Lawyer Destroys Arguments for Game Piracy

[Jennacide]

One part of this really bugs me. No matter how you try to word it, a pirated copy is still not a "lost sale," because that runs on the assumption it was going to be a sale to begin with. Hardened pirates download shit just because they can, and have no intention of buying the game. Then you have the de facto pirates such as myself, who are pirating games they already legitimately own to remove garbage DRM. (I'M LOOKING AT YOU ARKHAM CITY, FUCK YOUR DRM)

Yes, piracy is a problem. But much like the war on drugs, it's a war that no matter what you do, you aren't going to win it. This has been proven time and time again. DRM hasn't stopped them, threats of SOPA just motivated them to start brainstorming a new decentralized DNS, cease and desist letters have been ignored, and lawsuits against piracy sites have been beaten. I don't have to like it, but I side with Valve on this one. You stop pirates by offering enough to make them WANT to buy your game/movie/etc.

 

[Dastardly]

Can you prove to me there is a 100% chance that someone would have bought the game if they were unable to pirate it? (assuming they would afford it)

Can you prove 100% that someone found guilty of "attempted murder" actually intended to kill the victim? No. You can't 100% prove someone's intent in some alternate universe. You can look at the result and make your "best guess" from there. (We do this, because people are convicted of "attempted murder" all the time.)

The result here: This person went to the trouble of downloading this game in order to play it. Our "best guess": Based on their demonstrated interest in the game, it is a safe assumption that they would have paid something for it. Perhaps not full price, no, but if they were interested enough to go through the necessary channels to pirate the game, they'd have likely paid at least $1 for it.

EDIT: To clarify, both ends of the argument have their flaws, and going for a middle ground results in estimates that could be way off, so the argument shouldn't really be used (for either side) at all.

Unfair, because that reasoning unfairly benefits the pro-piracy side. Even then, if we could agree that even .01% of pirates would have paid something had piracy not been available, then "lost revenue" is a valid criticism. At that point, we're just arguing amounts, which is immaterial -- shooting someone with 1 bullet or with 1,000 bullets is still wrong.

 

[Lethos]

I'm obviously missing something big, because for the life of me I can't see why piracy is considered a grey area. It seems pretty cut and dry to me. When you get to the bare bones of it, you're taking something without paying, which is wrong.

 

[FalloutJack]

The Neil Gaiman defense.

I rest my case.

(If you don't know what I'm talking about, look up Neil talking about piracy. It's brilliant.)

 

[Neonit]

"...but in the meantime it means a financial loss for the developer,"
no. no it does not. it means they lose "potential profit". yeah, think about it - "potential profit"

done thinking about it?

i dont give a damn about their "potential profit", it does not exist. and while we are talking about potential stuff - i just lost my potential patience and any kind of potential respect for that guy is potentially gone.

 

[SciMal]

I'm obviously missing something big, because for the life of me I can't see why piracy is considered a grey area. It seems pretty cut and dry to me. When you get to the bare bones of it, you're taking something without paying, which is wrong.

So's going to your library and checking out a book. I don't (directly, at least) pay for books I rent from there.

Piracy is considered a "gray area" because of one thing:

The developers imply that a pirated copy is a lost sale. When they say MW1832 or whatever has been pirated 3.4 million times, the developers are going, "That's millions of dollars of profit we're missing out on!"

The reality is that it's probably not. As two studies, one in Sweden and the other in Holland (I think it was Holland) - countries where Piracy has become a political party - have demonstrated, pirated copies don't translate to lost sales.

It goes like this:

Jim has $60 to spend on a game.
Jim buys BF17381 for $60.
Jim downloads Overlord 17 and Pokemon Osmium.
Producers of Overlord 17 and Pokemon Osmium cry foul that Jim did not buy their products, so they create a perfect way to prevent their work from being pirated.

Jim has $60 to spend on a game.
Jim buy BF17382 for $60.
Jim DOESN'T buy Overlord 18 or Pokemon Beryllium.
Jim still did not buy their products.

