The Grey Areas of Piracy

[Max Wilco]

In the Facebook Comments for the article 'Lawyer Destroys Arguments for Game Piracy [http://www.escapistmagazine.com/news/view/115015-Lawyer-Destroys-Arguments-for-Game-Piracy]', someone posted this:

Piracy is never, ever, EVER a valid option unless one of the following applies:

1. The game can not be obtained legally in any way (such as games that have been out of print for years and are not available for download purchase).

2. The game was never released in your region (like if you're living in the U.S. and the game is Japan-exclusive).

3. You already own the game (but are unable to play it for some reason, like if the disc is broken or the DRM has locked it out from running on your system).

If none of those are true, then you have no right whatsoever to pirate a game, IMHO.

Ignoring the third point (due to it being a little skeptical) are these valid reasons for downloading games or other media?

In regards to the first point, there are a lot of older or out-of-print games that simply aren't available for purchase through direct channels. For example, let's say that I wanted to buy a copy of Grim Fandango. The game isn't being sold in stores anymore, and aren't any online services (Steam, GOG, etc.) to purchase it from either. At this point, the only way to buy the game is to purchase a second-hand copy. However, a second-hand copy of Grim Fandango can range around thirty- to fifty-dollars used.

(Also keep in mind that there are other games and products that cost even more on the second-hand market, due to the fact that they are rare and out-of-print, and that sometimes, you can even fail to find an item on the second-hand market.)

This is my thinking: When you pirate a new release, or something that you can easily buy from an official retailer or service, then you're taking money away from the people who worked to create that product. They spent money on people and resources to build it, and they sell it to get that money back, and hopefully make a profit to help their company or business to continue on.

But when you download a product that is no longer supported or officially sold by anyone, are the creators and sellers adversely affected? If not, can it still technically be considered piracy?

Now keep in mind that this is just my thinking. I know that there are other factors at play in the matter (such as game under ESA protection, licensing issues and whatnot), and that I am overlooking them. At the moment, though, I just wanted to throw this out ideas out for discussion, and see what other people thought about it.

In addition, I want to make it clear that I'm not trying to advocate piracy. Again, I just want to see what the general consensus was about this.

Also, I apologize if this was being discussed elsewhere, or if this was the wrong thread to post this in.

 

[Fieldy409_v1legacy]

Um. Im pretty sure forum rules are that if you admit to piracy you get a warning.

Ebay pretty much makes it so you can get any game these days though. But I suppose piracy isnt hurting a developer if they no longer sell the product but technically your hurting the second hand market.

 

[Max Wilco]

Um. Im pretty sure forum rules are that if you admit to piracy you get a warning.

Ebay pretty much makes it so you can get any game these days though. But I suppose piracy isnt hurting a developer if they no longer sell the product but technically your hurting the second hand market.

Right, I know that. Maybe I wasn't clear in my post: I haven't pirated anything, and I'm not trying to declare that piracy is justifiable. It's just that I saw these points that someone had listed, and I wanted to see what other people's thoughts were on the subject.

In regards to eBay, it's true that you can find older games and such through them, but again, the problem is that some games can have ridiculously high prices. Although, I guess that's just the way it is, and there's no point in complaining. Also, you make a good point that by pirating games, you can also hurt the second-hand market.

 

[Ordinaryundone]

If piracy was ever "ok", it would be under those circumstances. Well, the first two at least. And for the second one you can always import, so I'm not sure it's a valid option either.

If you can only find the game second-hand (as in no more new copies in print or if the company is out of business), or if the game has officially become shareware/abandonware, then yeah, go for it. No harm no foul. But if the game can be obtained through legal means that would benefit the companies and people that made it, then I consider it a moral obligation to do so.

 

[Kotaro]

As the one who first made that comment above, I'm going to elaborate a bit here. I have only ever pirated three games in my life: "The Secret of Monkey Island," "Xenoblade," and "WarCraft III." Each of them was for a different one of the reasons I gave.

I downloaded "Monkey Island" because I really wanted to play it, I never did the first time around, and there was nowhere that I could buy it from LucasArts. A short while after I did, though, they released the "Special Edition" remake, and I immediately bought that.

I cracked my Wii for "Xenoblade" specifically. I think we all know why: the lack of a US release. Though now that it's going to get a US release, I intend to buy that ASAP.

