown. In making the purchase, he says he “reasonably expected that Activision would not subsequently eliminate his ability to use the vast majority (currently, 92%) of the Product’s playable music tracks.”
What is “reasonable?”
In one sense, it’s not entirely reasonable to expect a publisher to maintain an online service like GHTV forever. Online servers for games are routinely shut down once the games they support dip below a certain popularity threshold. Guitar Hero Live‘s shut down will come more than three years after the game was originally released, providing a decent amount of value for those who purchased it at the outset (although those who purchased the game just before the shutdown was announced in June won’t even get six months of online access).
On the other hand, the GHTV mode differs from many other online gaming services because it’s essentially a single-player mode (plus some live leaderboard score-chasing) grafted onto an online streaming video infrastructure. There’s no technical reason that Activision couldn’t make the 484 GHTV-exclusive songs available for download and offline play past December 1 (music licensing issues notwithstanding). As the lawsuit notes, though, “The Guitar Hero Live Products do not allow, and have never allowed, players to download the songs available on Guitar Hero TV.”
Legal particulars aside, the case gets into the important question of how much online gameplay support a consumer can reasonably expect a publisher to provide alongside a game purchase. While Activision gave three years of support and six months of notice for the Guitar Hero TV shutdown, its own disclaimer notes the change could have been made “without notice” at any time. Profitability and reputational harm seem to be the only factors deciding when online servers stay up, in this case.
Game preservationists also deal with questions of just how much of the game can be maintained in a playable form after that official online support ends. Efforts to reverse engineer this kind of online-dependent gameplay for historical games often face severe technical and legal roadblocks.
Lawsuit or not, you only have a couple more months to enjoy Guitar Hero TV before its wide selection of playable songs is gone for good. We suggest you rhythm fans make the most of them.
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