As NPD no longer releases full hardware sales figures, this feature is reliant on the game companies, namely Microsoft, Nintendo and Sony, to release their set of figures and based on “statement math” (that is, arithmetically calculate missing figures based on statements made). For December 2011, these are the statements made by the gaming companies:

• Nintendo did not reveal any figures for December 2011
• Microsoft revealed “more than” 1.7 million Xbox 360 hardware units sold, with 46% of the home based console market share (source)
• Sony did not reveal any figures for December 2011

With only the above information, it becomes impossible to work out the estimated numbers for both the Wii and the PS3. Luckily, analyst Michael Pachter again came to the rescue, via Twitter, stating the Wii sales were in fact 55% down from the same month a year ago. With this piece of crucial information, we are then able to deduce the Wii numbers, and from this and the 46% market share figure quoted by Microsoft, we are then able to estimate the PS3 numbers too.

And so the figures for US sales in December 2011 are below, ranked in order of number of sales (December 2010 figures also shown, including percentage change):

• Xbox 360: 1,700,000 (Total: 30.9 million; December 2010: 1,860,000 – down 8.6%)
• Wii: 1,060,000 (Total: 37.7 million; December 2010: 2,360,000 – down 55%)
• PS3: 936,000 (Total: 18.9 million; December 2010: 1,210,000 – down 22.6%)

NPD December 2011 Game Console US Sales Figures

NPD Game Console Total US Sales Figures (as of December 2011)

My prediction from last month was:

Same hardware ordering, and a software chart that looks very similar to this month’s, so there’s nothing much to add to that really.

While the software chart has a lot of titles that were there in November, the hardware ordering actually changed, with the PS3 dropping back down to third place, after finishing above the Wii last month.

Overall, looking at the figures above, and the “sea of red”, December 2011 has been nothing short of a disastrous month for video game sales, especially compared to last December. As mentioned earlier, a huge percentage of sales occur in December, but this last particular December did not even out do the previous month, when historically, this has almost always been the case. In fact, for hardware sales, the raw numbers were at its lowest since 2005.

Microsoft was probably the “winner”, if you can call it that (more like the smallest loser), with only an 8.6% drop in console sales, and level in sales with November. The NPD pointed to the strength of the Xbox 360 throughout the year, saying that the Xbox 360 platform accounted for nearly 40% of annual physical retail sales, across all categories. Still, if you count November and December together as one period, then 2011 has been good to the Xbox 360, with 3.4 million consoles sold, compared to 3.23 million a year ago. Microsoft probably had hoped the Kinect Star Wars game and console bundle would have made it in time, helping to push the console, and Kinect, to the next level, but the delay to the game means that there were no real A-list Kinect titles for this holiday period (unless you count Kinect Sports 2, and Dance Central 2, as A-list titles).

Despite finishing as the third most popular console, the PS3 was probably in second place overall, when you look at the year-to-year decrease figure, as well as performances across both November and December. Nearly 1.84 million PS3 consoles were sold during November and December, compared to 1.74 million consoles in 2011. So the good news is that, things are not that bad, while the bad news is that, the Xbox 360 appears to be pulling further ahead in the United States, where during the same period, it had almost twice as many sales (and more console sales during the holiday period, means more game sales for the rest of next year, and also means a strengthening multiplayer community, the growth of which relies on people using the same console as their friends).

So the real loser is, once again, Nintendo. The Wii, previously the unstoppable juggernaut during December sales, is no more, and is relegated to a distant second place behind the Xbox 360. For November and December, 1.92 million Wiis were sold, compared to 3.63 million in 2010 – in fact, more Wiis were sold in December of 2010 alone, than November an December of 2011 combined! A 55% year-on-year drop shows that the Wii is no longer the “must-have” video game gift, with some of the sales going to the Xbox 360 (not many, looking at the figures above), and possibly lots of sales going to things like tablets and smartphones, the new home of casual gaming.

And that’s probably the best way to look at things for the video game industry as a whole, for the most recent holiday period. The industry has benefited from the Wii becoming a must-have gift item for the last several holiday periods. Kinect has contributed to the same phenomenon, but it just hasn’t been the same. And with so many other gadgets to distract the holiday shopper, and also the economy, the decline can almost been seen as a return to normal, after a couple of years of extraordinary performance led by the Wii. Maybe the Wii U will bring back the same thing next year, but expectations must be readjusted.

As for software sales, it was also down compared to December 2010. MW3 led the chart again, with Skyrim dropping to third after the resurgence of Just Dance 3. Interestingly, looking at total sales for 2011, the ordering of the top 3 was exactly the same as the December top 3, showing that Call of Duty, and perhaps surprisingly, Just Dance, were the top 2 franchises for 2011. Mario Kart 7 on the 3DS was the only new entry into the top 10 in December. Here’s the full software sales chart for December (new releases for December 2011 in bold):

1. Call of Duty: Modern Warfare 3 (Activision, Xbox 360, PS3, Wii, PC)
2. Just Dance 3 (Ubisoft, Wii, Xbox 360)
3. Elder Scrolls V: Skyrim (Bethesda, Xbox 360, PS3, PC)
4. Mario Kart 7 (Nintendo, 3DS)
5. Battlefield 3 (EA, Xbox 360, PS3, PC)
6. Madden NFL 12 (EA, Xbox 360, PS3, Wii, PS2, PSP)
7. Assassin’s Creed: Revelations (Ubisoft, Xbox 360, PS3, PC)
8. NBA 2K12 (Take-Two Interactive, Xbox 360, PS3, PS2, PSP, Wii, PC)
9. Super Mario 3D Land (Nintendo, 3DS)
10. Batman: Arkham City (Warner Bros, Xbox 360, PS3)

Predicting January is always difficult, as the post holiday lull will be here, and there would usually be stock issues (although with the low sales this year, maybe this won’t be an issue). I suspect, other than huge drops in console sales figures for all consoles, the PS3 will probably regain 2nd place, with the Xbox 360 still the top selling console. A subdued month as well for software sale.

See you next month.

The US video game sales figures for November was also released during the week, and you can read the full analysis here.

Before we talk more about video games, let’s go through the week’s copyright news first. Once again, we see why money and politics shouldn’t really mix, as news that two Congressional staffers largely responsible for drafting SOPA/PIPA have now “managed” to get better jobs at the MPAA and the National Music Publishers’ Association, two copyright lobbying organisations.

While laws prevent these two from coming back and lobbying their former employees (as if that’s even needed), there are the usual Washington loopholes that still allow the two to have influence on Capitol Hill. The MPAA and the NMPA will argue that this is how it’s supposed to work, that the organisations have managed to secure the service of two very capable, and knowledgeable, people who are already familiar with the issues at hand. Everyone else will be made uncomfortable at yet another incident that highlights the incestuous relationship between lobbyists and politicians. While only the MPAA/NMPA and the two new employees will know what the real deal was, the reality is that the two helped to draft bills that (intentionally, or just incidentally) gave their future employers exactly what they wanted, convinced their old bosses to go along with it, and got new, higher paying jobs as a reward. Whether this was just the unintentional consequence of their actions, or something more troubling that involved more coordination between the involved parties, I don’t want to comment, but sometimes just the appearance of something like this is unacceptable for a truly democratic society, or at least it should be.

A mock up of what Wikipedia's anti-SOPA protest could look like, with sections or even entire pages blanked to show the dangers of Internet censorship

With breaking (well, by the WNR’s  standards anyway) news that further discussion of SOPA will have to wait until after the Congressional break, the anti-SOPA movement main gain an important ally before then, with Wikipedia threatening a day of action to protest the controversial copyright bill. The founder of Wikipedia, the man whose photo you see every couple of months on every Wikipedia page, Jimmy Wales, has suggested that Wikipedia might blank all of its pages, for a short period, to demonstrate against SOPA, something the Italian version of the encyclopaedia has already attempted to great success over a local issue. Right now, it’s all just discussions, because, as Wales rightly points out, doing something like this could have a huge impact on the web. I mean, would somebody please think of the children … who have to write school reports, and what the hell would they do without Wikipedia (and the copy/paste function)? Use another online encyclopaedia, or heavens forbid, go to the library?

And for the anti-SOPA brigade (for all the work I’ve put into the cause, I must be a lance corporal by now, which ironically is also my rank in BF3 – I’m really really not good at the game), Christmas has come early thanks to Universal Music Group’s Scrooge-tastic act that helped to prove why content holders cannot be trusted with the power to censor the Internet. The story begins with the YouTube upload of Megaupload’s cheesy promotional video, starring some of today’s biggest stars, such as Kim Kardashian, P. Diddy, Will.i.am, Alicia Keys, Kanye West, Snoop Dogg, Chris Brown, and sung by Macy Gray. Using an original song, and with written agreements signed for all the stars, what Megaupload didn’t expect was for Universal Music Group (UMG) to abuse YouTube’s anti-piracy tool, to file an infringement report against the music video and have it censored. But that’s exactly what UMG did, although they now deny they did it for copyright reasons, hinting at some unknown agreement between two private companies (possibly relating to recordings of live performances), YouTube and Universal. Not that this makes it any better, of course, as the end result is that a perfectly legal video that presented views that UMG did not approve of (or rather, they don’t approve of Megaupload, period), and UMG had it taken down, which is the very definition of censorship. And because of an agreement between two other private companies (something SOPA would allow, as content holders can make agreements with financial providers to “kill” websites outside of the legal justice system), the tools/rules designed to handle copyright disputes was “abused” to censor free speech, however cheesy it was. What a wonderful demonstration of what a post-SOPA Internet world could be like.

Megaupload's Mega Song was blocked on YouTube by UMG - innocent mistake, or censorship masquerading as a copyright take-down?

Megaupload was quick to file a lawsuit against UMG, and YouTube eventually did reinstate the video with the explanation that, yes, UMG did abuse its tool: “Our partners do not have the right to take down videos from YouTube unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists, which is why we reinstated it.”

But the Streisand Effect ensures just the YouTube version, which was blocked for quite a while, now has over half a million views, and made #Megaupload a trending tag for a while on Twitter. Nice one UMG. And who knew controversy is such a great way to promote a music video, perhaps it’s something UMG can leverage to its own benefit the next time.