As for "WarCraft III," I bought it back when it was a new game. But years later, when I found my old copy again, I couldn't find my CD key. So in order to play the game again, I needed to crack it.

 

[Daverson]

I'd say the third is option is the least sketchy, tbh. Sure, it might be against the EULA, but a lot of stuff in these have been challenged in court (for example, the "don't challenge us in court" section of Sony's recent EULAs), it's a bit dodgy for a company to say "you aren't buying the data on the disc, rather a licence to the game, but you can't use this licence outside the disc you've got".

Admittedly, you can argue that you agreed to this in the EULA, but in most cases you can't read the EULA until you've physically removed the disc from it's packaging (meaning you'll have trouble getting a full refund most places).

As for abandonware, it's a bit iffy too, I've seen things listed on abandonware websites that have since been re-released on Steam and GOG. Unless it's been released by the original creator, I'd say it's a no-go. (For example, Rockstar made the original GTA freely available on their website a few years back)

 

[Mr. Omega]

Regarding the first argument, I agree. However, if there is a legit way to get a game that doesn't involve getting outdated hardware, you have no excuse.

The PS3 store sells many old PS1 games.
the Wii has tons of NES, SNES, Genesis, Turbo Grafx 16, Neo Geo, Commodore 64, MSX, Mega Drive, Arcade and N64 games.
There are plenty of HD Collections or just remakes for portable systems coming out.

The "eumlation" excuse, while the most legit (after all, there's only so many of the old games available, and you might want a particular game that hasn't been added to those things yet), is also the most abused, because nobody is willing to actually get old games from the sources that are available and head right for the emulators.

Also, for the "piracy is/is not theft"/"it is/is not a lost sale" argument: Do you really think that EVERY SINGLE PERSON who downloads it is just going "hmmm, well they didn't give a demo, and I'll only play for a couple minutes and then maybe buy the actual game..." or "well, if it runs on my PC, I'll go buy the real thing..."

Neither side is willing to confess to any ambiguity. It's either "every gamer is a potential pirate and should count themselves lucky we aren't even MORE restrictive" or "Every single pirate is a noble, courageous defender of consumer rights, sticking it to the man!"

 

[Robert Ewing]

There are no gray areas in Piracy per se.

The masses of gray areas are in how the piracy is done. Jurisdiction. The way software works etc.

Torrents for example, they require multiple connections from multiple IP's. So essentially, you aren't downloading the pirates software, you are downloading small pieces of the software. In legal terms, that ISN'T the software.

Jurisdiction, say for example the torrent is set up in Sweden, and seeded by millions of Europeans. The US can't do jack shit about it. And to make it more complicated, if a US citizen was to receive seeds from thousands of other US citizens, the US STILL can't do anything about it, since they can only arrest somebody who leaked the source, which is impossible to find, and impossible to find on account of how torrents work etc.

The way software works, is patented lines of code. For example if you take a game, and change one line of code, in the eyes of the law, it's technically not the software the company that made it patented. Change one value in a line of code and it's a completely different product.

There are plenty of gray areas, I only mentioned 3 of them, I'm sure there are more.

 

[Wargamer]

Of course there are grey areas to Piracy. There are grey areas to virtually every aspect of life! Name an action, any action, and I guarantee I can find a grey area.

Take theft. Theft is wrong, right? What if the choice is theft or starvation? You're honestly saying you would rather starve than steal? Yeah, we know you'd turn to theft at the drop of a hat. Hell, you'd probably turn to theft long before hunger set in; you'd become a criminal the moment the income sources dried up.

How about murder? It's never right to kill another person, right? Hmm... the armed forces kill people. Police are allowed to use lethal force in some situations. Some countries have the Death Penalty for certain crimes... gee, our own legal system has numerous loopholes to legalise murder, so could it be that murder is not always wrong? Why, I do believe that's the case!

Piracy, thankfully, is much simpler. Whenever you are about to Pirate something, ask yourself a simple question: are you hurting anyone?
By "hurting" I don't mean going out and breaking someone's legs here. "Hurt" means your actions in some way lessen, directly or indirectly, another person's quality of life.
Som simple terms: If you were going to buy a game, but Pirated it instead, you've hurt the game developers. That makes it wrong, so don't do it.
But sit down and be honest with yourself doing this, because the honesty goes both ways. If you can hand on heart say that you tried to do the right thing but can't, such as the examples of it not being released in this country, or on a long dead console, then go ahead and Pirate. You're not taking money off the developers, you're not causing lost sales, and you're not doing anything wrong. Illegal, perhaps, but not wrong.

