Activision Goes After Individual Game Pirates

brunascle writes "Activision has begun suing individual pirates of console games. Edge Online is reporting that they are going after a New York resident for allegedly copying Call of Duty 3 for the Xbox 360 and other games, seeking $30,000 to $150,000 in damages for each infringement. GamePolitics has also uncovered six other lawsuits with settlements between $1,000 and $100,000, in five of which the defendant was unrepresented." Activision's lawyers specifically told GamePolitics that the lawsuit wasn't targeting file-sharers, so they probably mean that the alleged pirate was reproducing and distributing physical copies of the game. The court complaint is available here (PDF).

Comments

Great move by Activision!

[Anonymous Coward]

Going after filesharers INSTEAD of pirates is completely nuts, looks like Activision has the right idea.
I really don't see how this is "your rights online" unless you assume all /.ers are software pirates (correctly used here, look up the word if you feel like complaining).

Re:Great move by Activision!

[Praedon]

Yep.. Especially because if people would RTFA it says specifically that the person was making copies and distributing them.. which can put to rest the speculation from within the description of the story, and such. I love it when stories are put to the front page and "Speculate" the truth, when the truth is, yes, indeed this person IS DISTRIBUTING copies of Call of Duty 3 for the XBOX 360...

And it's awesome that they are not pulling an RIAA.. I assume this Strickland dude from New York has his own stand or possibly selling them on the internet or even maybe around his school. I'm a huge fan of Activision, and I'm glad to see them not pulling the stuff RIAA has been known to do.

Re:Great move by Activision!

[syncmaster955]

Since TFA may be of interest to pirates I thought I'd translate it (a day late, I know): "Activision has begun suin' swabbie swashbucklers o' console games. Edge Online be reportin' that they be goin' after a New York resident fer allegedly copyin' Call o' Duty 3 fer th' Xbox 360 an' other games, seekin' $30,000 t' $150,000 in damages fer each infringement. GamePolitics has also uncovered six other lawsuits wi' settlements between $1,000 an' $100,000, in five o' which th' defendant be unrepresented." Activision`s lawyers specifically told GamePolitics that th' lawsuit wasn`t targetin' file-sharers, so they probably mean that th' alleged swashbuckler be reproducin' an' distributin' physical copies o' th' game. Th' court complaint be available here (PDF)."

Re:Great move by Activision!

[electrictroy]

I have copies of Freeway, Fishing Derby, and Kaboom in my emulation folder (as do most other classic gamers). I hope they don't come after us.

Re:Great move by Activision!

[Anonymous Coward]

I totally agree, it's about time the powers that be stopped walking backwards.

Re:Great move by Activision!

[shnull]

Are you crazy? 150k$ for one copy ? ... I dont see mythic or blizz doing that but oh WAIT ! ... they did it right !!

Talk about not worth it...

[Anonymous Coward]

...Call of Duty 3??

So?

[cryfreedomlove]

Doesn't Activision have the right to recover their development costs and profit from the risk they took to produce the game?

Re:So?

[Okind]

> Doesn't Activision have the right to recover their development costs and profit from the risk they took to produce the game?

NO. They have a right to TRY. They do not however, have any right to deny people their fair use rights, nor any other right they have.

On the other hand, this doesn't seem the case here (assuming the information from Activision is correct).

Re:So?

[Sasayaki]

Undoubtedly.

Nobody is contesting their legal rights in this case- at least, not me.

I am, however, contesting how *wise* this decision is. Game companies produce a lot of crap. The signal to noise ratio is extremely low, especially when considering just how many games are produced for the PC every year. So how do we know what's good?

Well, we could seek reviews- but many reviewers are paid for their submissions, have an agenda, or simply have different tastes. Or we hear about it from friends. Or... we pirate them and see for ourselves. If the game is crap- nothing wasted. If the game is good, we're going to want its expansion pack/online play/multiplayer/box art/full colour manual/bragging rights/etc.

In almost all cases, such "piracy" doesn't constitute a lost sale. Either the "pirate" couldn't afford it anyway, or wouldn't buy it if she couldn't "pirate" it. Think students, working mums, etc. Not all of them are- but most.

But these pirates give you something money can't buy- legitimate word of mouth advertising. You can't buy it, it's the BEST form of advertising short of beaming ads into people's dreams and it's generally free. And it's one of the three ways people decide if a game is good or not- and as stated earlier, it's generally the most telling.

So: you can excuse acts of individual not-for-profit piracy and write it off as free advertising. Or, you could hunt down anyone who pirates even a single game and charge them for a crime with punishments quite often worse than rape.

Are people going to buy more of your games, or fewer?

Re:So?

[rtfa-troll]

I have spent my entire youth learning how to roll excellent joints. It was a risk, but I was certain that by the time I grew up dope would be legalised and I would be able to become national champion. I didn't managed to get a degree or any exercise and I'm not even fit for manual labour now, but if I had concentrated on education instead then I would have been the head of a software company which overtook Microsoft.

