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.
The First Argument: CD Projekt are threatening the innocent
By far the most emotive argument that is often proffered is that CD Projekt are blackmailing people by saying “Pay up… OR ELSE!” and thereby are removing access to justice and denying due process and so forth. Sadly, from a legal perspective, the case seems to be slightly different. Granted, for CD Projekt to call this a “fine” (as they did in the posts linked above) is perhaps unwise. But the principle of what they are doing (and until we see an actual copy of their letters, we can argue over nothing else) is perfectly sound, at least within a legal perspective. One obvious problem is if people are intimidated by these letters, and that is obviously something to avoid, but again, without seeing any of the actual letters that have been sent, it seems far too soon to actually make any comments about it. What we do know about these letters is that what they are offering is an out of court settlement, something which is not only allowed but encouraged by the courts. When a case is open and shut (i.e. Person A says that Person B has done something and Person B admits to it) then there is absolutely no reason to go to court, no reason to waste time and money on lawyers, judges, buildings and so on and so forth. It is trite law that it is cheaper to settle out of court than to go into court and lose, especially since judges can (and almost always do) order the loser of a case to pay the costs of the winner. So if you haven’t downloaded The Witcher 2 illegally and CD Projekt cannot prove that you have then actually the entire process won’t cost you a single penny. You will only HAVE to pay if you are found guilty – if you are not guilty, it won’t cost you anything to refuse to pay the initial settlement and if you are guilty, it’ll be a heck of a lot cheaper if you do.
Of course, one problem with this is that people may wonder how they can convince a judge that they are not guilty. It should first be noted that if CD Projekt do take you to court, they have to prove that you downloaded the game, the only thing that you will ever have to try and prove is that their proof is wrong. This could actually be easier than anticipated, as IP tracing is far from a reliable source of evidence. It is entirely possible that someone has spoofed your IP or someone has downloaded using your insecure internet connection or someone in your household has used your internet connection to download it without your knowledge or consent. This last reason seems the least persuasive – by giving someone unrestricted access to your internet connection you accept liability for their actions – legally speaking there is no other workable system. It’s the same with any service which you sign up for and which you give other people use of, at least from a civil perspective. The IP spoofing is much harder to get around and also much harder to prove and does provide a legitimate reason for concern.
The easy argument is that civil cases only require proof “on the balance of probabilities” (i.e. is it more likely than not that the accused did the thing he/she is accused of?) and if you think that this is wrong then we should be having a jurisprudential argument (the theory of law) rather than one about CD Projekt’s practices. But that one is only convincing to a certain point and it certainly does us no help. Sadly, the evidential argument is out of the scope of this particular post and so I’m not going to try and offer any form of conclusive point about it. I will, however, say that I personally consider that the claims of thuggery and bullying are probably unfair (although of course this depends on the actual contents of the letters being sent), I would be loathe to accept the concept of a court accepting a simple IP trace from a torrent site as being conclusive. These cases will depend entirely on the facts that can be proved, particularly in relation to what method of proof CD Projekt actually have and it will certainly be interesting to see how they play out in court.
The Second Argument: The sum asked for is too high
Other comments being made are the fact that the money being asked for is considerably higher than the actual price of the game. This argument has been met in many different ways, all of which seem unconvincing. For the pros, people are saying “Well, it’s something to dissuade people from pirating!” An argument can be made that this is outside the scope of what CD Projekt are entitled to do with their civil settlements. This argument has merit, but it IS within the scope of the court to issue compensation with this in mind and there is nothing against CD Projekt offering a settlement within that range. If the person being challenged thinks that a court will give a lower level of compensation, they are more than welcome to chase it all the way through the legal system.
Another argument is that the pirates should just have to pay the retail price of the game. This clearly doesn’t make any sense because then you are punishing CD Projekt for demanding that they obtain a benefit for their burden – lawyers cost money, ya know. A more reasonable argument is that CD Projekt should ask for legal fees plus the cost of the game plus any reasonable damages that are due for the effort and whatnot that chasing them down costed. And actually, that’s a brilliant solution. That is what they should be doing – that’s the point of a settlement, after all. “This is the minimum amount of money that we KNOW we will get. Pay it and we won’t bother trying to press for more – especially since we will probably get more.” Win win. Remember kids, compromising is fun!
The Third Argument: Piracy is not a lost sale
The third argument, and the most uncertain, is that a pirated copy does not equal to a sale lost. This is a huge topic and I don’t want to do it injustice, so this discussion is simply a brief overview of the legal implications of this argument. On the face of it, it is true that piracy is a lost sale. There is absolutely no evidence to suggest that someone who has pirated a game would have actually bought the game. Indeed, I would be willing to suggest that actually, many people who pirate the game would not actually have bought the game – for whatever reason they have. This is where the law of equity (a particular branch of the law which deals with moral rights and prevents people from doing anything which might affect their conscience) steps in, which (in this particular instance) says that if the gain something for which you should have given something, you aren’t allowed to argue that you shouldn’t have to give what you owe. In other words, because you get to play their game, it’s unfair that you refuse to pay for it. Obviously this is an extremely controversial topic, but it would seem hard to defend against this concept. Even if we argue that the equitable rule doesn’t apply, the underlying principle that people should not be able to obtain someone else’s intellectual property (indeed something that somebody has spent time, money and effort constructing) without giving something back is one which is hard to support.