 

[Jazoni89]

The "eumlation" excuse, while the most legit (after all, there's only so many of the old games available, and you might want a particular game that hasn't been added to those things yet), is also the most abused, because nobody is willing to actually get old games from the sources that are available and head right for the emulators.

Emulation is also the only way to keep arcade titles preserved, as some do bit rot over time, and the Arcade cabinets that haven't, are extremely expensive indeed.

Emulation is also great for sharing unreleased games, or beta prototype builds of classic games such as Sonic 2. It's always an interesting insight of what could of been, and emulation makes it possible.

Emulation is also good for lets players, and without the use of emulation, I am sure that most (if not all) of Youtube's biggest lets players would even be on there.

Emulation also is good for unreleased games in certain regions. Being from the Ol blighty, Earthbound has never been released in this country ever, not even as a download. Though with the use of emulation, I have had a rare opportunity to play it, and it is fantastic. Surely without emulation, I wouldn't of been able to experience such a classic.

So yeah, Emulation does have it uses, and even if you agree that it is morally wrong, you can't deny it does us gamers a huge favour.

Also, walk down to you're local cop shop, and prance around saying that you downloaded an obscure Mega Drive game from twenty years ago, I'm sure their reaction would be "Go away you crazy fool!". Unlike piracy in Music, and Films, Most People don't care about Emulation, or hell know what it is, unless you are a gaming nerd with a taste for retro pixels that is.

 

[Jammy2003]

There are no gray areas in Piracy per se.

The masses of gray areas are in how the piracy is done. Jurisdiction. The way software works etc.

Torrents for example, they require multiple connections from multiple IP's. So essentially, you aren't downloading the pirates software, you are downloading small pieces of the software. In legal terms, that ISN'T the software.

Jurisdiction, say for example the torrent is set up in Sweden, and seeded by millions of Europeans. The US can't do jack shit about it. And to make it more complicated, if a US citizen was to receive seeds from thousands of other US citizens, the US STILL can't do anything about it, since they can only arrest somebody who leaked the source, which is impossible to find, and impossible to find on account of how torrents work etc.

The way software works, is patented lines of code. For example if you take a game, and change one line of code, in the eyes of the law, it's technically not the software the company that made it patented. Change one value in a line of code and it's a completely different product.

There are plenty of gray areas, I only mentioned 3 of them, I'm sure there are more.

Curious... so seeing as how lots of pirated games strip the DRM, it won't be the same code and is therefore not the patented software? Seems like a bit of a massive loophole there, meaning that actually the best way to combat piracy on terms of legality would be to not have any DRM for pirates to strip, so the code remains unchanged and therefore legally protected?

More OT: Yeah I agree with what the majority of people seem to think, if its not legally purchasable then it isn't really causing any harm. I used to pirate, but then I actually stopped to think about it and realized I wanted to support the developers, so I stopped. And have sadly now passed that point in life where my cash/time ratio is such I can't play everything I could potentially afford due to lack of time.

 

[Robert Ewing]

There are no gray areas in Piracy per se.

The masses of gray areas are in how the piracy is done. Jurisdiction. The way software works etc.

Torrents for example, they require multiple connections from multiple IP's. So essentially, you aren't downloading the pirates software, you are downloading small pieces of the software. In legal terms, that ISN'T the software.

Jurisdiction, say for example the torrent is set up in Sweden, and seeded by millions of Europeans. The US can't do jack shit about it. And to make it more complicated, if a US citizen was to receive seeds from thousands of other US citizens, the US STILL can't do anything about it, since they can only arrest somebody who leaked the source, which is impossible to find, and impossible to find on account of how torrents work etc.

The way software works, is patented lines of code. For example if you take a game, and change one line of code, in the eyes of the law, it's technically not the software the company that made it patented. Change one value in a line of code and it's a completely different product.

There are plenty of gray areas, I only mentioned 3 of them, I'm sure there are more.

Curious... so seeing as how lots of pirated games strip the DRM, it won't be the same code and is therefore not the patented software? Seems like a bit of a massive loophole there, meaning that actually the best way to combat piracy on terms of legality would be to not have any DRM for pirates to strip, so the code remains unchanged and therefore legally protected?

