Torrenting games is theft. Up to one fifth
of games played in the US and Canada are pirated. And piracy is going to ruin
the industry.... Or, well, yea, maybe that's all bogus.
Video gaming blogs have recently been abuzz with discussions about a paper given by Drachen, Bauer, and Veitch at the 15th International Academic MindTrek
Conference in 2011 titled Distribution of Digital Games via
BitTorrent. The paper presents the findings of a three month study of
BitTorrent traffic, and concludes that the amount of digital piracy is potentially much
lower than the estimates provided by the ESA and other sources. I’m not going
to discuss the specifics of the paper (if you are interested, a full copy of
the research paper can be found here), but it has got me thinking about the issue of piracy. The following are my musings...
(This should go without saying, but everything here is from my own point of view living in New Zealand. Piracy is different in different countries. This is a westerners perspective).
WARNING: RAMBLE AHEAD
Response from the blogging community
Something that I perhaps found a little
surprising about the gaming communities reaction to the above research is the
completely lackluster response. For starters it took the professional gaming
blogs a full 2 years to realise that this research even existed. Then once the
first blogger posted about it they all did. But the blogs have all said the
same bland stuff - usually just outlining the research and, well, not a whole lot else.
You would think that this sort of study would have stimulated a
whole lot of discussion. I mean what we have here is the very first instance of
actual scientific research into the rate of video game piracy, using an empirical data set acquired through an
open and peer reviewable scientific method, and they fell on the side of
gamers! What could these findings mean for arguments against intrusive DRM? The
future of always online content? Are game prices too high? Can that be helped? What are the limitations of these sorts of
studies? Why do people pirate games, and can we change it? Should we change it? There is
plenty of opportunity here for the professional bloggers to use this research
to really tease out the pros and cons of the piracy debate - really open up the heart of the issue for discussion.
What does this lack of interest say about the gaming community and our relationship with developers and publishers? Gamers, both general users and professional bloggers, erupted to rumours that the Xbox One might,
might, not let you play pre-owned games with furious vigour. Something that
Microsoft has said was blown out of proportion by said bloggers, and which retailers have also scrambled to
debunk. But video game piracy, something that actually does do damage to the industry, and is a major concern right now, goes by with hardly a discussion to be had. Are we as a community actually that shallow? Are we actually more concerned with being able to lend games to friends than the potential for piracy to wipe out entire development houses?
But then what do you expect from
Kotaku or IGN anyway?
The amount of games piracy actually occurring
If anything the Drachen
et al. study
has finally provided numbers for something that I feel is fairly obvious. If we
take the affects of piracy as presented by the various copyright agencies at
face value then it looks like the industry is right on the knife edge of
collapse. ACTA, estimated piracy rates provided by the ESA and ELSPA, the PIPA
and SOPA bills, and closer home the New Zealand Copyright (Infringing File
Sharing) Amendment Act 2011 - where a
politician compared internet piracy to Skynet. Seriously. (The list goes on). All these point to a doom and gloom
future for the industry whereby internet pirates will destroy any chance of
economic success.
But here's the thing, even without the
numbers provided by Drachen et al. (and in my completely uninformed opinion)
I think it's fairly safe to assert that video game piracy rates have been in
steady decline since the 1980s, and piracy is currently the most controlled
that it has even been. Yes, individual occurrences of piracy are much higher
than they were in the 80s, but this is due to there being a much larger number
of gamers. I'm sure that if piracy data had been collected since the 80s it
would show that the overall percentage of gamers which engage in piracy has
dropped significantly in recent years. It just doesn't make sense that this
wouldn't be the case.
Let me explain.
Video game piracy in the 80s and early 90s,
particularly on home computers, was massive. Back when games were distributed
on tapes and floppy disks copying was as easy as directly cloning the parent
media to a blank tape/disk. And this was done at an absolutely gigantic scale.
You could buy bootleg games in stores, complete with self printed text labels.
Games were copied between friends without restriction, initially through
copying of tapes, but after the advent of affordable IBM compatible PCs games
could be directly installed to as many computers as you liked without
restriction. Around 1994 my parents bought me a bootleg copy of X-Wing from a
guy who was openly selling them through a local news paper - complete with
labels written in red felt tip pen.
But piracy was not simply limited to end
users copying installation media - developers would commonly rip off games from
other development studios and sell them in stores as their own. I'm not talking
about copying in the sense of genre building (e.g. 'doom clones'), but actual
unlicensed ports of successful games to other systems. These would receive
minor modifications to the colour pallets and graphics, enough to make them
compatible with the target systems for which they were going to be released,
but would otherwise be direct copies of the parent games including the artistic
direction, level design, and gameplay mechanics. After a quickie name change
these games would then be packaged and sold in stores as an original work. This
was happening all the time to almost every successful title.