I demand the taxpayer pay me billions that I risked and lost with my career choice. I took the risk and I deserve the profits.

Re:So?

[91degrees]

Yes... If they sued him for the amount they would have made in sales then I'd totally support that. They seem to be suing for a ludicrous amount that in no way could reflect their actual losses. Litigation really shouldn't be a profit centre. The idea is that it's meant to put the plaintiff in the position they would have been in had the action not occurred.

Re:So?

[91degrees]

Although that said, it isn't just a file sharer. This may actually be a major large scale for-profit piracy organisation, in which case this could be quite reasonable.

Re:So?

[whisper_jeff]

The idea is that it's meant to put the plaintiff in the position they would have been in had the action not occurred.

What ever gave you that (incorrect) idea? Seriously? They're called punitive damages for a reason. Here - I'll make it easy for you and not even link to Wikipedia - I'll just post the definition for you.

Punitive damages (termed exemplary damages in the United Kingdom) are damages not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff.
The point is to _PUNISH_ the offender sufficiently that they are discouraged from the act. It has nothing to do with putting the plaintiff into the position they'd have been in had the act never happened. It's a PUNISHMENT to the offender intended to discourage them from committing the offense in the first place.

Re:So?

[betterunixthanunix]

No, Activision has the right to sell the game they took a risk to produce. There is no entitlement to a profit; if there were then shitty games would be just as beneficial as decent games, and there would no incentive for anyone to improve anything.

Re:So?

[cdrguru]

The point you are missing is that most of the people that I know who pirate music and software are evangelical about it. "Here Bob, don't buy that. Let me give you a copy." It takes an unusual person these days to say "No, I'd rather give WalMart money for it."

So just because one person pirates a game does not equal one potential sale lost. They are going to give a copy to everyone they know. They are going to post it on the Internet on some Russian warez site to increase the wealth of all those poor people that would never be able to afford the game anyway. Any anyone else that wants it without paying.

The end result is one pirate equals many, many lost potential and real sales. And the objective of the most evangelical pirates is to remove the revenue from such things. "It should all be free and trying to charge people for bits is just wrong." goes the argument.

The end result is you can either be for or against piracy. If you are for it, you use every possible means to defect the pro-revenue people trying to sue or imprison you. If you are against piracy, you try to squash the pirates any way you can.

Too bad that in the end the pirates are going to win. It is a pointless exercise in futility.

Re:So?

[Spy der Mann]

The point you are missing is that most of the people that I know who pirate music and software are evangelical about it. "Here Bob, don't buy that. Let me give you a copy." It takes an unusually naive person these days to say "No, I'd rather give WalMart money for it."

There, fixed that for ya.

Re:So?

[msromike]

I keep seeing this same "such 'piracy' doesn't constitute a lost sale" argument. I am not sure I believe it. Do you have ANY references to support your claim?

I personally know many people that would buy the game but don't if they can play a pirated, loaned, rented copy to the end. In fact I know more people that fall into the latter category than into the former. You say people will but it to get the "expansion pack," or whatever. Do you think selling the "Titanium" version for $9.99 five years after the release secures the same profit to the studio?

So if that assertion is indeed false then is your whole argument false as well?

I am not sure your claim that word of mouth advertising is better than other forms. Do you have any proof to back up this other speculation? Word of mouth may be good, but who is to say it is the best form of advertising? What if the recipient of the word of mouth endorsement tend to be people that enjoy pirating and DRM busting pursuits as a hobby?

Car analogies are a much underused tool so here goes. If I stole a Lincoln MKS from the dealer and drove it around town, and then dutifully told my friends how great or hoe poor it was, then is that acceptable piracy?

I see a lot of the same rehashed arguments defending stealing software in various forums. Most are based on assumptions and not necessarily on any facts.

Last question. Let's assume that the people that develop, and market successful games in this multi billion dollar industry are fairly competent. I mean when this kind of money is involved the most business savvy are bound to make it to the top, right? Anyway, if your ideas about piracy are true (IE piracy benefits the victim) then why aren't these people smart enough to realize that instead of stopping piracy they should instead be facilitating it?

Re:So?

[Anonymous Coward]

Someone else already posted about punitive damages, so instead, let's talk about the risk/reward aspect.

If the damages from an illegally copied game (say, from a filesharer) were just the real damages associated with a lost sale, there would be no reason ever to buy games. Just copy them from your friend. If you get caught, oh darn, you'd have had to pay $50 anyway. If you don't, great. Free game. There's zero risk for games you would have purchased anyway, and not paying for those helps subsidize games you may not have purchased anyway.

It's similar for a pirate. If all this guy had to do was hand over all of the money that he made to Activision, why not pirate games? Most of the time, you probably won't get caught. If we accept the idea of copyright as valid anyway, it's perfectly reasonable to make the penalties for it higher than the profits you can make from it. Finding an appropriate middle-ground between totally destroying the person's life and recouping costs is the key. For the record, I think that the current penalties are too high, but I certainly believe that they should be higher than actual damages in most cases.

