Seeking Alpha | November 12, 2008

In early September, EA began selling the highly anticipated PC game title, Spore, around the globe. The ambition was huge, the hype enormous. Spore was to be a “sure thing” hit. So far, it’s lived up to that expectation. The game is the top seller in Amazon’s PC and Mac games categories and according to EA, nearly two million copies sold in the first three weeks of sales. Unfortunately, with the sales and high visibility has come another less desirable achievement: Spore has become a lightning rod for complaints over the SecuROM embedded digital rights management system EA is using to thwart piracy.

In venomous complaint after complaint, buyers have bemoaned EA’s disclosure policy and implementation. This version of SecuROM, they say, puts their computers at risk of damage and cannot be removed. It’s “Draconian.” It’s been called poorly disclosed and poorly thought out. Some are calling it "malware."

EA’s CEO John Riccitiello has downplayed these comments, saying they come from a well orchestrated minority of game players. “We chose a particularly aggressive form of DRM, which 99.8 percent of consumers would never notice, but that two-tenths of one percent got incredibly focused and formed an online PR cabal,” he said, adding, “I personally don’t like DRM. It interrupts the user experience. We would like to get around that. But there is this problem called piracy out there."

Whether those taking their protests to the web are a minority or not, some of the complainers are making themselves heard, and not just in online forums but in the courts too.

Shortly after the game’s release, a class action lawsuit was filed in September targeting what the plaintiffs called deceptive behavior. The suit accuses EA of unlawfully putting a program on a customer computer (legally, a form of trespassing). The suit also charges EA with misrepresenting its services under California’s Consumers Legal  Remedies Act (Section 1750) and of using fraudulent business tactics.

The issue is not that EA chose to use SecuROM but how EA disclosed (or didn’t disclose) what the security software does.

Some customers say the program damaged their computers and they wouldn’t have bought the games had they known SecuROM couldn’t be removed.

Adding to the original suit, Gamepolitics.com has discovered two more suits were filed in California courts in October.

In the first follow up case, filed on October 14th, Kamber and Edelson, the same law firm representing the plaintiffs in the original suit, takes the claims of trespassing, misrepresentation and fraud and applies them to the free trial version of the Spore Creature Creator.

The second case, filed October 27th by Missouri resident Dianna Cortez, applies the claims to EA’s use of SecuROM with the Sims 2: Bon Voyage expansion pack.

All three cases are, at this point, in the early stages of litigation. Outcome probabilities lean toward settlement, particularly given Kamber and Edelson’s success with digital trespass cases (they’ve successfully sued Facebook and AT&T), but there’s a long way to go before this comes to a conclusion.

More information on SecuROM, EA and the original suit can be find in this prior article from Metue.

For those looking to read the case files (in pdf format), the initial filing for the first class action suit is available here. The second and third case documents can be found here and here.