As an example - Scramble was released by
Konami in 1981 to arcades, Vic-20, C64, Tomy Tutor, and Vectrex. Scramble
"inspired" Penetrator, released 1982 by Melbourne House to ZX Spectrum,
C64, and TRS-80. Penetrator itself "inspired" Defence Penetrator,
released in 1982 by Cosmic Software for TRS-80, Sega sc3000, and Dick SmithVZ200. Compare Pac-man (Namco, 1980) to Ghost Hunter on the VZ200 (c.1982).
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| Left: Scramble (arcade). Centre: Penetrator (ZX Spectrum). Right: Defence Penetrator (VZ200). |
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| Left: Pac-man (arcade). Right: Ghost Hunter (VZ200). |
This simply wouldn't happen today. Imagine
if a developer made an unlicensed port of Halo for the PS3, made some minor
changes, then released it in stores as their own game. It would be law suits
for years.
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| Kingsway Video Computer Console, New Zealand 1985 |
Consoles were not immune to piracy in the
80s. Unlicensed dummy carts containing dozens of pirated games were cheap and
easily available. Even entire systems were commonly pirated. I have in my collection a Kingsway Video Computer Console. This is an unlicensed Atari 2600 clone. The chassis looks almost exactly
like a 2600 jr, has 64 games built in - almost all unlicensed ports - as well as the
ability to play original 2600 carts.
This level of piracy simply doesn't exist
today, mostly because existing technology and legislation have been so
effective against it. In the 80s and 90s copying games was easy, accessible,
and everyone could do it. Now the barrier to entry automatically restricts the
number of pirates in the community. Even your granddad knows how to dub
cassette tapes or clone a floppy disk. But modding a console, downloading ISOs,
patching PC games to run without Steam, flashing a PSP with a custom ROM, et cetera, require at least a basic to
moderate technical knowledge of what you are doing, and knowledge of how to
obtain necessary specialist equipment - flash carts, mod chips, etc. So while
your computer illiterate mum could install a pirated copy of X-Wing back in
1994, now piracy is limited to a far more restricted portion of the gaming
community.
Unlicensed ports of games, and games which
were "inspired" by popular titles, were essentially killed by
Nintendo in the late 80s through effective use of existing copyright laws - for
example The Great Giana Sisters. You simply don't see unlicensed ports of AAA titles today. Even
games which borrow art assets from other franchises are quickly shut down. Try
releasing a game featuring space ships ‘inspired’ by Star Trek without
Paramount's involvement.
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| Left: Super Mario Brothers (NES). Right: The Great Giana Sisters (C64). |
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| Recognise the star ship? (Star Blaster on VZ200). |
Yes, piracy still exists in a big
way. While the overall percentage of gamers who engage in piracy may be much
lower, being limited to a relatively niche group, that group is still large in
its own right because gaming itself is the most popular it's ever been.
But in
no way is piracy the worst it could be, or even the worst that it has been. People are far more aware of what piracy is, and how copyright law works. Everyday Joe Blogs is far less likely to buy a bootleg copy of a game off the street, and dev teams are far less likely to release unlicensed ports. Again:
Existing copyright laws and
technologies have already been extremely effective at reducing video game piracy.
Piracy is still a big problem. And in no way should we as a community be condoning it. But the industry appears more far interested in
making excuses for declining sales and winning political arguments than
actually identifying why people pirate games in the first place and moving
towards viable solutions. Over inflating the numbers and exaggerating the
impact of piracy muddies up the discussion. Everyone loses; gamers feel unfairly
targeted, legitimate gamers have to put up with increasingly intrusive DRM
systems, legislators and governments get bogged down in debating laws which may
not actually be necessary, and open conversation about the issue is made
difficult - reducing the chances that actual solutions can be identified.
But moving on...
The Role of the Games Industry in Piracy
Although
piracy is not something that we as a community should be endorsing, the video
game industry has not done much to help the situation. If the games industry
wants to further combat video game piracy perhaps the best thing developers and
publishers can do is increase people’s perception of the value of games.
Typically
games release with two values. The first is the retail price – how much the
publisher wants to the sell the game for. At the time of writing this is
usually set at $100 - $120 for new titles in New Zealand (about $80 - $95 US).
The other price is a conceptual value – how much people feel that the product is worth. This is a subconscious recognition
of value.
The
conceptual price often takes priority over the retail price subconsciously in
people's minds. A game may be priced at $100 retail, but people may feel that
it is only worth $80, or $60 – and won’t buy the game until it goes on sale for
that price. Likewise it is also possible for a game of limited retail value to
have very high conceptual value – take a look at the prices for Earthbound
carts on eBay.