Speaking of promoting videos, very funny comedian Louis CK has done something that traditional media won’t be laughing at – he’s bypassing the normal distribution channels, and releasing his own video for $5, and without DRM. And it’s proven to be somewhat of a success, with CK taking in over $200,000 (profit after cost) in just 4 days. According to CK himself, that’s less than what he would have gotten from a traditional distributor, but he’s happy because more people have managed to get a legal version of his video, and nobody had to endure horrible DRM or annoying marketing (register here, register there, give us all your personal info, and then get spammed in your inbox forever). Some have argued that this is a bad development for media distribution, since by taking out the middle men, that’s fewer people being employed. And that argument has some merit, and I’ve long argued that the whole wholesale/distribution/retail chain will suffer, if it isn’t suffering already, due to the digital revolution. But there are strategies to adapt, but those too slow, too paranoid or too stubborn to change, that is the companies that insist on charging digital downloads at the same price as retail boxed version, and those that insist on DRM, will not survive this revolution. And the more they try to hold on to the dying model, the more artists will release themselves from the clutches of traditional media and do it their own way – the truth is that nobody wants to do it alone, unless they have to, and through DRM, bad pricing, and incessant marketing and all the things they’ve done to alienate consumers, traditional media are forcing artists to go it alone.

For now, Louis CK’s video is still selling, despite widespread piracy (not that DRM would have lessened it or anything), and Louis urges everyone to keep buying, as so he “can have shitloads of money”.

And buying, as opposed to torrenting, might also help you avoid public embarrassment, as a new website has been launched to try and embarrass torrenters by listing their IP address and the stuff they’ve downloaded, even the videos of the naughty kind. While downloading from a public tracker does have this risk, those with dynamic IPs may not care too much, still, I don’t think I can support any service that publishes data like this. It would be like if a website, say Google, decided to public its web logs, of which IP address searched for what and when, and that has huge privacy implications. Just because this website is seeking to expose illegal behaviour, doesn’t mean it isn’t a privacy violation.

With that said, it was funny that the website would be used to put anti-piracy groups under pressure, as opposed to the people who actually pirate. This is because the website allows you to search for any IP address, including say the IP address of movie studios, or anti-piracy lobbyists, or even the anti-piracy domain seizing Department of Homeland Security. It certainly was interesting to see staff at NBC-Universal downloading the excellent Game of Thrones, perhaps proving that network TV does know a good series when they see one, even if they don’t actually know (or dare) to reproduce it for their own networks. How about someone at Fox downloading Super 8, produced by another studio? Or the RIAA downloading the latest Kanye West album?

Of course, the right argument is that you cannot really hold the RIAA responsible just because one of their IP addresses was used to illegally download something. It could be by an employee, an ex-employee, a visitor who managed to get access to a network connection, or as some have already claimed, be an unlikely case of IP spoofing. And as long as the RIAA has an appropriate anti-piracy policy, and enforces it, then they shouldn’t be held responsible for the actions of individuals. But since the RIAA don’t think any of this applies to, say Google or ISPs, and that they need to pass tough legislation to punish these organisations, I can only conclude that, yes, the RIAA is guilty of copyright infringement, possibly on a massive scale, and they should be punished accordingly.

Not much happening in 3D/HD, so let’s skip to gaming. The NPD sales figures for November presented no big surprises in the Xbox 360 outselling everything else, and I think it’s safe to say that it is currently the dominant console in the US, for this generation.

To be fair (or unfair), the PS3 is really the only loser in this generation, in the US or elsewhere, despite PS3 sales doing pretty well worldwide. I say this not to incite fanboy-on-fanboy violence, although that would be an effective way to cull their numbers, but simply because neither Nintendo nor Microsoft could have predicted their respective successes in this generation, which has come largely at the expense of the PlayStation brand. The fact that the PS3 will likely never outsell the PS2 is disappointing given the huge advantage the brand had over the offerings by Nintendo and Microsoft in the last generation, plus the advantage of also being a Blu-ray player (the DVD player in the PS2 being partially responsible for the unit’s success).

It was also interesting to see Modern Warfare 3 break all sales records, despite a struggling economy, wide spread piracy and everything. I’ve only secured my (PC) version recently, and only because it was below retail pricing, so pricing is important as ever. One issue that’s becoming more and more important is regional pricing, especially on Steam for non US buyers. Here in Australia, we get ripped off due to publishers (not Steam) setting higher prices than compared to say the US or the UK. This has led to others using VPNs to buy games from overseas (with the high risk of getting their Steam account banned), or buying from Russian based CD-key sites. It’s a lot of trouble for people to have to go through just so they can hand money to game publishers, and it’s easy to see why some might see piracy as a legitimate source for games, until prices drop to more reasonable levels. The globalised price competition is one of the downsides of a globalised marketplace for sellers, but they benefit from being able to access more markets and more customers than ever, and digital distribution strips away almost all of the manufacturing cost from things, so it should all even out in the end. But only if reasonable pricing policies are put in place, one that is fair to countries like Australia, and can also compete against piracy ($80 vs free is not competition, but $30 to make the guilt go away, plus access online services without fear of having an illegitimate key, might be).

I think that’s enough for this week. See you next week (maybe).

As NPD no longer releases full hardware sales figures, this feature is reliant on the game companies, namely Microsoft, Nintendo and Sony, to release their set of figures and based on “statement math” (that is, arithmetically calculate missing figures based on statements made). For November 2011, these are the statements made by the gaming companies:

• Nintendo reveals the Wii sold 860,000 units, with “more than 795,000″ 3DS consoles, and “more than 350,000″ units of DS (via PR email)
• Microsoft revealed 1.7 million Xbox 360 hardware units sold, with 49% of the home based console market share (source)
• Sony said that the PS3 hardware saw a “70% increase” in sales (via Patrick Seybold, Sr. Direcrtor of Corporate Communications at SCEA)

Luckily, all the statement maths added up this month, since from Microsoft and Nintendo’s statements, we can deduce the PS3 numbers to be around 900,000, and that falls into line with Sony’s “70% increase” statement (increase compared to the same time last year).

And so the figures for US sales in November 2011 are below, ranked in order of number of sales (November 2010 figures also shown, including percentage change):

• Xbox 360: 1,700,000 (Total: 30.9 million; November 2010: 1,370,000 – up 24%)
• PS3: 900,000 (Total: 18.9 million; November 2010: 530,000 – up 70%)
• Wii: 860,000 (Total: 37.7 million; November 2010: 1,270,000 – down 32%)

NPD November 2011 Game Console US Sales Figures

NPD Game Console Total US Sales Figures (as of November 2011)

My prediction from last month was:

It’s the holiday period proper, sales will be way up, and Modern Warfare 3 will help in this regard as it breaks all records. The Xbox 360, the preferred platform of MW3 and also with a new Halo game being released, will be the clear winner yet again, but it will be interesting to see if the Wii can have one last good holiday period, and there’s a new Zelda game too, so that always helps. The PS3 does have Uncharted 3 though. If I have to guess, I would say the PS3 will beat the Wii. The top games will be the ones I’ve already mentioned, plus Skyrim.

I think the above paragraph actually sums up November quite well.

The Xbox 360 was easily the clear winner, but the margin of victory was larger than most has expected. Most expected the Xbox 360 to be the best selling console, but with only moderate growth compared to the same month last year, the first holiday period for Kinect and the new “slim” Xbox 360. But Microsoft surprised everyone with a series of key price cuts, bundles, and sales, and just like how the Wii’s second holiday period was even better than the first thanks to its status as a “must-have” family gift, perhaps the Kinect is doing the same for Microsoft this time round. In any case, a 24% increase in sales compared to last November is nothing to be scoffed at, especially when last November was an amazing 67% up compared to the previous November. Here in Australia, Microsoft has also been super aggressive in discounting the Xbox 360, to prices that are practically half that of just a few months ago, and the Kinect bundle also seeing huge discounts at selected retailers. If this is the same strategy employed in other countries as well, then the Xbox 360 should have a great holiday period, and not just in the US (perhaps this is Microsoft’s response to PS3 sales that have nearly or already caught up to the 360 global sales numbers).

The PS3 also had a great November, although nowhere near as good as the Xbox 360, with the 360 almost selling twice as many units. The 70% increase compared to last November looks spectacular, but one has to take into account that last November, the PS3 sold fewer units than in 2009 (25% down actually). Compared to 2009, PS3 sales are up around 26%, so at the very least, last year’s trend has been reversed with the key price cut that came in the middle of the year. Sony also promoted the fact that PS3 software sales are up 30%, and that, more so than hardware numbers, is what Sony really likes to see (although hardware numbers obviously do help to raise the software numbers, and that’s more of a case now than the first few years of the PS3, when many used it as a cheap way to get a Blu-ray player).

It looks like 2010 was the last great holiday period for the Wii. While sales are not bad this year, they’re nowhere near the million+ figures from yesteryear. And this will be the last holiday period for the Wii as Nintendo’s lead console anyway, with the Wii U set to play a key role this time next year. Still, to label the Wii as a “loser” or “dead” is doing the console a disservice, since it still nearly outsell the PS3, and nobody it calling it a “dead” console.