Re:So?

[91degrees]

And if a court orders punitive damages they're explicitly stated as such. The point of statutory damages isn't to punish.

Re:So?

[Idiomatick]

to be fair xbox360 you can download demos of alot of games free...

Re:So?

[thetoadwarrior]

Making copies of a game to sell/give to people is not a right.

Re:So?

[ScrewMaster]

So: you can excuse acts of individual not-for-profit piracy and write it off as free advertising.

Still, the reality is that if Activision is going after a true pirate (as defined by copyright statute, not the RIAA and not Webster's) they're not only within their rights, but obeying the letter and the spirit of the law. If this guy was copying and selling their product, depending upon the level of financial gain involved he may be a real live honest-to-God pirate. Whether you or I believe that piracy is "good" for Activision is irrelevant ... they get to decide that, not us.

Frankly, if the RIAA had left file-sharing alone and spent all that court time going after the people and organizations committing acts of real piracy (unauthorized mass-duplication of media for distribution with intent to profit) I wouldn't have anything against them. Instead, they decided to beat the crap out of everyone they can in what can only be described as an ongoing act of terrorism.

The MPAA is involved in similar dysfunctional and misguided lawsuits against torrent indexing sites. I consider that just as wrongheaded: where do the bulk of their losses come from? Downloaders? No, they come from the factories cranking out millions of illegal copies of their product for sale. Most of these are in Asian countries, and often the same plants that make authorized copies turn out illegal ones and sell them on the side.

Seems like Activision took the high road here. Not that I read the article or anything.

Re:So?

[Kjella]

If the game is good, we're going to want its expansion pack/online play/multiplayer/box art/full colour manual/bragging rights/etc.

1. The expansion pack is also on TPB.
2. Online play/multiplayer is a strawman, how often do you like a MP game for the SP or vice versa? Typically it's an either-or.
3. Box art/full colour manual are for many just a waste of space, who reads the manual after playing some time anyway?
4. Bragging rights for... what? Most I know want to see some game skills, not the reciept.

I think most people will sorta convieniently forget or have a massive change of heart "well, it wasn't that great" when it comes time to pay. It's easy to find some sort of nag to excuse not buying.

Re:So?

[Anonymous Coward]

or wouldn't buy it if she couldn't "pirate" it

Generic pronouns; you're doing it wrong.

Re:So?

[Richard_at_work]

This shit gets '+5 Insightful' on Slashdot now? Now I know the wackos are in power...

Re:So?

[poetmatt]

The argument is dead on, and yes you missed it.

If you charge too much, or someone wants to try your game before deciding if you deserve their money, they are entitled to do so.

"Pirating" a game fits that purpose directly.

If someone doesn't have enough money to pay for a game but wants to play it, well, he can "pirate" it too.

would any of these scenarios constitute a sale? no.

The best comparison is like 2 people having a PC, and one borrows the game from the friend. No sale is necessarily made, and no copy is truly "distributed". Meanwhile, does the company get something? Yes, promotional value. Could those people possibly in some indirect fashion lead to others buying the game? Absolutely. However, when it comes to software, there is only one copy. After that is made copies onto other things, technically there is nothing more to be stolen. It has already been released and there is no way to prevent copying at this point.

Cars are not like software. Why? Because a car is a physical loss if it is taken. "taking" software in any frame of mind is more like saying "you can't breathe our air unless you do it in our specially approved area" and well, guess what happens if we don't breathe that air? Guess what happens to "your" air? Nothing.

People cannot embrace piracy because it's a false term. They are associating things indirectly through the wrong terms. "Intellectual property" is an oxymoron in and of itself. When someone refers to a game as IP, or as piracy, they are associating things that are not the case. Piracy would be more accurate simply being called "copying", ala mixtapes. Calling it piracy demonstrates someone's lack of understanding and wanting to simply villify sharing.

Plenty of people do understand the difference, trent reznor and a video game developer as a few examples.

Re:So?

[Anonymous Coward]

"On the other hand, this doesn't seem the case here (assuming the information from Activision is correct)."

Re:So?

[Anonymous Coward]

Are people going to buy more of your games, or fewer?

The problem is that the companies are increasingly turning around and saying "Well, we'll have your money anyway so at that point we don't care how crappy our shit is, so long as someone dares to pay without playing so we can sue them for x200-x1000 what the product was worth."

Re:So?

[genericpoweruser]

You've almost thought this out far enough to make an intelligent opinion--but you made one glaring mistake. You said steal the Lincoln.

Software pirates don't steal anything, they make a copy of it and don't pay the original owner.

Since this is not possible with tangible goods, your car analogy breaks down a bit. A more fair analogy is that the person steals the Lincoln MKS, drives it around town, then returns it in exactly the same condition in exactly the same place (and somehow with exactly the same mileage) so that the only way the dealership could know it had ever been tampered with is to check their security cameras. The would-be cartheif then tells his friends how much he liked the car and that they should try it out themselves.

