Copyright infringement off the port bow (why crying wolf should have an activation limit)

The following article is partly cannibalised from a post I wrote a number of years ago on the Infinity – Quest for Earth forums. If you haven’t seen or heard of Infinity, look it up. Why? Because a procedurally generated game with infinite content that maintains commonality by sharing algorithms with other game clients is a damn cool idea. That’s why. But I digress.

Game piracy is a pretty difficult and thorny issue which is rarely explored in much detail without resorting to oversimplification and emotive propaganda. So much so that just about any debate seems to descend to straw manning. In some of the more rational and measured analyses of the issue I’ve read there seem to be a few shared points that keep cropping up which I feel obliged to elaborate and comment on.

Piracy is not the same as theft. While the two are often conflated this constitutes a dramatic and often deliberate oversimplification. Theft could be defined as taking something away from someone so you have possession of it and they do not, but piracy involves replicating an existing copy without paying the copyright holder to do so. You could physically steal a game from a store (theft) but have a legitimate copy in the eyes of copyright holders. Conversely if you replicate the game without a legitimate license you are not physically stealing the game and preventing a legitimate purchaser from owning it. Thus referring to copyright infringement as theft is inaccurate at best and deliberate misinformation at worst. It’s not as if there isn’t a crime being committed here, but calling it something it’s not doesn’t do anyone any favours.

In statements on the issue publishers seem to treat every person who has illegally copied a game as a lost customer that would have otherwise purchased the game. The games industry touts vast theoretical sums of money are that are ‘lost’ through piracy and uses these numbers to justify disproportionately oppressive measures against it. In this lurks a massive falsehood, because I suspect (here I have no proof, but nor does anyone else) a significant majority of those who pirate a game do so because they would not have bought it anyway.

There is vast economic inequality throughout the computer-using world (as with the world at large), thus many people literally cannot AFFORD to buy a game even if they are willing to do so (particularly young gamers). The software publishers ironically fuel this trend by exploitative pricing making games up to twice as expensive in some markets as they would be in others. This blatant profiteering discourages potential customers and certainly doesn’t encourage the legitimate purchase of games. The Australia tax is a fantastic example as compared to the US most products are priced at an exorbitant rate (though some companies are quietly backing away from this). Not only this but often software companies offer vastly cheaper product in places such as India to encourage people to purchase legitimate copies in the face of institutionalised copyright infringement.

Digital Rights Management. This more than any other factor displays the failure of the software publishing world to understand copyright infringement and the reasons behind it. The DRM system acts as a punishment not to the people who illegitimately obtain copies of the software, but to those people who buy and play the game within the framework of the law. Copyright infringers benefit from the programming genius (malpractised though it may arguably be) of those who remove these systems through cracks while those law abiding customers are saddled with arbitrary limits on activation or forced into always-on connections. Ironically in becoming more and more oppressive these DRM regimes encourage greater numbers of otherwise law abiding customers to seek out cracks for games they own legitimately in order to avoid the hurdles and outright malice of DRM systems such as Securom, Tages and others. To put it succinctly, DRM acts as a punishment only to legitimate customers and is never more than a few hours or minutes inconvenience to people who obtain illegitimate copies of a game. Thus it fails twofold and drives more people into the legal black-hole of illegally altering a game they’ve purchased in order to use it without constant annoyance.

In recent years, the emergence and growing presence of services such as Valve’s Steam and EA’s Origin has taken a new tack, supplying the game as a service requiring the online authentication of the backbone program. Considerations about game ‘ownership’ versus ‘perma-rental’ aside, the initial lower prices touted by Steam served to draw many players into purchasing games legitimately. However Steam soon turned from being cheaper to being about the same price, considering that many are still paying for the bandwidth to download, the advantage was lost. Steam and its ilk have also not stopped other punitive and damaging DRM systems from being bundled into games sold over these services (looking at you Ubisoft). Other alternatives such as Blizzard’s ‘always on’ connection required to play Diablo 3 have demonstrated their inadequacy in the face of customer demand. It is frankly unacceptable as a paying customer to purchase a product and then be unable to use it because the vendor has not provisioned sufficient server bandwidth, or that they have changed their hardware too many times. So an acceptable balance is clearly yet to be struck.

Now I feel I have to short-circuit the people who WILL jump down my throat after or even before finishing reading this. As a creative person who one day aspires to make a living off my creativity I believe fervently in supporting people by purchasing their work. I will always buy and support games that I play and enjoy. But I think that people are happier to buy a game knowing that the money they spend will go predominantly to those who produced it, rather than to a nebulous system of middlemen. The more transparent and equitable a pricing system is, the more people will be happy to participate in it. It seems that the system currently in place both exploits the people who make the games and the people who buy them. While this knowledge doesn’t stop me from purchasing a game I know is worth it, I’d feel a great deal happier knowing that my money would go primarily to those who produced it.

Most media outlets seem unwilling to really go out on a limb and critique the way in which the game industry perceives (and demands the public perceive) piracy. I don’t claim to have any answers but the game industry’s constant cries of ‘wolf’ have grated on me for years. I am yet to see a conclusive example of a company with a great product being bankrupted or having its bottom line substantially affected by piracy. What I have seen most is piracy used as an excuse by software companies for alienating their customers, or artificially padding a bottom line on games that would have been marginally successful through poor and unimaginative design. I’d love to see an end to the hysteria and see a proper debate about copyright take place but I’m not holding my breath. As stated in Three Kings, “this is a media war, and you’d better get on board”.

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