Developer Expectations

By Chris Trott (29 January 2007)

I've read the op-eds recently posted on the issue of how payware developers are wielding their market power. I've been involved directly with Flight Simulation since 1996. During that time, I've worked with several freeware and payware developers and been very active in the virtual airlines segment of our hobby. During that time, I've seen a lot of developers come and go, but there's been a somewhat disturbing trend by some of the more recent payware developers and publishers that does concern me. It's not the exercise of their market power, its how close to the edge of legality that they'll go to try to "out compete" another developer. The final judge of whether payware or freeware is better is a product-by-product evaluation. There are a quite a few examples out there where the freeware version of an aircraft is considered by most everyone as being the better version, at the same time, there are a good number of payware examples that are better than their freeware counterparts by several magnitudes. But that's not the issue. The issue is what lengths some developers go to convince people that their product is the best. I will preface this with the statement that I am not a lawyer. I have consulted several lawyers and legal documents in the writing of this issue, but it is not the intent of this article to give legal advice to anyone, only to make them aware of issues and possible legal ramifications of those issues.

Under International Law anyone selling goods or advertising in a country is subject to that country's business and advertising law for all dealings within that country whether or not they're actually based there. In the US, one of these laws is called the "Truth in Advertising" law. This law basically states that anything you put in any media that is available for viewing by the public must be truthful in its content and that you must be able to prove any statement made as factual and not opinion. If it's not, there are a litany of consequences from the Securities & Exchanges Commission (SEC) and/or Federal Communications Commission (FCC), the governing agencies for Business and media respectively that can range from simple fines to banishment (by removal of the operating licenses for US businesses or embargo of the products in the US). The United States' agents have been very aggressive in prosecuting violators in recent years and several businesses have ceased operations in just the last 6 months due to criminal convictions arising from violations of this law and others similar to it. Many other countries have similar laws and apply them with varying degrees of force.

But what does this mean for payware developers? Well, first it means that they must back up any claims of accuracy with actual data. Even Microsoft must do this. They do it by having the flight models verified by the manufacturer, but developer can do this by simply providing data from the simulator in a verifiable manner. How does a developer do this? They do it by publishing data that shows the performance of the aircraft as being similar to the performance given from publicly available sources such as the FAA's Type Certificate Data Sheet database, manufacturer's technical specifications (Boeing has very detailed specs for all of its commercial products for example), or from the aircraft's operation's manual (which can be purchased from several sources). Accurate is a subjective term to be sure, but lawyers will tell you that you simply need to apply "good judgement" to that statement. For aircraft, "good judgement" says that an aircraft that is within 10% of the real aircraft in all respects is generally considered to be accurate. But one that is only within 25% of real is generally considered to be "similar" or even "realistic", but not accurate. Thus, if a developer claims in their advertising that they have an "accurate" flight model but the data provided shows that it is only within 25% of actual performance, then they have given false advertisement.

There is a more serious issue, however, for payware developers. If a payware developer announces a new product and creates "reasonable expectations" for its release in a given amount of time and fails to make that release time or fails to properly announce the delay of the product, this is also false advertisement. I can cite a single developer who, while producing excellent products, has repeatedly violated this part of the law. They have promised (with release dates) patches for several products and have yet to produce them, in one case, over two years from when the patch was promised. As such, any customer who purchased those products who chooses to has a legal right to seek compensation as they had a "reasonable expectation" to have the flaws in the model fixed as promised by the date promised. Since they didn't produce the fix, they are now liable for that failure and can be forced to refund all customers who purchased the product and did not get the fix due to this. Developers must remember that they have a LEGAL obligation in addition to their moral obligation to make full and truthful disclosure of their product and support and fix their product if it is not complete or does not meet the specifications given in their advertisement of the product. If they are unable to do this, then their obligation is to refund those who have purchased the product.

There is one other issue that all payware developers must be aware of. That is disclosure of cost. This requirement has primarily been established via case law in the US by combining several different laws to make one total requirement and is an issue that a developer can run into if they are suspected of charging too much or too little for a service for the purpose of eliminating competition or making what are considered to be "undue" profits. Developers and publishers must be able to verify their costs and prices and show that their pricing is neither predatory (i.e. the price of the product is at or below the cost of the goods and that such prices are not significantly lower than other competitors' cost of production) nor gouging (i.e. the price is significantly above the verifiable cost of production) by design. There are no set and firm metrics for these laws and there are known cases where the price gives the company a 100% profit, but its cost and profit are unique when compared to companies producing similar products and there is no undue hardship on the consumer by the price, thus their prices are neither predatory or gouging, thus they can continue to charge that price. So, as long as the price doesn't discourage competition or ask an unreasonable price from the consumer, then you are doing well with your pricing, but if your prices do fall under one of those categories, reconsider your actions soon because eventually, someone will hold you accountable and if you are found to be in violation, you may end up with nothing left.

I want to end this opinion with an item for freeware developers. Don't let a payware developer's projects stop you from producing your own project. If they attempt to prevent you from building it via threats, you have legal recourse and most payware developers know that. It's your choice whether you charge for your product, not theirs. There are plenty of people out there that don't have the money to buy those payware projects but still want the project. In fact, there are many who choose payware for the sole reason that they don't want to spend any money on software add-ons for their flight simulator and save it for hardware add-ons. I don't own a lot of payware myself, but what I do own, I purchase it for a specific reason - it has something that I want that either isn't available in the comparable freeware product or isn't available in freeware at all. Many others use the same metrics that I do as well, so if you produce a good free project, I'll be one of the first to download it, irregardless of whether there's a payware version available or not. Keep a thick skin. There are those who will expect too much of you. Ignore them. There will be many more (including other developers of both payware and freeware add-ons) who will offer you help or suggestions for future development and improvement of your product. Some will offer help in the form of new files, others in mentoring and guidance, the rest will just help by either suggesting changes or providing research material that you may not have had access to. Use them, they will only help you forward. In the end, Flight Simulation is a community of people, regardless of what they do in it or whether they get paid for what they do. Most of those people will help rather than hinder. For those who attempt to hinder, it's annoying to have to use the delete key, ignore button, or overlook their posts on forums, but you have to do it. Payware developers do have to deal with the same kind of people, but their task is somewhat more difficult because they do have a legal requirement to meet customer expectations as long as they are reasonable. Freeware developers don't, but they do have a moral requirement. If you're not willing to meet that requirement or at least take the heat that might come from not offering continued support to your releases, then take a long look at whether you really want to release that project to the masses because it might save you a lot of stress if you keep it to yourself and friends because this hobby has become fairly demanding of at least decent quality and that's just a reality that has to be accepted by anyone wishing to enter that part of the hobby.

Chris Trott
chris@flygma.com

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