Now he definitely trespassed but the dealer isn't really without anything. However he might not buy a Lincoln now since he already completed his errands around town.

Re:So?

[John3]

It's an XBox 360 game which means you can likely download a demo version for free via Xbox Live. That should be enough for someone to try out the game and decide if it's worth purchasing.

Re:So?

[rtfa-troll]

Hey, don't complain, with ideas like mine I could easily run for office and at least I haven't done that .... yet.

Re:So?

[Anonymous Coward]

Yeah! If Activision release games that can be copied by pirates, they have only themselves to blame and shouldn't try to use the courts to protect themselves. They're just trying to demand they get paid for making the game on the flimsy excuse that there has been copyright law on the books for decades if not centuries that says that they can! (But they'd better not try using DRM instead of legal tactics, because that would also be bad)

Really, Activision should just spend their money making games, release them with no DRM and then be GLAD when people don't pay them, because it is "advertising" for their business or some handwaving reason.

A guy down the street did a load of paid overtime at work and just because he did all that work he thinks he "deserves" the flat screen TV he bought. He made the effort so he thinks he deserves the rewards! What a loser. If he can't catch me or prevent me from robbing him, it was mean of him to call the cops on the taxpayers dime. Why should the taxpayer protect him from the risk he took by leaving his TV in his house unprotected? Just because we have laws against theft, he thinks that means I shouldn't have taken his stuff!

Re:So?

[ion.simon.c]

The best comparison is like 2 people having a PC, and one borrows the game from the friend. No sale is necessarily made, and no copy is truly "distributed".... However, when it comes to software, there is only one copy. After that is made copies onto other things, technically there is nothing more to be stolen.

A couple of questions for ya:
1) When friend 2 borrows from friend 1, what is he borrowing?
2) After friend 2 borrows from friend 1, can friend 1 still play his game? Why or why not?
I don't think that you've though this "only one copy" thing through very well. More questions:
3) What exactly is in those boxes on the shelves of video game stores?
4) If your answer included the word "CD" or "DVD", then where do CD's or DVD's come from?
Along those lines, it's perfectly okay to steal a battleship. After all, all the data required to reproduce it is on a computer somewhere... all they need to do "burn the battleship to a DVD", right?

Putting hyperbole aside for a moment...
There's little doubt in my mind that most of the AAAA titles make back far more than their R+D and production costs through sales. And no, "stealing" software is generally not equivalent to stealing another good, as the costs to generate another copy of the software are almost always marginal. The internet is a copy machine. See here for someone who doesn't understand that:
http://www.boingboing.net/2008/09/20/bill-oreilly-on-sara.html

"Pirating" is always a sticky topic. "Common sense" says that ethical people will only "pirate" for as long as they have little to no interest in or ability to purchase the software. It's the unethical bastards out there who are ruining it for us. ;)
And, naturally, if you have someone out there who's *selling* "pirated" copies, it's really easy to argue that each copy sold is a lost sale, as folks are now paying money for the software!

Re:So?

[cpt kangarooski]

Still, the reality is that if Activision is going after a true pirate (as defined by copyright statute, not the RIAA and not Webster's)

And where, pray tell, does it do that? The main definitions section in the US Copyright Act is 17 USC 101. There are a few other definitions scattered around.

I think you'll find, however, that 'pirate' is only a colloquialism, at least so far as copyrights are concerned. In the law, everyone who infringes is an infringer; it matters not whether it's a person unlawfully making a copy for his own use, or an international ring of illicit manufacturers, distributors, etc. This is somewhat problematic, in that it results in infringers all along the spectrum being subject to the same sorts of penalties, with little regard to their individual circumstances.

Whether you or I believe that piracy is "good" for Activision is irrelevant ... they get to decide that, not us.

You might not want to give up your involvement, either. You, and I, and the rest of us, get to decide what copyright law should be, at least via the representative government we've created, empowered, can participate in, and which serves us. While it may be up to the copyright holder to decide to what degree he wants to exercise his rights, it is up to everyone else to decide what rights he has to begin with. We're not obligated to have copyright laws at all, you know. Nor are we obligated to have copyright laws that make any particular action illegal. If we decide they ought to be changed, then we can have them changed. Unless of course the government isn't being responsive to the will of the people, in which case it may lose its legitimacy.

Re:So?

[ion.simon.c]

Eh.
Frequently not. I've run into demos that take their gameplay/setting from the *best* part of the game... so it's all downhill when you go to purchase the game.

Re:So?

[ion.simon.c]

Well.
This guy was *selling* copies of the games in question. He is a real pirate... ARR!

Ethical people may snag an "evaluation copy" from TPB for just that purpose. Ethical people *will* purchase a copy if it evaluates favourably. It's those damn unethical folks that are making this hard for the rest of us!

Re:So?