As
a titles conceptual value decreases it becomes easier for people to pirate that
title without breaking their usual moral compass towards piracy and theft. If
subconsciously you view a particular game as having very little value then it
is easy to convince yourself into thinking that you are doing no harm by taking
it – ‘that games sucks anyway, what harm can I be doing by taking it?’.
But
going further – it is possible to devalue the conceptual worth of a title to
the point that it is considered essentially worthless. In this situation the publisher
starts being viewed as money hungry and the enemy. People still want the gaming
experience, but feel that the publisher is purposefully ripping them off with
the asking price. In this situation not only it's it very easy for people to
justify pirating the game, but in many cases they view themselves as doing a
service to the community - sticking it to the man.
Unfortunately
developers and publishers have been hugely effective in damaging the conceptual
value of games. Intrusive DRM, games that cost full price but take only 6 hours
to finish, increasing prices, sloppy production values on some titles, lack of
demo's, sloppy PC ports, on disk DLC, micro transactions above the normal
retail price, removal of modding tools, continuous sequels and HD remakes
rather than new ideas, shipping broken games which require major patching to
fix, the 'main streaming' of long running franchises and removing of fan
favourite gameplay mechanics, region locking and staggered global release
dates, and limited activations.
All
these things take away from the overall conceptual value of the product. How
much are you willing to pay for a game that installs a root kit on your machine,
potentially exposing you to viruses or collects personal information and send
it to a stranger?
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A case study in how to promote game piracy.
(Aliens: Colonial Marines cover art). |
Or consider Aliens: Colonial Marines. How much is a game
worth that takes a popular movie franchise, is given the privilege of becoming
part of the recognised canon of the films, but instead presents a buggy mess of
a title with poor pacing, poor AI, poor gameplay, poor story, and shits all
over established series canon. Is that game worth the full $100 retail price?
Is it worth anything? Does it actually do a disservice to the franchise by
reducing the conceptual value of the source material? And having paid full
price for this title only to be presented with this mess, would you be likely
to pay full price again for a similar title from the developer? As an Aliens
fan would you feel that the developer actually owes you something as recompense?
Would you start to view piracy as a better alternative – with none of the DRM
headaches, and a price point more similar to what you think the title should be
worth? Would you want to do financial
damage to Gearbox Studios for ripping you off with this particular title?
In
this environment who can blame the pirates?
Another
example: I bought Grand Theft Auto IV when it came out for PC back in December
2008. The DRM on this title was insane;
- The
disk had to be in the machine to play the game.
- The
installation required a CD key.
- I
had to allow the game to install Securom to my system.
- I
had to create and be signed in to a Games for Windows Live account to play.
- I
also had to create and be signed into a Rockstar Social Club account to play.
To
top it off I couldn’t play the game straight away because the Rockstar Social
Club was down and I couldn’t sign in.
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Another case study in how to promote game piracy.
(GTA IV cover art). |
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And
after all that DRM it turned out that GTA IV was a buggy mess of a console port
which barely ran on my system – regardless of the fact that my system met the
minimum requirements. I played the game for about two hours, and have not
picked it up again.
GTA
IV was in no way worth the $100 that I paid for it. To be honest I regret
buying it. I’m a collector. I like the own physical copies of my games. I like
to have a bookshelf to show off my collection. And I very seldomly pirate
games. But with GTA IV I looked at the pirates with envious eyes. These guys
play titles such as GTA without all the DRM bullshit. And they got to find out
that the game was a buggy unplayable mess while keeping their overall costs
minimal. Unlike myself, who paid full retail price to obtain a legal copy, only
to get shafted.
Most
people, even pirates, are happy to pay for games if they consider that what
they are getting is good value for money. In fact many pirates actually pay for
the tools to illegally download titles; increased broadband data caps, access
to data lockers such as rapidshare, and networks such as Usenet. Even the time
needed to find the games, download them, and crack them rather than just
quickly buying them through legal channels has some value. To the pirates the
games may not be worth the $100 - $120 that new titles release at in New
Zealand ($80 - $95 US dollars at the time of publishing). But they are still
worth something.
Sites
like gog.com
have been successful because they offer titles free from the usual headaches
and at a competitive price. Steam has been successful for the same reason;
offering games for very good prices with (mostly) hassle free DRM.
Perhaps
the best way the industry can continue to combat piracy is by increasing the
conceptual value of the product.. This doesn't necessarily mean reducing the
price of games. But instead cutting the crap, and identifying what it is that
makes people enjoy gaming and making a product that exemplifies those aspects.
At the very least this means dropping back on DRM, and spending more development time focusing on story and gameplay. People have to want to pay for the product.
In any case the industry needs to reflect on itself and how it
interacts with gamers, rather than publishing inflated piracy estimates and
calling for draconian law reforms.