On to software. As expected, MW3 completely dominated the sales charts, with incredibly, 9 million units of the game selling on all platforms, with over a billion dollars in sales. Battlefield 3 fell to 3rd place as a result, but it’s still the best selling Battlefield game in the series. Skyrim, the game many are already calling game of the year, managed to get second place and that’s probably quite impressive for a game in this genre, and certainly in the Elder Scrolls series, where it’s only taken a month for the latest installment to sell without half a million of the last installment’s lifetime sales number. Assassin’s Creed: Revelations, Saints Row: The Third contributed to the strong software line-up for November, making it the best November on record, despite recent trend suggesting that wouldn’t have been the case. For platform exclusives, Uncharted 3 did extremely well to get up to 7th place with 700,000 units sold, ahead of the new Zelda game at 600,000. Super Mario Land 3D and Halo: Combat Evolved Anniversary didn’t make the combined platforms top 10, but would have easily made the top 10 separated by SKU. Here’s the full software sales chart for November (new releases for November 2011 in bold):

1. Call of Duty: Modern Warfare 3 (Activision, Xbox 360, PS3, Wii, PC)
2. Elder Scrolls V: Skyrim (Bethesda, Xbox 360, PS3, PC)
3. Battlefield 3 (EA, Xbox 360, PS3, PC)
4. Assassin’s Creed: Revelations (Ubisoft, Xbox 360, PS3, PC)
5. Just Dance 3 (Ubisoft, Wii, Xbox 360)
6. Madden NFL 12 (EA, Xbox 360, PS3, Wii, PS2, PSP)
7. Uncharted 3: Drake’s Deception (Sony, PS3)
8. Saints Row: The Third (THQ, Xbox 360, PS3, PC)
9. The Legend of Zelda: Skyward Sword (Nintendo, Wii)
10. Batman: Arkham City (Warner Bros, Xbox 360, PS3)

My prediction for December? Same hardware ordering, and a software chart that looks very similar to this month’s, so there’s nothing much to add to that really.

Except for the obligatory, “see you next month”!

As NPD no longer releases full hardware sales figures, this feature is reliant on the game companies, namely Microsoft, Nintendo and Sony, to release their set of figures and based on “statement math” (that is, arithmetically calculate missing figures based on statements made). For October 2011, these are the statements made by the gaming companies:

• Nintendo reveals the Wii sold nearly 250,000 units, more than 250,000 3DS consoles, and nearly 180,000 DS (via PR email)
• Microsoft revealed 393,000 Xbox 360 hardware units sold, with 44% of the home based console market share (source)
• Sony did not reveal any hardware figures

With only a rough estimate for the Wii numbers, it’s hard to come up with an exact figure for the PS3, but assuming Nintendo’s “nearly 250,000″ is much closer than 250,000 than 240,000, then combined with the Microsoft released data (if 393,000 is 44%, then 100% is  893,182, and taking out the Wii and 360 numbers from this), we get roughly 250,000 units for PS3 sales.

And so the figures for US sales in October 2011 are below, ranked in order of number of sales (October 2010 figures also shown, including percentage change):

• Xbox 360: 393,000 (Total: 29.2 million; October 2010: 325,000 – up 21%)
• PS3: 250,000 (Total: 18 million; October 2010: 250,000 – no change)
• Wii: 250,000 (Total: 36.8 million; October 2010: 232,000 – up 8%)

NPD October 2011 Game Console US Sales Figures

NPD Game Console Total US Sales Figures (as of October 2011)

My prediction from last month was:

I think the hardware situation will remain largely the same. Games wise, Batman: Arkham City and Battlefield 3 go head to head, with Forza 4 on the Xbox 360 possible making the top 10 as well as a platform exclusive.

Fairly close to the reality, I suppose, although the strength in which Battlefield 3 sold probably surprised everyone, despite the hype suggesting it was always going to do well. And the only other “surprise” is the PS3 numbers, and how close it came to actually selling fewer units than the Wii (and it may have done so too, since our “statement maths” above isn’t too accurate based on roundings and precision errors).

Starting with the healthiest number, the Xbox 360 had another amazing month, as not only did it managed to easily beat the other two consoles, it also managed year-on-year growth compared to October 2010 – no mean feat considering we had the “Slim”, price cut and Kinect to give sales a bump, and nothing like that this year. But 21% growth is nothing to be scoffed at, and it’s clear that, at least in the US, the Xbox 360 is the dominant console of this generation, despite Wii still having quite a large lead at the moment (but if you look at the number of active players, the number of hit games, the online multiplayer scene, the multimedia hub features – the Wii is not in the same league as the Xbox 360). Global Xbox 360 sales, while still leading the PS3 probably at this point, may give up its lead sometime soon, but if you have to pick a clear winner for this generation, then based on the growth of the platform and the long term effects on the next generation and beyond, the Xbox 360 is a clear winner.

The PS3 is by no means a loser, and if Sony keep to their word of a 10-year product life for the console (and Microsoft follow Nintendo’s lead and release a new console before then), then the PS3 might still end up being the best selling console of this generation, at least in global sales. But compared to the last generation, in which the PS2 outsold the Xbox by more than a 6-to-1 margin (and outsold Nintendo’s GameCube by even more), then you can’t but feel that while PS3 may eventually “win”, the victory is somewhat hollow when you consider the decline from the totally dominating position the PlayStation platform was in the last gen. Of course, this kind of dominance would never really be long lasting (just ask Sega, or Nintendo before the Wii), but the company’s lack of focus on online gaming, too much focus on Blu-ray and the subsequent delay to the release of the console, the relative developer unfriendly platform (which was always going to be to Microsoft, a software company’s, advantage), the lack of attention to family/social gaming (the Wii sucks, but here’s Move, our version of it), and various setbacks including the recent PSN hack, were all mistakes that could have been prevented or at least mitigated. So coming into the holiday period, with sales flat compared to the same month last year, and battling the Wii to be a distant second place, it’s not where Sony wanted to be (they had hoped most PS2 owners would have upgraded to a PS3 by now, but instead, the Xbox 360 and the Wii stepped in to fill the “hardcore” and “family fun” void).

The Wii, for what it was, and what it has achieved, is also a huge success. Sure, most Wii consoles are now gathering dust somewhere (guilty as charged), but for a slightly enhanced version of the GameCube with a new innovative control system, it has done amazingly well. But much of it has been at the expense of losing all hardcore gamers to the other platforms, a situation Nintendo wants to address with the graphically powerful Wii U (because hardcore gamers keep playing, and keep buying games, not so much casual gamers who get distracted easily as soon as a new tablet or smartphone hits the market). If the Wii was about getting Nintendo back in the game, and a game where they were close to “going the way of Sega” in the last gen (the Xbox sold more units than the GameCube, despite it being a clunky first effort by a company that has never done console gaming, compared to the pro that is Nintendo).

Don’t know why this analysis has turned into a “look back at” type of deal, considering this generation still has a long way to go, but it just felt appropriate for some reason, as this may be the last holiday period where these 3 consoles compete in.

Let’s move on to game sales. Battlefield 3 broke all records (before MW3 will do the same this/next month), which is no surprise. BF3 fever affected me personally as well, having played and be completely pwned in the beta, I was out for more punishment and so bought a copy of the PC version. In fact, I was so caught up in the fever, I actually bought two copies (long story)! With 10 million copies shipped (as in to retailer, with 5 million of these actually “sold”), it’s a success. Batman: Arkham City, in any other month, would have been the clear winner, oh well. Again highlighting the dominance of the Xbox 360 in the US, two platform exclusive titles, the newly released Forza 4 and last month’s Gears of War 3, were in the top 10, a difficult proposition for single platform releases, as they were up against all platforms combined sales figures for the multi-platform games. Also interesting is that Just Dance 3 managed a top 10 entry, despite not being available on the PS3 until December. Ubisoft hasn’t said why the PS3 version is delayed, but I’m sure Microsoft will notch it up as a victory for Kinect over the Move. Here’s the full software sales chart for October (new releases for October 2011 in bold):

1. Battlefield 3 (EA, Xbox 360, PS3, PC)
2. Batman: Arkham City (Warner Bros, Xbox 360, PS3)
3. NBA 2K12 (Take-Two Interactive, Xbox 360, PS3, PS2, PSP, Wii, PC)
4. Rage (Bethesda, Xbox 360, PS3, PC)
5. Just Dance 3 (Ubisoft, Wii, Xbox 360)
6. Dark Souls (Namco, PS3, Xbox 360)
7. Madden NFL 12 (EA, Xbox 360, PS3, Wii, PS2, PSP)
8. Forza Motorsport 4 (Microsoft, Xbox 360)
9. Gears of War 3 (Microsoft, Xbox 360)
10. FIFA 12 (EA, Xbox 360, PS3, Wii, PS2, PSP, 3DS)

Time to make my usual prediction. It’s the holiday period proper, sales will be way up, and Modern Warfare 3 will help in this regard as it breaks all records. The Xbox 360, the preferred platform of MW3 and also with a new Halo game being released, will be the clear winner yet again, but it will be interesting to see if the Wii can have one last good holiday period, and there’s a new Zelda game too, so that always helps. The PS3 does have Uncharted 3 though. If I have to guess, I would say the PS3 will beat the Wii. The top games will be the ones I’ve already mentioned, plus Skyrim.

See you next month.

Let’s start with the copyright news, we start with the music industry lobby’s full attack on opposition to the Stop Online Piracy Act (SOPA).

The controversial SOPA, if passed, will give the music industry, amongst others, to avoid pesky things such as actual evidence when it comes to forcing the likes of PayPal or Mastercard from cutting off service to websites that the industry sees as a threat, as long as they can come up with some sort of explanation that the site is primarily involved in piracy. In fact, they don’t even have to do that. As long as the website is merely suspected of potentially wanting to hide their infringement activities, then SOPA will allow the rightsholders to intervene, even if at that point, it’s not even clear, let alone established by a court of law, that any infringement has even occurred. So potentially, all the industry have to say is that “I don’t like the look of that website”, and they can deal a potential death blow to that website. So no wonder opposition is coming in from all directions.

Remember how PayPal and others screwed Wikileaks? The RIAA wants the same, but for every website, not just Wikileaks.

But RIAA says that all of this nothing more by hyperbole, and that the music industry needs these changes to survive. Survive from mass piracy, or survive the move from CD albums sales towards digital tracks, they don’t say of course, but SOPA could very well be used to destroy innovation by an industry that’s obviously not looking towards the future. Imagine a new start-up that offers a brand new service that hurts the existing business model of the music industry, the RIAA can use SOPA to fire off an infringement notice to say the financial providers of the start-up website. Trying to avoid trouble, the financial providers cease support for the website, and the website dies a quick death. Sure, the owners of the website can sue the financial providers, but that would require money, which at that point, the start-up probably doesn’t have much of. This may very be an extreme, but no law should give so much power to one side, against the other, and to replace civil court matters with agreements and dealings behind closed doors by private corporations. And with the economy the way it is, the country can ill afford to allow old business interests to kill off new innovations, that are really at the forefront of job creation.

