Piracy

Can you pirate your own video game?

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Hotline Miami 2, the forthcoming sequel to the excellent indie game Hotline Miami (note: I wrote that in bold, underline and italics to show how much I mean it), has been denied classification in Australia (another victim of the relatively restrictive local age rating system there).  So its developer instead just told Australian fans to pirate the game for free, attracting no small amount of games press in the process (hello, Streisand Effect).  So, I thought I’d write a little post on the subject of what happens legally if a developer pirates, or encourages piracy of, its own video game?   (more…)

Some thoughts about SOPA

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I don’t need to tell you all what the US Stop Online Piracy Act is about, because the Internet has talked about nothing else for the last few days (or at least, those parts of the Internet which haven’t been closed in protest against SOPA). It caused a great, great deal of controversy, far more than the UK’s Digital Economy Act ever did. Now it has been put on ice until “consensus” can be reached. 

This is a short post with some thoughts from me about SOPA.  For anyone who might be in doubt, I was opposed to SOPA, for the reasons I set out below.  That said, I thought it might be helpful to actually read SOPA and give you some legal comments about it.  Here goes…

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On piracy

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About this time last week I wrote the second of my monthly columns on Edge, this time about defending the rights of developers to take legal action against pirates of their games.  You can read it here.  The genesis of the post was me reading about CD Projekt, developer of The Witcher 1 and 2, deciding to take legal action against pirates of its games, as well as some recent appalling statistics published by Torrentfreak about piracy of PC and console games in 2011.  This made me decide to write about two things: (1) my views that the arguments opposing legal action vs pirates aren’t actually that good; and (2) that I feel really sympathetic for developers like CD Projekt and Crytek, whose bottom line has been savaged by piracy.  Anyway, so I wrote the column.  Then the Internet got a bit excited for a day or so.

The Internet v CD Projekt: a Legal Perspective

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This is guest post by John Wrigley, a gamer and law student
As a law student and as an enthusiastic gamer, I can’t help but have noticed the recent controversy surrounding CD Projekt. In case you haven’t been following it, the story goes something like this: CD Projekt release The Witcher 2 without any DRM. Some people, as some people inevitably do, pirated it. Now CD Projekt are sending letters to people that they believe have pirated the game demanding a sum somewhere in the region of €750, with the backup threat of a legal suit if the person does not pay up. Many people are quite upset about this, including Mr John Walker at Rock Paper Shotgun, whose recent words on the subject you can find hereand here. This post attempts to offer an insight into the legal position behind the events. What this article isn’t about is creating solutions or settling the debate, its purpose is solely to try and raise awareness of the legal doings and beings and to maybe try to challenge some of the common misunterstandings about the way the law works.

Opinion: why piracy shouldn’t be a lawyer’s problem

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Earlier this year, Ed Fear (a producer at Curve Studios and all-round nice chap) wrote a great post on his blog about content piracy and what we should be doing about it.  Essentially, he argued that it is up to the content creators themselves, not their lawyers or industry bodies, to address and deal with the challenges raised by content piracy.  I think this is an important message (to which lawyers too often don’t listen), as well as a topical one – what with the music labels now going after The Pirate Bay after shutting down Newzbin2 in the UK (which had just happened when Ed wrote his post). I’ve therefore reproduced the post here with Ed’s kind permission. 

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Atari sues Tommo for $30m over Flashback 2 console

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This is interesting:  Atari is suing Tommo Video Games Distribution in the US in a $30 million claim over the Atari Flashback 2, according to Kidscreen.  Details are very sparse at the moment but the allegation seems to be that Tommo is selling or distributing a counterfeit version of Atari’s Flashback 2 console, which I understand is itself is a repackaged version of Atari’s famous Atari 2600 console released in 2010.

I wanted to blog about this for two reasons:

(1) A quick recap about counterfeit goods.

Counterfeit goods are simply knock offs – goods which are manfactured to look, feel and operate like your goods but which are actually made by a rival third party.  Because counterfeit goods are made without your authorisation, they infringe just about every intellectual property right that you may own in the original goods.  In this case, IF Tommo is indeed manufacturing and marketing a counterfeit Flashback 2 without Atari’s authorisation (which remains to be proven), then in principle it may be infringing Atari’s copyright, trade marks, design rights and patents in particular.  If there was an agreement between Tommo and Atari for the manufacture of the Flashback 2 and Tommo has gone outside that contract, then Tommo may in principle also be liable for breach of contract. 

Consumers also are heavily affected by counterfeit goods, since they may be purchasing these goods without realising that they’re not genuine – and therefore they’re not getting the ‘real thing’ (in fact, they may be receiving technically inferior goods).  Depending on what country consumers are in, their national consumer protection laws may help them to different degrees.  For example, in the UK a consumer would under the right circumstances have a right to return counterfeit goods to the seller (not the manfacturer) and demand a refund under the Sale of Goods Act 1979.

(2) The Flashback 2 isn’t exactly new technology.

I was struck by the fact that the Flashback 2, which depends on Atari 2600 technology, basically goes back right to the start of the modern games industry.  And yet Atari is reportedly commencing a $30 million action over that technology.  It just goes to show that games businesses shouldn’t discount the value of their old hardware or IP too lightly – Atari clearly saw a market opportunity to bring their old console back and are now having to take legal action to preserve it.

Top tips:

  • Consider whether there’s an opportunity to make money out of your old hardware or IP again (e.g. through a licence or re-release, maybe on one of the new platforms like Steam or iOS)
  • This is critical: review your legal protection of your old IP.  Have you maintained protection of their copyright/trade marks/patents?  It won’t be expensive to take remedial action, but you never know when it might come in handy.
  • Look at third party hardware and IP.  Has it become abandonware and, if so, could you do something with it?  NB that means getting a licence, not just charging in and using it without authorisation (I’ll be writing about the legality of abadonware soon…)

Image credit: Atari/CNET

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