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

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. 

[Earlier this year], GamesBrief posted part of a Twitter ‘conversation’ (read: argument) in which I took part, regarding the recent court ruling that BT must block access to NewzBin 2. One of the things that I mentioned, but didn’t really get a chance to elaborate on, is that I don’t think chasing after pirates is a good use of time or money. It seemed to be a bit controversial, so I thought I’d take the opportunity to expand upon my current way of thinking a little.

At the bluntest level, firstly, I think attempting to shut down ‘piracy services’ is a complete waste of time, because it doesn’t treat the root problem. Music piracy didn’t stop when Napster was shut down. Torrenting didn’t stop when mininova was forced to list only free content. Nobody has actually managed to stop The Pirate Bay from operating, even with high-profile legal rulings. And the fact that the site that’s now being blocked is called Newzbin 2 should tell you an awful lot.

Maybe it’s because all these attempts failed that we find ourselves where we are now. But to me, it’s just hot air – nothing more than ‘representative’ organisations like UK Music and the MPAA desperate to justify their existence.


Newzbin is just a search engine for Usenet. There are others. There will be more: like a hydra, as soon as you cut off one head, another two will take its place. This is the law of the post-hacktivist internet – the more you try to fight it, the harder it’ll fight back. Most torrent trackers are now advertising their own proxy services, as protection against potential IP address scraping. Once you’ve got a proxy set up – which for a decent service does cost money, admittedly – you don’t even need the workarounds. Which puts us right back at square one.

So – as I was quite rightly challenged – am I advocating that we just sit there and let people steal our content?

Yes. And no.

I believe there are two types of people that pirate content. First, there are hardcore pirates; those who pirate because they don’t want to pay money for it – be it some sort of anti-corporate ideology, lack of funds, or the simple fact that they’re cheapskates. In addition to those, there is a second group who pirate for convenience – early access, sloth, etc.

The first group are the ones that you will never be able to stop. They see no obstacle as too high to get digital content for free. You can try and chase these ones down but they’ll leapfrog over whatever barriers you put in their way. I have known people who fit this category, who flit from P2P to newsgroups to IRC as the ease in procuring content waxes and wanes. Sitting around and seeing them as ‘lost money’ is pointless, because they weren’t ever going to buy your product in the first place.

The second group ARE worth targeting, because – as I say – piracy is just convenience for them. But rather than stomping around and wondering how we can stop them getting our material legally, why don’t we start exploring how we can incentivise them to get their content legitimately?

Now, I don’t pretend that I’m shepherding in a sea-change of thought here – people have argued this point before, I’m sure (and I’m equally certain I’ve read it myself, and am here regurgitating it in some sort of broken, haphazard way). But the more I think about it, the more it makes sense – we need to stop trying to put up barriers to piracy, and start tearing down barriers between people and our games.

No, wait, don’t go – I’m not going to do a free-to-play upsell here (although there is a huge amount of overlap, and any industry so determined to reduce even the number of clicks between a player and the game is definitely barking up the same tree.) I’m simply saying that we need to explore how we can get our content into people’s hands more conveniently than before.

The very fact that somebody downloads your product illegally indicates at least a small amount of interest. So, they want to play your game. But there’s barriers.

First, there’s the enemy of the terminally lazy: having to go out and get whatever you’re after, or wait a few days to get it delivered. New digital distribution channels, like iTunes and Steam, reduce this significantly. Or convenience in other regards: missed a TV programme when it aired? Where you might have once downloaded a program (something I used to do a lot), thanks to new, legal solutions – ranging from DVRs to On Demand services and aggregators like Hulu – you don’t have to anymore. I’d gladly sit through a few ads for the convenience of it just being ‘there’ when I want it. Similarly, rather than spend ages filtering through torrents to find a non-cam version of a film I want to watch, I’d rather just pay £3.50 via iTunes or Zune to just start streaming it there-and-then. Yes, services like Hulu and Spotify are definitely not optimal solutions in terms of revenue generation, but they are at least trying to legalise access to content. They are attempts to solve the underlying cause of piracy rather than just ‘treating’ the symptom.

For the games market, let’s look at Steam. It’s an almost-perfect service from a consumer’s point of view: what you want, when you want it, often at decent enough prices to tempt the ‘impulse buy’. Although Valve does employ DRM, it’s weak and cracked quickly. Valve hasn’t bothered to make it even stronger, because – according to a great interview with Gabe Newell – it’s just not a big enough deal for them.

“Once you create service value for customers, ongoing service value, piracy seems to disappear, right? It’s like “Oh, you’re still doing something for me? I don’t mind the fact that I paid for this.” Once you actually localise your product in Russia and ship it on the same day that you ship your English language versions, this theoretical hotbed of piracy becomes your second largest- third largest after Germany in continental Europe? Or third after UK?”

What Gabe is saying here ties into my point: Valve believes that by breaking down existing barriers – staggered global releases, unlocalised software – it’s actually more convenient to not pirate!

[Check the comments through that link above for a lot more (anecdotal) evidence of ‘convenience’ trumping illegality.]