[westlake]

In almost all cases, such "piracy" doesn't constitute a lost sale. Either the "pirate" couldn't afford it anyway, or wouldn't buy it if she couldn't "pirate" it. Think students, working mums, etc. Not all of them are- but most.
.

The PC game that sells for $60 today will be steeply discounted tomorrow.

Far Cry $6.

Impatience and greed do not excuse theft.

The hardware requirements for Far Cry were not low end in 2004.

Which raises the interesting question of how your impecunious student or working mum was able to scrounge up the hardware needed to play it.

Eight of the top twenty-five Best Sellers in PC games at Amazon.com are pre-release.

Titles like Wrath of the Lich King and Fallout 3.

Re:So?

[John3]

True. Knights of the Old Republic was a great game. The sequel was equal or better in quality, but the ending was a huge disappointment. You don't discover that until you play through the entire game.

So sometimes you need to make a judgment call based on the demo. It's far better than basing your decision on a video at Amazon or the game designer web site. So, we've made some advances. :)

Re:So?

[PitaBred]

Let's see... should I pay for a copy of software that will install all kinds of shit on my computer, and possibly not work because of other software that's installed (like ISO mounting programs), or should I take the pirated copy that will just work and is a lot cheaper and less likely to screw up my computer. Man, this is a hard decision!

I buy software. I don't if it has shitty DRM that tries to invade my machine and take control away from me.

Re:So?

[poetmatt]

Okay, it doesn't matter what they borrow. If the first friend can play or not doesn't reflect, since there still isn't a physical copy. The "borrowing" doesn't have to be physical at all.

If you are selling something pirated, who is to say that the people who bought the illegitimate copy would have bought the original? No, its not that easy. You cannot dictate the minds of the consumers. Nobody can.

(note, I'm agreeing with you)

and sadly, people like oreilly don't understand anything and represent the kind of folks that probably push legislature about the internet. Disturbing.

Re:So?

[mazarin5]

He took the risk to write out a post like that, so he deserves the mod points :P

Re:So?

[quantumplacet]

well, if we want to keep up a really crappy car analogy:
the guy doesn't steal one lincoln once, instead, everytime he needs to get somewhere, there's a linclon just sitting there. and he can take it, and he always puts it back exactly the same, so the dealer isn't losing anything. He goes and tells his friends how great the Lincoln is. They say, hey, i've got to get somewhere, i should get a linclon. but the original says no, don't buy a lincoln, i know somewhere where there's always a lincoln just sitting there, and you can just take it. don't worry, no one loses anything. and then they tell their friends, who tell their friends, and everyone takes the lincoln. the dealer still has the car (in this really crappy analogy, somehow the car is always there when the dealer needs it), but for some reason, no one wants to buy it anymore. everyone in town is driving a lincoln, but no one's buying one from the lincoln dealership. eventually, it closes down. now the market is still there for the cars, but there's no supply BECAUSE A BUNCH OF CHILDISH ASSHOLES DECIDE THEY'RE ENTITLED TO MORE SHIT THAN THEY CAN AFFORD.

Re:So?

[KDR_11k]

However the perception of a game's price is shaped by warezing too. Downloading all your games for free makes $10 seem like a lot in comparison, never mind $50. Who'd pay $50 for something he can get for free?

Of course we could legalize warez, the predictable result would be that no company would attempt making anything for sale in our market. Do that worldwide and you got an industry looking for a new job. Who'd make videogames when there's no money to be made? Only the hobbyists and they can't even make their hobby their job because the job does not exist.

Yes, yes, cue the standard "then have users fund game development a priori". Shitty idea, what if the game sucks? You're out of the money without any opportunity to evaluate the product first. Add a "only pay if the game is good" rule to the contract and any takers would have to be fucking insane.

Freeloading only works if it doesn't drown out the paying and promoting freeloading hurts everyone except the new freeloader as production gets scaled back.

Wanting to try a game before you buy is not a reason to download warez, get the demo, if you think demos aren't representative that's your problem. If you don't have the money for something you don't get it, that's the basis of capitalism: You contribute to society and in turn get to enjoy society's products. Freeloaders don't contribute a share as large as they consume and deny others their share who do contribute. Even if the grunts don't see direct royalty payments their job is tied to the company's health, fewer sales = downsizing or even bankrupcy.

Re:So?

[KDR_11k]

The would-be cartheif then tells his friends how much he liked the car and that they should try it out themselves.

And hands them a duplicate of the keys he used himself.

Re:So?

[KDR_11k]

We're not obligated to have copyright laws at all, you know. Nor are we obligated to have copyright laws that make any particular action illegal.

Unless there are treaties with other nations involved.

Re:So?

[KDR_11k]

What about rentals?

Re:So?

[KDR_11k]

Apply statistics and then it becomes profitable to ignore the law.

Profits divided by the probability of being caught multiplied with the fines = expected returns. The law only works if that comes out negative. If you just risked a loss of all profit at a probability of 20% (very generous, most likely it's below 1%) you'd come out with 80% of your profits on average. Any business would take an action that nets them free profits like that.

