Competition Bureau of Canada

50 Victoria Street

Gatineau, Quebec

K1A 0C9

SUBMITTED ELECTRONICALLY

RE: Activision Pre-Release Advertising on Call of Duty Elite Premium Services

This complaint comes as new official statements recently made by Activision staff, puts into question compliance with the competition act by Activision during its pre-release adverting campaigns around the sale and promotions of the Call of Duty Elite Premium service, and whether the public was deliberately mislead through this campaign.

Activision has publically responded to the effects of what The Canadian Gamers Organization (CGO) believes is misrepresentation of the Call of Duty Elite Premium Service created by Activations’ advertising around this service prior to release, which also carried on a few weeks after release as well.  In the statement provided by Activision staff CGO believes Activision is deliberately deflecting responsibility for nondisclosure and misrepresentation caused by their advertising.   We wanted to bring this to the Bureau’s attention since this is a new area in which the gaming industry has moved towards, and that other developers will likely follow suit selling the main benefit of a premium service like Elite which is getting the content “first.”

We feel that the misrepresentation and nondisclosure of delays in receiving this content due to business pacts which are common placed in industry, might lead to a precedent where consumers purchase premium services and not actively getting the service they had lead to believe they were purchasing. 

CGO believes this is against Section 52(1) of the Competition Act (R.S.C., 1985, c. C-34) which states:

52 (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.

Call of Duty Elite Playstation 3 (PS3) premium members have been particularly vocal on what they believe was a reasonable expectation that they would receive premium content through the Elite premium service at the same time as XBOX customers.    Pre-release online advertising and traditional media campaigns for Elite Premium clearly stated  that befits of obtaining a premium service membership was having added content “first”, which CGO’s believes mislead consumers to believe that all premium content subscribers would be receiving content at the same time as XBOX subscribers, and the pact between Microsoft and Activision would not apply.

CGO has picked up a recent post by one of the official staff bloggers from Activision, Dan Amrich.  Mr. Amrich is an official source with Activision’s social network, and public relations team . His quoted post is trying to quell and question the reasonable expectation consumers have as a result of the advertising campaign on Elite premium services upon purchase (after hundreds if not thousands of public comments sent to the publisher and developer over social media and official forums) had when pre-ordering or subscribing to the premium content on non-XBOX systems.  The effects of misrepresentation that Mr. Amrich is responding to are quite clear.

The quotes below from Mr Amrich stem from: http://oneofswords.com/2012/01/why-xbox-360-gets-cod-dlc-before-ps3/

To start off, Mr Amrich stated:

“The release of the official MW3 season content calendar has fired off a new volley of comments, questions, and confusion from PlayStation 3 gamers. The main question: “You said I would get content early. I paid for Elite just like the Xbox 360 gamers; why do they get content first?” A good question, and one that has a clear answer, I’m happy to say.

Back in 2010, Activision and Microsoft entered a business deal to release DLC on Xbox 360 earlier than other platforms; this contract is valid through the year 2012. This business deal was very widely reported by the games media when the announcement was made at E3 in 2010, and the DLC releases for both Modern Warfare 2 and Call of Duty: Black Ops was released in accordance with that contract. All DLC for MW3 will follow the terms of that deal as well, because it’s still 2012.

Even though the deal was widely reported and made public, there was no mention of this deal extending to Elite Premium members.  Elite was only officially released the same day Modern Warfare 3 November 8th, 2011.

Mr. Amrich goes on to state:

This is the short answer. Read on if you would like the long answer.

Vader in SCIV PS3 was such a big deal, he's on the Japanese box.

Exclusivity in the game biz is not uncommon, whether it’s a game franchise only appearing on one platform (Gears of War for Xbox 360, Infamous for PlayStation 3) or content that is only available to one audience or the other (Darth Vader and Yoda in Soul Calibur IV on PS3 and Xbox 360, respectively). Sometimes, as with Soul Calibur IV, this exclusive content eventually shows up on other platforms. Sometimes, as with Kratos in Mortal Kombat or the playable Joker in Batman: Arkham Asylum, it does not.

Thankfully, for Call of Duty DLC, all consoles get all the same content, but there is a delay as to who gets what when. This type of exclusive is not that uncommon either; other games, such as Battlefield 3 and Skyrim, have also arranged timed exclusives, anywhere from a week to a month. Eventually, though, everybody gets everything.

Enter Call of Duty Elite. Premium members pay $49.99 up front and get all the MW3 DLC that will come out over a nine-month period — DLC that Eric Hirshberg said at XP 2011 would cost $60 if it was bought via traditional map pack bundles. Even if you didn’t care about anything else that Elite premium offers, that’s a no-brainer for dedicated CoD players. But somewhere along the way, people convinced themselves that an Elite subscription would trump the 2010 DLC exclusivity deal that was created before Elite existed — that by paying for Elite, they were somehow invalidating a contract between Activision and Microsoft. It doesn’t make any sense, but it is what people started to think.

The Elite selling point prior to release date was that of the timing of the content and that premium members would receive content before it would be available to anyone else .  Yet still no mention at this pre-release event of the effects of the business deal between Microsoft and Activision specifically the effect on Elite Premium Services, and no mention on advertisements posted on youtube or traditional media either.

