Mark Langford sounds a little tired, and you can't blame him.
As Managing Director of Gametraders, Langford's company is at the forefront of another street date drama. After Gametraders grey imported copies of Super Mario 3D Land — selling ahead of Australia's official release date — both EB and JB Hifi are reportedly selling official Australian copies ahead of Thursday. But according to Mark Langford, his company is just defending itself.
"If Nintendo would just do the right thing," he says, "we wouldn't break street date.
"We want a good relationship with our local distributors and our local publishers. We don't always grey import — it's only Nintendo titles, because of the way they've treated us."
To Mark Langford, the right thing is simple: allow Gametraders the opportunity to buy Nintendo's products locally and stock them in store — but, at the moment, quite simply, Gametraders isn't being allowed to do that.
A link to the past
Mark is very cagey about discussing the issue, but you suspect the situation may have arisen from the Ocarina of Time 3D 'street break'.
After feeling like larger retailers were being given a better deal on Ocarina of Time, Gametraders took advantage of the fact that the game was being sold weeks earlier in the European territory, grey importing the game and selling it ahead of its official release date here in Australia. This resulted in retailers who bought from distributors locally — EB, GAME, JB Hifi — demanding they too be allowed to sell ahead of time.
In short — Gametraders made life difficult for Nintendo locally with Ocarina of Time. Could it be that Nintendo's refusal to deal with Gametraders locally is a direct result of that issue?
A high ranking source within one of the big specialist retailers in Australia, speaking back in June, suggested there may be consequences for the way the Ocarina situation was handled by Gametraders.
“Nintendo usually punish retailers for breaking their street dates, by delivering next new release late, or closing their account," claimed our source.
“GameTraders has upset a big beast and it will be interesting to see what ramifications, if any, may come their way, although I suspect we will never hear."
Sky's the limit
Fast forward to the release of Skyward Sword, and Gametraders was unable to buy stock of the limited edition from its local distributors.
"The game was available, but then it wasn't," said Mark. "And bear in mind this is the first time this has ever happened.
"They could argue that it was the result of a limited supply of games, but Nintendo needs to be really careful here, this is the sort of thing that the ACCC are very hard on."
It's all about collusion — if it could be proven that Nintendo deliberately colluded to stop its local distributor from selling copies of the game to Gametraders as punishment for grey importing copies of Ocarina of Time 3D, then it could be fined a substantial amount of money. In 2002 Universal and Warner were fined over $1 million in Australia for “refusing to supply… CDs to Australian retailers who stocked noninfringing parallel imported CDs.” The same rules apply to video game retail — but these things are very difficult to prove in court.
The first step in the process would be an official complaint to the ACCC, but Mark Langford declined to comment when we asked whether or not he would be pursuing this issue.
For now it appears as though there's a stalemate. Gametraders is well within its rights to grey import games from overseas and sell them in-store and unless Gametraders takes the risk of complaining and taking legal action against Nintendo, it will be free to continue to allegedly block local distributors from buying its products.
It's a legal grey area, and unless someone is willing to test it, it'll remains that way for the foreseeable future. Mark Langford informed us that Gametraders will be grey importing copies of Skyward Sword for delivery in stores tomorrow.
At the moment he's undecided as to when he'll allow the stores to start selling.