FYI, the ACCC has successfully won victories against Steam refusing to provide refunds for faulty games. Just because it's a digital product doesn't mean you don't have consumer rights.
If you buy a physical good and it doesn't work towards its described specifications, you deserve a refund.
If you buy a digital good and you meet the system requirements but it doesn't work, you deserve a refund.
Last I checked Nintendo, even operating as Nintendo Australia, are still refusing to provide refunds.
In April 2019 I contact Nintendo, as Trials Rising had just come out and I purchased it digitally. Upon first playing the game I discovered that it ran very poorly, was dropping frames frequently and causing input problems; particularly when in hand-held mode whilst playing through the tutorials and first level.
They sent me on a wild goose chase to "Nintendo Contact Center Europe" and I of course never got a refund.
After realising I was getting nowhere I caved and attempted to play some more. Fortunately, I discovered most of the game is at least playable. Not sure why the first level in particular performed so poorly. If I go back and play it now, it's still horrid performance. Overall, the game doesn't operate as I'd expect, is at least partially faulty, and probably shouldn't be for sale in its current state. I would have preferred to refund and instead buy on PC.
EDIT: I did actually report Nintendo's no refunds policy to the ACCC. However, they're very busy due to all the shotty companies, so I'm a bit doubtful it was ever looked into.
Sony Entertainment recently had to pay a $3.5M fine for similar behaviour.
The Federal Court has ordered Sony Interactive Entertainment Network Europe Limited (Sony Europe) to pay $3.5 million in penalties for making false and misleading representations on its website and in dealings with Australian consumers about their Australian Consumer Law (ACL) rights.
Sony Europe made misleading representations to four consumers who believed they had purchased faulty PlayStation games. This occurred when Sony’s customer service representatives told them over the phone Sony Europe was not required to refund the game once it had been downloaded, or if 14 days had passed since it was purchased.
“Consumer guarantee rights do not expire after a digital product has been downloaded and certainly do not disappear after 14 days or any other arbitrary date claimed by a game store or developer,” ACCC Chair Rod Sims said.
The Court also declared Sony Europe breached the ACL by telling one of the four consumers it did not have to provide a refund unless the game developer authorised it, and by telling a fifth consumer that Sony Europe could provide a refund using virtual PlayStation currency instead of money.
Knowing Nintendo, they probably don't have a way to revoke the licenses. They're not very good at the online thing, or the digital store thing. Their core competency is in hardware and games, and the rest of the org just sort of gets dragged along for the ride.
If it's as I hypothesize and they can't revoke software licenses, I think their stance is reasonable from the perspective that this could be used to acquire all the games for free. But I think they should be compelled to fix this going forward.
That's not reasonable at all. If their product doesn't work, you are entitled to a refund. Whether or not their systems allow them to refund you in a manner that _suits them_ is irrelevant.
I think having it forced upon them to refund games would be a great motivator to implement any such missing mechanism.
I think companies in general gets too much of a free pass when it comes to their responsibilities and too much of free reign when it comes to what they can do when they claim their rights.
For example, if I'm late with a payment for a product, the punishment is by default going to be of the "eff you, pay us"-kind, while the opposite often ends up in the "oopsie, my bad you had to wait a few months for that refund, and had to cancel the sub by fax".
I really think consumer laws in general should be improved and enforced more. Pretty happy with those in Sweden, although many (also big) brands try to sneak their way out of them.
> If it's as I hypothesize and they can't revoke software licenses, I think their stance is reasonable from the perspective that this could be used to acquire all the games for free.
Doesn't sound reasonable to me. The law doesn't cease to apply when a business finds compliance to be inconvenient. At least, it shouldn't.
"If it's as I hypothesise and they can't afford a loaf of bread, I think their stance is reasonable from the perspective that this could be used to starve them to death"
You can always tell if something is reasonable by changing it from a company screwing an individual into an individual screwing a company. If an individual hurts a company to survive, we normally see that is illegal quite quickly. It's only when a company hurts an individual in order to make a profit that we struggle.
I'm not sure I see the value in that. My point was about consistent enforcement of laws that are on the books. Stealing to avoid starvation, is a very different moral question.
I think the steam problem was a store vs publisher issue. When No Man's Sky first released, you couldn't refund if you had player for more than 2 hours even though it was a faulty game. After the bad press spread, Steam stepped in and accepted refunds far past the 2 hour 'time played' requirement [0]. If Gamestop sells a faulty or unfinished game by EA (like Anthem), should Gamestop be obligated to refund you or should they ask the publisher if they want to refund the customer since the publisher might promise better future stability?
Australian Consumer Law has many provisions based on the fact that many companies are not always able to be fully sued in Australia. In order to prevent this the end retailer is responsible for ensuring consumer rights. Of course the expectation is that the final retailer then claims against their distributor who then claims against the manufacturer / publisher.
However this has been a problem with some digital marketplaces as they entered the Australian market. For tax reasons many products were sold via a Irish or Singaporean subsidiary and thus tried to avoid taxation on the sales (even some were selling in $AU from these offshore locations). As these loopholes were closed many companies essentially accepted they had Australian presences (mostly due to the changes around tax). However Australia has some fairly strong consumer protections (at least on paper), fairly broad statutes (terms like "reasonable durability" and "fit for purpose") and a fairly active consumer rights defender (ACCC) and many organisations have avoided Furthermore consumer rights cannot be removed via EULA agreements and such. Many organisations didn't change their systems for Australia as they were "mostly" compliant, and considered that digital goods were "New" and "Different" from the rules that affected physical products and retail operators.
So under Australian Law.... yes. Gamestop (or more likely EB games in Australia) is liable for the refund. However they can then turn to their suppliers and sue them for breach of contract for supplying defective products. It is reasonable Future stability doesn't come into it, as the product was sold misleadingly. EB Games has already been taken to task over this for Fallout 76 and trying to claim people aren't entitled to a refund.
* Many organisations didn't change their systems for Australia as they were "mostly" compliant, and considered that digital goods were "New" and "Different" from the rules that affected physical products and retail operators.*
> If Gamestop sells a faulty or unfinished game by EA (like Anthem), should Gamestop be obligated to refund you [...] ?
Yes (in Australia). The responsibility for not selling faulty shit is ultimately with the retailer. Doesn't matter if it's a TV, a car, a kid's toy, or some software.
For most games it is enough to see if it is playable without being able to finish the game. A lot of games can be finished over a weekend so a prolonged test period would just ask to be abused.
No Mans Sky was especially evil since it would take a bit of time to leave the first planet and see that all the promised features weren't implemented.
Almost like a fixed 2 hour limit doesn't make sense.
Steam already tracks achievements and average time played for all players. They are in a very good position to provide refunds after 2 hours playtime while minimizing the risk from refund fraud.
A retailer takes on responsibility to back the product they sell. Usually there are channels (i.e. RMAs & loss allowances) that are provided by the distributor or OEM to help retailers take care of this function. In short, if you want to distribute your product through retail, you have to support that model. Consumers do have rights and one of them is to be able to get a refund for unsatisfactory/defective product, even if it is digital.
If you buy a physical good and it doesn't work towards its described specifications, you deserve a refund.
If you buy a digital good and you meet the system requirements but it doesn't work, you deserve a refund.