Random Thoughts – Randocity!

Am I impacted by the FTC’s YouTube agreement?

Posted in botch, business, california, ethics, family by commorancy on December 16, 2019

kid-tabletThis question is currently a hot debate among YouTubers. The answer to this question is complex and depends on many factors. This is a long read as there’s a lot to say (~10000 words = ~35-50 minutes). Grab a cup of your favorite Joe and let’s explore.

COPPA, YouTube and the FTC

I’ve written a previous article on this topic entitled Rant Time: Google doesn’t understand COPPA. You’ll want to read that article to gain a bit more insight around this topic. Today’s article is geared more towards YouTube content creators and parents looking for answers. It is also geared towards anyone with a passing interest in the goings on at YouTube.

Before I start, let me write this disclaimer by saying I’m not a lawyer. Therefore, this article is not intended in any way to be construed as legal advice. If you need legal advice, there are many lawyers available who may be able to help you with regards to being a YouTube content creator and your specific channel’s circumstances. If you ARE HERE looking for legal advice, please go speak to a lawyer instead. The information provided in this article is strictly for information purposes only and IS NOT LEGAL ADVICE.

For Kids or Not For Kids?

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With that out of the way, let’s talk a little about what’s going on at YouTube for the uninitiated. YouTube has recently rolled out a new channel creator feature. This feature requires that you mark your channel “for kids” or “not for kids”. Individual videos can also be marked this way (which becomes important a little later in the article). Note, this “heading” is not the actual text on the screen in the settings area (see the image), but this is what you are doing when you change this YouTube creator setting. This setting is a binary setting. Your content is either directed at kids or it is not directed at kids. Let’s understand this reasoning around COPPA. Also, “kids” or “child” is defined in COPPA any person 12 or younger.

When you set the “for kids” setting on a YouTube channel, a number of things will happen to your channel, including comments being disabled, monetization will be severely limited or eliminated and how your content is promoted by YouTube will drastically change. There may also be other subtle changes that are as yet unclear. The reason for all of these restrictions is that COPPA prevents the collection of personal information from children 12 and under… or at least, if it is collected that it is deleted if parental consent cannot be obtained. In the 2013 update, COPPA added cookie tracking to the list of items that cannot be collected.

By disabling all of these features under ‘For Kids’, YouTube is attempting to reduce or eliminate its data collection vectors that could violate COPPA… to thwart future liabilities for Google / YouTube as a company.

On the other hand, setting your channel as ‘Not For Kids’, YouTube maintains your channel as it has always been with comments enabled, full monetization possible, etc. Seems simple, right? Wrong.

Not as Simple as it Seems

You’re a creator thinking, “Ok, then I’ll just set my channel to ‘Not for Kids’ and everything will be fine.” Not so fast there, partner. It’s not quite as simple as that. COPPA applies to your channel if even one child visits and Google collects any data from that child. But, there’s more to it.

YouTube will also be rolling out a tool that attempts to identify the primary audience of video content. If YouTube’s new tool identifies a video as content primarily targeting “kids”, that video’s “Not for Kids” setting may be overridden by YouTube and set as “For Kids”. Yes, this can be done by YouTube’s tool, thus overriding your channel-wide settings. It’s not enough to set this setting on your channel, you must make sure your content is not being watched by kids and the content is not overly kid friendly. How exactly YouTube’s scanner will work is entirely unknown as of now.

And here is where we get to the crux of this whole matter.

What is “Kid Friendly” Content?

Unfortunately, there is no clear answer to this question. Your content could be you reviewing toys, it could be drawing pictures by hand on the screen, it could be reviewing comic books, you might ride skateboards, you might play video games, you might even assemble Legos into large sculptures. These are all video topics that could go either way… and it all depends on which audience your video tends draw in.

It also depends on your existing subscriber base. If a vast majority of your current active subscribers are children 12 and under, this fact can unfairly influence your content even if your curent content is most definitely not for kids. The fact that ‘kids’ are watching your channel is a problem for ANY content that you upload.

But you say, “My viewer statistics don’t show me 12 and under category.” No, it doesn’t and there’s a good reason why it doesn’t. Google has always professed that it doesn’t allow 12 and under on its platform. But clearly, that was a lie. Google does, in fact, allow 12 and under onto its platform. That’s crystal clear for two reasons: 1) The FTC fined Google $170 million for violating COPPA (meaning, FTC found kids 12 and under are using the platform) and 2) YouTube has rolled out this “for kids / not for kids” setting confirming by Google that 12 and under do, in fact, watch YouTube and have active Google Account IDs.

I hear someone else saying, “I’m a parent and I let my 11 year old son use YouTube.” Yeah, that’s perfectly fine and legal, so long as you have given “verifiable consent” to the company that is collecting data from your 11 year old child. As long as a parent gives ‘verifiable consent’ for their child under 12 to Google or YouTube or even to the channel owner directly, it’s perfectly legal for your child to be on the platform watching and participating and for Google and YouTube to collect data from your child.

Unfortunately, verifiable consent is difficult to manage digitally. See the DIY method of parental consent below. Unfortunately, Google doesn’t offer any “verifiable consent” mechanism for itself or for YouTube content creators. This means that even if you as a parent are okay with your child being on YouTube, Facebook, Instagram or even Snapchat, if you haven’t provided explicit and verifiable parental consent to that online service for your child 12 and under, that service is in violation of COPPA by handling data that your child may input into that service. Data can include name, telephone number, email address or even sharing photos or videos of themselves. It also includes cookies placed onto their devices.

COPPA was written to penalize the “web site” or “online services” that collect a child’s information. It doesn’t penalize the family. Without “verifiable consent” from a parent or legal guardian, to the “web site” or “online service” it’s the same as no consent at all. Implicit consent isn’t valid for COPPA. It must be explicitly given and verifiable consent from a parent or legal guardian given to the service being used by the child.

The Murky Waters of Google

If only YouTube were Google’s only property to consider. It isn’t. Google has many, many properties. I’ll make a somewhat short-ish list here:

  • Google Search
  • Google Games
  • Google Music
  • Google Play Store (App)
  • Google Play Games (App)
  • Google Stadia
  • Google Hangouts
  • Google Docs
  • Google’s G Suite
  • Google Voice
  • Google Chrome (browser)
  • Google Chromebook (device)
  • Google Earth (App)
  • Google Movies and TV
  • Google Photos
  • Google’s Gmail
  • Google Books
  • Google Drive
  • Google Home (the smart speaker device)
  • Google Chromecast (TV device)
  • Android OS on Phones
  • … and the list goes on …

To drive all of these properties and devices, Google relies on the creation of a Google Account ID. To create an account, you must supply Google with certain specific identifying information including email address, first and last name and various other required information. Google will then grant you a login identifier and a password in the form of credentials which allows you to log into and use any of the above Google properties, including (you guessed it) YouTube.

Without “verifiable consent” supplied to Google for a child 12 and under, what data Google has collected from your child during the Google Account signup process (or any of the above apps) has violated COPPA, a ruleset tasked for enforcement by the Federal Trade Commission (FTC).

Yes, this whole situation gets even murkier.

Data Collection and Manipulation

The whole point to COPPA is to protect data collected from any child aged 12 and under. More specifically, it rules that this data cannot be collected / processed from the child unless a parent or legal guardian supplies “verifiable consent” to the “web site” or “online service” within a reasonable time of the child having supplied their data to the site.

As of 2013, data collection and manipulation isn’t defined just by what the child personally uploads and types, though this data is included. This Act was expanded to include cookies placed onto a child’s computer device to track and target that child with ads. These cookies are also considered protected data by COPPA as these cookies could be used to personally identify the child. If a service does not have “verifiable consent” on file for that child from a parent or guardian, the “online service” or “web site” is considered by the FTC in violation of COPPA.

The difficulty with Google’s situation is that Google actually stores a child’s data within the child’s Google Account ID. This account ID being entirely separate from YouTube. For example, if you buy your child a Samsung Note 10 Phone running Android and you as a parent create a Google Account for your 12 or under child to use that device, you have just helped Google violate COPPA. This is part of the reason the FTC fined Google $170 million for violations to COPPA. Perhaps not this specific scenario, but the fact that Google doesn’t offer a “verifiable consent” system to verify a child’s access to its services and devices prior to collecting data or granting access to services led the FTC to its ruling. The FTC’s focus, however, is currently YouTube… even though Google is violating COPPA everywhere all over its properties as a result of the use of a Google Account ID.

YouTube’s and COPPA Fallout

Google wholly owns YouTube. Google purchased the YouTube property in 2006. In 2009, Google retired YouTube’s original login credential system and began requiring YouTube to use Google Accounts to gain access to the YouTube property by viewers. This change is important.

It also seems that YouTube is still operating itself mostly as a self-autonomous entity within Google’s larger corporate structure. What all of this means more specifically is that YouTube now uses Google Accounts, a separately controlled and operated system within Google, to manage credentials and gain access into not only the YouTube property, but every other property that Google has (see the short-ish list above).

In 2009, the YouTube developers deprecated their own home grown credentials system and began using the Google Accounts system of credential storage. This change to YouTube very likely means that YouTube itself no longer stores or controls any credential or identifying data. That data is now contained within the Google Accounts system. YouTube likely now only manages the videos that get uploaded, comments, supplying ads on videos (which the tracking and manage is probably controlled by Google also), content ID matching and anything else that appears in the YouTube UI interface. Everything else is likely out of the YouTube team’s control (or even access). In fact, I’d suspect that the YouTube team likely has entirely zero access to the data and information stored within the Google Accounts system (with the exception of that specific data which is authorized by the account holder to be publicly shown).

Why is this Google Accounts information important?

So long as Google Accounts remains a separate entity from YouTube (even though YouTube is owned by the same company), this means that YouTube can’t be in violation of COPPA (at least not where storage of credentials are concerned). There is one exception which YouTube does control… its comment system.

The comment system on YouTube is one of the earliest “modern” social networks ever created. Only Facebook and MySpace were slightly earlier, though all three were generally created within 1 year of one another. It is also the only free form place left in the present 2019 YouTube interface that allows a 12 or under child to incidentally type some form of personally identifying information into a public forum for YouTube to store (in violation of COPPA).

This is the reason that the “for kids” setting disables comments. YouTube formerly had a private messaging service, but it was retired as of September of 2019. It is no longer possible to use YouTube to have private conversations between other YouTube users. If you want to converse with another YouTube viewer, you must do it in a public comment. This change was likely also fallout from Google’s COPPA woes.

Google and Cookies

For the same reason as Google Accounts, YouTube likely doesn’t even manage its own site cookies. It might, but it likely relies on a centralized internal Google service to create, manage and handle cookies. The reason for this is obvious. Were YouTube’s developers to create and manage their own separate cookie, it would be a cookie that holds no use for other Google services. However, if YouTube developers were to rely on a centralized Google controlled service to manage their site’s cookies, it would allow the cookie to be created in a standardized way that all Google services can consume and use. For this reason, this author supposes a centralized system is used at YouTube rather than something “homegrown” and specific to YouTube.

While it is possible that YouTube might create its own cookies, it’s doubtful that YouTube does this for one important reason: ad monetization. For YouTube to participate in Google Advertising (yet another service under the Google umbrella of services), YouTube would need to use tracking cookies that the Google Advertising service can read, parse and update while someone is watching a video on YouTube.

This situation remains murky because YouTube can manage its own internal cookies. I’m supposing that YouTube doesn’t because of a larger corporate platform strategy. But, it is still entirely possible that YouTube does manage its own browser cookies. Only a YouTube employee would know for certain which way this one goes.

Because of the ambiguity in how cookies are managed within Google and YouTube, this is another area where YouTube has erred on the side of caution by disabling ads and ad tracking if a channel is marked as ‘for kids’. This prevents placing ad tracking cookies on any computers from ‘for kids’ marked channels and videos, again avoiding violations of COPPA.

The FTC’s position

Unfortunately, the FTC has put themselves into a constitutionally precarious position. The United States Constitution has a very important provision within its First Amendment.