More OT: Yeah I agree with what the majority of people seem to think, if its not legally purchasable then it isn't really causing any harm. I used to pirate, but then I actually stopped to think about it and realized I wanted to support the developers, so I stopped. And have sadly now passed that point in life where my cash/time ratio is such I can't play everything I could potentially afford due to lack of time.

The DRM is different software, But it's clearly stated in the EULA that removing it from the patented software is an offence. But you can alter the code of the DRM, and THEN remove it, the terms and conditions update to fill the loopholes they've created in the last version basically, you can't stop it. Same with a lot of things in a game. Usually the entire game engine is counted as different software as well, it really depends on how the developers made the game really.

 

[Alterego-X]

But wouldn't even "I don't have the money to buy it" be a part of "unable to legally obtain"?

Like, if you have $120 a month that remains after everything else is paid, to be spent on gaming. Then, buying two games, and pirating another five, waiting until next month, buying two more games, and pirating another five, are literally examples of games that you would otherwise be unable to buy.

 

[Something Amyss]

But when you download a product that is no longer supported or officially sold by anyone, are the creators and sellers adversely affected? If not, can it still technically be considered piracy?

Part of the whole "copyright" thing is the right to control your distribution channels. That means that you have every right to, say, not release your game in Europe, and also to expect it not to be downloaded there as well. For that matter, it is within their power to stop selling and expect the same.

Downloading something illegally because it's not made available there, or is no longer available is still violating someone's copyright. Therefore, it's still a piracy violation and it's still a legit ethical problem, because you're saying "I want it!" is more ethical than "I don't want to sell it to you."

Entitlement is one of my least favourite words to use on this site, because it's overused to the extreme, but that reeks of entitlement. You are NOT entitled to someone else's works if they do not wish to make it available to you.

 

[The_root_of_all_evil]

Piracy isn't theft. It is intellectual trespass though.

Depends if you consider a distinction between information and user created content to exist.

The Law certainly does.

 

[Mr. Omega]

The "eumlation" excuse, while the most legit (after all, there's only so many of the old games available, and you might want a particular game that hasn't been added to those things yet), is also the most abused, because nobody is willing to actually get old games from the sources that are available and head right for the emulators.

So yeah, Emulation does have it uses, and even if you agree that it is morally wrong, you can't deny it does us gamers a huge favour.

I never said it was morally wrong. Or right for that matter. I do agree with a lot of the reasons you posted. Hell, I put it myself, I endorse the use of emulators if the only other option is getting outdated or impossible to get hardware.

The point I was trying to make is that nobody tries to find any other legit ways of getting the games. There are plenty of download services with old games. Yes, it doesn't have all of them (and in this case, emulators would be the only option), but many people basically would go "Hmmm, I want to play Final Fantasy 4. Yeah, there is a DS version, a PSP version and the orginal SNES version is available for download on the Wii... but you know what? Fuck it, emulator time!" or "Hmmm, I feel like playing the original Mario Bros. game. Yes, there are at least 3 different ways I could probably purchase it on a modern console, but screw that! I'll get it on a PC emulator!" or "Yeah, I know that there's now a Jak HD collection, but I think I'll get a pirated copy instead."

It's not like Earthbound is ever going to be available for download on the Virtual Console, or we'll likely be seeing Earthbound: The 3DS Remake any time soon. In that case, there's a legitimate reason for the use of an emulator.

But when there are a bunch of SNES games you want to download that are available on the Virtual Console, and your excuse is "Well I don't want to get a Wii", that's like saying "I want to get Uncharted 3, but I don't want to get a PS3, so that makes it ok for me to pirate it."

Once again, this is a case of not accepting ambiguity. Yes, it does let us play games that were all but inaccessible before. And that is good. But these are also used for people to just go and get a game for free despite there being multiple ways to get these old games without resorting to piracy. And that is bad. These two facts can coexist.

 

[Jazoni89]

The "eumlation" excuse, while the most legit (after all, there's only so many of the old games available, and you might want a particular game that hasn't been added to those things yet), is also the most abused, because nobody is willing to actually get old games from the sources that are available and head right for the emulators.

So yeah, Emulation does have it uses, and even if you agree that it is morally wrong, you can't deny it does us gamers a huge favour.

I never said it was morally wrong. Or right for that matter. I do agree with a lot of the reasons you posted. Hell, I put it myself, I endorse the use of emulators if the only other option is getting outdated or impossible to get hardware.