That's the reality of it. Entertainment budgets remain relatively the same whether a person pirates or not. There's only a finite amount of money a person will spend on games per month/quarter/year, and making them stop downloading other games does not make that amount go up.

If anything, again, as cited by the very thorough studies done by the governments of countries at the center of the debate, there's a slight increase in sales of video games and lesser known bands by people who pirate video games and music.

Companies shouldn't be getting sore because they "lost a sale" to piracy, they should be getting sore because they weren't the target of that month's $60 entertainment budget.

 

[Lethos]

I'm obviously missing something big, because for the life of me I can't see why piracy is considered a grey area. It seems pretty cut and dry to me. When you get to the bare bones of it, you're taking something without paying, which is wrong.

So's going to your library and checking out a book. I don't (directly, at least) pay for books I rent from there.

Piracy is considered a "gray area" because of one thing:

The developers imply that a pirated copy is a lost sale. When they say MW1832 or whatever has been pirated 3.4 million times, the developers are going, "That's millions of dollars of profit we're missing out on!"

The reality is that it's probably not. As two studies, one in Sweden and the other in Holland (I think it was Holland) - countries where Piracy has become a political party - have demonstrated, pirated copies don't translate to lost sales.

It goes like this:

Jim has $60 to spend on a game.
Jim buys BF17381 for $60.
Jim downloads Overlord 17 and Pokemon Osmium.
Producers of Overlord 17 and Pokemon Osmium cry foul that Jim did not buy their products, so they create a perfect way to prevent their work from being pirated.

Jim has $60 to spend on a game.
Jim buy BF17382 for $60.
Jim DOESN'T buy Overlord 18 or Pokemon Beryllium.
Jim still did not buy their products.

That's the reality of it. Entertainment budgets remain relatively the same whether a person pirates or not. There's only a finite amount of money a person will spend on games per month/quarter/year, and making them stop downloading other games does not make that amount go up.

If anything, again, as cited by the very thorough studies done by the governments of countries at the center of the debate, there's a slight increase in sales of video games and lesser known bands by people who pirate video games and music.

Companies shouldn't be getting sore because they "lost a sale" to piracy, they should be getting sore because they weren't the target of that month's $60 entertainment budget.

A library intend for you to take a book without paying. A game developer, unless specifically stating otherwise, intends for you to pay for their product. It's an absurd comparison...

It's irrelevant whether it's a lost sale or not, it's still taking something without paying when the developers intend to make profit on their product.

 

[sean360h]

but in the meantime it means a financial loss for the developer

NO, it does not. That logic is incredibly erroneous.

Yes it does. They worked hard on something, and what would be a paying customer got it without paying for it, depriving the developer or their profit.

The problem is you assume they WOULD be a paying customer. With or without piracy existing,there is no money that would go to the developer.

It is wrong to call it a lost sale. The sale doesn't exists, would not exist if piracy wasn't a thing.

It is ignorant to say that all pirates would never pay for games in the first place. Sure, some wouldn't, but there is always going to be lost sales to piracy (just not every pirated download is a lost sale).

Thats a True Point I used to pirate every song I could get my hands on but after a while I looked at how much I had cost the artists who had made them songs and I just kinda stopped now I try and buy all my music on iTunes
The important thing to remember is that most people who pirate are kids who dont yet understand the value of money
Another thing is that devs count cracks as lost sale but say for example when I buy a pc game I will crack it because I'll be damned if I am going to be punished for buying a game

 

[OriginalLadders]

I don't mean to be confrontational, but there's a few points I feel the need to make.

"It's not a lost sale, because they were never going to buy it anyway." (unverifiable ex-post-facto justification)

It's every bit as unverifiable as assuming that any of those pirates would have bought the game.

"Stop calling it theft. The publisher is not denied access or deprived of any property." (a "no true Scotsman" regarding the definition of "theft")

I don't know about the US, but here in the UK theft is defined in law as depriving another person of their property, i.e. someone has to actually lose something to be a victim of theft. In the UK at least, this makes calling game piracy theft entirely incorrect.