Let me cite a quote from the US Constitution’s First Amendment (highlighting and italics added by author to call out importance):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The constitutional difficulty that the FTC has placed themselves in is that YouTube, by its very nature, offers a journalistic platform which is constitutionally protected from tortious interference by the United States government. The government (or more specifically, Congress) cannot make law that in any way abridges freedom of speech or of the press.

A video on YouTube is not only a form of journalism, it is a form of free speech. As long as YouTube and Google remain operating within the borders of the United States, United States residents must be able to use this platform unfettered without government tortious interference.

How does this imply to the FTC? It applies because the FTC is a governmental entity created by an act of the US Congress and, therefore, acts on behalf of the US Congress. This means that the FTC must uphold all provisions of the United States Constitution when dealing with matters of Freedom of Speech and Freedom of the Press.

How is does this problem manifest for the FTC? The FTC has repeatedly stated that it will use “tools” to determine if a YouTube channel’s content is intended for and is primarily intended to target children 12 and under. Here’s the critical part. If a channel’s content is determined to be targeting children 12 and under, the channel owner may be fined up to $43,530 per video as it will have been deemed in violation of COPPA.

There are two problems with the above statements the FTC has made. Let’s examine text from this FTC provided page about YouTube (italics provided by the FTC):

So how does COPPA apply to channel owners who upload their content to YouTube or another third-party platform? COPPA applies in the same way it would if the channel owner had its own website or app. If a channel owner uploads content to a platform like YouTube, the channel might meet the definition of a “website or online service” covered by COPPA, depending on the nature of the content and the information collected. If the content is directed to children and if the channel owner, or someone on its behalf (for example, an ad network), collects personal information from viewers of that content (for example, through a persistent identifier that tracks a user to serve interest-based ads), the channel is covered by COPPA. Once COPPA applies, the operator must provide notice, obtain verifiable parental consent, and meet COPPA’s other requirements.

and there’s more, which contains the most critical part of the FTC’s article:

Under COPPA, there is no one-size-fits-all answer about what makes a site directed to children, but we can offer some guidance. To be clear, your content isn’t considered “directed to children” just because some children may see it. However, if your intended audience is kids under 13, you’re covered by COPPA and have to honor the Rule’s requirements.

The Rule sets out additional factors the FTC will consider in determining whether your content is child-directed:

  • the subject matter,
  • visual content,
  • the use of animated characters or child-oriented activities and incentives,
  • the kind of music or other audio content,
  • the age of models,
  • the presence of child celebrities or celebrities who appeal to children,
  • language or other characteristics of the site,
  • whether advertising that promotes or appears on the site is directed to children, and
  • competent and reliable empirical evidence about the age of the audience.

Content, Content and more Content

The above quotes discuss YouTube Content becoming “covered by COPPA”. This is a ruse. Content is protected speech by the United States Constitution and is defined within the First Amendment (see above). Nothing in any YouTube visual content when published by a United State Citizen can be “covered by COPPA”. The First Amendment sees to that.

Let’s understand why. First, COPPA is a data collections Act. It has nothing whatever to do with content ratings, content age appropriateness or, indeed, does not discuss anything else related visual content targeted towards children of ANY age. Indeed, there is no verbiage within the COPPA provisions that discuss YouTube, visual content, audio content or anything else to do with Freedom of Speech matters.

It gets worse… at least for the FTC. Targeting channels for disruption by fining them strictly over content uploaded onto the channel is less about protecting children’s data and more about content censorship on YouTube. Indeed, fining a channel $42,530 is tantamount to censorship as it is likely to see that content removed from YouTube… which is, indeed, censorship in its most basic form. Any censorship of Freedom of Speech is firmly against First Amendment rights.

Since the FTC is using fines based on COPPA as leverage against content creators, the implication is that the FTC will use this legal leverage to have YouTube take down content it feels is inappropriate targeting 12 and under children, rather than upholding COPPA’s actual data protection provisions. Indeed, the FTC will actually be making new law by fining channels based on content, not on whether data was actually collected in violation of COPPA’s data collection provisions. Though, the first paragraph may claim “data collection” as a metric, the second paragraph is solely about “offending content”… which is entirely about censorship. Why is that? Let’s continue.

COPPA vs “Freedom of Speech”

The FTC has effectively hung themselves out to dry. In fact, if the FTC does fine even ONE YouTube channel for “inappropriate content”, the FTC will be firmly in the business of censorship of journalism. Or, more specifically, the FTC will have violated the First Amendment rights of U.S. Citizens’ freedom of speech protections.

This means that in order for the FTC to enforce COPPA against YouTube creators, it has now firmly put itself into the precarious position of violating the U.S. Constitution’s First Amendment. In fact, the FTC cannot even fine even one channel owner without violating the First Amendment.

In truth, they can fine under only the following circumstance:

  1. The FTC proves that the YouTube channel actually collected and currently possesses inappropriate data from a child 12 and under.
  2. The FTC leaves the channel entirely untouched. The channel and content must remain online and active.

Number 2 is actually quite a bit more difficult for the FTC than it sounds. Because YouTube and the FTC have made an agreement, that means that YouTube can be seen as an agent of the FTC by doing the FTC’s bidding. This means that even if YouTube takes down the channel after a fine for TOS reasons, the FTC’s fining action can still be construed as in violation of First Amendment rights because YouTube acted as an agent to take down the “offending content”.

It gets even more precarious for the FTC. Even the simple the act of levying a fine against a YouTube channel could be seen as a violation of First Amendment rights. This action by the FTC seems less about protecting children’s data and more about going after YouTube content creators “targeting children with certain types of content” (see above). Because the latter quote from the FTC article explicitly calls out types of content as “directed at children”, this intentionally shows that it’s not about COPPA, but about visual content rules. Visual content rules DO NOT exist in COPPA.

Channel Owners and Content

If you are a YouTube channel owner, all of the above should greatly concern you for the following reasons:

  1. You don’t want to become a Guinea Pig to test First Amendment legal waters of the FTC + COPPA
  2. The FTC’s content rules above effectively state, “We’ll know it when we see it.” This is constitutionally BAD. This heavily implies content censorship intent. This means that the FTC can simply call out any content as being inappropriate and then fine a channel owner for uploading that content.
  3. It doesn’t specify state if the rule applies retroactively. Does previously uploaded content become subject to the FTC’s whim?
  4. The agreement takes effect beginning January 1, 2020
  5. YouTube can “accidentally” reclassify content as “for kids” when it clearly isn’t… which can trigger an FTC action.
  6. The FTC will apparently have direct access to the YouTube platform scanning tools. To what degree it has access is unknown. If it has direct access to take videos or channels offline, it has direct access to violate the First Amendment. Even if it must ask YouTube to do this takedown work, the FTC will still have violated the First Amendment.

The Fallacy

The difficulty I have with this entire situation is that the FTC now appears to be holding content creators to blame for heavy deficiencies within YouTube’s and Google’s platforms. Because Google failed to properly police its own platform for 12 and under users, it now seeks to pass that blame down onto YouTube creators simply because they create and upload video content. Content, I might add, that is completely protected under the United State Constitution’s First Amendment as “Freedom of Speech”. Pre-shot video content is a one-way passive form of communication.

Just like broadcast and cable TV, YouTube is a video sharing platform. It is designed to allow creators to impart one-way passive communication using pre-made videos, just like broadcast TV. If these FTC actions apply to YouTube, then they equally apply to broadcast and cable television providers…. particularly now that CBS, ABC, NBC, Netflix, Disney+ (especially Disney+), Hulu, Vudu, Amazon, Apple and cable TV providers now also offer “web sites” and “online services” where their respective video content can (and will) be viewed by children 12 and under via a computer device or web browser and where a child may is able to input COPPA protected data. For example, is Disney+ requiring verifiable parental consent to comply with COPPA?

Live Streaming

However, YouTube now also offers live streaming which changes the game a little for COPPA. Live streaming offers two-way live communication and in somewhat real-time. Live streaming is a situation where a channel creator might be able to collect inappropriate data from a child simply by asking pointed questions during a live stream event. A child might even feel compelled to write into live chat information that they shouldn’t be giving out. Live streaming may be more likely to collect COPPA protected data than pre-made video content simply because of the live interactivity between the host and the viewers. You don’t get that level of interaction when using pre-made video content.

Live streaming or not, there is absolutely no way a content creator can in any way be construed as an “Operator” of Google or of YouTube. The FTC is simply playing a game of “Guilty by Association”. They are using this flawed logic… “You own a YouTube channel, therefore you are automatically responsible for YouTube’s infractions.” It’s simply Google’s way of passing down its own legal burdens by your channel’s association with YouTube. Worse, the FTC seems to have bought into this Google shenanigan. It’s great for Google, though. They won’t be held liable for any more infractions against COPPA so long as YouTube creators end up shouldering that legal burden for Google.

The FTC seems to have conveniently forgotten this next part. In order to have collected data from a child, you must still possess a copy of that data to prove that you actually did collect it and that you are STILL in violation of COPPA. If you don’t have a copy of the alleged violating data, then you either didn’t collect it, the child didn’t provide it, you never had it to begin with or you have since deleted it. As for cookie violations, it’s entirely a stretch to say that YouTube creators had anything to do with how Google / YouTube manages cookies. The COPPA verbiage states of deletion under Parental Consent:

§312.4(c)(1). If the operator has not obtained parental consent after a reasonable time from the date of the information collection, the operator must delete such information from its records;

If an “operator” deletes such records, then the “operator” is not in violation of COPPA. If an “operator” obtains parental consent, then the “operator” is also not in violation of COPPA. Nothing, though, states definitively that a YouTube creator assumes the role of “operator”.

This is important because Google is and remains the “operator”. Until or unless Google extends access to its Google Accounts collected data to ALL YouTube creators so that a creator can take possession of said data, a creator cannot be considered an “operator”. The YouTube creator doesn’t have (and never has had) access to the Google Account personal data (other than what is publicly published on Google). Only Google has access to this account data which has been collected as part of creating a new Google Account. Even the YouTube property and its employees likely don’t even have access to Google Account personal data as mentioned. This means that, by extension, a YouTube creator doesn’t have a copy of any personal data that a Google Accounts signup may have collected… and therefore the YouTube content creator is NOT in violation of COPPA, though that doesn’t take Google off of the hook for it.

A YouTube content creator must actually POSSESS the data to be in violation. The FTC’s burden of proof is to show that the YouTube content creator actually has possession of that data. Who possesses that data? Google. Who doesn’t possess that data? The YouTube content creator. Though, there may be some limited edge cases where a YouTube creator might have requested personal information from a child in violation of COPPA. Even if a YouTube creator did request such data, so long as it has since been deleted fully, it is not in violation of COPPA. You must still be in possession of said data to be in violation of COPPA, at least according to how the act seems to read. If you have questions about this section, you should contact a lawyer for definitive confirmation and advice. Remember, I’m not a lawyer.

There is only ONE situation where a YouTube content creator may be in direct violation of COPPA. That is for live streaming. If a live streamer prompts for personal data to be written into the live chat area from its viewers and one of those viewers is 12 or under, the creator will have access to COPPA violating personal data. Additionally, comments on videos might be construed as in violation of COPPA if a 12 and under child writes something personally identifying into a comment. Though, I don’t know of many content creators who would intentionally request their viewers to reveal personally information in a comment on YouTube. Most people (including content creators) know the dangers all too well of posting such personally identifying information in a YouTube comment. A child might not, though. I can’t recall having watched one single YouTube channel where the host requests personally identifying information be placed into a YouTube comment. Ignoring COPPA for a second, such a request would be completely irresponsible. Let’s continue…

COPPA does state this about collecting data under its ‘Definitions’ section:

Collects or collection means the gathering of any personal information from a child by any means, including but not limited to:

(1) Requesting, prompting, or encouraging a child to submit personal information online;

(2) Enabling a child to make personal information publicly available in identifiable form. An operator shall not be considered to have collected personal information under this paragraph if it takes reasonable measures to delete all or virtually all personal information from a child’s postings before they are made public and also to delete such information from its records; or

(3) Passive tracking of a child online.