And the RIAA have been busy not only defending “their” SOPA bill, but also attacking the old DMCA, which if you can remember, was their work as well. Apparently, the “safe harbor” provision that was added to protect online businesses is working too well and actually offering protection to online businesses, which the RIAA says was not the intention behind the provision at all. They blame it all on judicial branch of the government, the branch that’s the hardest to corrupt via lobbyist money, for interpreting “safe habor” wrongly. In particular, they want ISPs and websites to be the judge, jury and executioner and to take proactive action against infringing content, what they call “red flags”, which is a very vague notion of “you’ll know (it’s piracy) when you see it”. Except these types of actions will open up ISPs and web businesses to potential lawsuits for removing the wrong content, and it’s difficult to judge what is right and what is wrong when you don’t even know what content belongs to whom, without the rights holders getting involved. The RIAA says this shouldn’t be a problem, and it isn’t, for them! It seems web piracy is the gravest problem facing the music industry, and at the same time, it’s a problem that the industry shouldn’t have to do anything about – because the government, tax payers, web businesses should be doing all the work, taking all the risks, while the rights holders  receives all the theoretical and perceived benefits.

Google says a lot of DMCA complaints are invalid, and most are being used to attack competitors

But then maybe it’s a good thing, because whenever the rights holders are given carte blanche rights to remove infringing content on the Internet, they tend to abuse those rights. Google revealed a few years ago that a third of all DMCA complains filed with the company were invalid, and the latest example is Warner Bros. abusing Hotfile’s infringing file removal tool. Despite being sued for promoting piracy, Hotfile actually had one of the stronger anti-piracy tools for rights holders, allowing them to basically delete any hosted files they want without any real limitations. Unfortunately, WB, when given access to the tool, abused it by deleting content that didn’t belong to them and even open source software, and this is not just Hotfile’s allegation – WB this week admitted to pretty much all of it as part of legal proceedings between the company. Once again highlighting why automated, technical solutions to piracy filtering doesn’t work, WB admitted that their piracy filters removed content that only shared a partial name to the content they were trying to remove. And doing a simple file name check implies WB definitely didn’t download the files and check whether it actually contained infringing content or not. WB also admitted to deleting a popular, open source downloading tool that they obviously had no rights to, and they justified it because the tool helped to speed up downloads, and of course, all downloads equals piracy in the eyes of Warner. And WB admitted to all of this “collateral damage”, and it seems they’re not too fussed about it either, as they’re still asking the judge to throw out Hotfile’s lawsuit against the studio for the allegation that the studio abused the DMCA, which Warner appears to have just confirmed.

Over to Europe and two ISP, and The Pirate Bay, related cases that could have implications everywhere else. With UK courts giving the okay for ISPs to start blocking websites for anti-piracy reasons, the BPI, UK’s branch of the RIAA, wasted no time in asking the same ISP, BT, to start blocking The Pirate Bay. Calling The Pirate Bay a “huge scam” (I would argue against that, since a website that has the word “pirate” in its title and domain name is not trying to fool anyone as to what the website is about), the BPI fearmongering engine went into overdrive. If you visit The Pirate Bay, apparently, your computer will get infected with viruses, trojans and herpes, your identity will be stolen, and you may even see “inappropriate content”. The BPI wasn’t clear what “inappropriate” meant, but since BPI specifically asked BT to use their child porn filter to filter out The Pirate Bay, the implicit suggestion is probably pretty clear. And of course, given the economy today, the talking point of “they toor ur jobs” was bought up, against suggesting that piracy destroys jobs, while creating none (and yet, the industry says ISPs, web businesses and individuals are making too much money off piracy).

The other story was in Dutch-land, where BREIN is at it again, this time asking two ISPs to also block The Pirate Bay. But the ISP, having already won a preliminary court case against this very matter, say that the proposed blocking method, by IP address and DNS, won’t work and may actually kill their network.

How DNS Works

But before we get into the details, a little background info may be needed here. The way the web works, each server has one or more IP addresses assigned to it, and the server software can present the right website for you based on the IP address (sometimes, a single IP address can host several websites, and the server software can tell which site to serve up via the domain name you used to get to the IP address). Domain names are matched to IP addresses via Domain Name System  (DNS), which is basically thousands upon thousands of servers world wide that stores a constantly updated database of domain name to IP address translations (as well as mail server information, and all sorts of stuff). When the website owner starts a new website or changes the IP addresses, he/she changes his primary DNS server’s information, and that change is propagated to every other server on the Internet to ensure all data is synced. If data is not synced, and this does happen, then you may see different websites depending on which DNS server you connected to.

So back to the BREIN case. They want both an IP address/range ban, and also a DNS filter put into place so that if subscribers of these ISPs type in The Pirate Bay domain name, the DNS server would not return the right results. The first one is problematic because, to avoid filters, TPB could change IP addresses every couple of days, and this means the ISPs have to constantly track the IP addresses. And because IP addresses can be recycled/re-assigned, they may end up blocking the wrong website if they’re not quick enough with their detection, thus opening themselves up to lawsuits. The DNS filter method, which is also the one being proposed in the US by Protect IP and one that has come under much attack by anyone who knows how the Internet works, breaks the Domain Name System by destroying the sync between DNS servers, and slow down or stop the propagation of DNS changes, which will cripple the entire Internet. Net neutrality, which the FCC fought for and lost, would become law under PROTECT IP, as each ISP will now be able to tell you which websites you can and cannot visit, and may even redirect one domain name to another website (for example, thepiratebay.org ends up going to mpaa.org). But for the two Dutch ISPs, Ziggo and Xs4all, the immediate problem with both IP and DNS filtering is the effect on their own networks, with the constant changes requiring network reboots that can bring down the entire network. But BREIN doesn’t really care, and I’m just going to copy/paste what I wrote earlier, “because the government, tax payers, web businesses should be doing all the work, taking all the risks, while the rights holders receives all the theoretical and perceived benefits.”

Game publishers, especially PC game publishers, like to complain a lot about piracy, but it always seemed odd to me that they never actually listen to the people that may know a thing or two about what makes consumers buy games – the retailers! Steam, in particularly, has been talking a lot about DRM and pricing (maybe less talk, and more action on security would have helped … I kid). And this week, it’s Good Old Game’s turn to diss DRM. Nothing we haven’t heard already though, DRM only affects legitimate paying customers, it doesn’t stop piracy … all the usual things you’ve read on here. But it seems publishers have it in their head that they need to make it as hard as possible for the pirates by using DRM, which kind of makes sense, but “hard” is a relative thing and it’s mostly quite easy for the piracy groups to crack DRM. The other ways is to tie in non-intrusive DRM with value-added services, such as in-game browsing, chatting, cloud saves, and achievements, which is what Steam has done with success. A lot of success it seems, as GOG also revealed that even for games published by their own company, Steam sells many more copies than on the official GOG service, 5 times as many and 20 times more than all the other digital distributors combined. But even with their power, publishers still hold a lot of power over Steam, particularly in terms of pricing (and regional pricing), so the next time you complain about something being too expensive on Steam or the overseas version of the store carrying cheaper prices, the publishers are to blame, not Steam, which has time and time again presented evidence that cheap games => more revenue.

Skipping HD/3D, and moving quickly onto gaming, mainly because the next story is also about Steam, and it’s not a good one for the company. Steam was hacked over the last week, at first it was only the forum, but it seems the hackers have got into the main Steam database as well and accessed, possibly not downloaded, the database including user details, hashed/salted passwords and even encrypted credit card numbers.

Obviously, getting hacked isn’t good, but with Steam relying on a third party forum software (vBulletin), it was always going to be a risk. But the emerging details seems to show that the database was at least somewhat secured, with both hashed/salted passwords and encrypted credit card numbers. The former simply means that the password, unlike with the PSN database, was not stored as plain text and stored as a hash, a supposedly unique representation of the password, but unlike encryption, it’s one way and (theoretically) cannot be reversed. A salt was also used to make the hashing much harder to reverse back to plain text, if at all possible. And the CC number encryption, assuming it was strong enough, should prevent hackers getting any meaningful data, which is probably why they didn’t bother to download the database.

The much-maligned Steam Guard may have limited the damage hackers could have done to Steam

And if you use Steam’s Steam Guard service (I know, the one everyone hates), your account should be even more secure as the hackers would need access to your email account to access your Steam account. Not that it isn’t possible, because if you used the same password for both Steam and your Steam associated email account, then that’s how a hacker might get in, in the small chance that they could reverse the password hash (quite easy if you’re using a dictionary word, I’m told). So if you value your Steam account, and we currently have a poll asking you how many games you have on Steam, then it might be wise to change your password, remove any stored credit card numbers on the Steam system (just enter it every time instead of saving it, if you’re like me and likes to shop online, you’ve got it memorized anyway), and maybe have a bit more respect for Steam Guard. Just a bit more, mind.

And, we’re already over the word limit, but I would just like to offer a preview of the October US video game sales analysis. The Xbox 360 won again, Wii sold nearly 150,000 units less than the 360, and Sony refused to divulge any data again, but from statement maths, the PS3 either just narrowly beat the Wii, or was actually slightly behind, not great going into the holiday period. Battlefield 3 killed everything other game like a level 43 camper against a team of rushing noobs, with a record 10 million copies shipped on all formats (but Modern Warfare 3 might have something about this next month). The full analysis will be upped in the next day or so.

Alright, that’s enough words from me. See you next week.

We start with copyright news as we usually do, and we start with a quite unusual story, one that I still don’t really know what to make of.

PC gaming piracy is a big problem, I think everyone can at least acknowledge this fact (whether ever more intrusive DRM is the solution to the problem, I think, is where the debate is at the moment), but if the goal of anti-piracy is to increase revenue, and intrusive DRM doesn’t seem to be producing, why not try something else?