"Well the publishers need to stop being greedy, and maybe people will support them." (a deflection and complete change of topic. could be called "the Robin Hood defense.")

I agree with you there, just buy the game used at a price you are willing to pay.

"If they made better games, maybe people wouldn't pirate." (logically inside-out, since any improvement to the game itself would equally improve the pirated copy. No disincentive is established.)

I think you're mostly correct, but there are people I think who'd buy a copy in order to support favourable behaviour from a developer. I've certainly bought new instead of used when the game was worth it and the company weren't dicking over their customers. I doubt it'd be a large share, but it's not something to ignore completely.

"People only pirate because of DRM." (reversal of the actual state of cause-effect, since DRM measures were created as a reaction to piracy, and DRM-less games are still frequently pirated)

I definitely agree with you on this.

 

[Chairman Miaow]

I'm obviously missing something big, because for the life of me I can't see why piracy is considered a grey area. It seems pretty cut and dry to me. When you get to the bare bones of it, you're taking something without paying, which is wrong.

So's going to your library and checking out a book. I don't (directly, at least) pay for books I rent from there.

Piracy is considered a "gray area" because of one thing:

The developers imply that a pirated copy is a lost sale. When they say MW1832 or whatever has been pirated 3.4 million times, the developers are going, "That's millions of dollars of profit we're missing out on!"

The reality is that it's probably not. As two studies, one in Sweden and the other in Holland (I think it was Holland) - countries where Piracy has become a political party - have demonstrated, pirated copies don't translate to lost sales.

It goes like this:

Jim has $60 to spend on a game.
Jim buys BF17381 for $60.
Jim downloads Overlord 17 and Pokemon Osmium.
Producers of Overlord 17 and Pokemon Osmium cry foul that Jim did not buy their products, so they create a perfect way to prevent their work from being pirated.

Jim has $60 to spend on a game.
Jim buy BF17382 for $60.
Jim DOESN'T buy Overlord 18 or Pokemon Beryllium.
Jim still did not buy their products.

That's the reality of it. Entertainment budgets remain relatively the same whether a person pirates or not. There's only a finite amount of money a person will spend on games per month/quarter/year, and making them stop downloading other games does not make that amount go up.

If anything, again, as cited by the very thorough studies done by the governments of countries at the center of the debate, there's a slight increase in sales of video games and lesser known bands by people who pirate video games and music.

Companies shouldn't be getting sore because they "lost a sale" to piracy, they should be getting sore because they weren't the target of that month's $60 entertainment budget.

I think this pretty much sums it up. If I were to pirate a game (not saying I do) it would be because I couldn't afford it. Doesn't make it right, but it does mean that it isn't a lost sale. If the focus were on making a better product rather than restricting consumer rights, maybe Jim would decide to buy Pokemon Beryllium instead of B17382 because Pokemon Beryllium doesn't require that spyware piece of shit Origin on his future-computer. Either way, he can't spend any more.

 

[JesterRaiin]

...my 5 cents.

- Both sides are exaggerating and making out of arse claims.
- Ideas and points of view aren't egyptian pyramids. Rebuttal of a few arguments doesn't mean that oponent is wrong and lost the discussion.
- The crusade against piracy has many layers and only a few of them are really about protection of interests of developers, authors and such. We can't accept piracy, but we also can't accept shackled Internet.
- Why there's even an anti-piracy crusade ? It's already said how to make pretty much everyone happy and limit piracy (it can't be completely eradicated). There's nothing to debate over beside "how to make Gabens vision come true". Unless, of course someone wants more than he confirms and isn't really only about law and order.
- We, people, like to own things we buy. It's not negotiable.
- One word : "Rage". One answer "It's neither our fault nor our problem that you can't play the game you pay for". One description : "Fraud".
- And finally : price versus quality.

 

[cefm]

Notice: Attorneys are full of opinions and at least one arsehole, and they aren't shy about sharing them - right or wrong.

