Can you pirate your own video game?

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?  

Well, probably not much, legally.  Here’s why: a game is a bundle of intellectual property rights – like copyright, trademarks and so forth.  Those IP rights are property – usually they will belong to the game developer (assuming ofc that it has done its homework and got the right paperwork in place).  Like any property, if IP rights are used without permission then the owner can take action to stop you and/or claim financial compensation from you.  Those are called ‘civil’ remedies and usually go no further than you being ordered to stop doing something and pay money instead.  However, there can also be criminal penalties for IP infringement, for example many countries’ laws say that you may commit a criminal offence you are involved in distributing content which you know (or should know) you do not have permission to distribute.

Those are the kind of legal argument which are run when someone pirates a developer’s game without authorisation.  But what happens when the developer has encouraged the piracy, as with Hotline Miami 2?  Well, there’s a reasonable argument that the developer is granting a licence to users to download the game for free and, if the developer actually stuck to that formally, it should constitute a legal OK for downloading and distributing the game for free.

We could get into lots of very fine IP law arguments at this stage, but I’ll leave that to my academic friends – the overall message is that if the developer says it’s OK, that’s a big step towards it being legally OK.  (The one interesting unknown to me is whether the developer itself could be pursued for encouraging/facilitating IP infringement – but who suffers sufficient harm to merit the action?)

Of course if there are third parties involved in sales of the game, e.g. perhaps a middleware provider, a publisher or even a distribution platform, then they may not look on it so kindly, but in practice the chance of them taking legal action when the developer refuses seems small – unless their software is being broken in order to access the game, which raises the legal risks considerably.

The one wildcard though is law enforcement authorities.  When a criminal offence is committed, it is helpful but not always REQUIRED for the notional victim to want a prosecution to take place.  In this situation, the games developer doesn’t want anyone to get prosecuted, but that on its own doesn’t necessarily stop law enforcement from going ahead if they wanted to…especially if the local age rating authority felt as though its rules were being flouted openly and wanted it to stop.   Still though, the risk seems relatively small.

One final thought: with my legal hat on, I’d say for the sake of completeness (and to protect fans) that if a game developer wanted to do this, then ideally it should make a detailed public statement on its official site somewhere, to act as a record for the future, but that’s not really essential.

So there you have it!  But if you can pay legally for Hotline Miami 2, you should.  It’s going to be brilliant.