PC Game Piracy Examined

[Page 2] Piracy & Copyright

As you may have noticed, this article is quite long. The reason for this is because it tries to do something that other articles on piracy have failed to do: examine this complex and controversial topic in detail and with a wide range of relevant facts and verified information. Other articles take the easy path by slapping together some unsubstantiated opinions and dubious arguments which merely follow whatever the popular sentiment is on this topic, and come to the usual conclusions. Let me be clear: I won't be doing that here. I've invested a great deal of time into actually delving into all the various aspects of this issue, thinking through all the issues and getting a good handle on the situation based on a large amount of publicly available data. Consequently throughout the article you will find numerous references to reputable data sources and first-hand information rather than just hearsay and conjecture.

That's not to say it's just an article filled with data and theory. I've tried very hard to keep things as straightforward as possible, using plain English and plenty of straightforward examples. I've also tried to make this a balanced examination of piracy, however bear in mind that this doesn't mean that all sides of the debate have equally valid arguments. It simply means that I've examined and weighed up all the various arguments and facts, and present the most logical and plausible view in light of these.

You can skip straight to whichever section of the article interests you, but I recommend reading the entire article from start to finish at some point despite its length, as every section contains important information, and the arguments and data spread throughout this article form a complete picture of piracy. Taking small portions of the article out of context in some sort of half-hearted attempt at debasing it is meaningless. If your only interest in reading the article is to quickly skim through it to see if it supports your preconceived notions of piracy, then you're probably better off not bothering with it in the first place.

Note: Because this is a long article, if you find the text size uncomfortable after a while, hold down your CTRL key and use your mouse scrollwheel to adjust the text size to make reading easier (CTRL+0 resets the size back to default).

Full Disclosure

Before going further, I must explain some relevant facts about myself. At 37 years of age, I've been gaming for over 20 years now on a variety of platforms including the Atari 2600, Amiga 500, Nintendo 64, and of course, the PC. I currently game exclusively on the PC and do not own any consoles. I've written over 40 different detailed tweak guides covering a wide range of PC games and various versions of Windows over the past seven years. I am not sponsored by any hardware or software manufacturer of any kind. I am not involved with The Scene, nor do I receive any income from any piracy-related websites. I was not paid or sponsored in any way to write this article. In short, I have little incentive to write a biased article. I feel I'm as qualified as anyone could be to give a balanced view on this topic, free from any commercial interests in either side of the piracy debate.

The Origins of Piracy

The English word 'Pirate' comes from the Latin word pirata, which loosely means "sea robber". Sea pirates have existed for thousands of years, for as long as sea travel itself has existed, just as robbery on land has been around since men began to walk the Earth. While in reality, sea pirates to this day are often brutal, murderous thieves, in popular fiction they've become quite romanticized, particularly during the last century, and are widely seen as sea-borne adventurers, seeking freedom and rebelling against authority. Thus while content owners used the term Piracy to equate copyright infringers with thieves, the infringers themselves like to consider the more romantic, freedom-loving image of Piracy when they use the same term for themselves.

It wasn't until shortly after the invention of the Mechanical Printing Press in 1439 that the term 'pirate' also came to be applied to those who made unauthorized copies of publications: 'Word Pirates' so to speak. The press revolutionized the spread of knowledge in all fields of human endeavor, as well as increasing literacy in the broader community. However it also introduced an entirely new problem for authors: prior to the press, it was difficult for people to duplicate an entire book without permission, and most certainly not on any scale worth worrying about. The press instantly changed all that, and both the printers and the authors of works soon sought protection, both for economic reasons, as well as to ensure that their works remained unaltered and authors were duly credited. The printing press had created a new and growing market of major economic significance, and thus over the next few centuries, printers, authors, pirates and Governments were engaged in a power struggle to determine various laws which controlled precisely where the rights of ownership and reproduction would lie. These laws were not always equitable or just - you can read more details here.

The Legality of Piracy

I'm not a lawyer, so I'm not going to provide a detailed rundown of all the various relevant laws and rights as they apply in every country. What I want to do is briefly cover the key legal aspects relevant to an informed discussion of piracy. Based on common usage around the Internet as well as its commonly accepted legal interpretation, it is accurate to simply say that Piracy equals Copyright Infringement. Modern Copyright is an international legal concept as specified by the Berne Convention first signed in 1886, an agreement to which almost every country in the world is now bound as part of their World Trade Organization membership. Copyright is intended to ensure that those who create original works can maintain exclusive rights over how those works are reproduced and distributed. However this effective monopoly only applies for a fixed period of time after the creator's death, generally from fifty to a hundred years, after which the work can then usually be distributed and used without requiring permission. There are also Fair Use provisions that allow people to use protected copyrighted works at any time without the creator's explicit permission in a limited range of scenarios, such as in reviews, or for use by educational institutions.