A sample result from the Vigilant Defender questionnaire, which shows that DRM not only does not really help encourage pirates to buy games, it may even drive them to pirate in the first place

Except, I probably wouldn’t try what startup anti-piracy firm, Vigilant Defender, has tried – to actually help the spread of pirated content. Yes, you heard right, the first step in Vigilant Defender’s experiment is to actually help seed a leaked beta version of the hit game, Deus Ex Human Revolution. The second step is slightly tricky, as the version of the beta they seeded was slightly modified to drop out of the game after the first few levels, and direct users to an online questionnaire, in which they were asked questions about why they decided to pirate the game. While data collection is essential to solving the piracy problem, especially given the industry’s often biased “research” on the matter, the key question asked of gamers was “what would you be willing to pay for this game”. Not only will the answer to this particular question prove useful in finding out just why people pirate, and what price point can influence the same people to go legit, Vigilant took this one step further and proceeded to offer downloaders the opportunity to buy the full game at a price determined by average answer to this particular question. And amazingly, 8% of all those who downloaded the modified leaked beta actually went on to buy the game, at the user voted average price of $24.99 (half of the retail price) and that’s actually quite a high rate of return for games, especially when the target demographic is often described by the industry as “criminals” and “freeloaders”.

In my opinion, what Vigilant Defender tried to do was very clever, even if they went about it perhaps in too much of a roundabout way. What they’re actually advocating is a system where users vote for the price they want to play, and where pirated versions of games actually become demos of sorts. The gaming industry may not want to believe it, but a lot of gamers do use pirated games as an extended demo, and many, I’m not saying all (or even anything close to a majority), to end up buying the full version if they like the game. Game publishers, on the other than, would rather prefer people buy games they don’t like by making sure they can’t test it fully before they buy it, and perhaps that’s how it used to work before Internet piracy became ubiquitous, this kind of business model no longer works. But on the other hand, by offering downloaders cheaper version of games, it’s perhaps encouraging downloads, and this kind of distribution model would be a hard sell for game publishers. But there’s definitely something here, and perhaps a little bit of tweaking could bring us a new distribution model that takes advantage of P2P networks such as BitTorrent to not only distribute the games, but to promote them. Imagine if games came with a thin layer of unobtrusive DRM that simply nagged users to buy the game from time to time, a DRM so not annoying that release groups don’t even bother to have it (so it remains in the pirated versions floating around the net). Users would then be given an offer to “upgrade” their pirated version to the full legit version for a discounted price, but the caveat is that their save games/profiles would no longer be compatible with the full version unless they pay the full price, or some kind of incentive that still makes buying games at full price an attractive proposition. And if you want pirates to help you sell games, then let them join some kind of commission based affiliate program, where for each downloader that “upgrades”, the seeder would get a small commission for their “help”.

The even easier alternative is to lower game prices and improve services for legitimate customers, so that piracy becomes more trouble than its worth.

For Vigilant Defender though, they have a slight problem on their hands at the moment since this Deux Ex experiment was not actually approved by the publishers of the game, Square Enix, which could land the anti-piracy company in a bit of bother with anti-piracy laws.

Bad news for Australians lately on the copyright front. Only a couple of weeks ago, we got our first taste of mass copyright lawsuits, and this week, our government signalled changes to our existing copyright law which would make it even easier for mass copyright lawsuits to happen. Namely, the Attorney-General wants to make it easier for rights holders (or agents of them) to match IP addresses to real identifies, by “streamlining” the legal process. In other words, due process has to go out the window to make Hollywood and the RIAA happy. Even the idea of a ‘graduated response’ system was mentioned, at a conference sponsored by the copyright lobby, of course. Still, there were some other proposed changes that were positive, such as extending “safe harbour” to protect more types of Internet businesses, rather than just ISPs – search engines like Google and Bing will benefit the most with this proposed change. But as long as politicians still continue to believe that a single IP address is evidence enough of a “crime”, and that the “crime” itself is costing the creative industries insane amounts of money and jobs, then politicians will always be on the side of the copyright lobby, made more likely by the uneven spreading around of lobbying cash from both sides of the issue.

In HD/3D news, this week could prove an important one for advocates of managed copy, who want legal alternatives to “ripping”. UltraViolet has been talked about quite a lot, and this week, we finally get our first taste of this “in the cloud” based managed copy system. Unfortunately, the taste is not quite palatable.

UltraViolet from Warner Bros. is being distributed via Flixster, and it isn't a very convenient user experience

Warner Bros. released Horrible Bosses and Green Lantern with UltraViolet digital copy included, but the way Warner has decided to deploy UltraViolet is the biggest problem at the moment. The current WB process requires users to enter in a 12-digit redemption code online, which in itself is annoying, and then users will have to sign up to Flixster, and then install the Flixster app on the device they wish to view the UltraViolet copy. And it’s all wrapped up in various layers of DRM, as you would expect.

And as WB owns Flixster, and to add to the problem, when other studios release their version of UltraViolet, they will use their own distribution network. So right now, if you asked me on which devices an UltraViolet digital copy works on, I can’t tell you, because it will depend on each studio, and this is absolutely the wrong way to go about it. For UltraViolet to be viable, I think it really has to either tie in with iTunes, NetFlix, Amazon or one of the existing players in video distribution, or all the studios have to come together and come up with a single distribution method, with all of the major devices supported (the iDevices, Android system, game consoles and Blu-ray players, at least). And then, streamline the process so it’s as simple as scanning a QR code, or just a matter of inserting the UltraViolet Blu-ray or DVD into a UV compatible player – none of this 12 digit code nonsense, or having to figure out each studio’s UltraViolet system and having to have an account for each.

A two parter Sony related story, the first part goes here in the HD section I suppose. Sony has had to issue a massive recall/repair for 1.6 million LCD TVs they produced since 2008, apparently due to a fire risk in a faulty component. It’s not exactly what the company needs at the moment, but the “good” news so far is that there haven’t been any reports of actual injuries, and that the damage so far has been restricted to the TV set itself.

Less costly for Sony, financial wise, but perhaps more costly in terms of image is the news that a further 93,000 Sony online network accounts have been “hacked”, in the latest security breach.

Fortunately for Sony, the breach which led to hackers gaining access to 93,000 accounts on the Sony Entertainment Network (SEN), PlayStation Network (PSN) and Sony Online Entertainment (SOE) networks appears to have originated elsewhere. According to Sony, hackers managed to source the email/password combinations for an unspecified (non Sony) online service, and proceeded to use the same login combination to try their luck on the PSN, and managed to get access to the 93,000 accounts. Sony have disabled 33,000 SOE accounts, while have forced password changes for the rest. Sony says that credit card info was not accessed during this attack, but personal information may have been.

While Sony is right that the data breach occurred elsewhere, the security issue here still lies with Sony, because allowing hackers to launch this type of massive attack can easily be prevented. Simply limiting failed login attempts from any individual IP address or range, which is standard practice, could have prevented the 93,000 accounts from being accessed. And some kind of “CAPTCHA” system, or human verification, would have prevented the hacker’s bot based login attempts. Both of these are common techniques used to prevent dictionary based attacks. And once again, it took Sony days to spot the unusual activity on their networks, when it really should be a matter of hours if not minutes.

Life to date Xbox 360 sales in the US (in green) is catching up to Wii sales (in blue), but the PS3 (red) languishes in third place

But while Sony’s security problems have been highlighted recently, it doesn’t seem to have seriously affected the fortunes of the PS3, as price, as always, seems to be the main driving factor behind sales. So Sony’s $50 price cut to the PS3 in the middle of August has seen PS3 sales rise, although as the September 2011 NPD US video games sales analysis shows, the rise was not big enough to really endanger the Xbox 360’s position as the best selling console in the US. The gap has closed, however, between the PS3 and the Xbox 360, while the gap between the Wii and every other console seems to be widening. If the gap remains as big as it was during September, the Xbox 360 is set to overtake the Wii as the best selling home based console of this generation (in the US) within 39 month – but it will be well after the Wii U is introduced, so that’s what Nintendo are holding on to at the moment.

Alright, that’s enough for this week I think. Hopefully more of a newsworthy week this next one, and I have a feeling it will. Have a good one.

As NPD no longer releases full hardware sales figures, this feature is reliant on the game companies, namely Microsoft, Nintendo and Sony, to release their set of figures and based on “statement math” (that is, arithmetically calculate missing figures based on statements made). For September 2011, these are the statements made by the gaming companies:

• Nintendo reveals the Wii sold 240,000 units, with 260,000 3DS consoles, and 145,000 DS (via PR email)
• Microsoft revealed 438,000 Xbox 360 hardware units sold, with 42% of the home based console market share (source)
• Sony did not reveal exact figures, but said that the PS3 hardware sale increase 20% year-on-year (Sony statement, via Senior Director of Corporate Communications at SCEA, Patrick Seybold)

Unfortunately for this month, Microsoft and Sony’s statements do conflict with each other a bit. Using Microsoft’s statement, PS3 sales can be deduced to be 364,857 units, but according to Sony’s own statement, the figure is more like 374,400 (20% more than September 2010’s 312,000). Obviously, there are rounding errors from all the company’s statements, so giving Sony the benefit of the doubt, we’ll presume the PS3 sales figure for September 2011 is the higher 374,400.

And so the figures for US sales in September 2011 are below, ranked in order of number of sales (September 2010 figures also shown, including percentage change):

• Xbox 360: 438,000 (Total: 28.8 million; September 2010: 483,989 – down 9.5%)
• PS3: 374,400 (Total: 17.7 million; September 2010: 312,000 – up 20%)
• Wii: 240,000 (Total: 36.6 million; September 2010: 254,000 – down 5.5%)

NPD September 2011 Game Console US Sales Figures

NPD Game Console Total US Sales Figures (as of September 2011)

My prediction from last month was:

I think the Xbox 360 will still come out as the top selling console for September 2011, mainly due to ‘Gear of War 3′, but the PS3 will definitely come closer than it did this month, and with ‘Resistance 3′, it too might benefit from a platform exclusive. The Wii will be third. Games wise, ‘Gear of War 3′ looks set to be a top seller, despite being a platform exclusive release. ‘Resistance 3′, on the other hand, doesn’t look to have the same effect, although it will still sell well. Combined platforms sales may even push ‘Dead Island’ to the top of the charts.