The “Enabling a child” section above is the reason for the removal of comments when the “for kids” setting is defined. Having comments enabled on a video when a child 12 and under could be watching enables the child to be able to write in personal information if they so choose. Simply by having a comment system available to someone 12 and under appears to be an infraction of COPPA. YouTube creators DO have access to enable or disable comments. What YouTube Creators don’t have access to is the age of the viewer. Google hides that information from YouTube content creators. YouTube content creators, in good faith, do not know the ages of anyone watching their channel.

Tracking a child’s activities is not possible by a YouTube content creator. A content creator has no direct or even incidental access to Google’s systems which perform any tracking activities. Only Google Does. Therefore, number 3 does not apply to YouTube content creators. The only way number 3 would ever apply to a creator is if Google / YouTube offered direct access to its cookie tracking systems to its YouTube content creators. Therefore, only numbers 1 and 2 could potentially apply to YouTube content creators.

In fact, because Google Accounts hides its personal data from YouTube content creators (including the ages of its viewers), content creators don’t know anything personal about any of its viewers. Which means, how are YouTube content creators supposed to know if a child 12 and under is even watching?

Google’s Failures

The reality is, Google has failed to control its data collection under Google Accounts. It is Google Accounts that needs to have COPPA applied to it, not YouTube. In fact, this action by the FTC will actually solve NOTHING at Google.

Google’s entire system is tainted. Because of the number of services that Google owns and controls, placing COPPA controls on only ONE of these services (YouTube) is the absolute bare minimum for an FTC action against COPPA. It’s clear that the FTC simply doesn’t understand the breadth and scope of Google’s COPPA failures within its systems. Placing these controls on YouTube will do NOTHING to fix COPPA’s greater violations which continue unabated within the rest of Google’s Services, including its brand new video gaming streaming service, Google Stadia. Google Stadia is likely to draw in just as many children 12 and under as YouTube. Probably more. If Stadia has even one sharing or voice chat service active or uses cookies to track its users, Stadia is in violation for the same exact reasons YouTube is… Google’s failure of compliance within Google Accounts.

Worse, there’s Android. Many parents are now handing brand new Android phones to their children 12 and under. Android has MANY tracking features enabled on its phones. From the GPS on board, to cookies, to apps, to the cell towers, to the OS itself. Talk about COPPA violations.

What about Google Home? You know, that seemingly innocuous smart speaker? Yeah, that thing is going to track not only each individual’s voice, it may even store recordings of those voices. It probably even tracks what things you request and then, based on your Google Account, will target ads on your Android phone or on Google Chrome based on things you’ve asked Google Home to provide. What’s more personally identifying than your own voice being recorded and stored after asking something personal?

Yeah, YouTube is merely the tippiest tip of a much, much, MUCH larger corporate iceberg that is continually in violation of COPPA within Google. The FTC just doesn’t get that its $170 million fine and First Amendment violating censorship efforts on YouTube isn’t the right course of action. Not only does the FTC’s involvement in censorship on YouTube lead to First Amendment violations, it won’t solve the rest of the COPPA violations at Google.

Here’s where the main body of this article ends.

Because there are still more questions, thoughts and ideas around this issue, let’s explore a some deeper ideas which might answer a few more of your questions as a creator or as a parent. Each question is prefaced by a ➡️ symbol. At this point, you may want to skim the rest of this article for specific thoughts which may be relevant to you.


➡️ “Should I Continue with my YouTube Channel?”

This is a great question and one that I can’t answer for you. Since I don’t know your channel or your channel’s content, there’s no way for me to give advice to you. Even if you do tell me your channel and its content, the FTC explicitly states that it will be at the FTC’s own discretion if a channel’s content “is covered by COPPA”. This means you need to review your own channel content to determine if your video content drives kids 12 and under to watch. Even then, it’s a crap shoot.

Are there ways you can begin to protect your channel? Yes. The first way is to post a video requesting that all subscribers who are 12 and under either unsubscribe from the channel or alternatively ask their parents to provide verifiable consent to you to allow that child to continue watching. This consent must come from a parent or guardian, not the child. Obtaining verifiable consent is not as easy as it sounds. Though, after you have received verifiable parental consent from every “child” subscriber on your channel, you can easily produce this consent documentation to the FTC if they claim your channel is in violation.

The next option is to apply for TRUSTe’s Children’s Privacy Certification. This affords your YouTube channel “Safe Harbor” protections against the FTC. This one is likely most helpful for large YouTube channels which tend to target children and which make significant income through ad monetization. TRUSTe’s certification is not likely to come cheap. This is the reason this avenue would only be helpful for the largest channels receiving significant monetization enough to pay for such a service.

Note, if you go through the “Safe Harbor” process or obtain consent for every subscriber, you won’t need to set your channel as ‘for kids’. Also note that “Safe Harbor” may not be possible due to Google owning all of the equipment that operates YouTube. Certification programs usually require you to have direct access to systems to ensure they continue to comply with the terms of the certification. Certifications usually also require direct auditing of systems to ensure the systems comply with the certification requirements. It’s very doubtful that Google will allow an auditing firm to audit YouTube’s servers on behalf of a content creator for certification compliance… and even if they did allow such an audit, YouTube’s servers would likely fail the certification audit.

The final option is to suspend your channel. Simply hide all of your content and walk away from YouTube. If you decide to use another video service like DailyMotion, Vimeo, or Twitch, the FTC may show up there as well. If they can make the biggest video sharing service in the world bow down to the FTC, then the rest of these video sharing services are likely not far behind.

➡️ “I don’t monetize my channel”

This won’t protect you. It’s not about monetization. It’s about data collection. The FTC is holding channel owners responsible for Google irresponsible data collection practices. Because Google can’t seem to police its own data collection to shield its end users from COPPA, Google/YouTube has decided to skip trying to fix their broken system and, instead, YouTube has chosen pass their violations down onto their end users… the YouTube creators.

This “passing off liability” action is fairly unheard of in most businesses. Most businesses attempt to shield their end users from legal liabilities by the use of its services as much as possible. Not Google or YouTube. They’re more than willing to hang their end users out to dry and let their end users take the burden of Google’s continued COPPA violations.

➡️ “My content isn’t for kids”

That doesn’t matter. What matters is whether the FTC thinks it is. If your content is animated, video game related, toy related, art related, craft related or in any way might draw in children as viewers, that’s all that matters. Even one child 12 and under is enough to shift Google’s COPPA data collection liabilities down onto your shoulders.

➡️ “I’ve set my channel as ‘not for kids'”

This won’t protect you. Google has a tool in the works that will scan the visual content of a video and potentially reclassify a video as “for kids” in defiance of the channel-wide setting of “not for kids”. Don’t expect that the channel-wide setting will hold up for every single video you post. YouTube can reclassify videos as it sees fit. Whether there will be a way to appeal this is as yet unknown. To get rid of that reclassification of a video, you may have to delete the video and reupload. Though, if you do this and the content remains the same, it will likely be scanned and marked “for kids” again by YouTube’s scanner. Be cautious.

➡️ “I’ll set my channel ‘for kids'”

Do this only if you’re willing to live with the restrictions AND only if your content really is for kids (or is content that could easily be construed as for kids). While this channel setting may seem to protect your channel from COPPA violations, it actually doesn’t. On the other hand, if your content truly isn’t for children and you set it ‘for kids’ that may open your channel up to other problems. I wouldn’t recommend setting content as ‘for kids’ if the content you post is not for kids. Though, there’s more to this issue… keep reading.

Marking your content “for kids” won’t actually protect you from COPPA. In fact, it makes your channel even more liable to COPPA violations. If you mark your content as “for kids”, you are then firmly under the obligation of providing proof that your channel absolutely DID NOT collect data from children under the age of 13. Since the FTC is making creators liable for Google’s problematic data collection practices, you could be held liable for Google’s broken data collection system simply by marking your content as ‘for kids’.

This setting is very perilous. I definitely don’t recommend ANY channel use this setting… not even if your channel is targeted at kids. By setting ‘for kids’ on any channel or content, your channel WILL become liable under COPPA’s data collection provisions. Worse, you will be held liable for Google’s data collections practices… meaning the FTC can come after you with fines. This is where you will have to fight to prove that you presently don’t have access to any child’s collected data, that you never did and that it was solely Google who stored and maintained that data. If you don’t possess any of this alleged data, it may be difficult for the FTC to uphold fines against channel owners. But, unfortunately, it may cost you significant attorney fees to prove that your channel is in the clear.

Finally, it’s entirely possible that YouTube may change this ‘for kids’ setting so that it becomes a one-way transition. This means that you may be unable to undo this change in the future. If it becomes one way, then a channel that is marked ‘for kids’ may never be able to go back to ‘not for kids’. You may have to create an entirely new channel and start over. If you have a large channel following, that could be a big problem. Don’t set your channel ‘for kids’ thinking you are protecting your channel. Do it because you’re okay with the outcome and because your content really is targeted for kids. But, keep in mind that setting ‘for kids’ will immediately allow the FTC to target your channel for COPPA violations.

➡️ “I’m a parent and I wish to give verifiable parental consent”

That’s great. Unfortunately, doing so is complicated. Because it’s easy for a child to fabricate such information using friends or parents of friends, giving verifiable consent to a provider is more difficult for parents than it sounds. It requires first verifying your identity as a parent, then it requires the provider to collect consent documentation from you.

It seems that Google / YouTube have chosen not yet set up a mechanism to collect verifiable consent themselves, let alone for YouTube content creators. What that means is that there’s no easy way for you as a parent to give (or a channel to get) verifiable consent easily. On the flip side as a content creator, it is left to you to handle contacting parents and collecting verifiable consent for child subscribers. You can use a service that will cost you money or you can do it yourself. As a parent, you can do your part by contacting a channel owner and giving them explicit verifiable consent. Keep reading to understand how to go about giving consent.

Content Creators and Parental Consent

Signing up for a service that provides a verifiable consent is something that larger YouTube channels may be able to afford, But, for a small YouTube channel, collecting such information from every new subscriber will be difficult. Google / YouTube could set up such an internal verification service for its creators, but YouTube doesn’t care about that or complying with COPPA. If Google cared about complying with COPPA, they would already have a properly working age verification system in Google Accounts that forces children to set their real age and which requires verifiable consent from the parent of a child 12 and under. If a child 12 and under is identified, Google can then block access to all services that might allow the child to violate COPPA until such consent is given.

It gets even more complicated. Because YouTube no longer maintains a private messaging service, there’s no way for a channel owner to contact subscribers directly on the YouTube platform other than posting a one-way communication video to your channel showing an email address or other means to contact you. This is why it’s important for each parent to reach out to each YouTube channel owner where the child subscribes and offer verifiable consent to the channel owner.

As a creator, this means you will need to post a video stating that ALL subscribers who are under the age of 13 must have have parental consent to watch your channel. This child will need to request their parent contact you using a COPPA authorized mechanism to provide consent. This will allow you to begin the collection of verifiable consent from parents of any children watching or subscribed to your content. Additionally, with every video you post, you must also have an intro on every video stating that all new subscribers 12 and under must have their parent contact the channel owner to provide consent. This shows to the FTC that your channel is serious about collecting verifiable parental consent.

So what is involved in Do It Yourself consent? Not gonna lie. It’s going to be very time consuming. However, the easiest way to obtain verifiable consent is setting up and using a two-way video conferencing service like Google Hangouts, Discord or Skype. You can do this yourself, but it’s better if you hire a third party to do it. It’s also better to use a service like Hangouts which shows all party faces together on the screen at once. This way, when you record the call for your records, both yours and the parent+child’s faces are readily shown. This shows you didn’t fabricate the exchange.

