Ubisoft and Capcom get it wrong, GOG and Avalanche get it right and Serious Sam's scorpion shows the way.

The year began on a hopeful note, with Ubisoft seemingly relaxing its DRM policy. Eagle-eyed Redditors noticed that older Ubisoft PC titles, including Assassin's Creed II and Splinter Cell: Conviction, were suddenly playable without a connection to the internet. The publisher subsequently confirmed that it had patched out its DRM from some older titles, with its future implementation to be decided on a case-by-case basis. Had it turned a corner?

Of course not. In July, it confirmed that Driver: San Francisco would require a constant internet connection, something Martin Edmonson, founder of developer Ubisoft Reflections, said was justfied because "PC piracy is just at the most incredible rates. This game cost a huge amount of money to develop, and it has to be, quite rightly, quite morally correctly, protected." In a bizarre attempt to deflect the impending fan backlash Ubisoft said: "Bear in mind, though, that the PC version of Driver San Francisco is released simultaneously to consoles." We still don't trust you, but hey, at least we'll start not trusting you a little earlier than usual.

Ubisoft, in other words, still doesn't get it, and neither does Capcom. In February it implemented DRM in the PSN release of Bionic Commando Rearmed, just as it had done with 2010's Final Fight: Double Impact. Both games were unplayable while Sony's network was offline after its security was breached by hackers.

Apparently unsatisfied by having angered PS3 players, in May Capcom announced that the PC port of Super Street Fighter IV: Arcade Edition would use Games For Windows Live, giving offline players just 15 of 39 playable characters and no way to save their progress. After the inevitable furore and climbdown, Capcom's Christian Svensson revealed the DRM would be patched out soon after launch, saying: "We had it wrong The argument that legitimate users would have a worse experience than pirates was the loudest and most convincing."

That argument is raised every single time a publisher opts to use DRM in its PC games, so why is the same mistake made time and time again? Ubisoft and Capcom are understandably motivated by the fear of piracy hurting their margins, but the latter admits its DRM has had little impact on piracy or sales. Does DRM really hinder pirates, whose first order of business is to crack and remove it? Or the legitimate customers who have to deal with it every time they launch a game?

It's something Guillaume Rambourg, managing director of digital download service Good Old Games, understands. "Pirates succeed to perform in areas where digital distribution fails to perform," he told us in a recent interview. "When you get a pirated game it's very simple: you download, you install, you play. Three steps. When you buy a game, you have to download, install, patch, pay, have a launcher bundled in the game piracy is competition, because it forces us to simplify our methods to reach customers faster and win over piracy."

Christofer Sundberg, founder of Just Cause 2 developer Avalanche, is another noted critic. "If a DRM system constantly needs to be defended, something must be wrong," he told us in September. "As a developer you will never win over any fans if you constantly let everyone know how much it costs to develop a game and how much money you lose. I don't like always-on DRM solutions at all, since they offer nothing to the consumer [they] say: 'Thank you for buying our game, we trust you as far as we can throw you.' I know people who go and buy the game, but get the bootleg version just to get rid of the always-on requirement."

There appears to be a divide in thinking between the old guard - traditional publishers like Ubisoft and Capcom - and younger companies like Avalanche, who understand the value in loyal, engaged communities. It's perhaps best expressed by Marcin Iwinski, CEO and co-founder of GOG sister company CD Projekt, developer of The Witcher 2: Assassins Of Kings.

"[Big publishers] are not asking themselves the question:' What is the experience of a gamer?', or: 'Is this proposition fair?'," he said. "Rather, they just look to see if the column in Excel adds up well or not, and if they can have a good explanation for their bosses. DRM is the best explanation, the best 'I will cover my ass' thing. I strongly believe that this is the main reason the industry has not abandoned it until today, and to be frank this annoys me a hell of a lot.

"You are asking: 'So why is it taking them so long to listen?' The answer is very simple: they do not listen, as most of them do not care. As long as the numbers in Excel will add up they will not change anything."

The industry needs a third way, a means to protect against pirates without affecting legitimate consumers. Croatian developer Croteam showed us all how it should be done with its Serious Sam 3: BFE DRM - a giant, super-fast, immortal pink scorpion that only appears in pirated copies of the game.