Re:So?

[ion.simon.c]

Aye. Rentals are a *very* good thing, and a well established means of trying console video games. (I'm not sure if they make sense economically... It's been a decade since I've rented a video game!) 'Twould be nice if Steam (and other digital distributors) could cook up a deal with software publishers to use their effective DRM to do online rentals!

So, in that vein, do you know of a place (meat or cyberspace) that rents PC video games?

Re:So?

[91degrees]

This is why we have criminal law as well as civil law.

Of course, in criminal law, the onus of proof is much higher.

Re:So?

[ion.simon.c]

So sometimes you need to make a judgment call based on the demo. It's far better than basing your decision on a video at Amazon or the game designer web site.

Hmm. You have a point. I don't think that it's universally valid, but it's certainly not a *bad* one.
A question:
Might we end up with *better* games if folks pulled down full versions of games from P2P, and purchased only the ones that they actually play? This way, noone wastes their money on stuff that they don't want, and the distribution costs of the "evaluation copies" are covered by someone other than the publisher.

So, we've made some advances. :)

Pardon? I'm not sure what you're saying.
You do know that shareware demos have been around for decades, right?

Re:So?

[ion.simon.c]

Mmm.

If there's no physical copy, then what is there to borrow? I'm kinda confused about this. Wouldn't friend 1 be letting friend 2 make a *copy* of his game?

WRT paying money for "pirated" goods:
You're never gonna be able to account for people who are insane or extremely unreasonable, eg. folks who wanna hurt Interplay by buying *all* of Interplay's games through shady back-alley warez dealers. ;)
IMO, a reasonable argument for "stealing" software is a legitimate economic one... you don't have the money to pay for it (or you're getting a free "evaluation copy" and will "upgrade" to a "real copy" if the software meets your needs). If you pay a dude on the street anything near retail for "pirated" software, then this economic argument cannot be considered.
Does that make sense?

Re:So?

[Anonymous Coward]

Well said.

Also, we all think of this guy as a side-walk vendor. Could he have been a software cracker? Maybe he was distributing between friends for seeding purposes? Pirates walking the plank on pirate day?

Re:So?

[cpt kangarooski]

Same deal, really. We aren't required to make treaties, and treaties can be withdrawn from. Frankly, meaningful copyright reform will never happen in the US unless with withdraw from most, if not all, of our copyright treaties. All the people out there who want terms shorter than life+50 -- they're implicitly advocating withdrawal. It's more popular than it seems.

Re:So?

[John3]

Pardon? I'm not sure what you're saying.
You do know that shareware demos have been around for decades, right?

Yes. Many, many shareware purchases over the years starting with the old BBS software I ran. One of my passwords is actually my old Forsberg Zmodem registration key.

I think that the "demo" versions on websites and on Xbox 360 really owe quite a bit to the shareware tradition. The difference is that you don't get a full version without paying, but you do get some free enjoyment if you just play the demo.

Re:So?

[Anonymous Coward]

Stop making excuses for stealing games,If they cant afford the games,too bad. Get a job or do odd jobs to make the money. Shovel snow,cut lawns,wash cars. They don't need the free advertising they often release 1 or 2 levels of a game for free, so that argument doesn't fly.

There criminals no matter how much people sugar coat there reasons stealing Games.

Re:So?

[poetmatt]

Heh, nice to see a structured debate for once on the internet and on slashdot, no less.

What I'm saying is what difference does it make if the copy is physical or not? There is no ownership by the creator of the software whether a physical or electronic copy is created (or merely passed on back and forth). There is an inherent promotional value that the software maintains irregardless of it's current form (tell a friend,etc).

I would love to see EA hurt by watching the company go up in flames. However, I'm not going to take action and sadly they probably wouldn't learn even if they did. Damned if you do, damned if you don't, they think they should have consumer control.

I agree; however, if these street dudes who sell bootleg equivalents or flea market equivalents (I'm assuming thats what you mean) are enough that you like something and shitty enough quality that it justifies buying the real version, then what? I've done exactly that myself before, where a bootleg of a movie was crap so I decided I wanted the real thing after having seen the bootleg and since people value my opinion about 15-20 copies of the movie (dvd version) were sold. It's not like these people don't know how to do a netflix rental+burn, just people are reasonable if not treated like shit (aka how I treat them in comparison to the mpaa/riaa). In a sense, it is indeed an evaluation copy. The thing people don't get is an evaluation copy needs to be SUFFICIENT. It needs to be something that doesn't expire, or has limited gameplay. Just don't have it be the finished product. Like finding half of a movie on the "demo", or half of a game on the demo. You know sure as hell people will buy full at that point if they like it. These 2 week demos for some games, are pointless.