There are a lot of misconceptions regarding what is or isn't copyright infringement. The official US Government Copyright FAQ provides a range of answers. These laws will differ in various countries, but in practice much of the information above applies to most other countries because they're also signatories to the Berne Convention. Of particular interest, this FAQ Entry clearly addresses whether it is illegal to download or upload material via Peer to Peer (P2P) networks in the US: "Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution." In other words, contrary to popular belief, the simple act of even downloading copyrighted material via torrents for example without the owner's consent is, strictly speaking, illegal in the US. In practical terms however, the best test of whether something is considered copyright infringement, and more importantly, whether the copyright owner will actually pursue action against the infringer, is whether there is any potential for economic loss due to the infringing activity. We examine this concept in the next section.

The US also has additional laws related to the copyright on digital content, the most well-known of which is the Digital Millennium Copyright Act (DMCA) of 1998. The aim of the DMCA is to make it illegal for people to create and distribute the means by which protection systems on copyrighted digital material can be circumvented - in other words outlawing things like cracks, hacks or physical modifications designed to circumvent Digital Rights Management (DRM) protection for example. The legislation also provides specific protection against copyright infringement on the Internet, a technological development which was obviously not foreseen by the original copyright protection legislation. Just as the printing press brought about a whole new set of problems with regards to unauthorized duplication, the Internet has similarly required specific measures designed to address the new possibilities for piracy it opens up. The important difference between digital piracy and the types of copyright infringement that came before it - such as taping songs off the radio - is that digital piracy allows perfect reproduction with no quality loss. Thus digital copies combined with a mass distribution channel like the Internet equate to far greater potential to cause economic loss to the software and entertainment industries than ever before.

The Rationale for Copyright

Why is copyright necessary? Why can't all information just be distributed without restriction? Copyright falls under the banner of a range of laws controversially referred to as Intellectual Property laws. The aim is to provide intellectual property a similar type of protection as that afforded to physical property. For example, whether you spend your life building houses or writing books, you should be equally entitled to reap the rewards of your labors and have the same sorts of legal protections against people seeking to unfairly benefit from your work without contributing appropriately towards it. It's argued that without protection against such theft, both the builders of houses and the authors of books would have much less incentive to invest their time and money into their respective outputs, particularly because they would stand little chance of earning appropriate income from their work. Ultimately, this would result in far less of both physical and intellectual property being produced. A great deal of innovation comes from extremely large and lengthy investments of time and money, and wouldn't otherwise be viable if a reasonable monetary return couldn't be guaranteed.

A key misunderstanding about copyright which needs to be clarified is that intellectual property is not about restricting the spread of knowledge or thought, or blindly equating these concepts with physical property, despite sensationalist and misleading claims to the contrary. You cannot copyright an idea. A copyright simply protects the particular way in which a work's contents and ideas are expressed. For example the article you're reading right now is automatically protected by copyright and owned by me; that means no-one can just assume the right to copy the article and reproduce it without my permission. However copyright doesn't give me ownership rights over the concepts in this article, nor in any other articles written about piracy, or discussions of piracy, or any other broad variation of this information. In other words only my actual words as arranged on this page are copyright to me. I don't own the general ideas or knowledge contained in this article, so people can discuss and spread these ideas the world over without any limitations, as long as they don't duplicate my exact words, or a close replica of them. Additionally, the fair use provisions of copyright ensure that should someone want to quote a few specific paragraphs of the article (i.e. a small portion which doesn't make reading of the original article redundant), such as for the purpose of reviewing or critiquing the work, they can do so without seeking my permission.

Copyright effectively gives a limited monopoly to the creator for his or her specific works, allowing them exclusive rights for a period of time to use their creation as they see fit, whether it's to generate a profit, to ensure distribution of their work in an unaltered form, or to attach certain terms and conditions to its distribution and usage. This raises another important point which is often confounded by myth and misleading propaganda: copyright does not actually prevent a creator from giving away their work with no restrictions if they so wish. That is, copyright doesn't force a creator to do anything they don't want. If a creator so desires, they can put up their entire creation, including any and all source material, for immediate free and unlimited distribution via any and all means possible. Copyright places the rights over the work, and hence the choice as to what to do with it, squarely in the hands of the creator.

For example the popular GNU General Public License (GPL), under which Linux is distributed for free, actually relies on copyright to enforce it. Without copyright laws the GPL couldn't operate, because it's through the rights that are enforceable under copyright law that the Linux movement can place terms and conditions on their licensing arrangement in the first place. Without copyright, the default and only possible distribution method for anything everywhere would be via the public domain, meaning any work created would instantly be available for everyone else to modify and distribute as they see fit, to profit from or abuse, to distort or even to systematically delete, whether the original creators like it or not.

Only if the creator willingly signs away their rights in some way does the copyright over a piece of work transfer to another party. The best way to illustrate this is with music: if an independent musician writes a song, that song is automatically copyright to him or her, and if they decide to sell copies of that song directly to the public, every single dollar they earn is legally theirs. However many musicians will deliberately choose to sign up with a large record label, because these companies have the means of heavily promoting and distributing the music to a wider audience, thus potentially earning vast sums of money. The rights for the song are then usually signed over to the record label as part of this deal, and they then split the profits with the creator, because there's been cost and effort on the label's part in generating those profits. Whether the profit sharing is always fair or not is up for debate, the issue however is that it was the musician who made the decision to sign up with the record label in the first place. They weren't forced to do it, they did it in the hopes of earning a large income - i.e.: they signed away their rights for money. When people do that, they may get a good deal or a bad deal, just as when someone sells or buys an item of physical property. It's up to each individual to exercise their relevant rights responsibly; neither intellectual nor physical property laws can protect people against their own greed or stupidity.