‘But hang on,’ you might be thinking. ‘If this is such a solved problem then why are we having this discussion? Doesn’t that imply that all the people who pirate now are in that first hardcore camp?’

Well, no, it’s not a solved problem. Steam is a great solution, but problems are never solved with a single band-aid.

Let’s look at music sales. Everyone knows that album sales are down horrifically from ten years ago – no doubt thanks to piracy, but also pick-and-choose services like iTunes and Spotify. Singles mean almost nothing now, selling as they do for 79p. Touring and 360-degree promotional deals have taken the place as the main revenue stream for artists.

So, if you’re going to make your money by getting people to go on tour, they have to hear your music.


I’m getting a bit of a reputation for being a bit obsessive about Lady Gaga [Jas: no comment!], but there’s a great example of my philosophy here. When her management looked to make Born This Way one of the biggest album launches of the 2011, their aim was to get it into as many hands as possible. Rather than just go all-out on marketing and hope it works, they also looked to new partnerships to spread the content. Here’s some of the ways in which they did that:

  • They released promotional singles early, via iTunes, where the fans could download two tracks from the album at the normal price in the two weeks heading towards the album launch – which were then deducted off their purchase of the full album.
  • They streamed the album, in full, through multiple media outlets across the world, such as the Metro free newspaper in England, taking out full cover-wraps to publicise that people could hear it for free.
  • They partnered with Zynga to make Gaga-themed content in Farmville, with a certain number of tracks streamable as rewards for in-game tasks.
  • They created a special Zynga currency pre-paid card, essentially making it so that anyone who bought a $20 Zynga card got a copy of the album for free.
  • They released a specially-branded Tap Tap Revenge game on iOS, which contained the full album, day-and-date with the album launch, for just £2.99.

Perhaps the most successful tactic, though, wasn’t officially sanctioned; instead run by Amazon. For the first 48 hours of the album’s release, Amazon offered it on their MP3 service for just 99c (paying Interscope the full wholesale price for the album). Amazon alone sold over 400,000 copies in those two days, providing about 30% of the first-week sales that made it the fastest-selling album of 2011. When asked what he thought of the deal, her manager, Troy Carter, wrote:

“Although we weren’t aware of Amazon’s deal that they were offering, I applaud them for their efforts. Anytime we can get people to purchase music legally, it’s a good thing for the business.”

Prior to that, he highlights the issues with technology, and the importance of trying new partnerships:

”The tech community and the music community speak different languages and we’re working on finding the Rosetta Stone. In the meantime partnerships will be tested. Some will work and others won’t.”
This beautifully sums up the point I have tried to make across these 1,700 lumbering words. We need to try new things. We need to try partnerships. We need to try ways of getting our content in front of people – perhaps free, or perhaps lower-cost, perhaps completely tangental to anything we’ve considered before – and then work out how we can monetise that existing engagement. These music examples work because the money is in the merchandising, the tours, the endorsements. They don’t work for games. Yet. But what revenue streams could we exploit as game makers?
So while UK Music and the MPAA – and closer to home, UKIE – might be happy to spend its members money to fight piracy, I hope it never spends mine, nor the money of any company I work for. Because, as creators and publishers, true piracy prevention is our fight. Not theirs.

17 thoughts on “Opinion: why piracy shouldn’t be a lawyer’s problem”

  1. Ride and manage the BitTorrent wave – don't fight it. For example, from the Moscow News 29 Sept 2011 "While most anti-piracy methods focus on destroying illegal content, Klimenko’s revolutionary software, Pirate Pay, aims to protect artistic content as soon as it leaves the studio. It does this by attaching a pay-firewall to artistic files as soon as they are released onto the Internet, which sticks with them whenever they are downloaded as BitTorrents,"

    Current distribution methods (theatres, DVDs and streaming) are inefficient or impossible in many parts of the world. Make it possible to pay for using torrents and they can become a very effective distribution method.

  2. Here's an example for you: I fully admit to downloading games via P2P – BUT they've all been games I'd already gone out and purchased.

    The reason I was forced into grabbing pirated versions? DRM that not once, but twice caused me to have to wipe and re-build my entire PC (looking at you EA & Ubisoft).

    When the game comes with in-built barriers that stop the customer using it (draconian or intrusive DRM, bundled 'management' programs, always online activation etc.) then it's no wonder gamers turn to less legal means.

    Away from games (this is more aimed at television), it's time for content creators to realise that the internet doesn't match out-dated regions set-up years ago, the web is one big region of it's own.

    Every time someone see's 'Sorry this content is not available in your country' that's a lost sale.

    Like you say it should be about breaking down the barriers that stop people getting content legally, not wasting time and resources sticking legal fingers in a virtual dam.

  3. The root problem is that the actual cost of distributing content is now a few cents for a song, a little more for a movie. When the material costs were in the tens of dolars, charging another ten bucks of royalties made little difference, and the publishers' monopoly was bearable. Now even a $3 price is a hundred times the actual publishing cost, and the publishers monopoly can no longer be justified. Publishers must get out of the picture, and authors must prepare themselves for much lower unit royalties.

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