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?
Comments
31Make really shit games that demand patches on day one from only authenticated users. Or allow piracy but roll out the online pass payment systems, which is where the industry is headed.
While I don't support videogame piracy, please don't be so naive as to bleat out your drivel about lawyer's ethics and threatening letters to people who have been targeted by the likes of Davenport Lyons and ACS Law. These firms knew they didn't have a leg to stand on so they accused people's IP addresses of piracy rather than the users themselves.
Tells you all you need to know about these ambulance chasers lawyers.
@time on my hands Clearly the kinds of activities those firms were engaged in was inappropriate: they just weren't doing it in the right way. As I said in the post, there's nothing with the principle of sending letter to alleged pirates per se, provided it's done in a more sensible way. Like, for a start, not sending letters until you've got a reasonably good case they actualy pirated something, rather than they MIGHT have pirated something. Explain why the letter is being sent, what the evidence is, what the recipient can do about it, and don't scare them into a response.
What complete and utter drivel. And from a Lawyer who no doubt represents game companies. You continue to treat people in this manner then pirating will continue to be an issue.
There is simple NO evidence to support the fact the game sales are lost through pirating. Yes, there will always be the issue that for some "free" will always be better bet, but to imply that all are basically free loading criminals is outrageous.
I know many that pirate and also spend a lot of money on games. I'm sick of the sense of entitlement that game companies feel they have. If an electronic device you buy is faulty, then you are entitled to an exchange or refund. If however a game is considered faulty, and god knows there are plenty of those, then tough shit. We will keep your money and we as consumers can lump it. This idea that companies spend millions and need to recoup their costs is horse shit. Maybe if they were more budget aware, then developers would not keep being shut down left right and centre.
Shame on you Edge for letting this idiot post his nonsense. Or maybe you allowed it because you knew it would get the contempt it so rightly deserves.
"There is simple NO evidence to support the fact the game sales are lost through pirating." - Yes there is, lots of it. Some (not all but some) pirated copies are a lost sale, that much is obvious.
"but to imply that all are basically free loading criminals is outrageous." - If you pirate software, you are a freeloading criminal, it really IS that simple.
"I'm sick of the sense of entitlement that game companies feel they have." - Yes HOW DARE these greedy people expect to paid for their hard work. All those nights of working until 4am, lost weekends, not seeing your family for weeks on end and now you want to be paid as well, for shame.
There is a lot of misinformation about piracy but one thing is undeniable - If you pirate something, you are stealing it. Trying to dress it up as anything else is total BS.
Typical angry 12 year old response. Pirating games is not alright despite children's sense of entitlement that they *have* to have a game and *have* to have it now. After all Skyrim won't be fun if you can't spend half your time participating on reddit with yet more dumb knee arrow memes.
"I'm sick of the sense of entitlement that game companies feel they have. If an electronic device you buy is faulty, then you are entitled to an exchange or refund. If however a game is considered faulty, and god knows there are plenty of those, then tough shit."
I don't think the latter is true in the UK, the EU or the US. But your 'contract of sale' is with the company you paid, which is usually the retailer not the publisher.
The is a soultion to this - Make more demos available for people to play.
Piracy has come about because people do not see the value in supporting the game by purchasing it.
That said alot of pirates whom download games do actually purchase them if they find the game good. The reason for this is that they can see the value in supporting a game which they find great.
If there are more demos more people will want to support thier developers and purchase the games they make. Games are no longer just about the experience but the community that they create
Totally the opposite for me, I bought LANoire for PS3 but my console broke. So I pirated LANoire for PC. I found it so derangement dull that I got a refund for the licensed PS3 version. If LANoire, had been episodic, or a demo, or a bit of both I may have only spent a quid on it.
Definitely - it's a real shame that demos have been on the wane over the last few years, largely because developers can't afford the expense and development time required to make them. That said, with the rise of cloud-streamed demos via the likes of Gaikai, I think we'll see the return of demos (or at least free tempter content) in the near future. That said, that alone is just one way to reduce piracy - it won't of course extinguish it in the same way that legal action alone won't do much.
If you're smart enough to use a word like empirical you should be a seasoned enough debater to know that the onus is on YOU to prove that piracy is a lost sale. Something you start off by rightly pointing out can't be known, even admitting it may make sales in some cases.
Until you can make that fly, everything else is kind of irrelevant.
No, he's simply pointing out that you can't prove that it isn't a lost sale. He doesn't have to prove anything, because the other side can't either.
However, do we really believe that of the 3 million people who pirated Call of Duty this year, not a single one of them would have bought the game had they not been able to acquire it for free?
"but in the meantime it means a financial loss for the developer".
You can't have it both ways, either you don't know, or you do and have evidence. If we don't know, then the above statement is guesswork.
Sadly Tycalibre, empiricism is rather hard to come by when you can't know all the actual numbers. It's speculation, but various surveys and common sense would add a leaning towards the more likely situation. The more likely situation is going to be that of those who pirate games, *some* will buy *some* of them, others will not. If we can't know whether there are more who do than who don't, then even taking a 50:50 split, those that *do* buy games after pirating are unlikely to buying *every* game they've pirated. Therefore the conclusion must be that piracy does indeed mean the number of games stolen is higher than the potential increase in sales from such "demos".