This is a non-story as it means nothing.

 

[Fishyash]

Can you prove to me there is a 100% chance that someone would have bought the game if they were unable to pirate it? (assuming they would afford it)

Can you prove 100% that someone found guilty of "attempted murder" actually intended to kill the victim? No. You can't 100% prove someone's intent in some alternate universe. You can look at the result and make your "best guess" from there. (We do this, because people are convicted of "attempted murder" all the time.)

The result here: This person went to the trouble of downloading this game in order to play it. Our "best guess": Based on their demonstrated interest in the game, it is a safe assumption that they would have paid something for it. Perhaps not full price, no, but if they were interested enough to go through the necessary channels to pirate the game, they'd have likely paid at least $1 for it.

Okay, but that wasn't my point. My point is that unless someone is going to buy a game unused if they were unable to pirate it, the loss is intangible. It's not a lost sale, it's a potential lost sale. Piracy may not be a black & white issue by any stretch of the imagination, but saying that it is a lost sale implies that someone would have bought the game if they couldn't pirate it, when that is not the case.

EDIT: To clarify, both ends of the argument have their flaws, and going for a middle ground results in estimates that could be way off, so the argument shouldn't really be used (for either side) at all.

Unfair, because that reasoning unfairly benefits the pro-piracy side. Even then, if we could agree that even .01% of pirates would have paid something had piracy not been available, then "lost revenue" is a valid criticism. At that point, we're just arguing amounts, which is immaterial -- shooting someone with 1 bullet or with 1,000 bullets is still wrong.

Lost revenue is a valid criticism, yes. If the game wasn't pirated, the developers, publishers and retail companies might earn more money. There is a good chance that they would. However, pirating a game does not directly equate to a loss sale (which was what my response was about). No true scotsman would pirate a game and not pay for it, but how many pirates are true scotsmen? We will never know, so until we can find out the intentions of ALL the pirates and get some accurate figures, we can't just claim it as a lost sale.

I personally consider piracy more of an ethical problem than a industry-damaging problem. I think the gaming industry simply has to find a way around it like the music and movie industry has. It will probably be tricky as there are no concerts, t-shirts or cinemas for the gaming industry, but I am hoping they can come up with something.

 

[direkiller]

but in the meantime it means a financial loss for the developer

NO, it does not. That logic is incredibly erroneous.

As I see it, the two polar notions that piracy is always a lost sale and that piracy is never effectively a financial loss are what is truly lacking logic. The truth is in fact somewhere in the middle.

one is trying to justfy what there doing and the outer has never taken an economics class.

Piracy is a lost sale just not a lost sale at $60 as the time spent on the torrent is worth something to the pirate but this varies person to person(such as they would have bought the game at $40 or $20 ecd). However there comes a point when costs are equal to peoples price point anyone under this line would not have been sold the game unless its more adventitious to take the loss(clearing up space in inventory and whatnot).

So yes it is somewhere in the middle its just a bit more complicated then saying piracy results in xxx amount of $ lost. However this lawyers reasoning is just flawed as the publisher is not handing a person who pirated there game $60 until they buy it when the game drops to $30 that reasoning is just stupid on so many levels.

 

[BGH122]

"Stop calling it theft. The publisher is not denied access or deprived of any property." (a "no true Scotsman" regarding the definition of "theft")

You don't understand what a no true scotsman fallacy is. It isn't a case of two different debaters having a different fundamental understanding of what is meant by a given axiomatic term, it's a case where one debater redefines an axiomatic term ad hoc:

A: All pirates purchase the games they pirated
B: I know a pirate who didn't purchase a game he pirated
A: Well all true pirates purchase games they've pirated...

Is an example of a no true scotsman fallacy as the axiomatic term 'pirate' is redefined without admitting defeat of the argument into 'true pirate'. It would certainly be possible to create a no true scotsman fallacy for the argument you describe:

A: Piracy isn't theft
B: Yes it is, it is taking without paying
A: Piracy isn't true theft

But it would be clumsy, and it wouldn't even remotely represent the arguments that piracy debaters actually make. Unfortunately, since this is the escapist, I'm not at liberty to discuss arguments for piracy which actually make sense. If you want to do so, then come join us at ArsTechnia, and we can debate this properly.