I got the hardware ordering spot on, although it really wasn’t that hard to predict what was going to happen. The PS3 did get closer to the Xbox 360 sales, but it’s clear now that the 360 is now the dominant console in the US, and not even a PS3 price cut can affect its status it seems (unless that price cut was a more substantial $100, for example). For the game predictions, Madden was actually the top selling title, followed by Gears of War 3. And ‘Dead Island’ did manage to put its way high up in the charts, in 3rd place. Resistance 3, on the other hand, only finished 7th, not the worst result, but the average critical response to the game may have had some effect.

So the Xbox 360 continues its winning streak, by not only becoming the dominant home based console, but it’s also the best selling console for September, period. Looking at the life to date sales numbers, the Xbox 360 continues to pull ahead of the PS3, and continues to get closer to the Wii, to the point where the difference between the Wii and 360 numbers is actually less now than the difference between the 360 and PS3 numbers. Because of the Xbox 360’s dominance with multi-platform releases in North America, namely that if the same game is on multiple platforms, the Xbox 360 version is usually the most popular, the hit releases planned for the next few month starting with Batman: Arkham City and Battlefield 3 next month, and MW3 and Elder Scrolls V: Skyrim in November, will all benefit the Xbox 360 more. The it appears that the 360’s exclusives, such as Halo and Gears of War, appear to be far more popular than the PS3’s line up, including ‘Resistance’ this month.

But you cannot say the PS3 performed badly for September – after all, it was the only console to see year-on-year growth, but just like how the other consoles found it difficult to compete with the PS2 in the last generation, the PS3 is having a hard time trying to catch up to the Xbox 360 (and Wii, for the early parts anyway) in this generation (although the gap between the consoles is much less pronounced than the last generation). Taking off my fanboy hat for a moment, the truth is that both the PS3 and Xbox 360 are excellent game consoles with excellent game line ups and fantastic multimedia capabilities. Each console has their own pros and cons, and thanks to the Xbox 360’s head-start, the Wii’s (then) innovative control system, and the PS3’s Blu-ray drive, we now have a much more balanced set of competitors, and that can only be good for gamers, who should consider themselves lucky to be able to enjoy so many great games in the last few years.

The Wii, right now, is the only loser, but it’s not something Nintendo are unaware of, and the Wii-U will set to address many of the shortcomings of the Wii console, but also maintain Nintendo’s reputation for producing fun, family based games.

For game sales, Madden’s delay from August to September allowed it to rule the roost for the month, but Gears of War 3 would be considered the best selling Xbox 360 game for the month, the Madden ranking includes all platform sales. Dead Island was the only original franchise in the top 10, and it did well to come in 3rd, but it also shows that, unlike movies, gaming sequels are actually welcomed by gamers, and usually are huge improvements on the original, not just an opportunity to cash-in (take note Hollywood). FIFA’s high ranking highlights the growing popularity of “soccer” games, beating NHL 11, something it didn’t do last year this time. And a 10th place for Warhammer 40,000: Space Marine is a good result for the franchise. Electronic Arts are the real winners, with 3 of the top 10 titles belonging to them, and the all important first place too. Here’s the full software sales chart for September:

1. Madden NFL 12 (EA, Xbox 360, PS3, Wii, PS2, PSP)
2. Gears of War 3 (Microsoft, Xbox 360)
3. Dead Island (Deep Silver, Xbox 360, PS3, PC)
4. FIFA 12 (EA, Xbox 360, PS3, Wii, PS2, PSP, 3DS)
5. NHL 12 (EA, Xbox 360, PS3)
6. Deus Ex: Human Revolution (Square Enix, Xbox 360, PS3, PC)
7. Resistance 3 (Sony, PS3)
8. Lego Star Wars III: The Clone Wars (LucasArts, Wii, NDS, Xbox 360, 3DS, PS3, PSP, PC)
9. Call of Duty: Black Ops (Activision Blizzard, Xbox 360, PS3, Wii, NDS,PC)
10. Warhammer 40,000: Space Marine (THQ, Xbox 360, PS3, PC)

Time to make my usual prediction. I think the hardware situation will remain largely the same. Games wise, Batman: Arkham City and Battlefield 3 go head to head, with Forza 4 on the Xbox 360 possible making the top 10 as well as a platform exclusive.

See you next month.

More than expected number of news items this week, so let’s get started.

In copyright news, it’s hard to know where to begin. I guess we should start with the source of the problem, the money. More precisely, the money flowing into Washington and other capitals of the world, as the copyright lobby spends millions scaring politicians into believing  ”net piracy plague” hype.

It was revealed this week that the MPAA spent $470,000 in lobbying in the last quarter alone, mainly to promote the hugely controversial PROTECT IP act, which if you’ve been following the WNR, you should already know that it has come under attack by a variety of professionals, from engineers, to entrepreneurs, to law professors. The idea of messing around with the foundation of the Internet, the domain naming system, just so the billion dollar movie industry can feel a little bit better, without actually solving any real problems, is I guess what these professionals are most concerned about. Basically, the MPAA has convinced politicians that the few harmless flies are actually killer bees, and that the only way to solve the problem is to launch a tactical nuclear strike (except in this analogy, the nuclear strike would probably solve the fly problem, whereas PROTECT IP won’t do anything to piracy).

What surprised me more was that, despite being only a fraction of the size of the movie industry, the music industry via its lobby group the RIAA actually spend almost three times as much money – $1.25M, in just one quarter. And somehow, this was still down on last year’s $1.4M, in the same quarter. Had the RIAA simply spend the money they’ve spent on lobbying and DRM, on actual innovation, they would have been the ones making the iPod and running iTunes, not Apple. Instead, they spend a million plus trying to get new legislation through that would allow labels to receive royalty from radio station airings – once upon a time, labels were happy to just get free airings for promotional purposes, but not any more I guess.

RapidShare will hope its recent lobbying spending of $260,000 is enough to convince Washington politicians not to kill off the file sharing industry

The same story also showed some lobbying from the other side, specifically, by Rapidshare. If PROTECT IP passes, they have the most to lose, since they will probably be the first website to get filtered, after having appeared in all the copyright blacklists. There would be far too much collateral damage if lawmakers outlaw public file sharing, because while I do admit Rapidshare has its fair share of pirated files, it’s also an essential service for many others to share large files without having access to your own FTP server. I can’t see how you can have a public file sharing service without the problem of piracy cropping up, but it’s not as if Rapidshare doesn’t have tools for rights holders to get infringing files removed – it’s just that rights holders don’t want to have to do the work to get them removed. Automatic filters are easy to escape by real pirates, but makes false positives hard to avoid – think of the YouTube false positive copyright thing and times it by about 1,000, since at least with YouTube, some kind of audio/visual analysis could be performed, while it’s harder with generic files.

The world’s second most famous music pirate, Boston University student Joel Tenenbaum, is back in the news this week as the RIAA’s appeal of an earlier reduction in damages, to “only” $67,500, was rejected by the appellate court. But not because they supported the original jury rewarded $675,000, but because they thought that Judge Nancy Gertner has jumped to the constitutional issues  a bit too early in citing the reason for the reduction, when there were other legal recourse that should have been taken before going down this route. It appears that the appeals court agrees that $675,000 was inappropriate, and in their summary, even urged Congress to consider reducing the excessive statutory damages in relation to copyright infringement (but we’ll be lucky if Congress doesn’t do the opposite, and increase statutory damages). This is become a bigger issue, because back in the day, most copyright infringement lawsuits were related to commercial infringement, and so the statutory damages are relevant to those types of cases. Today, most copyright infringement cases relate to non commercial infringement, such as illegally downloading a 99 cent song for free, and so $150,000 per act of infringement doesn’t really fit the “crime” any more. A sensible copyright reform would introduce a new tier of penalties dealing specifically with non commercial infringement, because a fine of $150 per act is enough of a deterrent for those that actually fear the law on the matter (most don’t, even with $675,000 in damages as a potential outcome). And so for now, Tenenbaum faces $675,000 in damages again, which will of course be appealed.

But Boston University students aren’t the only ones having money trouble these days. Righthaven’s refusal to pay the $34,000 in legal fees it owns to Wayne Hoehn, possibly through lack of ability to pay, has forced Hoehn’s attorneys to petition the court to send US Marshals to seize Righthaven assets in response. Now that would be a beautiful sight to behold, wouldn’t it? Righthaven took the risk in trying to scare Hoehn into paying a settlement fee, only for Hoehn to refuse to lie down and fight his way to a win in court, and so it’s only fair that Righthaven should pay up. After all, they’re the ones who send letters threatening tens and hundreds of thousands in damages, if people don’t settle. They should have taken their own advice and settled, if they didn’t want to pay up (except I think the judge refused them the right to do so, heh).

Over to Europe right now, whose financial system should collapse any day now, but before then, there are some deck chair shuffling that needs to happen. In Italy, MPs from Berlusconi’s party (why is the guy still prime minster?) want to introduce the world’s first “one-strike” system, where people may get kicked off the Internet for just a single allegation of copyright infringement. Sometimes I think politicians are actually just using copyright as an excuse to kill off the Internet, as the Internet is  making it harder to rule against the wishes of the people. And also to hide your bunga bunga parties. You know what this is? It’s fascism. And we all know how Italians deal with fascists (well, eventually, anyway).

The SFI's IP address being used for piracy should not be proof that the institute was engaged in piracy

On to Sweden, and the Swedish Film Institute has just gone through what hundreds and thousands of individuals have gone through, after the SFI was accused of pirating films because its IP address had been found in one of many BitTorrent swarms. It would be hard for the SFI to go with the “my router was hacked” excuse, because no hacking did occur, but because they operated a public Wi-Fi, and because the agency tasked with collection IP addresses aren’t cooperating with the SFI on the investigation, it has been extremely difficult for the SFI to find the source of the piracy. And if this doesn’t prove that an IP address does not equal the identity of the individual(s) who made the infringement, then nothing will. And if public Wi-Fi is now going to be the target of anti-piracy operations, then that’s taking a huge step backwards in terms of the Internet everywhere approach that we’ve become used to (and which many websites, like Facebook or FourSquare, rely on).