Physical Theft vs. Copyright Infringement

One significant difference between intellectual and physical property rights is that physical property is composed of finite items, and can only exist in a single place at any time. Intellectual property on the other hand can be effectively infinite in quantity, and can exist in as many places at the same time as required. In practical terms, this means that if you own a car and it's stolen for example, you can no longer use it. However if you own a game and someone copies it from you, this doesn't affect your ability to use that game. This is actually a fundamental issue because it underlies much of the debate surrounding software piracy. In essence the argument is that piracy is a 'victimless crime' because there's no actual loss of property, no loss of the materials used to produce a good or service, and no effect on other consumers of that product. We examine these types of claims in more detail in the Economics of Piracy section, but for now it does bear noting that strictly speaking, it is correct to say that piracy is not theft. As noted earlier, piracy is copyright infringement, and this is distinct from theft of physical property.

Piracy Methods

In the interests of ensuring everyone understands exactly what I'm talking about when referring to various piracy methods throughout this article, here's a quick rundown on the common methods of software piracy used today:

Click to enlarge

Torrents: The BitTorrent protocol was developed in 2001, and is designed around a decentralized Peer to Peer (P2P) network. While the torrent protocol was not solely designed for the purposes of piracy, the attraction of it for pirates is that because it's decentralized, it can't be shut down - no single site or host holds the actual pirated material, at any one time it is on the PCs of millions of different users. Torrent search engine sites are then used to find pirated material, but they only provide links to the material and do not store the material itself, so these sites are legal in some countries. Torrent download speeds can be slow at times, and a portion of the data is also uploaded by each person at the same time as they are downloading, to ensure the viability of the network. Torrents are the most popular form of piracy because all a user needs is free torrent client software (pictured above) and a torrent search engine - both are easy to find, there's absolutely no cost and little technical expertise required to get started. Even PC users unaware of torrents soon become aware of them because even a simple Google search for a game, movie or song download can net you a torrent download link and relevant instructions within minutes.

Usenet: Another relatively decentralized network, originally launched in the 1980s to allow people to post messages and share conversations prior to the rise of modern-day web forums, Usenet is now a growing source of piracy. Pirated material is uploaded to .binaries newsgroups which contain data files not text messages and can be retrieved using specialized newsreader clients, some of which are only designed to download files, not view discussions. Usenet is extremely fast, however full Usenet access usually requires a monthly subscription fee, and setting up and using a custom newsreader client to download pirated material can also be slightly more tricky for the technically challenged, so it's not as common as torrents.

File Sharing Services: Legitimate general file sharing services such as Rapidshare are increasingly being used to host a variety of illegal material. The files are stored on the servers owned by these services, and standard HTTP web links to the material can then be shared, allowing anyone to download the material, or search for it on Google, so virtually no technical knowledge is required. However free access to these file sharing services is usually limited in some way, such as restricting the speed or amount which can be downloaded within a certain period. Paid access is required for unrestricted use, and this may discourage some people, especially when downloading larger pirated files such as copies of games which can be several Gigabytes in size.

FTP: File Transfer Protocol (FTP) is a long-standing protocol specifically designed for serving files over the Internet. FTP servers are completely centralized and can easily be shut down if discovered. For this reason, while some members of The Scene will maintain FTP servers for distributing pirated material amongst themselves, access to these servers is deliberately limited to a select group, hence this is not a common piracy method for the general public.

IRC: The Internet Relay Chat (IRC) method was developed in the late 1980s as a means of real-time communication between groups of individuals prior to the popularity of desktop instant messaging clients. Files sharing is a minor function of IRC which has quietly grown over the years, and is now a viable form of piracy in itself. IRC requires client software which is usually free, and most IRC channels can be accessed at no cost. However downloading files via IRC can be technically tricky and even for those aware of how to do it, it may involve waiting in long queues and/or facing other restrictions deliberately imposed by channel owners to prevent excessive leeching by casual users.

Physical Piracy: The oldest form of software piracy, pre-dating the Internet and around for as long as software has been released on portable media, physical piracy essentially involves the selling or swapping of unauthorized physically copied media, such as movie, music or game floppies, CDs or DVDs. Often it is done by friends sharing copies, however in some countries there are lucrative businesses which revolve around mass duplication of physically pirated media, and the subsequent distribution and sale of it at very low prices. In fact some illegally duplicated software is so convincingly real that it's difficult for a buyer to distinguish it from the legitimate version.

The next section looks at The Economics of Piracy, as this is a critical part of why piracy is considered undesirable by copyright owners, and why it is illegal.