The notion that piracy does not equate to lost sales is just as erroneous. "Piracy might result in an eventual purchase of a game, but in the meantime it means a financial loss for the developer," Purewal said. "Sadly developers are not gamer banks, willing to effectively loan gamers money until we decide we like them enough to pay them."

Do note that the lawyer just arbitrarily decides that piracy is, in fact, a lost sale, without provide any form of a priori or a posteriori evidence. This sort of polemic is frankly unhelpful, and it's saddening to see how McCarthyistic TheEscpaist has become on this particular issue.

EDIT:

Speak of the devil, the new ToS flat out confirms my claims that piracy cannot be debated here in anything vaguely resembling an honest debate:

Similarly, posts including, advocating, or linking to illegal or adult material are a very quick way to end your time as part of The Escapist community. An example of these are:

Piracy

 

[Aurora Firestorm]

Everyone who is complaining about not being able to try out games: you know you can still rent them, right? GameFly is about 20 bucks a month. You can make that kind of pocket change mowing someone's lawn once or twice. Grab a subscription and try out all the games you want. The only time I have every downloaded a game is when I already own a copy of it and have, say, lost the disc, or had it broken or scratched beyond use. I'm also probably the only artist alive who, say, didn't pirate Photoshop.

Pirating doesn't "steal" profit from people, so I'd say calling it theft isn't quite accurate. It's a different category of crime. It doesn't take money, it prevents money, and it has the ethical addition of being able to enjoy a product without paying (even if you wouldn't have bothered enjoying it if you have to pay). It's as simple as reaping benefit with no cost. I'm glad some people have respect and will pay for a game after they try it out, but in seriousness, "why buy the cow when you can get the milk for free?" is the logic really going on here.

Nonetheless, no one is going to stop pirates. It's not possible. For every DRM, there is a crack. For every new measure, someone will find a way around it. It's basically boiling down to the fact that people are going to take the easiest and least expensive route to anything, and it's really hard to fight "free" as the price tag. Piracy is just one of those things that will have to be dealt with.

I also don't think piracy will break the game industry. People got all up in arms about VHS recording when it came out, as if being able to tape our favorite shows would utterly demolish filmmaking. Well, it didn't. VHS recording and DVD ripping didn't kill film, mixtapes and Napster didn't kill music, and piracy won't kill video games and software. Video games just need a new way to make profit. Record companies are screaming as music goes digital, but when you can pay a buck for a song on iTunes, people start seeing music as microtransactions rather than investments. For less than it costs to buy a pack of gum, you can get a new song. With movie, people still flock to theaters to see their favorites on the big screen, and they buy merchandise. Video games just need a way that isn't "buy the game" to bring in extra profit.

Having special editions like Skyrim, Deus Ex Human Revolution, etc. had may be an option -- I know I will absolutely preorder a Special Edition of something if it comes with a non-digital benefit, such as a particularly awesome figurine, an artbook, whatever. I will also buy a game if it's a new collection, such as the Metal Gear Solid HD Collection, because I'm one of those geeks who love seeing a box set on my shelf. It feels classy and slick. I was ready to shell out for the Limited Edition, but it ran out of copies forever.

Wait, why did Kwil get a warning for pointing out the truth on Page 1? People *are* being lazy-ass gamers. There is no real reason to pirate outside of "it is not exportable to my country" or "I already own the game."

Edit: About computer game demos...if you're one of those people who only ever played computer games, well, all right, there might not be enough demos. (I'm a console fan.) If you know you have the iron balls enough to download and delete, I could endorse that. But I know practically no one will.

 

[saregos]

snip

...the hell is with Escapist running biased articles that say, basically, "I'm right and everyone who disagrees with me is a moron" this week?