To be valid consent, both the parent and the child must be present and visible in the video while conferencing with the channel owner. The channel owner should also be present in the call and visible on camera if possible. Before beginning, the channel owner must notify the parent that the call will be recorded by the channel owner for the sole purposes of obtaining and storing verifiable consent. You may want to ensure the parent understands that the call will only and ever be used for this purpose (and hold to that). It is off limits to post these videos as a montage on YouTube as content. Then, you may record the conference call and keep it in the channel owners records. As a parent, you need to be willing to offer a video recorded statement to the channel owner stating something similar to the following:

“I, [parent or guardian full name], am 18 years of age or older and give permission to [your channel name] for my child / my ward [child’s YouTube public profile name] to continue watching [your channel name]. I additionally give permission to [your channel name] to collect any necessary data from my child / my ward while watching your channel named [your channel name].”

If possible, the parent should hold up the computer, tablet, phone or device that the child will use to the camera so that it clearly shows the child account’s profile name is logged into YouTube on your channel. This will verify that it is, indeed, the parent or legal guardian of that child’s profile. You may want to additionally request the parent hold up a valid form of picture ID (driver’s license or passport) obscuring any addresses or identifiers with paper or similar to verify the picture and name against the person performing consent. You don’t need to know where they live, you just need to verify the name and photo on the ID matched the person you are speaking to.

Record this video statement for your records and store this video recording in a safe place in case you need to recall this video for the FTC. There should be no posting of these videos to YouTube or any other place. These are solely to be filed for consent purposes. Be sure to also notice if the person with the child is old enough to be an adult, that the ID seems legit and the person is not that child’s sibling or someone falsifying this verification process. If this is a legal guardian situation, this is more difficult to validate legal guardianship. Just do your best and hope that the guardian is being truthful. If in doubt, thank the people on the call for their time and then block the subscriber from your channel.

If your channel is owned by a corporation, the statement should include the name of the business as well as the channel. Such a statement over a video offers verifiable parental consent for data collection from that child by that corporation and/or the channel. This means that the child may participate in comment systems related to your videos (and any other data collection as necessary). Yes, this is a lot of work if you have a lot of under 13 subscribers, but it is the work that the U.S. Government requires to remain compliant with COPPA. The more difficult part is knowing which subscribers are 12 and under. Google and YouTube don’t provide any place to determine this. Instead, you will need to ask your child subscribers to submit parental consent.

If the DIY effort is too much work, then the alternative is to post a video requesting 12 and under subscribers contact you via email stating their YouTube public subscriber identifier. Offer up an email address for this purpose. It doesn’t have to be your primary address. It can be a ‘throw away’ address solely for this purpose. For any account that emails you their account information, block it. This is the simplest way to avoid 12 and under children who may already be in your subscriber pool. Additionally, be sure to state in every future video that any 12 and under watching this channel must have their parental consent or risk being blocked.

Note, you may be thinking that requesting any information from a child 12 and under is in violation of COPPA, but it isn’t. COPPA allows for a reasonable period of time to collect personal data while in the process of obtaining parental consent before that data needs to be irrevocably deleted. After you block 12 and under subscribers, be sure to delete all correspondence via that email address. Make sure that the email correspondence isn’t sitting in a trashcan. Also make sure that not only are the emails are fully deleted, but any collected contact information is fully purged from that email system. You want to make sure that not only are all emails deleted, but any collected email addresses are also purged. Many email services automatically collect and store email addresses into an automatic address list. Make sure that these automatic lists are also purged. As long as all contact data has been irrevocably deleted, you aren’t violating COPPA.

COPPA recognizes the need to collect personal information to obtain parental consent:

(c) Exceptions to prior parental consent. Verifiable parental consent is required prior to any collection, use, or disclosure of personal information from a child except as set forth in this paragraph:

(1) Where the sole purpose of collecting the name or online contact information of the parent or child is to provide notice and obtain parental consent under §312.4(c)(1). If the operator has not obtained parental consent after a reasonable time from the date of the information collection, the operator must delete such information from its records;

This means you CAN collect a child’s or parent’s name or contact information in an effort to obtain parental consent and that data may be retained for a period of “reasonable time” to gain that consent. If consent is not obtained in that time, then the channel owner must “delete such information from its records”.

➡️ “How can I protect myself?”

As long as your channel remains on YouTube with published content, your channel is at risk. As mentioned above, there are several steps you can take to reduce your risks. I’ll list them here:

  1. Apply for Safe Harbor with TrustArc’s TRUSTe certification. It will cost you money, but once certified, your channel will be safe from the FTC so long as you remain certified under the Safe Harbor provisions.
  2. Remove your channel from YouTube. So long as no content remains online, the FTC can’t review your content and potentially mark it as “covered by COPPA.”
  3. Wait and see. This is the most risky option. The FTC makes some claims that it intends proving you had access to, stored and maintained protected data from children. However, there are just as many statements that indicate they will take action first, then request proof later. Collecting data will be difficult burden of proof for most channels. It also means a court battle.
  4. Use DYI or locate a service to obtain verifiable parental consent for every subscriber 12 and under.

➡️ “What went wrong?”

A whole lot failed on Google and YouTube’s side. Let’s get started with bulleted points of Google’s failures.

  • Google has failed to identify children 12 and under to YouTube content creators.
  • Google has failed to offer mechanisms to creators to prevent children 12 and under from viewing content on YouTube.
  • Google has failed to prevent children 12 and under from creating a Google Account.
  • Google has failed to offer a system to allow parents to give consent for children 12 and under to Google. If Google had collected parental consent for 12 and under, that consent should automatically apply to content creators… at least for data input using Google’s platforms.
  • Google has failed to warn parents that they will need to provide verifiable consent for children 12 and under using Google’s platform(s). Even the FTC has failed to warn parents of this fact.
  • YouTube has failed to provide an unsubscribe tool to creators to easily remove any subscribers from a channel. See question below.
  • YouTube has failed to provide a blocking mechanism that prevents a Google Account from searching, finding or watching a YouTube channel.
  • YouTube has failed to identify accounts that may be operated by a child 12 and under and warn content creators of this fact thus allow the creator to block any such accounts.
  • YouTube has failed to offer a tool to allow creators to block specific (or all) content from viewers 12 and under.
  • YouTube has failed to institute a full ratings system, such as the TV Parental Guidelines that sets a rating on the video and provides a video rating identifier within the first 2 minutes, thus stating that a video may contain content inappropriate for certain age groups. Such a full ratings system would allow parents to block specific ratings of content from their child using parental controls. This would allow parents to prevent not only children 12 and under from viewing more mature rated YouTube content, it lets parents block content for all age groups handled by the TV Parental Guidelines.

➡️ “I’m a creator. Can I unsubscribe a subscriber from my channel?”

No, you cannot. But, you can “Block” the user and/or you can “Hide user from channel” depending on where you are in the YouTube interface. Neither of these functions are available as features directly under the Subscriber area of YouTube Creator. Both of these features require digging into separate public Google areas. These mechanisms don’t prevent a Google Account from searching your channel and watching your public content, however.

To block a subscriber, enter the Subscribers area of your channel using Creator Studio Classic to view a list of your subscribers. A full list of subscribers is NOT available under the newest YouTube Studio. You can also see your subscribers (while logged into your account) by navigating to https://www.youtube.com/subscribers. From here, click on the username of the subscriber. This will take you to that subscriber’s YouTube page. From this user page, locate a small grey flag in the upper portion of the screen. I won’t snapshot the flag or give its exact location because YouTube is continually moving this stuff around and changing the flag image shape. Simply look for a small flag icon and click on it, which will drop down a menu. This menu will allow you to block this user.

Blocking a user prevents all interactions between that user and your channel(s). They will no longer be able to post comments on your videos, but they will still be able to view your public content and they will remain subscribed if they already are.

The second method is to use “Hide user from channel”. You do this by finding a comment on the video from that user and selecting “Hide user from channel” using the 3 vertical  dot drop down menu to the right of the comment. You must be logged into your channel and viewing one of your video pages for this to work.

Hiding a user and blocking a user are effectively the same thing, according to YouTube. The difference is only in the method of performing the block. Again, none of the above allows you to unsubscribe users manually from your channel. Blocking or hiding a user still allows the user to remain subscribed to your channel as stated above. It also allows them to continue watching any public content that you post. However, a blocked or hidden user will no longer receive notifications about your channel.

This “remaining subscribed” distinction is important because the FTC appears to be using audience viewer demographics as part of its method to determine if a channel is directing its content towards children 12 and under. It may even use subscriber demographics. Even if you do manage to block an account of a child 12 and under who has subscribed to your channel, that child remains a subscriber and can continue to search for your channel and watch any content you post. That child’s subscription to your channel may, in fact, continue to impact your channel’s demographics, thus leading to possible action by the FTC. By blocking 12 and under children, you may be able to use this fact to your advantage by proving that you are taking action to prevent 12 and under users from posting inappropriate data to your channel.

➡️ “What about using Twitch or Mixer?”

Any video sharing or live streaming platforms outside of and not owned by Google aren’t subject to Google’s / YouTube’s FTC agreement.

Twitch

Twitch isn’t owned or operated by Google. They aren’t nearly as big as YouTube, either. Monetization on Twitch may be less than can be had on YouTube (at least before this COPPA change).

Additionally, Twitch’s terms of service are fairly explicit regarding age requirements, which should prevent COPPA issues. Twitch’s terms state as follows of minors using Twitch:

2. Use of Twitch by Minors and Blocked Persons

The Twitch Services are not available to persons under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your jurisdiction of residence), you may only use the Twitch Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.

This statement is more than Google provided for its creators. This statement by Twitch explicitly means Twitch intends to protect its creators from COPPA and any other legal requirements associated with minors or “children” using the Twitch service. For creators, this piece of mind is important.

Unfortunately, Google has no such creator piece of mind. In fact, the whole way YouTube has handled COPPA is sloppy at best. If you are a creator on YouTube, you should seriously consider this a huge breech of trust between Google and you, the creator.

Mixer

Mixer is presently owned by Microsoft. I’d recommend caution using Mixer. Because Microsoft allows 12 and under onto its ID system, it may end up in the same boat as YouTube. It’s probably a matter of time before the FTC targets Microsoft and Mixer with similar actions.

Here’s what Mixer’s terms of service say about age requirements:

User Age Requirements

  • Users age 12 years and younger cannot have a channel of their own. The account must be owned by the parent, and the parent or guardian MUST be on camera at all times. CAT should not have to guess whether a parent is present or not. If such a user does not appear to have a guardian present, they can be reported, so CAT can investigate further.
  • Users aged 13-16 can have a channel, with parental consent. They do not require an adult present on camera. If they are reported, CAT will take steps to ensure that the parent is aware, and has given consent.

This looks great and all, but within the same terms of service area it also states:

Users Discussing Age In Chat

We do NOT have any rule against discussing or stating age. Only users who claim to be (or are suspected to be) under 13 will be banned from the service. If someone says they are under 13, it is your choice to report it or not; if you do report it, CAT will ban them, pending proof of age and/or proof of parental consent.

If someone is streaming and appears to be under 16 without a parent present, CAT may suspend the channel, pending proof of parental consent and age. Streamers under 13 have a special exception, noted [above].

If you’re wondering what “CAT” is, it stands for Community Action Team (AKA moderators) for Mixer. The above is effectively a “Don’t Ask, Don’t Tell” policy. It also means Mixer has no one to actively police the service for underage users, not even its CAT team. It also means that Mixer is aware that persons 12 and under are using Mixer’s services. By making the above statement, it opens Mixer up to auditing by the FTC for COPPA compliance. If you’re considering using Mixer, this platform could also end up in the same boat as YouTube sooner rather than later considering the size of Microsoft as a company.

Basically, Twitch’s Terms of Service are a better written for creator piece of mind.

➡️ “What is ‘burden of proof’?”

When faced with civil legal circumstances, you are either the plaintiff or the defendant. The plaintiff is the party levying the charges against the other party (the defendant). Depending on the type of case, burden of proof must be established by the plaintiff to show that the defendant did (or didn’t) do the act(s) alleged. The type of burden of proof is slightly different when the action is a civil suit versus a criminal suit.