And this increasing perception gap between how the world works now, and how the copyright lobby/politicians want things to work, is probably why the German Pirate Party has won 15 seats in the Berlin regional elections. With their Swedish counterpart winning a seat in the EU parliament, pirate parties around the world could become the new Greens, as the issue of Internet privacy and rights become more and more important.

In HD/3D news, next week should bring us the Star Wars numbers, an early signs show that it will be a big one. I’m a huge Star Wars nerd, having watched the originally trilogies at least 50 times altogether (and the new prequels trilogies about 6 times), but I’ve actually not pre-ordered the set. It’s not a protest at George Lucas or anything, but while Star Wars on DVD was a special moment for me, I’m a bit more meh about Star Wars on Blu-ray for some reason. Probably because, upscaled, the DVD edition still looks quite good, and from early reviews, while the Blu-ray version definitely looks better, the classic trilogies aren’t the “hi-defy” experience that many would be expecting. It’s not only the age of the film that the cause, but I think not going with a new transfer, given advances in technology since the last one, seems like a step backwards. Which is why I suspect we’ll get a new transfer in time for next year’s 3D version of the films, which means a new Blu-ray set (hopefully with the remastered films in 2D, as well as 3D), and so it’s hard to get too excited. I will still probably get it, I mean I got the LotR theatrical mess on Blu-ray.

Plus, I’m finding it difficult to get the time to watch movies these days, got a dozen or more on Blu-ray that’s still under shrink wrap.

For 3D news, this week, YouTube announced a new feature in which you can convert any existing or new uploaded 2D video to 3D. Cool if you like this sort of thing, but the 3D hype is definitely dying, and the 2D to 3D conversion could be the jump the shark moment for the format, because really, it’s an admission by YouTube that nobody is uploading any real 3D content.

And finally in gaming, those that saw and agreed to the new PSN user agreement, without reading it (obviously didn’t watch that South Park episode), may realise that they’ve signed over more than they realised.

Sony apparently sneaked a clause which makes it a lot harder for people to join in one of the many class action lawsuit against Sony for the PSN data theft. Those that signed the agreement will have agreed to go through binding individual arbitration before being allowed to join any class action lawsuit, with a Sony appointed arbitrator. If you don’t sign the agreement, then you won’t be allowed to use PSN, but you can opt out of the arbitration only by sending a letter to Sony HQ detailing your wishes, and within 30 days of signing the original agreement, and of course, all of these details were “hidden” in the wordy user agreement. I’m not going to comment on whether this is an underhanded move by Sony or not, but all I will say is that this is exactly what you would expect from such a company, and probably why it’s such an attractive target for hackers.

Diablo III could be a great game, but Blizzard are doing all they can to ruin it with "always-on" DRM and MMO restrictions, without any of the MMO benefits, in the single player mode

Diablo III is an eagerly awaited game, and Blizzard has a great reputation as a game producer. But the company’s insistence on using always-on DRM, they say for anti-cheating purposes, not anti-piracy, could really hurt their reputation, not to mention sales of the game. A recent play of the beta version seems to show a lot of quirks related to the always-on DRM, including the inability to pause games, and game glitches whenever the connection goes down (and it went down a lot, thanks to the flaky beta Blizzard servers), and eventually users get  thrown back to the main menu, losing unsaved progress. Hopefully, the final version will not be as “crippled”, but without adding in a true offline mode, Blizzard is always going to set themselves up to fail. The good news is that there’s still a lot of time between now and the game’s release, so enough public pressure could make Blizzard do the right thing.

And that’s all that was for the week. I’m off to play Starcraft 2 in 1080p, extreme quality mode (which is more than playable at 50/60 FPS on my new 6850, at least when the on screen unit count isn’t too high). See you next week.

As NPD no longer releases full hardware sales figures, this feature is reliant on the game companies, namely Microsoft, Nintendo and Sony, to release their set of figures and based on “statement math” (that is, arithmetically calculate missing figures based on statements made). For August 2011, these are the statements made by the gaming companies:

• Xbox 360 sold 308,000 units, “maintaining the # 1 console spot in the U.S. for 2011″ (source: @majornelson)
• Xbox 360 holds 43% home based console market share (Microsoft statement)
• Wii sells “more than 190,000″ units (Nintendo press release)
• Sony blames “inventory restraint” for sales in the first half of August, but “PS3 hardware sales were very strong the last two weeks of the month following the $50 price cut” (Sony statement)

Knowing both the Xbox 360 and Wii hardware numbers, and also knowing that the Xbox 360 held 43% of the home based console market share, the PS3 hardware sale is calculated to be an estimated 218,000 units.

And so the figures for US sales in August 2011 are below, ranked in order of number of sales (August 2010 figures also shown, including percentage change):

• Xbox 360: 308,000 (Total: 28.4 million; August 2010: 356,700 – down 14%)
• PS3: 218,000 (Total: 17.5 million; August 2010: 226,000 – down 4%)
• Wii: 190,000 (Total: 36.3 million; August 2010: 244,300 – down 22%)

NPD August 2011 Game Console US Sales Figures

NPD Game Console Total US Sales Figures (as of August 2011)

My prediction from last month was:

With the PS3 price drop coming in just a few days ago, this is just the sort of major event that makes predictions extremely difficult. There’s no doubt in my mind that the PS3 won’t come last again (Wii has the third spot amongst the home based consoles locked up), but the main question is can the PS3 outsell the Xbox 360? The price cut being only $50, and with no new console coming with the price cut like two years ago, maybe it will just come short, but it will be a close run race that’s for sure. For games, again, there’s nothing really of note. Usually at this time of the year, Madden NFL dominates, but with the Madden NFL 12 coming at the end of August, it may not have enough time to make such a major impact this time, although it will probably still be the best seller based on pre-orders alone. No More Heroes: Heroes’ Paradise for the PS3 and Deus Ex: Human Revolution seems to be the only two other notable releases in August.

The PS3 didn’t come last, and the Wii did, but this was an easy prediction to make. But it appears I overestimated the effect of the $50 price cut, and with Xbox 360 sales growing compared to July, the race wasn’t a “close run” one at all, with the Xbox 360 still comfortably retaining first place amongst the home based consoles.  For software, Madden NFL 12’s delay meant that it was not even included in August’s stats as it fell outside of the NPD August sales window (August is counted as a 4 week reporting period by the NPD, lasting from the 31st of July to the 27th of August), while of the two notable new releases, Dues Ex: Human Revolution was predictably the top selling title.

Let’s focus first on the PS3 numbers, and just how much of an effect the $50 price cut has had. On the surface, it looks like the effect was minimal, but dig a little deeper, and the sales bump will seem a bit more robust. Since the price cut only occurred half way through August, the first thing we need to do is to establish a marker for pre price cut sales. Generally (and historically) speaking, there is very little difference between July and August sales, but August tends to sell a few more consoles than July. Since nothing dramatic actually occurred for the Xbox 360, and the only effects being negative (due to price drop of PS3, encouraging more gamers to buy the PS3 over the Xbox 360), the rise of 360 units from 35-day reporting period of July to the 28-day reporting period August 0f roughly 11% could indicate “normal” seasonal growth.

Or not. So let’s take half of this number and say that, had the PS3 not had a price cut, it too would have grown 5.5%. This would make PS3 sales roughly 156,000 units for the whole month of August, or 5,571 units per day, had the price drop not occurred. The price cut was announced on the 16th of August, and so leaving the price cut only 12 days to affect the August NPD figures (again due to the premature end of the NPD reporting period at the end of august), with the first 16 days of the month “business as usual”. This means that prior to the price cut, 89,143 PS3 units were sold, leaving 128,587 being sold after the price cut. This means an increase from 5,571 units per day to 10,716 units per day (127,587 divided by the 12 days of the price cut) after the price cut, practically doubling sales as a result. This means that had the PS3 price cut lasted for the whole 28 day reporting period, PS3 sales would be almost exactly 300,000 units, only 8,000 units shy of the Xbox 360. Had I simply assumed that PS3 sales would have stayed completely flat between July and the first 16 days of August, PS3 unit sales may have reached as high as 311,000 units.

September would have told us a lot more about the full effect of the PS3 price cut, but the Xbox 360 exclusive ‘Gears of War 3′ should help Xbox 360 hardware numbers more than any other PS3 release would do for the PS3 hardware numbers. And with similar high profile releases that generally favour the Xbox 360 in the coming month, the bump from the PS3 price cut may just fall short of making the PS3 more popular than the Xbox 360 during this holiday period.

For the Xbox 360, a solid 11% rise from July to August allowed it to sit comfortably as the best selling home based console, but as noted earlier, it could have been different if the PS3 price cut had come earlier. Hardware sales are down some 14% compared to the same month last year, but again, this is mostly due to the “Slim” sales bump back then.

For the Wii though, August was just as bad as July, and it looks like from this point onwards, it will be third place out of three.  The Wii declined the most compared to August 2010 than any of the other consoles, which means that the rumours surrounding the rushing of the Wii U to market, and the “development hell” (source: n4g.com) that ensues, might show Nintendo is more worried about the Wii decline than they’re letting on.

For game sales, August was a disappointing month, due to the lack of new releases, and the delay of Madden NFL 12 to the September reporting period. So Deus Ex: Human Revolution was actually best selling title across all platforms, even though it was only released for 5 days in the August reporting period. The ‘Just Dance’ franchise continues to be the best selling Wii exclusive titles, but in better times, a Nintendo first party title, like Mario Kart (now bundled with consoles) or Wii Play would have been one of the titles. Here’s the full software sales chart for August:

1. Deus Ex: Human Revolution (Square Enix, Xbox 360, PS3, PC)
2. NCAA Football (Take 2, Xbox 360, PS3)
3. Call of Duty: Black Ops (Activision Blizzard, Xbox 360, PS3, Wii, NDS,PC)
4. Phineas and Ferb: Across the 2nd (Disney, NDS, Wii, PS3)
5. Cars 2 (Disney, NDS, Wii, Xbox 360, PS3, PC)
6. Just Dance Summer Party (Ubisoft, Wii)
7. Just Dance 2 (Ubisoft, Wii)
8. Lego Pirates of the Caribbean (Disney, Wii, Xbox 360, NDS, PS3, 3DS, PSP, PC)
9. The Legend of Zelda Ocarina of Time 3D (Nintendo, NDS)
10. Zumba Fitness (Majesco, Wii, Xbox 360, PS3)

Time to make a prediction. I think the Xbox 360 will still come out as the top selling console for September 2011, mainly due to ‘Gear of War 3′, but the PS3 will definitely come closer than it did this month, and with ‘Resistance 3′, it too might benefit from a platform exclusive. The Wii will be third. Games wise, ‘Gear of War 3′ looks set to be a top seller, despite being a platform exclusive release. ‘Resistance 3′, on the other hand, doesn’t look to have the same effect, although it will still sell well. Combined platforms sales may even push ‘Dead Island’ to the top of the charts.