The Concept of Digital Value
While
the above discussion tries to paint piracy as at least partially the fault of
developers and publishers, the problem goes far deeper than that. Often people
illegally downloading games are unaware that they are breaking the law, or don’t
see their actions as having any negative consequences. This is something that
the industry is going to need to address moving forward.
In
general the public tends to apply copyright to items of physical value, things
that you can touch, while non tangible items are given very little value and
are seen as freely copyable. Your dad may see copying a physical DVD as totally
illegal, but sees no problem with his decades old VHS collection of Dr. Who
episodes that he recorded from TV in the 80s. Bloggers will casually copy
photographs from the internet to illustrate their own work with someone else's
photographs, even going as far as to remove watermarks, and then be surprised when a DMCA
take down request is filed by the owner of those pictures, and a lawsuit
follows.
This
also extends into the gaming culture. Any gaming blog discussing piracy will
usually have the same arguments in the comments section (see here for example) - 'it's
not theft because nothing is actually taken', or 'to steal someone has to
actually lose something, digital downloads don't take the physical disk and
therefore no one has actually lost anything'. Copyright law is fairly explicit
on the matter - but many gamers simply view digital downloads as having little,
if any, conceptual value. Something that can be freely taken without any negative
consequence to the developer or publisher.
Although
concerned with the illegal file sharing of music, the case of the first person
charged under the recent New Zealand Copyright (Infringing File Sharing)
Amendment Act 2011, RAINZ v Telecom 2013, highlights this issue to a certain
extent. In this case a female internet user was caught downloading two music
tracks and subsequently uploading one of the tracks she downloaded. In the
statement provided by the defendant she states;
The first song I downloaded was a song
called man down by rihanna [sic]. I accept repsoncibility for this. I
downloaded this song unaware that in doing so from this site was illegal. When
this song was downloaded to my computer, a whole utorrent program downloaded
onto my computer … [W]hen I turned my computer on it said that the song was
still downloading and maybe that caused the song to register twice as it being
downloaded? I’m unsure if this is possible of not but I
don’t know why it shows that I would try to download the same song twice.
She
goes on to state;
I would never intentionally do
anything illegal and you can see this from my criminal record as it is clean. I
didn’t realise that it was illegal and I apologise sincerely for this mistake
and have removed it from my computer.
A
partial transcript of the defendant’s statement is available in the court
documents concerning the case here.
In
this case the person doing the downloading was completely unaware that her
actions would be breaking the law. She simply didn’t see an online file as
being something with value. Something that could
be stolen. But furthermore, she did not even understand the process by which
she was downloading and transmitting the file. She wasn’t even aware of what
utorrent is or how it works. Clearly this theft wasn’t the work of a master
criminal, or even a dedicated pirate.
And
this is a fundamental problem for publishers wanting to further combat piracy.
The
thing is, while the human brain is incredibly powerful, it is also very object
orientated. The brain works very well with physical objects, it understands
physical objects. But people have difficulty applying value to intangible items
which don't physically exist. It's the same reason why credit card debt it's so
easy to get into - if you don't see the physical money changing hands it's
difficult for your brain to conceptualize that you spent anything. This is
simply millennia of evolution at work. The brain is wired to quickly identify
the physical characteristics of objects. Is it edible? Is it a threat? Is it
hot? Is it valuable? How can I use it? What does it mean? The idea of items
that don't actually exist is something new that our primate brains aren't fully
equipped to understand.
The
people illegally downloading games aren't necessary doing so with malice. In
many cases items which are available online are subconsciously interpreted by
the brain to be without value, or are not immediately identified as being
'owned' or ‘ownable’ People simply do not acknowledge that downloading files
available online may illegal, or that their actions may negatively impact
someone else. It's part of the human condition.
When
combined with the factors that currently limited the conceptual value of game
discussed above (DRM, poor gameplay, etc...) you get a very compelling
reasoning for why games are pirated.
Do
these observations excuse people from piracy? No, not at all. Ultimately people
need to become informed users, and ignorance of the law is not an excuse. But
to an extent these things are part of being human, and no amount of legislation
or lawsuits is going to change that.
If
the industry wants to further reduce piracy the best thing it can do is
recognise these issues, and move to find ways to mitigate them. This should
include education. People need to be made aware of what online piracy is, that
it is illegal, and how it hurts developers. But at the same time developers and
publishers need to bring up the conceptual value of games so that people want
to buy the titles.
Anywho,
there is far more that I could say on piracy, but this post is getting massive.
I encourage anyone who is interested to take a look at the Drachen et al. paper.
And feel free to drop a comment down below!
So...
in a flash of blatant common sense Microsoft has had a complete reversal on the Xbox One DRM. Given the thrashing
the Xbox One was getting from gamers, and from games journalists, getting rid
of the DRM is just so purely logical it’s almost Zen like.