Some cases requires the plaintiff to take on the burden of proof to show the act(s) occurred. But, it’s not that simple for the defendant. The defendant may be required to bring both character witnesses and actual witnesses which may, in fact, establish a form of burden of proof that the acts could not have occurred. Even though burden of proof is not explicitly required of a defendant, that doesn’t mean you won’t need to provide evidence to exonerate yourself. In the case of a civil FTC action, the FTC is the plaintiff and your channel will be the defendant.

The FTC itself can only bring civil actions against another party. The FTC will be required to handle the burden of proof to prove that your channel not only collected the alleged COPPA protected data, but that you have access to and remain in possession of such data.

However the FTC can hand its findings over to the United States Department of Justice which has the authority to file both civil and criminal lawsuits. Depending on where the suit is filed and by whom, you could face either civil penalties or criminal penalties. It is assumed that the FTC will directly file its legal actions against COPPA as civil suits… but that’s just an assumption. The FTC does have the freedom to request the Department of Justice handle the complaint.

One more time, this article is not legal advice. It is simply information. If you need actual legal advice, you are advised to contact an attorney who can understand your specific circumstances and offer you legal advice for your specific circumstances.

↩︎

Did Toys “R” Us have to fail?

Posted in bankruptcy, botch, business, ethics, fail by commorancy on September 9, 2019

If you’ve read various articles including this Bloomberg article, you might come away thinking that all of what happened to Toys “R” Us began a decade ago (i.e., the early 00s). In fact, you would be so wrong… and so would Bloomberg. Let’s explore.

The 80s

Around 1981 or 1982, I worked at Toys “R” Us. Even at that time, Toys “R” Us ran a questionable business model. A business model that, I might add, even store managers recognized and thought was unsustainable. In fact, after having discussions with store managers at my store, I got an earful about how they thought that the chain would likely fail within a decade if they kept on using that business model. This was the early 80s.

What business model?

Toys “R” Us sowed the seeds of its own destruction at least beginning in the 80s, perhaps as early as the 70s. What questionable business model is this? The model chosen was to operate the stores in the red (otherwise known as losing money) through 80-90% of the year (aka, “90 in the red”). Then, the management hoped to recoup those losses in the final 1-2 months of the year during holiday season sales. It didn’t always work out.

While this model seemed to work to keep most Toys “R” Us stores afloat through the 80s and 90s, it served to keep the company from really turning a solid profit and, ultimately, led to the company’s massive debt load. What that model meant to the stores is fully stocked shelves every day of the year. This was readily apparent walking into any Toys “R” Us store. The stores were not only full, they were positively brimming over with the latest toys. This also meant putting itself into massive debt each year in inventory and then hoping to pay off that debt at the end of the year when most of the stores finally ran “in the black” (read, turning a profit for the year).

Keep in mind that many of the stores didn’t turn a profit, but so long as enough stores did, they could cover for the debt they had been incurred company wide, or at least so that was the idea. Even the store manager at my Toys “R” Us location could see the handwriting on the wall in the early 80s. This store’s business model was not sustainable and I was, even as an standard employee, told this by various managers. These managers didn’t hold back their thoughts.

Bloomberg, Fads and Sustainability

What Bloomberg got right was that even a decade ago, TRU’s debt load had put them underwater. What Bloomberg didn’t address was that this debt began almost 2 decades earlier of overbuying, followed by hoping that a “hit toy” would kick them over the profit line at the end of every year.

“Hit Toys” were Toys “R” Us’s hopeful thing. They needed that Tickle Me Elmo or Nintendo Wii or Lazer Tag or Cabbage Patch Kid fad toy to carry the chain into the new year with profit on the books. Throughout the 80s and 90s, there were a string of these hit toys practically every year. Fad toys which flew off the shelves and brought Toys “R” Us to profitability each year. It was a risky move for Toys “R” Us to bank on a hot fad each year, but there it is.

Unfortunately, relying on this kind of yearly toy fad to sustain a business every year was not only risky, it began to burn Toys “R” Us as these yearly fads began to die off by the late 90s. Even during mid-late 90s, these fads were much less intense than they had been just a few years earlier. By the mid-00s, these fads were practically non-existent. Sure, there were hot toys, but no where near the levels of sales that Tickle Me Elmo or the Cabbage Patch Kid fads offered to Toys “R” Us’s bottom line… particularly when Best Buy, Walmart and Amazon concurrently began diluting the toy profits of TRU.

These fading fads were responsible for killing other toy stores chains as well, such as Kay Bee Toys and even the once high flying, high end FAO Schwarz. These fading fads also left Toys “R” Us holding a huge mound of debt.

Walmart

While Walmart did usurp the title of top toy seller from Toys “R” Us, that’s primarily because Toys “R” Us prices were always on the higher side. Walmart did carry toys, but not all toys. If you wanted something you couldn’t find at Walmart, you went to Toys “R” Us and it was pretty much guaranteed they would carry it (even though it might be out of stock). Walmart didn’t even stock many of these. The toy section in Walmart was always small by comparison. Sure, you could find better deals at Walmart, but only from the toys that they chose to carry.

Walmart was also not very kind to collectors in the 90s. If a collector showed up to buy toys, Walmart would try to do everything to keep that toy item away from the collectors… sometimes even going so far as to banning them from the store simply for buying toys. Does it really matter whose dollars are buying an item? Granted, I wasn’t particularly happy that a collector had gone to Walmart to buy out all of the “good” stock leaving tons of “peg warmers” sitting around that no one wanted. But, that’s how toy collecting worked in the 90s.

The whole collector market kind of died off with the advent of places where collectors could buy case packs, like Entertainment Earth. Instead of having to rummage around Walmart at 3AM (when they stocked new merchandise), you could order a full case of figures, guaranteeing that you’ll get at least one “rare” figure. This meant that the once Walmart and Toys “R” Us shopping locations for collectors became a thing of the past. Collectors took their money online to buy cases and stopped buying at Toys “R” Us. Buying case packs is easier, more convenient and doesn’t require the hassles of dealing with surly underpaid Walmart workers.

Toys “R” Us Kids Grew Up

Kids of the 80s became collectors in the 90s and became families on the 00s. The once popular collector market throughout the 90s fell apart into the 00s because the collector market changed and Toys “R” Us failed to understand this important change. The collector market is (or at least was) also a huge market that kept Toys “R” Us afloat in addition to the end-of-year-fads. However, brands like Hasbro and Mattel didn’t grow with the collector market. Sure, Hasbro tried, but the toys they made were tiny improvements over their (sub)standard toys. Mattel also tried with its collector Barbies, but, again they failed to understand the critical quality needed for what collectors really yearned.

In essence, the toy brands themselves didn’t grow to provide what collectors wanted… which left Toys “R” Us mostly without collector money. However, collector brands did grow up for the collector market outside of Toys “R” Us, including Sideshow and Hot Toys brands. These brands are now considered the premiere collector “toy” brands for adult collectors. These “action figures” are some of the highest end, most expensive, most collectable toys out there, yet these are not sold at Walmart, Target or even Toys “R” Us (before they closed). Though, you can find them on Amazon via third party sellers. This is where Toys “R” Us failed to keep up with the kid-turned-adult collectors. Hot Toys figures cost anywhere between $150-350 per figure; a price point that collectors are more than willing to pay to get that level of craftsmanship. A price point that Toys “R” Us never carried. A quality that not Toys “R” Us nor Walmart nor Target ever carried.

While Toys “R” Us continued to sell these low-end toy products to kids, it failed to grow up and to sell high end collectibles to adults. Ironically, this runs counter to their jingle. The most prestigious type of collectibles that Toys “R” Us sold were the collector Barbies and McFarlane figures, offering price points at  $15-40. A price tag that cannot provide the levels of detail, paint jobs and overall craftsmanship that goes into a Hot Toys or Sideshow figure. Adult collectors want high end figures and Sideshow and Hot Toys fill that niche. Toys “R” Us management never recognized this growing trend.

“I don’t want to grow up, I want to be a Toys “R” Us kid”

This jingle is ultimately the rationale that appears to have led Toys “R” Us management down the wrong path. Instead of singing the praises of not growing up, the toy store should have realized that kids grow into adults; adults who still want to buy collectible toys, but who don’t want the junky, low priced Hasbro and Mattel versions. They want premiere brands like Hot Toys offering highly detailed, highly realistic, meticulously crafted and painted figures… not Hasbro’s now antiquated, poorly painted, robot-style 12 inch figures. You might give these cheap toys to your kids, but you wouldn’t display them in a display case.

This collectible market began with highly detailed military figures, but branched out into licenses with Marvel, DC, Star Wars, Warner Brothers and various other large movie franchise brands. Toys “R” Us failed to latch onto this market and, thus, failed to capture the once Toys “R” Us kid who had grown into an adult and now desires these highly detailed collectible toys. As kids grow into adults, tastes change and people want more sophisticated products. Hot Toys and Sideshow found that niche for sophisticated adult tastes. Yet, Toys “R” Us failed to recognize this niche.

If Toys “R” Us had realized this mistake and had added brands like Hot Toys to its shelves, it might have been able to entice the collector’s market back into its stores and pay down some of its debt. Every discount retailer has, so far, failed to realize the adult collectible toy market. However, this lack of foresight hurt Toys “R” Us the most.

Kid Tastes

Additionally, kids tastes have also changed as a result of brands like Hot Toys and products like the iPad. Kids don’t want want to buy Leap or other “toy” or “fake” tablets when they can ask their parents for the real thing. Kids also want the higher end Hot Toys than the poorly crafted Hasbro Ironman figures. While Toys “R” Us did begin carrying Apple products, the stores really thought of these more as a toy rather than treating them as something useful. Best Buy always treated their Apple section with the best possible displays. Toys “R” Us displayed its Apple tablets right next to random other tablets as though they weren’t anything special. I’m not even sure that I’d have felt comfortable buying an Apple tablet from Toys “R” Us. Not only did they have no one versed in this technology on staff, what they carried could have been 2 or even 3 generations old. Toys “R” Us just didn’t treat these products with the respect that they deserved.

As a result of kids changing tastes and higher levels of sophistication, kids really didn’t want much of what was in that toy store after a certain age. This meant that Toys “R” Us was primarily for kids of a certain age and below (probably 8-9 or younger). Even still, these ages were growing up faster.

Toys “R” Us Closure

Did Toys “R” Us have to close? Yes, it did. Without a management team capable of fully understanding the downsides of running its stores using the “90 in the red” model throughout the year (and failing to accommodate the changing tastes of adult collectors), the stores ultimately succumbed to closure. It was inevitable.

What tipped the scale, though, was 2005’s $6.6 billion leveraged buyout of Toys “R” Us by the KKR, Bain Capital, and Vornado Realty Trust; a purchase that saddled the corporation with at least $5 billion in debt, in addition to its already mounting toy inventory debt each operating year. There was simply no way Toys “R” Us could recover from and pay down that debt considering its interest each month.

In fact, it was this very same leveraged buyout that not only trashed Toys “R” Us, it also lost its original private equity investors at least $1.28 billion. Even these private equity firms were ignorant of Toys “R” Us’s “90 in the red” model. You’d think that between three different private equity firms, one would have had brain among them. I guess not. Toys “R” Us was not worth buying strictly because of that business model… and it was especially true when considering saddling an already debt overburdened company with even more debt. It was an insanely stupid buyout made more stupid because of the lack performing even the most basic of fiduciary responsibility. Those private equity firms got exactly what they deserved out of that deal. Make the wrong deal, get the wrong results.

If I had been sitting in the room when this buyout deal was being considered, I would have put the kibosh on that deal pronto. If managers of stores could recognize how badly Toys “R” Us was operating in the 80s, why couldn’t a bunch of suits at three different private equity firms see this before plopping down $6.6 billion?

Overvaluation

If anything, 2005’s TRU sale is a cautionary tale. There are way too many buyouts that are purchased at way too high a value. I’ve seen it happen time and time again. Companies worth maybe $500 million sell for $3 billion? It’s just insane the money that’s being overspent. Would you walk into Walmart and offer to pay $25 for a $5 tube of toothpaste? I don’t think so. So, why do these investors think it’s okay to spend $6.6 billion on a company worth maybe $1 billion at its best… and it was then likely actually worth much less considering the debt that it already carried. Its insane business model should have further reduced its value.