Simple example: If wow allowed ALL players to be able to play up to lvl60 chars and through old nax for free on blizz hosted servers at no subscription cost, they would bring in so many new players even before LOTLK than I can hardly describe. Evaluations need to become longer as a product becomes more detailed. If you have a whole Spiderman 1-3 series of movies, give away 1 and 2 as a 100% free evaluation with a discount if you buy the third when you turn in the evaluation or something. This is honestly truly basic promotional value here.

Re:So?

[Anonymous Coward]

This is ridiculous. What kind of word-of-mouth advertising would the pirate do? For every recommendation he would make, he'd probably make an equal recommendation for pirating the game off of bittorrent.

Please stop trying to justify piracy by saying it's good for the publisher. If the publisher thought it was in the best financial interest to get out the word of mouth, they'd offer a free download for the first 100,000 people. Clearly this doesn't add up.

Re:So?

[KDR_11k]

And it'd royally fuck your economy over since it's your country that proposed the treaties in first place, it sure won't help your diplomacy if you withdraw from treaties because they are inconvenient after proposing them yourself, reeks of "here's a rule for you guys but we don't care". The US already has a reputation for ignoring treaties they make, continue doing that and you won't be able to make any economic treaties, especially with your economy on the decline and your bargaining power dwindling. The populations of countries which make treaties with the US already consider their governments corrupt for even trying such stupidity.

Re:So?

[KDR_11k]

Here in Germany it seems every rental place has PC games too but I guess that won't help you.

Re:So?

[KDR_11k]

What's criminal law for here? Adding punishment to civil infringement or what? I don't see how the distinction is relevant.

Re:So?

[Anonymous Coward]

"If you charge too much, or someone wants to try your game before deciding if you deserve their money, they are entitled to do so."

No they're not. They're entitled to buy someone else's game that lets them try it first, or who charges less for it.

""taking" software in any frame of mind is more like saying "you can't breathe our air unless you do it in our specially approved area""
Oh. You mean like private clubs, businesses, aircraft, and border patrol? They're basically doing exactly that.

""Intellectual property" is an oxymoron in and of itself."
No, public property is an oxymoron. Intellectual property is simply something you don't sufficiently understand. It's a perfectly apt description for a category of property in intellectual works. Only idiots and liars misconstrue the term to mean anything else, like "owning ideas".

Re:So?

[Anonymous Coward]

So you see the part of the game the developers wanted you to see, not the part that really sucks.

Re:So?

[rtfa-troll]

Criminal law has totally different standards. You generally have to be "guilty beyond reasonable doubt". Civil cases tend to be decided on "the balance of probability" or other standards weaker than reasonable doubt. Punishment is for the guilty and so should have to fit into criminal law standards.

Re:So?

[pommiekiwifruit]

I demand the taxpayer pay me billions that I risked and lost with my career choice.

Do you work in the financial services industry?

Re:So?

[pommiekiwifruit]

Oh, you mean KoTR which has "DRM" on it which means that the store bought copy does not actually run on a store bought PC? Bastards. I should have pirated it instead, at least then it might have worked. Luckily, there are professional platforms out there which you can buy working games for.

Re:So?

[electrictroy]

No.

Getting paid just $10 an hour (post-tax) makes $10 seem like a lot of money. I'd rather leave work an hour early on Friday & go enjoy life.

 

Re:So?

[electrictroy]

Flaw-

The world would be a better place with fewer car dealers. As the current credit collapse shows, Americans are already buying more stuff than they should (average debt == around $150,000).

Re:So?

[jonaskoelker]

They do not however, have any right to deny people their fair use rights

Fair use is a defense, not a right.

IANAL, TINLA; see http://en.wikipedia.org/wiki/Fair_use. I've heard those words spoken by a female lawyer in a slashdotter-friendly context. I think it was Cindy Cohen, either relating to EFF, Defcon or both, but I may be wrong; check http://www.defcon.org/html/links/defcon-media-archives.html (check it even if you don't care, you might learn something really fucking awesome).

What does it mean that fair use is a defense and not a right? It means that someone can prevent you from doing the things permitted under the fair use doctrine without limiting your ability to exercise your rights (as I understood and remember it).

Also, when assessing whether something is legal, take current and recent findings of the judiciary body into account; they may be more relevant than what the US Code says.

Re:So?

[Bungie]

BECAUSE A BUNCH OF CHILDISH ASSHOLES DECIDE THEY'RE ENTITLED TO MORE SHIT THAN THEY CAN AFFORD.

You're totally viewing the relation of piracy to lost sales incorrectly. I have a pirated copy of Photoshop on my system. The fact that I pirated Photoshop doesn't mean Adobe lost a sale, because I'd never pay the $699 and buy a copy of Photoshop for the the few little photo edits or whatever that I use it for. Adobe doesn't directly use a sale because I'm running pirated Photoshop, because I'll probably never purchase a copy of Photoshop in my lifetime. If I gave a copy to my buddy it's not like he was ready to buy a copy either and I stole Adobe's sale. If I ever couldn't run pirated Photoshop anymore (or if it became much hassle to crack) then I would just use something else. It's a great product but I don't really need it.

