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Ars Technica has a quote from BioWare's Casey Hudson on the legitimacy of Day 1 DLC:
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Thanks, Omega!We spoke with Casey Hudson, the project director for Mass Effect 2, at GDC. He's a man who knows a little bit about post-release content, and he explained it in a way that makes sense. The simple answer? It takes time to get discs into the hands of gamers.
"People may not be aware of it, and people may say if you have content available day one, why not put it onto disc? What goes out on disc, it takes about 12 weeks to debug and certify and get into the trucks to go out into stores," he explained. "That gives us a period of 8 to 12 weeks where we can make content, but we can't put it onto the disc because it's already out there. But we can insert it digitally, day one."
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