Could Toys “R” Us have been saved?

Probably not. At least, not with its status quo business model. But, it might have been saved IF Toys “R” Us had adopted a more balanced approach to its store sales and more sane merchandise ordering in combination with letting managers actually handle full store merchandising instead of relying on nice looking, but misguided corporate-standard planograms.

Only stock enough merchandise in a specific store that that store can actually sell. Let managers move stock around on shelves and place the merchandise in their store where it’s most likely to sell. Additionally, don’t send stock to a store where the buying demographic isn’t buying that type of merchandise. If Barbies aren’t popular in a particular store’s demographic region, send limited amounts of Barbies there. It’s a waste of money and effort to stock merchandise that doesn’t sell. One of Toys “R” Us’s biggest foibles was its cookie-cutter store approach. That meant it was sending the same stock to all stores regardless of popularity in that local store’s area. It also meant that it way overspent on toys that would never sell at certain stores. Eventually, they simply had to clearance out those toys. Each store’s inventory should have been customized based on buying habits of local consumers and by the local manager. Only the local store team knows what’s the “hot sellers” in their store.

Clearance merchandise is actually a red flag in the retail business. It means that, as a store, you way overspent on merchandise that you couldn’t sell. If you have excessive clearance merchandise, then your merchandise spends are way off. It also means that your buyer is overbuying stuff that isn’t selling. It means you need to rethink your buyer and it means your new buyer needs to rethink how much to spend on similar types of products.

One of Toys “R” Us’s other foibles was its inability to recognize and stock the “hottest toys” rapidly. If you send 5 of something to a store and it sells out in 10 minutes, you need to stock more of it and you need to do it pronto. Yet, it might take Toys “R” Us 30 or more days to get that merchandise back in stock. That’s 30 days of zero sales… sales that could have been had the next day and the day after that. Missed sales were one of TRU’s biggest problems. Having merchandise in stock that you can sell day after day is a huge win. Yet, if the corporate buyers don’t even know to reorder this thing again, the store is blind. This is why the next part was so important to improving TRU.

Instead, this toy chain should have let the local managers have autonomy via cutting merchandise from their store that isn’t selling and placing rush orders on the hottest toys. By letting the managers, you know, actually manage the store’s inventory properly, the stores could have cut costs and raised profits. The managers could have done this by buying more of popular hot sellers in that area, shuffling cold merchandise to other stores that can sell it and cutting non-sellers from the inventory. In fact, managers should have actually had access to every store’s inventory throughout the chain and when that item last sold there. If a particular item is selling hot in one store, but is completely dead in other stores, the hot item store manager should be able to request stock moved from the cold stores to their store. This way, managers could have directly moved inventory from store to store instead of placing orders for more stock, thus causing more debt. Only after the existing in-store inventory was exhausted should a new order need to be placed. The buyers from the chain should have endorsed this manager autonomy.

Unfortunately, that wasn’t a priority for the very rigid corporate run TRU. I could walk into a store in Texas and find specific toys always out of stock. Then walk into a TRU in St. Louis a week later and find twenty of them sitting on the shelf with dust on the top. If stores had been able to request the hottest toys moved from other stores, the chain could have saved a lot of money on new stock orders.

This change in business model could have drastically improved Toys “R” Us’s profitability throughout the year. It probably would have cut down on orders to toy sellers, but something’s got to give when you’re running a retail store chain. If the toy manufacturers had to suffer a little to let Toys “R” Us recover and be a whole lot more profitable, then so be it.

Unfortunately, TRU’s status quo model endured. Even if the leveraged buyout hadn’t occurred in 2005, Toys “R” Us’s fate was pretty much sealed strictly by is “90 in the red” (cookie cutter) mentality. It was only a matter of time before it succumbed to its own debt burden even if it hadn’t incurred a ton more debt after that poor sale. The 2005 unwise sale simply accelerated Toys “R” Us’s already looming demise.

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The Curious Case of Fallout 76: What went wrong?

Posted in botch, ethics, fail, video game design, video gaming by commorancy on April 16, 2019

NukaColaPA-f[Updated: May 17, 2019 for Battle Royale Mode]

I’ve already written plenty about Fallout 76. So, this one is likely to be my last about this disaster of a video game. In this article, I intend to detail all of what went wrong (and is still going wrong) with this game and why it’s such a critical failure. Let’s explore.

Fallout History

Fallout is a series about a post-apocalyptic landscape that has been ravaged by nuclear war. Because the Vault-Tec corporation (a company within this universe) saw the coming of the nuclear war, they built vaults to house the best and the brightest to bring about a new future after the devastation had cleared. We won’t get into just how Vault-Tec’s foreseeing (and building the vaults prior to the) the nuclear war makes Vault-Tec appear complicit in the nuclear war itself.

Anyway, the vaults became a safe haven for limited residents (who paid dearly to Vault-Tec, I might add) for entry into a vault. Because there were so few vaults and so few spots in a vault itself, many people did not get a coveted spot in a vault even though they had enough money to pay their way into one. There were many who were left out. I digress at this backstory and Vault-Tec’s possible collusion in the war.

Suffice it to say, the vault is the place where pretty much every Fallout game begins including Fallout 3, Fallout 4 and Fallout 76.

Once each of these games opens, you are forced to make your way out of the vault into a hostile, treacherous, dangerous, nuclear fallout-laced landscape (without a weapon, food or protection). You are forced to forage and eat irradiated foods. You must live in disease ridden conditions, at least until you can create your own clean space. You must find or build your own weapons. There’s always something or someone after you. Many creatures have even mutated into giant versions of their former tiny selves.

Once outside, you find that survivors have grouped themselves into factions for safety including such old favorite factions as the Brotherhood of Steel, the Raiders, the Enclave, the Railroad and so on. In Fallout 76, there are seven (7) factions including the Enclave, the Brotherhood of Steel, the Responders, the Raiders, the Free States, the Whitespring, and the Independents.

Unfortunately, because the factions in Fallout 76 consist entirely of stationary Protectron or MODUS robot vendors, there’s no “joining” a faction in this game. Though, you can follow in the footsteps of the former now-dead faction members and gain access to faction facilities by finishing up uncompleted quests for left-behind robot computers.

So, exactly how did Bethesda get Fallout 76 so wrong? Here we go…

Game Design

Video games are about having fun in a fantasy landscape. It’s about taking off your IRL hat and putting on a fantasy world hat to relax, play with friends and generally do things in a game you can’t do in real life. Let’s begin to understand what led to this disaster.

=> Lack of NPCs

Going into a Fallout game, you sort of expect certain things to exist. Certain things that have come to exist in every prior game in the Fallout franchise. You know, those pesky things called non-player characters or NPCs for short.

NPCs have been a staple in every Bethesda RPG up until the release of Fallout 76. Let’s add a bullet point (and this one is a major point), that one of the biggest reasons that Fallout 76 fails is due to the lack of NPCs.

NPCs are one of the primary reasons people go into the purchase of a Bethesda role playing game (RPG). Without NPCs, the game is entirely barren and lifeless. Fallout 76 proves this out. One might even say, the entire game is soulless. Part of what makes a Bethesda RPG interesting to play is that you feel something for the folks who have been put into this untimely and hazardous situation. Without people there to feel for, there’s no emotional tie to the game. Fallout 76 is as soulless of a game as has ever been made. The only other game to have this same problem is No Man’s Sky… except we knew going into the purchase of No Man’s Sky that there would be no NPCs.

With Bethesda’s past track record, we simply had no idea that Fallout 76 wouldn’t have NPCs until we cracked open the shrink wrap.

=> Short and Few Main Quests

One other thing Bethesda is known for is making lengthy games. Games that, if you work through them as intended, might take you 3-4 months to complete. Granted, that may include participating in a few side quests, but even the main quests will take you at least month or better to get through.

With Fallout 76, you can blaze through the main quests (all 22 of them) in less than a month and be stuck at endgame content.

In fact, there are more side quests in Fallout 76 than there are main quests. Even then, the main quests are far too short.

=> Multiplayer vs Solitary Quest Completion

Bethesda had hoped that its idea of having 24 players in one of its “World Servers” would be a great way to get players to interact with one another (and create story). Gamers don’t “create” story, they “consume” it. Todd Howard got this idea entirely wrong. In reality, what that ends up is just the opposite. Few players actually want to co-op with other players and instead you end up with a bunch of loners all running around the world doing their own thing (or griefing one another). After all, each player can only complete their own quests, anyway.

Because each person must complete their quests on their own, having a teammate doesn’t really do you much good. It can help in combat situations where you’re ganged up by lots of creatures, but that’s about it.

The solitary nature of quest completion runs entirely counter to the notion of getting 24 players together on a server as a whole. It just doesn’t work.

As a follow on to this problem, the lack of NPCs makes completing quests boring, repetitive and tedious. Reading computer terminals, listening to holotape recordings and reading notes is not what players want to be doing in an RPG. These are non-interactive media. It’s just lore being told to us by a long dead character. A character that we have no reason to even trust is telling us the truth. We’ve never met them and never interacted with them. We have no idea if what they want us to do is in any way necessary. Are they leading us into a trap or is what they’re directing us to do useful?

The secondary problem is that all of these holotapes and notes and so on are optimally placed so as to be found. It’s as though these dead folks were expecting us to come along and read and listen and do. It’s all too convenient and handy. It’s as though it was all planned out by something or someone in that world. Yet no “world designer” has ever come forth. It only ends up making this lore more trite and contrived.

If this is supposed to be a treacherous, dangerous environment, finding these people and their situations would be much harder than it is. Ultimately, the setups are as convenient as they are boring and repetitive.

=> No Effect on the World

At the end of completing the quest for lore, you find that nothing in the world actually changes. All of the running around. All of the collecting. All of the fetch quests. All of it is for naught. You do get lore around the Scorched, but in the end the world remains unaffected. The Scorched do not disappear. The Scorchbeasts still appear from their fissure sites. Even the Scorchbeast Queen still spawns if someone conveniently launches a nuke over Fissure Prime.

If you’re going to spend hours traipsing through the wasteland, fetching and fighting and doing and consuming, you would think that the world would be a better place in the end. In Fallout 76, the world doesn’t change. It doesn’t become a better place. It doesn’t get built.

The 24 vault dwellers released from Vault 76 were destined to rebuild Appalachia. Instead, these 24 “players” simply become loners who build their own camps, don’t bring about change and don’t in any way make Appalachia a better place. The game worlds remain entirely status quo at the end of the quests. So, what’s the point then?

=> 24 Random Players

As mentioned just above, gathering 24 random video gamers together on a server isn’t going to lead to anything useful. Real video game players don’t (and can’t) make a game. Players can only interact with the environment. The fun must be had by what the designers design, not by interacting with 23 other live players.

This was a total miscalculation by Todd Howard. Any video game designer thinking you can rely on other video gamers to help make your game work, think again. Fallout 76 is the prime example of how this thinking entirely fails you.

As a designer, you must take the time to build fun and interactive activities for each and every person who joins your game world. Again, you can’t rely on other players for this “fun”. Player versus player (PVP) activities only go so far and even then many folks don’t want to participate in PVP. You can’t rely solely on PVP to carry an RPG game.

If you’re trying to carry a game using PVP activities, then you need to design a Brawlhalla, Apex Legends or Fortnite kind of game and skip the RPG portions. Just keep it simple and straightforward for PVP and leave out the RPG elements that simply get in the way of that design. If your game is PVP, then make it PVP. If your game is an RPG, make it an RPG. Don’t try to try to marry an RPG into some PVP thing or you’ll end up with something like Fallout 76 which just doesn’t quite work.