One counter to this is the idea that piracy can actually lead to a sale. This situation is less clear cut – although you gain from playing the game, you do actually pay for it and so there is no equitable dillema. Maybe an answer to this is that if you can prove that you bought the game within some reasonable window (and you can prove it) then CD Projekt should be as happy to drop the case as they they are (or as happy as they claim they are) if you bought the game and then downloaded an alternative copy. Looking forward, maybe we should consider the return of the demo in some form or other. Ultimately, it’s hard to find a good solution, and to attempt to do so would be out of the scope of this article, but it certainly seems reasonable for gamers to want a sample of a game before they sink money into it, especially as promotional material can only tell you so much.
Conclusion
This article is not a conclusive argument either for or against CD Projekt, but hopefully it offers a breakdown and analysis of the main arguments being offered and the responses to them, at least from a legal perspective. Regardless of if you think that this is a bad policy, please, Internet, please stop simply saying that CD Projekt are robbing people of due justice and perverting the course of legality. There is a legitimate case for CD Projekt to be claiming against these people, at least within our current legal system. People who pirate a game are obtaining somebody else’s intellectual property without compensating them from it and the law says that this is wrong. A better place to argue would be if you think that, in a civil case, a person should have to prove something beyond all reasonable doubt, as they do in a criminal case, or if we should reform the way in which people are allowed to make or accept out of court settlements. Alternatively, there’s a good discussion about if what Projekt CD are doing is good from a PR point of view or if they are doing the most constructive thing possible to combat piracy in the long run. There are lots of discussions that can be had surrounding this case, I just wonder if the one currently so predominent is slightly missing the point.
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It's actually nice to read a legal post which doesn't chime to the usual "piracy is theft!" rhetoric.
Conceded, that some who pirate may not have bought the game anyway.
But threatening tactics are never the way to go – just look at the music industry. Need we mention ACS:Law? The whole thing smells of "guilty until proven innocent".
Torrentfreak has run numerous articles on the issue that pirates have been shown to purchase more when compared to non-pirates.
What CDP need to do is make it more attractive to the legitimate consumer. Will pursuing a few pirates help in the long run? Willing to bet not. Will a person who's just been sued want to purchase any of your products ever again? Unlikely.
Of course I'm not saying that CDP shouldn't enforce their rights. But what I am saying is that it is perhaps unwise the way they're going about it.
You say "IP tracing is far from a reliable source of evidence", yet this is all the "evidence" all those cease/desist letters are EVER based on.
I don't see how – being aware of that fact – you can actually support this money making sceme.
@ Anonymous 1:
The big PR problem seems to be that CDP are totally able to enforce their rights, but that nobody seems to actually be able to work out a way in which they can do it without alienating people. I think that the big problem seen here is that it is being seen as a threat, but I can't think of any other way in which they could enforce their rights other than reaching out to somebody and actually saying "Excuse me, we have this evidence that says that you are breaching our rights." Perhaps it would be different if they did not automatically ask for a settlement but instead simply opened a dialogue at this point and then later, once the person had responded in such a way as to merit it, offer a choice between legal action or a settlement?
@Anonymous 2:
IP tracing, as far as it is normally used, is not a reliable source of evidence. CD Projekt have claimed that they are running a more reliable method, or that they are employing a company who are tracing people more reliably. Whilst I take this with a pinch of salt, I'm equally reluctant to immediately dismiss this straight out of hand. I guess we need to wait for some of these claims to properly come to court so that we can see exactly what evidence they are providing and if it is persuasive. Since this is a big area, I don't want to make any conclusions on the point until I know more, but it seems clear that the only way we can actually determine that (given the rather secretive way in which CD Projekt are playing their cards) is by people actually taking someone to court.
@John Wrigley
Thanks for replying! About CD Projekt's proof: they have been asked about their self-claimed reliable method, and their answer was "we can't tell, and we can't even tell who gathered the evidence". This is complete nonsense talk.
Furthermore, as they are apparently only taking their legal actions in Germany, it is pretty obvious that they are just using standard harvested IP adresses. Unfortunately, these might actually be all the "proof" they need, as
a) It's trivial to get internet subscription holders adresses by IP in Germany. Our courts just waive those IP lists thru and the provider has to release the customer data to the lawyer.
b) Thanks to "Fliegender Gerichtsstand", CD Projekt's lawyers can chose a court of their liking (= the most rights-holder friendly court, like the infamous Munich one).
c) If you followed Germany's jurisdiction, you'll notice that it's almost impossible in Germany to defend yourself from those filesharing cases. You will have to prove that you _did not_ share. The presumption of innocence gets inverted – how can you prove that you did not do something?
Anonymous2