Mr. Amrich states:  

I wondered where people would have gotten that idea — had someone actually promised that, or said something at XP 2011 that I missed? — so I researched it. What I found was that you can’t prove the non-existence of something. I can find no evidence of “buy Elite, get PS3 DLC same time as 360″ ever being so much as suggested by any official source. It was never one of the things listed in the official benefits chart; it was never promised by any representative of Activision, Call of Duty, Elite, or its developers. Honestly? I think gamers just convinced themselves that it would happen because they wanted it to happen. That makes sense, but it doesn’t make it true.

In fact nothing was ever advertised on the effects the business deal had on non-XBOX Elite Premium subscribers.  Nothing exists because nothing was ever advertised.  To simply suggest that it was assumed the consumer knew this was going to be applied to Elite Premium memberships (which is a very new area of timed releases) without actively advertising it, is not only unethical but we believe is an act of gross misrepresentation of the service. CGO strongly believes Activision under section 52(1) of the Competition Act had legal obligation to disclose this information to consumers during their pre-release ad campaign, events and point of sale, in which disclosures were absent. 

Mr. Amrich goes on:

Still, the Call of Duty team must have known this assumption could be a source of confusion. So the Elite FAQ is very clear:

Similar to Map Packs, X360 Premium members will receive their Content before PS3 Premium members. All Call of Duty ELITE Premium members will receive a steady stream of content released monthly for 9 months through the Content season, and they will also receive their Content before non-premium members on their console.

The Elite website was not fully operational until early December 2011.  Pre-ordered hardened editions which included the purchase of Call of Duty Elite Premium service never came with a disclosure, only leaflet pointing to the website FAQ for more information.  Until December pre-purchased premium and post release purchased premium memberships on all platforms were having trouble even signing up for accounts, and redeeming their memberships.    Once signed up, members had tremendous difficulty even displaying pages on the site due to capacity problems.

Mr. Amrich states:

I know I am not everybody’s primary source of Activision information, but I also noted this back in June 2011 in my massive “What I Know About Call of Duty Elite” article:

Elite subscribers will be able to access the DLC before it goes on sale to a la carte purchasers. The window of time has not been disclosed. For PS3 owners, this does not override this business deal that currently brings Call of Duty DLC to Xbox 360 first; that deal is valid through 2012. However, Elite members will get the DLC before the non-Elite members on their respective platforms.

Mr. Amrich’s has put forward a very weak attempt to argue that the business deal between Microsoft and Activision along with the delay in timed releases for non-Xbox subscribers was disclosed by Activision on his blog prior to release and thus the quoted blog posting should be enough to satisfy disclosure of this delay; meanwhile acknowledging in the same statement not everyone visits his blog.  Mr. Amrich’s blog wasn’t promoted in any online or traditional advertisements, nor is his blog pointed to as a source for disclosure by Activision.  CGO would strongly disagree with any interpretation that Mr. Amrich’s June 2011 blog posting is enough to satisfy Activations’ legal responsibility under the competition act.

Mr. Amrich goes on to state:

So…that’s where we are. The deal from 2010 is why DLC comes out on Xbox 360 first. I’m seeing people scream “rip-off” and stuff like that, but nobody’s going to get ripped off; every gamer will get everything they were promised and everything they paid for. It’s unfortunate that people assumed things about Elite that turned out to not be based in fact, but I hope the truth is clear now. Unpopular, I’m guessing, but clear.

Also, you don’t have to pay to play Call of Duty multiplayer. But everybody knows that now, right?

CGO wishes to submit that Elite Premium Services are specifically for the enhancement of multiplayer.  In fact the service is useless without playing multiplayer.

Finally, after an online uproar of Mr. Amrich’s post, he felt he needed to clarify some points:

UPDATE 1/28: I’m sorry to see people taking this article the wrong way. My intent was not to be mean or arrogant; my intent was to clear up the confusion and dig into how we got to this point, because ultimately this is a case of what was said vs. what was assumed. That’s always difficult.

But sorting out the facts does not mean that I don’t understand how frustrated people are. I totally get where the confusion came from; it makes sense and I totally understand why people are upset — and I am sorry about the situation. But I think the flames are starting up now because people wanted to hear something else, and I can’t say what they want to hear. I’m sorry about that, too. All I intended to do was offer the facts and show my work, and I had hoped being clear would be helpful to people who were still confused and asking me about it on Twitter. Perhaps not, in hindsight. So if you need to rage at me about it, okay.

CGO believes the post by Mr. Amrich is quite obviously an attempt to deflect responsibility for non-disclosure and misrepresentation.  CGO would ask that the competition bureau further investigate, and bring forth remedies to protect Canadian Gaming Consumers. All evidence disclosed including Mr. Amrich’s post has also been backed up on hard copy as of January 30th, 2012.  Should your staff require these files, they may contact CGO directly.

Warm Regards,


Jason Koblovsky
Canadian Gamers Organization (Co-Founder)

http://openmedia.ca/gamers