=> Bugs and Code Management

Bethesda has unofficially become known as Bugthesda. After Fallout 76, this moniker is given for good reason. Fallout 76 is exactly the poster child of everything wrong with Bethesda’s ability to code games. For Fallout 76, each update has taken one step forward and made at least two steps back, many times reintroducing old bugs.

There’s a serious problem at Bugthesda with their ability to code this game. I’ve personally witnessed bugs that were squashed two releases ago reintroduced to a later release. In the coding profession, this is called a ‘regression’. Regressions are typically frowned upon heavily. No one wants to see old bugs reintroduced into new versions. If you squash a bug once, it should stay squashed and gone.

Good code management practices should see to that. This means that using industry standard code management practices should prevent regressions. If you check in code to a repository which fixes a bug, that code fix should eventually make its way back into the “main” branch. Once in the “main” branch, that bug should never see the light of day again. This clearly means that Bethesda is likely not using standard code management practices.

For teams not using standard team code management and storage practices, like Git, then it’s easy to grab old code and reintroduce bugs because there’s not a single place to store that code. That’s the worst of all disasters. Not having a standard code management system in place is nearly always the death of a project (and product). Your product can’t sustain heavy regressions and expect people to come back for second helpings. Eventually, people walk away because they know they can’t trust your code to work.

When bugs appear, disappear and reappear over and over, trust in your ability to code a functional product disappears. Trust is the most important thing you have as a software engineer. Once you blow that trust, it’s all over.

=> Limited World Events

With a game so heavily entrenched in a 24 multiplayer world, you would have thought Bethesda would have given us many intriguing world events for multiple players to gather around, combat and defeat. You might think that, but you’d be wrong.

Out of the gate, Bethesda offers exactly one big world event in Fallout 76. That event being the Scorchbeast Queen event.

The problem with this event is that it entirely relies on other players to spend a significant portion of time traversing through a silo site fighting tons of robots and dealing with broken computers to launch a nuke into the world. Even worse, it requires the player to have not only fought their way through a silo site, but they must have also caught and fought a Cargobot to get a missile launch keycard. They also must have gone through the Enclave quest line to become a General in the Enclave, which requires killing at least 10 Scorchbeasts. It’s an involved and grindy quest line just to get to point where you can even launch a nuke.

Instead of these largest world events simply spawning on a timer, you have to wait until a player decides to launch a nuke on their own. Lately, this has been few and far between because with each release, Bethesda makes it more and more difficult to launch a nuke. This ultimately means that the biggest world event in Fallout 76 almost never happens.

That’s not to say there aren’t other world events. There are, but they are no where as big as the Scorchbeast Queen event. Events like “Path to Enlightenment”, “The Messenger” and “Feed the People”. However, these events are small potatoes by comparison. The Scorchbeast Queen event requires multiple people all doing as much damage as possible to bring down the queen in 20 minutes. With “Feed the People”, one person can easily do this quest and, subsequently, the loot drop at the end is piddly and low-level garbage. The queen’s loot drops are nearly always worth the time and are typically high level drops.

If you’re promising an engaging multiplayer world, you need to deliver on that promise. Relying on other players to trigger the biggest world events, now that’s a huge mistake. Instead, the biggest world events should trigger randomly without player involvement. Let the small events be triggered by players. Let the biggest world events be triggered by timer. It’s fine if a player can trigger a big world event, but don’t rely on that method for the largest events to be triggered. If no player triggers the event within a specified period of time, then trigger it on a timer. But, don’t leave the game barren of these large world events simply because players aren’t interested in spending the time to launch a nuke at that exact location.

=> Even more Grindy

One of the the things that Bethesda doesn’t seem to get is grinding. No one wants to spend the majority of their time online fighting the same creatures over and over simply to level up. Worse, when you do level up in Fallout 76, it’s all for naught. The creatures cap out at about level 68. Yet, even if you get to level 180, that level 68 creature can still kick your level 180 butt.

This is is not how level systems are supposed to work. The game arbitrarily caps your SPECIAL stats at level 50. Effectively after level 50, you’re still level 50 even if your level indicator says your level is 142. This means that you can’t even level up past the highest leveled creatures in the game.

At level 142, I should be able to one shot nearly any creature in the game that’s level 68 or below. Unfortunately, creatures have two levels in this game. There’s the level number (i.e., 68) and then there’s the HP bar. The HP bar is actually the creature’s real level. Some creatures might have 200 HP, where a Scorchbeast Queen might have between 3000 and 50000 HP (even though its level is labeled 50 or 63 or 68). Worse, when you approach this creature, you won’t know how much HP it has until you begin firing on it. Even then, it’s only a guess based on how fast its health is dropping.

This means to beat some creatures in the game, you can easily spend hours grinding and grinding and more grinding. Fallout 76 is, in fact, one big ugly grinding mess. With all of the fiddling and nerfing (aka “balancing”) that Bethesda has been recently performing, grinding is getting even worse, forcing you to spend even more time at it. Bethesda is going to nerf themselves out of a game.

=> Collision Detection, Guns and Bullets

The weapons in Fallout 76 are probably some of the worst in a Fallout game I’ve experienced. Worst yes, but not in the way you might be thinking. It’s worst in a way that makes you cringe. The guns regularly miss enemies even when aiming directly at them using a scope. This is strictly bad collision detection. The game simply can’t seem to recognize when a shot has connected with an enemy.

Bad collision detection is ultimately the death of a shooter. If your game is intended to be a shooter, the one thing it better be able to do is shoot and connect. If it can’t even do this most basic thing, the game is lost. Games with guns need to “just work”. Failing to accomplish this most basic thing should have left this game in development. You can’t release a shooter and not actually have the gun mechanisms work.

But, here we are. The game barely even functions as a workable shooter. There are even times where guns fail to fire even when the trigger is pulled and released. Indeed, there are times when button presses aren’t even registered in the game… requiring the gamer to press twice and three times consecutively to get the game to recognize the press… and wasting precious time. If you had the perfect shot, but the game ignored your press, you’ve lost that opportunity and you have to wait for it to come around again.

This is one of, if not THE, most frustrating thing(s) about Fallout 76. When guns don’t work,  your shooter is broken. This means you should focus on fixing the fundamentals in the game before branching out to downloadable content (DLC).

=> DLC too early

Instead of fixing the never ending array of existing bugs from when the game was launched, Bethesda has mistakenly pushed their teams to create new DLC and add-on quests.

While I won’t get into these half-baked, half-designed DLC add-ons, suffice it to say that the developer team’s time would have been better spent fixing the existing fundamental flaws than releasing under-designed unfun DLC.

I ask you, if the game can’t even get the basics down as a shooter, how can it possibly be good with new DLC? The answer is, it can’t. And, this is why Fallout 76 continues to fail.

=> Players Find the Fun

Because Fallout 76’s quests ended up more grindy than fun, many gamers had to resort to finding their fun using alternative means. What ended up happening was that players went looking for (and found) loopholes in the software. When code is poorly written and released untested, it’s going to be chock full of bugs… and that’s Fallout 76 in a nutshell.

Gamers found ways to dupe and sell their duped items. This was one of the primary ways gamers found their own fun. Not in the quests. Not in the combat. Not in the nukes. They found their fun working around the bugs and making, selling and trading loot. Another way was breaking into closed off dungeons like Vault 94, Vault 96 and even the now-legendary “Dev Room”. Players found their fun outside of Bethesda’s design. Fun that couldn’t be had through the mediocre quests, the crappy storytelling system, the horrible combat system and the problematic collision detection.

This whole activity seems to have come to the surprise of Bethesda. It was as if they couldn’t have foreseen this problem. It happened early on in The Elder Scrolls Online, too. Why wouldn’t it happen to a half-baked game like Fallout 76? It did.

=> Half-Baked Patching

Because every Fallout 76 release Bethesda has sent out has only marginally improved tiny parts of the overall game, the game is still very much of the hot mess that it was when it was released at the tail end of November 2018. It’s now the middle of April 2019 when this article is being written and very little has actually changed.

Sure, they added a distillery as a DLC that produces some of the most useless liquor in the game. The Pre-War liquor is still the best free liquor in the game (and offers the best benefits) and you don’t even need to use a distillery or waste precious crops to get it. The new liquors not only are not covered by the existing perk card system, each of those liquors have heavy downsides. The distiller also doesn’t support the Super Duper perk card to create extra dupes when crafting liquor, unlike every other crafting table. As an example of how bad the new liquors are, Hard Lemonade gives a huge boost to AP regeneration, but at the cost of 1 minute of negative AP regeneration as the “Hangover”. Rad Ant Lager gives +50 carry weight (yay) at the cost of -50 carry weight during the 1 minute hangover (boo). Extremely sub-optimal when in combat situations.

Nukashine fares even worse. Not only is the effect of this liquor pointless (increases unarmed damage), during the “Hangover” you black out and end up in some random place on the map. Making a Nukashine is simply a waste of a Nuka-Cola nuka quantumQuantum (which these drinks can be difficult to find in the world even at the best of times). On top of the pointlessness of this liquor, selling Nukashine to a vendor yields basically no caps (the currency in Fallout). In fact, making a Nuka-Cola grenade is a much better use of a Nuka-Cola Quantum than Nukashine will ever be. I wasn’t really going to talk about the added DLC much, but I felt the sheer crappiness of this one need to be discussed to show how pointless it all really is. The rest of the DLC doesn’t fare much better than the distiller.

If you’re going to give us a distiller, then at least set it up so that the stuff we make has some value to vendors, gives us much better perks than what’s already in the game and is covered by our existing perk cards. If you’re not going to do this, then why bother creating it? That’s why I consider this DLC half-baked. No perk card coverage. No outstanding new liquors. No value to the new liquors. So tell us, exactly why we should find this fun?

=> Player Bans

While Bethesda calls them a “suspension”, it’s actually a ban. A suspension lasts 1-7 days at most. A ban last months. So far, because gamers ended up using the bugs in the game to find their own fun, Bethesda has penalized many of these gamers by suspending them for sometimes unproveable reasons. What that means is that Bethesda did some digging and found that some gamers had accrued “too many” items in their inventory.

Let’s understand that the original release of the game allowed infinite carrying capacity. You simply became overencumbered when you went over your natural carry limit. This meant that you had to use AP to walk around. When AP ran out, you had to stop and wait for the AP to regenerate or you walked even more slowly. This was the original design BY Bethesda.

After the whole duping scandal erupted, Bethesda blamed the gamers and not themselves for the problems in Fallout 76. The bugs are entirely there by Bethesda. That gamers exploited the bugs, bad on you Bethesda. You should have better tested the quality of your game. Testing is on you, Bethesda… not the gamers. If you failed to test your product, then it’s on you when bad things happen.

If you didn’t want gamers to carry infinite items, then you should have released the game with a carry limit cap. That you didn’t do this initially was a miss on your part. Anyone could see that was a vector for abuse. Waiting for it to be abused, then blaming the abuse on the gamer is entirely disingenuous and insincere. Blame yourself for the bugs, not the gamers.

=> Most Recent Update

As of the latest “Wild Appalachia” update, the game is still very much of a mess. It still crashes regularly, sometimes the entire client crashes back to the dashboard. Sometimes the game won’t load in. Sometimes the character load-in is extremely laggy, stuttery and problematic. If you do manage to get your character loaded in, the shooter basics still don’t work. You can manually aim dead onto enemies and the gun will entirely miss (several times in a row). So, you resort to VATS. VATS sometimes works, sometimes doesn’t. You can be literally inches from an enemy and VATS will show a 0% chance of hitting. Yes, it’s STILL that bad.

Nuking on servers can make them highly unstable, particularly in the nuked region. If you enter a nuked region, you can expect the game’s frame rate to drop to about 10-15 frames per second… and I’m not joking. There are other places in the game where this frame rate issue is a problem. For example, when you’re in camp and trying to construct in the workshop menu.

There are many spots in the game where the frame rate can drop to practically nothing. These problems should have been worked out months ago. Yet, instead of fixing these absolute game engine basics, Bethesda has its devs off creating half-baked DLC to try to rake in new revenue.

