OPINION: 25,000 gaming lawsuits story is much more complex than it appears

Duncan Geere Gaming, Intellectual Property Leave a Comment

duncan.jpgThe other day we covered the story that Codemasters and Atari, among a few other publishers, are suing 25,000 people who are alleged to have downloaded games. Seems fairly black and white, doesn’t it? Downloading games is still illegal, despite how widespread and popular it is. But the folks at GamesIndustry.biz, in their daily newsletter, have delved a little deeper into the topic, and I wanted to share with you some of the things they point out, and draw some conclusions of my own.

Firstly, none of the major games studios are involved. No Sony, no EA, no Activision Blizzard, no Nintendo and no Microsoft. In fact, the head of EA Sports went on record yesterday saying that he really didn’t think lawsuits were the way to approach things. He said that people needed to learn the lessons that the music industry are still failing to learn, and realize that legislating against your customers isn’t the best way to be conducting business. The two previously-named studios who are involved – Codemasters and Atari – aren’t top-division players in gaming. They’re second or third division at best.

Secondly, the firm that these companies have hired to take the legal action against these tens of thousands of individuals go by the name Davenport Lyons. Have you heard of them? If not, go Google their name. They have quite the history of sending out thousands upon thousands of letters – a very wide, but very shallow campaign, where they just ask for a few hundred quid from each person. Most people, terrified of legal action, just admit guilt and pay up, and the company takes a nice cut. The cases rarely gets tested in court.

But they should. According to this document, Davenport Lyons are to be using data from a Swiss company called Logistep. Logistep use a number of different methods to extract user info from peer-to-peer services, and claim to be able to identify which internet users are sharing which files.

In Logistep’s native Switzerland, it’s been suggested that they have violated the law in pursuing cases against so-called-pirates. They’ve been accused of starting lawsuits against people, and dropping them as soon as ISPs provide personal data. Also, in France, a lawyer who worked for Logistep was banned from practicing law for six months for doing almost exactly the same thing that Davenport Lyons have done – sending out letters to people demanding cash and saying that if they don’t pay up they’ll liable for a hell of a lot more.

But even beyond that, technically speaking, Logistep’s proof simply isn’t enough to satisfy a court. All they do is link an IP address to the sharing of a file with a certain filename at a certain time. What happens if the filename doesn’t accurately describe the contents? How can they prove that a specific person was using that computer at that time? What happens if the Wi-Fi network attached to the IP address was open and not secured?

Of course it’s true that most of the people getting letters did indeed download that game at that time, but enough of them won’t have done it for it to be significant. Even if guilty, if the defendant has a decent lawyer, then Davenport Lyons will have a hard time proving anything.

Three hundred pounds is a very carefully considered amount – enough to hurt, but not enough to make people actually consider getting a lawyer involved – particularly those in their early twenties who might not be too familiar with how the justice system works. Once you’ve paid that £300, you admit your guilt and don’t have any future comeback.

It’s obvious that piracy is an issue that the games industry face, but the way out of it, much like what I said about music and film the other day, is to create experiences that people want to pay for. Microtransactions, subscription games, special editions with posters and figurines, in-game advertising, LAN parties and conventions. These are all things that can’t be replicated digitally for pretty much zero cost – things that can’t be shared over a P2P network.

Hell, people already volunteer to beta-test games. Why not get them to write missions, and submit them to a portal where the community vote for the best? Crowdsource that plot! Recruit talented students, who don’t necessarily have a portfolio yet, to cut your costs. It doesn’t have to cost millions to make a great game – just ask the creator of Audiosurf, or the guys who made Darwinia.

The entertainment industry – be that music, film, TV, games or any other sector, is facing challenges, but they’re not insurmountable ones. A little creativity, a little bravery and genuinely making great games is all that’s required to survive as a business in the 21st century.

(via GamesIndustry.biz)

Related posts: Atari and Codemasters join video game piracy legal fight – £300 fines on the way to 25,000 game-sharers | OPINION: No lawsuits for German P2P sharers is a good thing

By Duncan Geere | August 22nd, 2008