The point I was trying to make is that nobody tries to find any other legit ways of getting the games. There are plenty of download services with old games. Yes, it doesn't have all of them (and in this case, emulators would be the only option), but many people basically would go "Hmmm, I want to play Final Fantasy 4. Yeah, there is a DS version, a PSP version and the orginal SNES version is available for download on the Wii... but you know what? Fuck it, emulator time!" or "Hmmm, I feel like playing the original Mario Bros. game. Yes, there are at least 3 different ways I could probably purchase it on a modern console, but screw that! I'll get it on a PC emulator!" or "Yeah, I know that there's now a Jak HD collection, but I think I'll get a pirated copy instead."

It's not like Earthbound is ever going to be available for download on the Virtual Console, or we'll likely be seeing Earthbound: The 3DS Remake any time soon. In that case, there's a legitimate reason for the use of an emulator.

But when there are a bunch of SNES games you want to download that are available on the Virtual Console, and your excuse is "Well I don't want to get a Wii", that's like saying "I want to get Uncharted 3, but I don't want to get a PS3, so that makes it ok for me to pirate it."

Once again, this is a case of not accepting ambiguity. Yes, it does let us play games that were all but inaccessible before. And that is good. But these are also used for people to just go and get a game for free despite there being multiple ways to get these old games without resorting to piracy. And that is bad. These two facts can coexist.

I was mostly trying to back up you're argument more than anything, if that makes any sense.

If I had a choice between buying the game, and Emulation, I would choose buying the game everytime.

Regarding the Earthbound issue, If Nintendo wasn't so up in their own arsehole, then we might get it, but five years down the line after the Wii's release, It's starting to become doubtful. I would even buy another Wii for that game...and a few others of course.

 

[Max Wilco]

But when you download a product that is no longer supported or officially sold by anyone, are the creators and sellers adversely affected? If not, can it still technically be considered piracy?

Part of the whole "copyright" thing is the right to control your distribution channels. That means that you have every right to, say, not release your game in Europe, and also to expect it not to be downloaded there as well. For that matter, it is within their power to stop selling and expect the same.

Downloading something illegally because it's not made available there, or is no longer available is still violating someone's copyright. Therefore, it's still a piracy violation and it's still a legit ethical problem, because you're saying "I want it!" is more ethical than "I don't want to sell it to you."

Entitlement is one of my least favourite words to use on this site, because it's overused to the extreme, but that reeks of entitlement. You are NOT entitled to someone else's works if they do not wish to make it available to you.

I agree with you that it's within a company's or creator's legal right to refuse the sale of a product in a certain area, or to re-release a product.

But I don't always think that it's the smartest thing to do.

Now I'm sure that someone will say that I am wrong in this reasoning, but from a business standpoint, if your company has the ability to sell a product, and people want to buy that product from you, then, well, you sell it to them!


To put it another way:
http://d37nnnqwv9amwr.cloudfront.net/photos/images/newsfeed/000/181/813/1726009-shut_up_and_take_my_money_super.jpg?1317708806

But I know that someone's going to say, "Just because there is a demand for a product, it doesn't mean that it's great enough to turn a profit." I would argue that that it costs less to re-release an already-finished product than to create a brand-new one, but I'm not an expert, and there may be other factors that I'm not taking into account.

The other argument would be, "They won't sell a product that doesn't work properly on newer systems." Granted, this argument mostly applies to PC games, but I still have issues with it. If it doesn't work properly, then get somebody to fix that. If you don't have the source code, get in touch with the original developers to see if they still have it. If you don't have the available manpower to work on fixing the game, release the source code to the public, and let someone who has the skill and passion to fix the game do so. If all of that fails, then release the game as freeware. Bethesda released the original two Elder Scrolls games as freeware, and stated that they were 'releasing the games "as-is"', with links to instructions on how to get the game running in DOSBox. [http://www.bethblog.com/2009/07/09/daggerfall-now-available-for-free/]

I know that there are many more venues that allow you to buy older games then there used to be. As someone who collects old PC and PSX I'm grateful for sites like Good Old Games, and the PSOne Classics section on PSN. My issue is that there is still a large library of old and obscure games that haven't seen the light of day in a long time, for one reason or another. It's not just, 'I want to play that game you made.' It's also, 'I don't want to see that game lost to the annals of time'.

Sorry if this is veering off-topic, or if I've offended anyone.