Unfortunately, with every patch, Bethesda’s devs add back in regressions removed two or three patches ago. It’s been a never ending cycle of one step forward and two (sometimes three) steps backward. The world never gets better.

=> End Game

Every game has a problem with end game fun. Unfortunately, Fallout 76’s end game starts the moment you first login. The whole game is end game. There’s not a beginning to this game, so how can there be an end? Even once you do complete all of the main and side quests, there’s even less to continue doing in this world.

I do understand the reason for the DLC… to try and bring back old players. But, that’s going to be difficult considering you banned a very large number of them from the game. The few that weren’t banned aren’t going to come back simply because you put a crappy distiller in the game or that you created a 7 day long festival and forgot to actually give out the most desirable masks. They’re certainly not going to come back to grind for Atom to buy the useless (and expensive) Atom Shop items.

Ongoing Disaster (Battle Royale)

Here’s the part where I talk about DLC. As Bethesda continues to add questionable new game modes to Fallout 76, I have to wonder what’s going on over there. First, Bethesda adds the ‘Survival Mode’ server to its list of game play engines. This server basically enables PVP right from your character’s load-in. When you join ‘Survival Mode’, if you encounter another player, your character is pretty much dead. I’m uncertain the impetus behind adding this game mode other than to segregate PVP from the ‘Adventure Mode’ servers and put it into a different server. Yet, this segregation is not yet over.

Because Bethesda has been feeling the pinch from Battle Royale games like Fortnite and Apex Legends, Bethesda seems to feel left out. After introducing ‘Survival Mode’, Bethesda next introduces a new ‘Battle Royale’ game mode. Instead of trying to design a new Battle Royale game using an engine actually designed for that kind of game play, which would actually make the most sense, they instead grab the source code for Fallout 76‘s server and they wedge a Battle Royale mode into Fallout’s less than stellar game and combat engine.

Both of these game modes are questionable in and of themselves. For example, how do either of these game modes progress the Fallout story in any way? They don’t. The ‘Survival Mode’ server is designed to simply make the game more difficult. Instead, what it makes the game is pointless. You can’t quest, you can’t follow quest lines, you can’t even play normally…. for fear of losing not only all of your junk, but part of your aid.

With Battle Royale, there’s no point for its existence in the Fallout franchise. There’s not even a story basis for it to exist. Worse, it’s not even close to competing with games like Apex Legends or Fortnite. In fact, a battle royale mode would make a whole lot more sense to exist in The Elder Scrolls than in Fallout. Sure, Fallout is about gun fights, but it’s not about this silly and unnecessary concept being forced into the Fallout universe… a universe where battle royale actually makes no sense at all. The Elder Scrolls at least had an ‘Arena’ where a battle royale could feasibly take place within the story’s narrative… and make sense in the context of the larger Elder Scrolls story arc. Fallout has never had such a “battle” concept in its franchise. Adding this in now simply makes zero Fallout story sense, but makes sense only if Bethesda is trying to “cash in”.

Sure, Fallout survivors might need to do things to amuse themselves in a toxic nuclear wasteland… but, would they actually play in a Battle Royale themselves? No, I don’t think so. Bethesda is now adding stuff that’s so out entirely of character for the Fallout universe, they’re just adding stuff to “keep up with the Jones’s” instead of because it makes sense for Fallout. If you want to trash your franchise, this is a good way to go about it.

Let me also say that the implementation of Fallout 76’s Battle Royale mode is entirely trash and illogical to boot. You’re trapped in an ever condensing ring of fire. A ring of fire that actually makes no sense when you’re supposed to be tasked with rebuilding Appalachia. As contestants continue to kill one another (and the ring condenses to a tiny circle around them), the last man standing is the person who “wins”. In fact, the “winner” actually loses, because the condensing ring of fire would actually end up killing everybody. This is how logically stupid this concept really is. Effectively, it’s not really even Battle Royale, it’s a “Last Man Standing” game. I’ve also seen much better “Last Man Standing” multiplayer games.

If Bethesda wants to create DLC that’s in keeping within the Fallout universe, then they should tie these new game modes in with the existing lore that they spent all of that time creating. For example, how about implementing multiplayer dog fights? Or, how about actually using the ‘Animal Friend’ and/or ‘Wasteland Whisperer’ perk cards to tame beasts that can be used in a multiplayer arena? This would require the player to spend the time to locate and tame a beast (and level it up and equip it) for use in the arena. That kind of mode makes a lot of story sense… and makes sense to wrap new lore around all of this.

Since the world is dangerous and treacherous, use the existing lore as the basis for creating unique new multiplayer challenges. Don’t just grab the first unoriginal idea to come along (e.g., Fortnite) and slap it into a world server. You know, spend time actually putting some amount of thought and effort into tying the existing lore into the new multiplayer game modes. Give them a basis to exist in the universe. Don’t add game modes because you CAN… do it because it both makes actual sense, is logical and is entirely in keeping with the Fallout universe lore.

Overall

The game is STILL a very hot beta mess offering a poorly written, badly conceived and boring storytelling system utilizing no NPCs. The combat system is the worst system I’ve encountered in a top tier game developer’s title. No joke. It is the absolute worst. Even the patching hasn’t improved it. If anything, it’s actually gotten worse.

There are times where button presses are entirely unresponsive. You might have to press the button two or three times rapidly to get the game to register even one press. You might be trying to pick up something, trying to fire your weapon, trying to search a container or it might manifest in any other number of ways. Unreliable button presses are the death of a game that so heavily relies on real time play value.

No amount of patching or DLC will solve these basic fundamental engine problems. To solve the storytelling problem, you need to add NPCs to the game.. which would require redesigning the game from scratch. To solve the combat problem, you need to redesign the combat system from the ground up using a practical engine actually designed for real-time online use.

You can’t take a 20 year old offline game engine and attempt to patch it for an online use. Doing so will produce exactly the problems found in Fallout 76. Fallout 76 needed a game engine designed entirely for online play. Designed for real-time combat. Designed for real-time activities. Designed for responsive button presses.

Unfortunately, what we got was a crapfest of epic proportions that Bethesda will neither acknowledge nor comment on. If this is Bethesda’s new game development norm, I won’t be investing in any more Bethesda games. It’s just not worth paying $60 (or more) to be an alpha tester for a game written on old technology that isn’t up to the task.

In short, Fallout 76 is STILL an immense hot mess that has not at all improved since its November launch.

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Rant Time: Adobe VoCo’s ethical dilemma

Posted in best practices, botch, business, california, ethics by commorancy on February 28, 2018

I have to wonder about Adobe’s business ethics at times. First, there’s Photoshop. While I can admit that photo editing has a legitimate purpose, such as correcting red eye or removing telephone lines or removing reflections of the camera man from a photo, there is the much seedier and ethically murky purpose for Photoshop. Now comes Adobe VoCo. It is a product idea that does for spoken audio what Photoshop does for images. Let’s explore this YouTube clip from 2016:

Skip to 3:18 for the meat of this video.

VoCo’s Use Cases and Ethics

Though, yes, I will concede that the demonstration above was funny and we all laughed, the demonstration has a deep seated ethically murky undertone once the laughing stops. In fact, that’s what prompted this blog article.

Unlike Photoshop which has actual real world use cases (yes, other than making models thinner and glowier for the cover of Vogue), VoCo is one of those unnecessary tools that, while cool in theory, makes Adobe seem that it’s now in the business of causing world disruption instead of actually solving creative problems. After the ethical problems created by Photoshop, Adobe has to know the ethical quandary it introduces by bringing the VoCo audio editing tool to market. Adobe decides to go ahead with demoing this tool anyway. So much for business ethics. Instead, Adobe should have patented and shelved this product idea and never shown it off.

There’s no effective real world use case for this product other than for making someone say things that they actually didn’t say. The only use case where this technology might even be somewhat useful, depending on output quality, is in the voice over industry where an actor might be unavailable at a time when a line needs to be changed to fit continuity better. The voice over industry is the only industry where VoCo could have even the smallest glimmer of hope of a use case. This is such a tiny niche market segment to introduce this tool in such a public spectacle way.

The only other use case would be to sample all of the audio from a particular dead actor or actress’s productions and then recreate lines of new spoken dialog based on that. Again, this is one of those entertainment areas that fits firmly into the uncanny valley, particularly if the spoken lines are attached to a CG actor. Again, this is not a substantial use case in my opinion and is most definitely creepy. It’s definitely not a big enough use case to warrant this public release spectacle. Do we really want to see Marilyn Monroe or Elvis brought back to life on the big screen using CG and VoCo dialog?

There is no other legitimate use case for this product. It’s like Adobe intentionally wants to flaunt its lack of ….

Business Ethics and Self-Editing

Businesses today have no ability to self-edit or recognize ethics. That is, stop ethically bad product ideas from making it to the market. Just thinking about this product and how it could possibly be used, it doesn’t have legitimate use cases (other than the voice over use case I mentioned above). However, there are perhaps thousands of illegitimate uses for this tool. Let’s list a few of them, shall we:

  • Falsifying a deposition to make the person being deposed say something they didn’t say
  • Falsifying a statement of non-confession to make a person confess to a crime when they didn’t actually confess
  • Falsifying a phone conversation
  • Changing any spoken words from non-incriminating to incriminating evidence

In legal circles, the use for this tool is ripe for abuse and has use cases as wide as the Grand Canyon and as deep as the Mariana Trench. In other words, while VoCo has no substantial legitimate use cases, it has thousands of illegitimate use cases. There is no way Adobe couldn’t see this. There is no way for Adobe to feign ignorance about this tool or the ethical problems it imposes if released.

Legal Evidence

Some have theorized that this tool would become just as Photoshop has. Basically, because evidence can now be manufactured in products like VoCo, it means that audio evidence would no longer be easily admissible. While that idea has some soundness to it, the legal system is not always technically savvy and can sometimes move at a snail’s pace. Eventually, the courts and lawyers will be on board with this ‘manufactured evidence’ sound clip idea, but not before several someones are incriminated over manufactured evidence that isn’t caught in time.

Some have theorized that Adobe should watermark the sound clip. The difficulty with audio watermarking is that it ruins the audio. No one would buy a professional audio tool that intentionally makes the audio sound bad or introduces something that is audibly noticeable, strictly because Adobe wants to insert a watermark to legally cover their collective butts. No. No one would buy a tool that causes damage to the audio output. This means that only a silent kind of watermark could be introduced. Such a watermark would consist primarily as a tag within the saved audio clip file. Any tags introduced in a save file can easily be stripped away by converting the audio clip to a new format or by playing the audio clip back and recording it on analog equipment. In fact, a whole industry and set of tools would likely appear to strip out any watermarks imposed by Adobe onto the saved files.

Unless there is a substantial way to identify that the clip has been edited, and I don’t know how Adobe could even solve this problem fully, VoCo is a tool that would end up more abused than legitimately used.

Flawed Product Ideas

While this is somewhat of a cool technological advancement, it doesn’t need to exist. It doesn’t need to exist because it has basically one limited use case. I’d argue that as a production runner, you can just wait until the voice actor becomes available and ask them to re-record the lines you need. That is, instead of using a tool like this. A tool like VoCo might save you some time, but by demanding such a tool for your use, it means the rest of the world must also endure the consequences of a world full of falsified evidence. Is that the world you want to live in? Evidence that could even be used against you, the audio editor. No, thanks.

However, it’s clear that prototype code has been written based on the video above. This means that Adobe could release such a product into the wild in the future. Thankfully, as of this article in 2018, this product does not yet exist. Unfortunately, Adobe has already opened Pandora’s box. A working prototype means that any coder with leanings towards audio engineering could produce a similar tool and release it into the wild without the help of Adobe. Thanks Adobe.

It is as yet unclear when or if this product could ever be released. Note that this video segment apparently showcases experimental product ideas (products that may never see the light of day) and not actual products. After all, such a legally murky product would have to clear Adobe’s legal team before release. Considering the many negative use cases for such an audio editing product and the legal liability that Adobe might endure as a result, I’d hope that Adobe’s legal team has shelved this product idea permanently.

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