So it is a problem, and snubbing someone trying to raise support for those losing out, is just plain being an arse.
As is oldskool4572, who seems to be arguing that piracy can be supported because some games are released "faulty". Either that or his argument is missing the point somewhat as this isn't a discussion on the quality of code released and what devs/pubs could do about it.
I know lawyers have garnered a reputation for squeezing money out of people, but come on, give this guy a break. He's a gamer and wants the games industry to continue to succeed, and not lose interesting, important and diverse developers, simply because some people are too greedy to pay for what they play. You can't argue against that. Not unless you're probably some angst-ridden pirate yourself who feels the only response to saying piracy is wrong is to belittle the person who said it.
@mesonw - thanks for your comment, that's exactly what I've been trying to do.
I take your point, it's the wobbly assertion that piracy is definitely lost revenue that spoils an otherwise sound piece.
I've never pirated a game in my life, I have pirated several expensive CAD products, I definitely wouldn't have bought them myself because of the price.
But in general I'm against pirating games.
I do however, have a problem with lazily labelling it "stealing" as a tactic of taking the moral high ground.
Piracy isn't the only part of the equation. There are multiple causes to this quandary, including the lack of demos and, at times, the complete absence of quality control. DRM methods have become absolutely hostile to computers, and only through the application of these 'laws' we defend, has the practice been legal. If DRM makes my computer unbootable, to whom do I send the bill of repair? A wall of litigation protects the real criminal. Contractual agreements that would span reams of paper if printed out await the very simple urge to entertain myself. To what end do these companies claim sobriety? Any person with the intelligence to interact with a digital videogame can see the chaos these people have created.
The argument that one can pay money for a game and only retain the license to play is absurd. The capital has a direct tie to the very foundations of the game and its creators, and therefore all owners of the media who have paid for it own a part of the game. For a healthy economy to exist it requires shared ownership of products. Without us buying the game the investment publishers make is null.
The bottom line is gamers own what they buy. Because they purchase digital information they have certain restrictions that protect the developer (THE DEVELOPER and not the publisher) from unfair use. Enforcing the purchase to equate to a 'license for use' is a dangerous manipulation of language and should have been quashed a long time ago. The confusion lies in the bickering of greedy giants, not gamers.
Being a lawyer, you know quite a bit more than me, but that doesn't shroud the state of the gaming industry in a mystery of litigation. Exposure to gaming over many years makes the truth plain, no matter what language it is tarnished by. I see your reason in the troubling regard of piracy, but it is a small piece in the larger epic of piracy the gaming industry has cultured over the last twenty years. To me it is a double-edged sword: One side is represented by traditional pirates who acquire digital media through illegal means, while the other side use/abuse the law to manipulate their customer base into oblivion. Moreover, they kill off creativity through the use of consolidation and defend long dead IPs with the reason of a frothing madman. As wrong as this piracy of games is, I believe the latter to be far more of a threat to the future of gaming.
I would have to ask, do you lobby against the mega corporations that provide extremely expensive software to their clients, like Oracle for example? You most certainly do not (in their eyes) own the software you've bought, but very much just a license to use it. And should you believe otherwise and be found out, they will come down on you like a ton of lawyer shaped bricks. I'm not sure what makes games exempt from the same sort of model. While I agree a person should be able to use the software on as many machines as they own, be able to uninstall and reinstall to their hearts content, it isn't carte blanche for the usual advantages of ownership. Particularly with respect to the worrisome habit of 'backing up' then selling on... or just the same, selling or giving away said backup copies.
This is no justification for piracy, as you are doubtless aware (you're only making a salient connected point after all), but nor is it dismissible because you deem larger problems to be at large. The protective nature of publishers towards age-old IPs is a shame, I agree, but it isn't due to consumers and their attitudes, it's down to a fear that they're losing out on a potential revenue stream for the future. That's business for you. You therefore can't hide the issue of piracy (that is purely consumer caused) behind the disconnected issue of IP protection. It is therefore doubtful that directing efforts in that direction is a substitute.
(declaration of interest: I work for games publishers.)
On 'lost sales':
1. If the downloaded software didn't have any value at all to the downloader, he wouldn't have downloaded it. So it has some value, albeit difficult to quantify. It's less than the current price of the game but it's certainly more than zero. There is no financial loss, but there is 'value' that is not going to the retailer, publisher or developer.
2. A distributor in a territory is willing to take a game on platform A, but won't take the same game on platform B blaming piracy for the state of the market. He might be mistaken or lying, but it's not an unreasonable claim to make, knowing something about the country ourselves.
But all that seems irrelevant to the essence of the complaint, which is that the copyright holder ought to be free to set his price and others free to pay or walk, not acquire it regardless; that the copyright holder should be free to assert his rights even if we think it is terrible PR; and that the usual excuses reasons for pirating a game instead of buying it are also reasons to not have anything to do with the game but walk away and do something else.