See you next month.

As for news this week, not a lot, but good in quality always makes up for quantity. And after last week’s acidically toned mega long post, I think this week’s will be a lot “better”, well, hopefully shorter anyway.

Copyright news up front, I’ll start with a news post that I’m actually quite proud of, because I actually spend like more than 10 minutes “researching” it (aka copying what others reputable news organisations have posted), and it also involved use of arithmetic and statistics, two of my favourites things based on the stuff I like to write on a regular basis (NPD analysis, and weekly Blu-ray stats analysis).

This is what the MPAA thinks a movie pirate's movie collection will look like if they stopped pirating, by spending $1,000 more every year on legal goods

But full credit to the MPAA for releasing the info-graphic that I based my “analysis” on, which came to the conclusion that, if the MPAA’s numbers in regards to piracy rates and the cost to the economy are true, it means that every pirate would be spending $1,000 more every year buying legal content. The MPAA’s “statistics” are mostly conjecture, and (in my opinion, wildly inaccurate) estimations. Because you can’t really estimate losses due to piracy, because this would require knowing what pirates would do if they did not pirate any more. This is impossible to calculate because, one, you can’t guess what a group of largely independent people will and will not do, and two, there’s not way to stop piracy and force these people to “do the right thing”. But let’s give the MPAA the benefit of the doubt and let’s say their figures are correct, then what the MPAA is effectively saying is that probably 25% of all Net users in the United States are pirates, and that each pirate is costing the creative industries $1,000 per year, per person, to get to the $58 billion yearly losses that the MPAA mentions. If the MPAA counts every instance of copyright theft as a loss of revenue for the full price of said product, then $1,000 is probably about right. But this is misleading to the extreme, as it would be like saying if jewel thieves didn’t steal $1m worth of diamonds from a jewellery store, they would have purchased the $1m worth of diamonds (I wanted to use my usual car theft analogy, but I think I’ve gone over my allowed quota for the year). And any theft analogy is incorrect anyway, as file sharing is not theft – it’s not paying for stuff you should have, like reading a magazine at a news stand without paying, but it’s quite different than say shoplifting the same magazine.

What’s more disturbing for me, as opposed to a rather harmless, but propaganda-ish infographic, is the MPAA getting involved at the law enforcement level when it comes to anti-piracy operations, even those that are outside of the US. Of course, infographics and misleading stats help the MPAA scare politicians into giving them this sort of access, so this cannot be discounted either. What brings me to this is the news this week that newly leaked Wikileaks documents show the MPAA and the IFPI, two lobby groups, all involved in high level discussions with South Korean anti-piracy law enforcement agencies, and with ICE detailing their operations against warez topsites, the sites that are acts as the point of origin for pirated content on the Internet. On one hand, you might say that having an industry group involved in tackling the industry’s own problems makes sense, but if it’s the industry’s problem, then why is a government agency and two governments, spending precious tax payer resources, to tackle the problem that many experts say are the industry’s own creation anyway, due to outdated business models? This whole idea comes from politicians believing that copyright theft *is* a $58 billion per year problem, but it isn’t, and it’s not costing 300,000 jobs a year. If you want to make such flimsy conclusions from nothing but wild guesses, then I have a few more I would like to make, such as that piracy creates jobs by allowing website operators to make money to provide  content to people who had no means to pay for it in the first place. And the people enjoying pirated content end up spending their money on other more essential services and products, and their money won’t end up in the pockets of greedy studios who are already making record profits, or end up giving more money to rich, spoilt Hollywood stars and autotuned pop musicians.

And if the government is to spend tax payer resources to help a well to do industry, while others are struggling, and to do it at the expense of one of the most innovative and fast growing industries, the Internet industry, then this will hurt the economy even more. Which is why a “who’s who” of the Internet business has come out attacking the MPAA/RIAA backed PROTECT IP act, which, despite the controversy, is gaining support in Congress (lobbying money helps soothes the aches from migraines, back aches, and lack of conscience). The founders of Twitter, Zynga, FourSquare, and key people from StackExchange, LinkedIn, and Tim O’Reilly, yes, *that* Tim O’Reilly, has signed a letter asking Congress not to go ahead with PROTECT IP, as it could hurt small Internet businesses, and the broad nature of the act means that it could hurt innovation as well. This comes after more than 100 law professors also signed an open letter asking Congress to reconsider, and after Internet pioneers and top engineers also writing a similar letter urging caution when it comes to messing around with DNS. Hmm, it seems that open letters are not a very effect form of mass action, or the US is run by politicians that don’t care for expert opinion as much as they care about where their next campaign contribution is going to come from. Or both.

Is Righthaven about to file for bankruptcy?

But there’s also good news for those that believe in karma, as Righthaven might have to file bankruptcy due to their recent legal and financial setbacks. Not only has judges started to see through Righthaven’s scheme, which in my opinion, is nothing more than a money making scheme, they’ve started punishing Righthaven by rewarding damages *against* the firm. Righthaven’s biggest mistakes is that they haven’t been able to avoid going to court, and they haven’t been able to do so because the people they’re suing weren’t willing to give up so easily. It’s one thing to sue movie pirates, but to sue those that are interested enough in the news to copy/paste articles and post it on their own blogs, is just asking for trouble. These are clearly opinionated people, who love a good fight, and will stand up for themselves out of principle, even if it end up costing them more money in the process – and these are not the right “targets” for mass copyright lawsuits. And then there’s the news that Righthaven’s second largest client, MediaNews Group, has now pulled out, leaving Stephens Media, which are also the money behind Righthaven, as their only big client. And even that money may no be as forthcoming as before, as Righthaven have apparently asked a judge if they can delay paying the $34,000 or so they owe to one of the “targets”, as they’re having trouble coming up with the cash. If Righthaven does go under, nobody would shed a tear for them, as to paraphrase the new MediaNews Group chief, it was a stupid idea to being with.

It’s not the first time Christofer Sundberg has spoken out against gaming DRM, but it’s always good to hear from developers on the issue. Sundberg is the founder of Avalanche Studios, the makers of the Just Cause series amongst other games. And this week, Sundberg let the world know what he thought of the latest trend in using “always-on” DRM. Suffice to say, he’s not a big fan, mainly because in his opinion, in this day and ages when piracy is rampant and people have a lot of “choice”, even if some are illegal, if publishers are not providing extra incentive for consumers, then they’re doing something wrong. “Always-on” DRM in fact takes away incentive for consumers to pay for games, and even those that do, will have to rely on pirate solutions to play the game without annoying interruptions. For Sundberg, it’s also about trust, and he believes that “always-on” DRM basically says to the paying customer: “Thank you for buying our game, we trust you as far as we can throw you”. Instead, developers and publishers should listen to gamers, even though that don’t buy the games, more – listen to their suggestions, make them feel like part of the development process (because they are a part of it, the end “using it” part of it at least). But Sundberg also stated that it’s mostly up to publishers as to what kind of DRM to use, and if Avalanche’s publishers decide to use “always-on” DRM, there’s not much he can do about it, even if his whole studio will be up in arms against such a move. And this also reminds me to play Just Cause 2 a bit more, since I haven’t really played it after getting it on Steam – I’m such a reverse pirate when it comes to games sometimes, I buy a lot (usually on sale), and then never play them!

In HD/3D news, it’s a contractual obligation for the  WNR to cover a rumour about Blu-ray coming to the Xbox 360 at least once twice a year, and so with much regret, I bring you the latest rumour.

To be fair, it now makes a lot more sense for Blu-ray on Xbox 360 than even just a year (and a bit) ago, mainly due to the new, slimmer, quieter, faster, stronger (and now less shiny) Xbox 360. And with games coming on multiple DVDs, perhaps Blu-ray is also finally needed for games, although due to noise and loading speed issues, it’s always better to install games to the built-in HDD – so you really only need to do a single disc swap for a game that requires 2-discs, during the install process, and while Blu-ray removes the need to do this, the extra cost of getting the add-on drive would negate any benefit when it comes to gaming, leaving only the benefit of being able to play Blu-ray movies. But with Blu-ray standalone players available for so cheap these days, you can get a budget standalone for the expected $50 cost of the add-on, and so having a Blu-ray add-on doesn’t even make that much sense for movies either. And with Blu-ray competing against Microsoft’s preferred streaming platforms, that’s another reason why Microsoft is in no hurry to launch a Blu-ray enabled Xbox 360.

And that brings us finally to gaming. The NPD report for August is out, and I should have the analysis up in a few days. While only Microsoft and Nintendo provided hardware data for this month, Microsoft again provided some extra info that allows for the PS3 numbers to be deduced.

Despite the PS3 $50 price cut (coming in at the middle point of the month), the Xbox 360 was still comfortably the best selling home based console of the month, selling some 41% more units than the now discounted PS3. This is probably why Sony felt the need to withhold sales data yet again, because many, including myself, predicted the PS3 to at least give the Xbox 360 a run for its money this month, but it did not happen. Maybe, with a full month of discounting on hand, the PS3 will put up more of a fight, but September is a huge month for the Xbox 360 due to the release of Gears of War 3, and with Battlefield 3 and MW 3 coming in October and November respectively, these will again heavily favour the Xbox 360, so it looks to be a good holiday period for the console, even if Kinect Star Wars has now been delayed until after Christmas.

And on that note, I shall end this week’s WNR. See you in a week’s time.