Once more. For the billionth time (and the second thread this week).

I am NOT a piracy apologist. I don't believe piracy is right or moral. However, I do believe piracy is largely a service problem. Provide better value (instead of treating your customers like shit) and you'll get more sales. Because, considering a downloaded copy isn't really a loss, isn't that what developers should be aiming for? Stop treating your valid customers like the enemy and start giving the pirates an incentive to full-on purchase the game.

And I find it amusing and ironic that, while I'm criticized as "enabling piracy", it's black-and-white us-versus-them attitudes like yours (and, apparently, the majority of the escapist staff's) that drive piracy, by ensuring that the pirated product is a better game at a much better price.

Oh, well. Time to cancel my publisher's club membership and go back to "pirating" zero punctuation each week. This isn't the sort of editorial content I have any interest whatsoever in supporting, even marginally.

 

[AnotherAvatar]

From what I read he didn't "Destroy" anything. He just made the obvious statement that most people who pirate games don't bother to hide their IP, which is true, but that's missing the key point that most people who host and upload pirated software regularly, in fact, do. He couldn't be more wrong about the concept of the games being loaned out, it's more like they're being demoed, good demos get bought by people who can afford it, and those who couldn't wouldn't have bought it anyway so it's not a lost sale.

Still, my big thing here is: Why is piracy looked at as being so wrong? Are libraries wrong to loan out one copy of a book which they bought (and any time a pirate uploads something, they had to have bought it unless they hacked it out of somewhere, which is way more trouble than it's worth) to millions of people? My thing is, as a musician I will always be fine with people pirating my work: if they can afford it and they like me enough I"m sure they'll find a way to give me money either through going to my live shows or buying albums when they can, but at the end of the day my main concern is getting my art out there, not making money.

I would like to hope most game designers are the same way (at least, all the one's I like, who aren't shilling out game after game just for a larger pile of cash, yes, I'm talking about Call of Duty). Art in all it's forms (Movies, books, television, music, images) should be freely shared among humanity, only the greedy would seek anything else. If you really look at it most of the anger about piracy from each of these industries rarely comes from the artists, more often it comes from the producers and money men who had nothing to do with the product other than putting up a chunk of cash to advertise and package the product that someone else worked hard on, and the end result is they end up with the majority of the revenue, which makes little to no sense to me: "You have a ton of money, so all you have to do is finance this and you'll get a ton more money!!!"


Basically: Our exchange system is corrupt: over-priced with the money we pay only seeing small amounts resting in developer's hands, the majority of the cash falling into the publisher's pocket (Ponder this the next time a game company you really like that pumps out awesome games that are pretty popular goes out of business, it's happened a ton in the past and will happen again if we keep this system going). With our current system of exchage broken I say that right now Piracy looks like a quick cure as it rewards good games with exposure and popularity (which one way or another leads to sales, no matter what ignorant industry people or lawyers want to say), and bad games get ignored as they should, most importantly everyone gets to play the epic new media of our generation, and as such the art won't be lost on the people not rich enough to buy every title, or system, or dlc.


To sum up what I'm saying here: Piracy is good, not just for the media it's able to share with millions of viewers/players/readers/listeners, but for society as a whole, because really shouldn't we all be sharing at this point? (Especially when the sharing doesn't take away the original).

 

[BGH122]

Oh, well. Time to cancel my publisher's club membership and go back to "pirating" zero punctuation each week. This isn't the sort of editorial content I have any interest whatsoever in supporting, even marginally.

I agree. I've seriously considered leaving the site over this nonsense. I used to visit more or less daily, now I save up three or four weeks of ZP and watch it one go, after which I see what specious propaganda is being forced down our throats this week on the forum.

I used to come to the forum because it provided a pretty decent level of debate where almost anything was acceptable for debate (heck, we once had a giant debate about the merits and demerits of paedophilia that saw no moderator action), but now that this is no longer the case I find myself drawn ever increasingly to sites like ArsTechnia, where anything is fair game for debate as long as it's debated honestly.