When I ask Michael Mrozek, aka EvilDragon – and henceforth ED – what he likes best about the Pandora, the open-source gaming handheld he helped create, he says, “The community.” Not the unit’s 10+ hours of battery life or its beautiful hi-res screen or the wonderfully tactile D-pad or the twin analog nubs or the Linux OS with full X desktop or the amazing amount of homegrown software sprouting up by the day, but the community. “Seriously. And all the nice people helping us out, the devs and everyone else … you can’t thank those guys enough. They have become close friends for me.”

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The Pandora nearly didn’t make it. With a gestation longer than an elephant’s, its development has seen DS incarnations come and go. Rashly billed by its creators for a release back in 2007 – well before the DSi hit stores – production only recently hit its stride in the last few months, when the 3DS became everyone’s favorite new toy. Worse, many pre-orders placed in late 2008 at just over $300 have yet to be fulfilled. The Pandora was beleaguered by many production snags: unreliable suppliers, faulty parts and the inexperience of the team made a slow process slower. Because of the excessive gap between payment and delivery, PayPal canceled all pre-orders and credit card companies enforced refunds. But the team’s openness – and the understanding that these are just a bunch of guys with a crazy idea and day jobs – incites goodwill, and pre-orders were re-ordered. Those still waiting are rewarded with photos of stacked LCD cables, nubs, screens, batteries, cases and a video of the kitchen table around which these pieces are assembled by hand.

When Sony issued Update 3.21 on 1 April 2010, it presented owners of fat PS3s with a stark choice. Accepting the update meant accepting the removal of OtherOS, a feature that allowed the installation of other operating systems on the console; declining the update meant forfeiting access to the PlayStation Network (PSN), including the online store, any remaining credit, PlayStation Home, and online gaming. “We don’t say it’s a game console. PlayStation 3 is clearly a computer,” boasted Ken Kutaragi in 2006, but now people had to choose between the two. Disregarding all of its own pre-launch hype, Sony no longer wanted its customers to have both.

Mark Ashelford, a partner at London law firm Lee & Thompson who specializes in rights issues for digital media, has worked with both games developers and streaming services and likens the current state of the industry to the Wild West. There is a balance to be made between the lawless frontier where “everyone’s taking digital content from anywhere they can get it” and the convenience of managed distribution offered by publishers and games-on-demand services that “take on the role of sheriff, where the consequences of breaching the rules are that you’re kicked out of the town.” But what happens when a sheriff enforces rules that are self-serving or too stringent, or unfairly refuses the right of reply?