To those who defend game pirates

Dear people who defend game pirates,

In case you hadn't guessed, this is a letter to those folks who oppose developers taking legal action against people who download and play their games without paying. Hello.

I'm writing this letter to you as both a lawyer and a gamer. I used to think I'd never really write much about piracy issues, both because the issues are relatively well-known already and because it can be a pretty hotly debated issue. But, dear people who defend pirates, some of the arguments I've seen put forward in forums and so forth recently have compelled me to say something. (Much of this, by the way, was driven by the recent mini-furore over CD Projekt, the developer of hit RPGs The Witcher 1 and 2, sending legal letters to alleged pirates.)

Let's get one thing out of the way first. A developer who makes a game owns it. You can buy a copy, sure, but they still own the game and can do with it what they like. They don't owe us anything (legally at least). So, if you go against their wishes by downloading and playing the game without paying them, you're pirating the game.

Anyway, rather than me now go on and on in a lengthy exposition of the arguments against piracy, I thought I'd give them each a mark out of 10.

1. Technological reasons

That there is no safe way to identify a pirate from an innocent victim of pirates because a pirate can spoof his/her IP address.
Rating: 2/10

There's no empirical evidence so far to support how often IP spoofing is done and, without that evidence, claims that anti-piracy action is useless because IP tracing can be spoofed are just as silly as the unsupported claims by the music/film industries that massive piracy and that alone is killing them. In reality, I suspect fairly few pirates actually go to the trouble of disguising themselves. Besides which, just because the method is not perfect, doesn't mean we should throw our hands up in the air and do nothing, does it? Game development is a business like any other: if you're suffering a loss because someone isn't paying for your product, you do something about it or you go bust.

2. 'Evidential' reasons

Just because you can trace piracy to a particular ISP account it doesn't mean that the account owner actually pirated the content – it could have been someone else. Rating: 3/10

Yes, it's possible someone nicked my connection to pirate a game when I wasn't looking. But that's not massively likely in ordinary circumstances. Has it ever happened to you? I bet not. Besides which, it's my responsibility to take reasonable steps to protect my own connection. Of course, it gets more complicated in situations where you are deliberately extending your broadband connection to other people, like a coffee shop or a library, in which circumstances there can be legitimate concerns about receiving a legal letter.

3. Commercial reasons

Piracy is not a lost sale.
Rating: 5/10

Maybe, maybe not. Piracy might result in an eventual purchase of a game, but in the meantime it means a financial loss for the developer. Sadly developers are not gamer banks, willing to effectively loan gamers money until we decide we like them enough to pay them. Besides which, again, where is the empirical evidence to demonstrate that piracy is not a lost sale?

4. The 'little old lady' reason

You just scare people by sending them big legal letters.
Rating: 5/10

It's just silly to send scattergun letters which effectively seek to extort huge damages from people without really explaining why or going through due legal process. Plus, as a lawyer, I consider it unprofessional. But that just means that developers and their lawyers have to approach such letters in a better way: explain in a user-friendly way why the letter has been sent, what the evidence is in support of the claim, and what the recipient can do about it (including what to do if this a case of mistaken identity). In other words, there's nothing wrong with sending such letter per se, as long as they're done right.

5. The 'there's other alternatives' reason

You can build more effective anti-piracy protection into games now.
Rating: 8/10

I've heard many developers say that Steam is a DRM system as much as a digital distribution platform. They're right. It's a brilliant, gamer-friendly way to protect against piracy. Or here's an alternative: free-to-play games are naturally resistant to piracy because there's no upfront charge, although in some ways maybe it's a strategy that just patches the crack rather than repairs it, because it's still possible to cheat free-to-play games through measures like currency hacking.

It might surprise you to read that – despite me being a lawyer – market solutions rather than legal action is my preferred response to piracy. To paraphrase Charlie Sheen, we'll only be winning (and presumably therefore also have Tiger Blood) if we provide a better service than the pirates do. This is now being accomplished increasingly by the games industry – winning!

More generally, that's why this is the best argument against legal action over piracy: if we can reduce piracy through the means of technology and via the market, then that's got to be better than getting lawyers involved. I'd have a harder time arguing with you all if you made more use of this argument, actually.

But still, what about developers like CD Projekt, who maybe want to make a critically-acclaimed game like The Witcher 1 or 2 on PC but don't want to make it free-to-play or use DRM and and other measures? Presumably we'd all agree that we don't want to force all developers to go free-to-play or suchlike just to reduce piracy. But they've found their anticipated sales have been savaged by piracy, and they decide they'll try to recoup some losses and stop future piracy by taking sensible legal action against people who they have tried their best to identify as pirates. If you still think they can't take legal action against deserving pirates then what, dear friends who defend pirates but who love games, do you suggest we do about it?