The idea of copyright holders being free to assert their legal rights is all well and good but if they don't provide what people are looking for in 'fair' or 'reasonable' manner then some people will choose to pirate. I'm saying this (not to justify piracy) because I like the idea of the consumer and the content creator treating each other "morally" rather than just what their respective legal rights are.
I say this because I just feel that ethics should be important in this discussion (I currently live in a country were it is perfectly legal for me to download pirated material, I don't for a number of reasons).
@gildea
Yes, immoral people will choose to pirate instead of walking away until there is a better deal.
I also read your article at http://www.gamerlaw.co.uk/2011/12/internet-v-cd-projekt-legal-perspective.html, and you are contradicting yourself in these two articles:
"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" and
"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."
vs
"It is entirely possible that someone has spoofed your IP or someone has downloaded using your insecure internet connection" and
"as IP tracing is far from a reliable source of evidence"
You say "IP tracing is far from a reliable source of evidence", yet this is all the "evidence" all those cease/desist letters are EVER based on.
I don't see how - being aware of that fact - you can actually support this money making sceme.
Regardind your point 4: The cease/desist letters are always sent in a threatening way. In addition, they are also sent with extremely short deadlines - signing and payment is expected within 3-5 days, this is deliberately done to force people into rushed actions and keeping them from informing themselves about their rights or contacting lawyers. Often letters are sent close to the weekend to provide even less time (letter goes out Thursday, payment expected on Monday).
@danst, Jas Purewal made it clear that he supports the principle of being free to assert one's rights, not necessarily the execution in particular cases.
Clearly the solution is to bring back code wheels.
Or this argument that's been rumbling ever since things were first recorded will continue to rumble till such time as games are only released through Steam et al and the consoles have transitioned to digital only.
I don't particularly go in for the meta arguments as they're all rather moot but I know I personally like having a disc I can trade or purchase second hand. I'm going to be mighty pissed off at the pirates when that's the only way to purchase games in the future.
Do you honestly believe that the drive towards digital distrubution has anything to do with pirates? I'm pretty sure things will still be pirated even if the only way to purchase games is digitally. It's all about stealing the opportunity for consumers to actually own and be able to resell their property.
edit: Double post.
Have you noticed the way game shops don't sell PC games anymore and Steam sales have doubled every year for seven years?
Piracy almost destroyed PC development, Steam/DRM helped save it from the brink. PC gamers are more than happy to have a disc just like console ones are but they can't because piracy was to rampant. Developers took the devils coin and got into bed with with the big three because they could offer better protection.
The convenience of Steam et al is wonderful and all but it's completely masking the reason it/they exists.
If console piracy reached the PC levels there simply wouldnt be development, that's the reality. I'm sure some developers are in it for the love, but they're all businesses. Expect PS4 and NextBox to be DRM and Copy Protected to within an inch of their lives.
Whats the general view on downloading a pirate game after paying for the release? (not being a pc gamer much beyond indie games I'm not sure of the perception of this) As I understand it this is done because of DRM stuff or for to get the best bang for a persons hardware. (I mention this as this is another reasonably common piracy argument this article doesn't really touch on)
(please don't take this as an apologists view, I would imagine the number of people doing this is dwarfed by the people simply not wanting to pay)
For full disclosures purposes if I a) was tech savy enough to do this b) had the pc for it and c) gamed on the pc I wouldn't have any personal problem with it.
If you paid for it and you aren't sharing it I personally wouldn't have a problem, although I don't understand why you would download it if you already have it (unless you lost or damaged the disc of course). Certainly it's on the least bad end of the spectrum, with not paying for it and sharing it at the opposite end. I've wasn't aware of those two example reasons before and I don't understand them.
I can only think of one game (but there may be more) where there was a DRM-free version released at the same time as a DRM version, which happens to be CD Projekt's the Witcher 2. The DRM version reportedly had terrible frame rate problems until it was patched but the DRM-free version did not. If you paid for the DRM version and discovered this problem, it seems to be on the least bad end of the spectrum to go find a DRM-free version or crack to download instead of waiting indefinitely for a patch.
I'm not sure how common that is, though. The complaint about piracy is about people who play but don't pay, not people who have paid and later try to resolve a problem (say a no-CD crack), or people who don't want to pay day one prices so they wait until inevitable discounts (and don't play until they have handed over the money). As I see it, all the usual excuses reasons for piracy are also reasons to walk away to find a better deal - and the latter is the moral / ethical course.
Incidentally, your comment didn't read as an apologist's view - likewise I hope you don't read my comment as an attack on your questions and views.
Retailers do not provide refunds for "faulty" games in the UK. If the game has been unopened, then that is a different matter.
@oldskool4572,
The Returns and Refunds policy on GAME's website states that, "Faulty software where the seal has been broken may be returned up to 3 months after the despatch date."
If you said retailers sometimes argue about what constitutes a fault and what their legal obligations are I would agree with you - it isn't limited to games retailers, by the way.
But the fact remains that the customer's contract of sale is with the retailer not the publisher.