If I actually used it enough to justify the cost then I would probably but it to save a lot of hassle. Running pirated copies of software is not as carefree and fun as just making a copy. Most of the time you have to take precautions to keep the software cracked and from re-activating. Often you can't use features, update the software or do all kinds of things with a pirated copy. I've even had people I've given copies to actually buy Photoshop. After using the copy they decided they liked it and had enough usage for it, the cost was worth avoiding the hassle.

People who actually need the Lincoln will buy it from the dealership, get their coverage and full features which the copy Lincoln doesn't have. Maybe there'll be a product recall and suddenly all copy Lincolns will break at some point. People using the copy Lincoln just wanted to get somewhere. The copy Lincoln is nice but they'd be fine with a copy Lada too. They could also decide the copy Lincoln was sweet and buy a real one.

The childish assholes are the companies who claim they're losing money because basically people who can't afford it didn't buy their product. There is some impact from piracy, but it works both ways, and it's not a direct correlation to a sale.

Re:So?

[PopeGumby]

someone wants to try your game before deciding if you deserve their money, they are entitled to do so.

On what is this entitlement based? The owners of the game, be it the studio or the puiblisher/distributor, obviously dont think you are entitled, otherwise they would build this into their game, via an advanced demo, or time-based activation key.

SO who or what entitles them to this try-before-you-buy setup?

Re:So?

[PopeGumby]

BECAUSE A BUNCH OF CHILDISH ASSHOLES DECIDE THEY'RE ENTITLED TO MORE SHIT THAN THEY CAN AFFORD.

You're totally viewing the relation of piracy to lost sales incorrectly.

Actually, s/he isn't. Didnt mention lost sales, mentioned that if people can't/don't want to pay for something, then they shouldn't be entitled to own the product.

I have a pirated copy of Photoshop on my system. The fact that I pirated Photoshop doesn't mean Adobe lost a sale, because I'd never pay the $699 and buy a copy of Photoshop for the the few little photo edits or whatever that I use it for. Adobe doesn't directly use a sale because I'm running pirated Photoshop, because I'll probably never purchase a copy of Photoshop in my lifetime. If I gave a copy to my buddy it's not like he was ready to buy a copy either and I stole Adobe's sale. If I ever couldn't run pirated Photoshop anymore (or if it became much hassle to crack) then I would just use something else. It's a great product but I don't really need it.

Then you dont deserve to own it. There's plenty of free photo editing tools out there (I assume), and if they're not as easy to use as Photoshop, or they dont have the same level of tools and the like, its because people put a lot of work in to making Photoshop a good product, whereas less work goes into free products, because there's no reward for the owners.

I'm not saying Adobe's losing a sale by you copying their software - I'm saying you have no right to have the software at all - go use the free tools if you don't want to buy it.

Running pirated copies of software is not as carefree and fun as just making a copy. Most of the time you have to take precautions to keep the software cracked and from re-activating. Often you can't use features, update the software or do all kinds of things with a pirated copy.

Yeah, you're breaking my heart...

Re:So?

[KDR_11k]

Then go enjoy a life without getting vdeogames the day they come out.

Re:So?

[cpt kangarooski]

it sure won't help your diplomacy if you withdraw from treaties because they are inconvenient after proposing them yourself

We didn't propose all of them ourselves, e.g. Berne (which we wisely avoided for about a century, and comes from France), and in any event, countries always follow their own self-interest; it's just a factor in diplomacy. Hell, it's a factor in copyright, which serves the public good (i.e. everyone's collective self-interest) by leveraging the self-interest of authors who will do certain things in order to get copyrights. It's a bit like using the self-interest of a mule chasing after a carrot on a stick to serve your own self interest in having him pull a cart.

reeks of "here's a rule for you guys but we don't care".

No, we'd be having a major policy change: 'this was a stupid rule, everyone should feel free to abandon it, just as we are doing.'

And it'd royally fuck your economy over

Maybe, but the interesting thing is, too much copyright is a drag on the economy of creative works, and at the extremes, can be worse than too little, or no copyright. Reforming copyright, which necessitates withdrawal from copyright treaties, could very well improve the economy. Sure, we've been relying heavily on it, but that reliance may have been ill-placed, like expecting property values to only go up. Excessive copyright requires that everyone, worldwide, respect it. This is not happening either, and ignoring the evidence is probably not helpful.

Re:So?

[poetmatt]

Hmm, the world does. Simply because you cannot control (insert any object/thing/software/etc) the minute it's released.

For software, the minute you have a .exe, you have the source for a program whether the developer wishes it or not. This stuff is basic enough to find the source within minutes. There is absolutely no way to stop someone from reading the source of a program from the executable. Thus you can't really stop anyone, and you have no legal proof (DMCA does nothing if you can't prove someone decompiled an executable).

Thus, whether they like it or not, there is a public demand to try a game without buying aka software sharing. This in a million forms, has been around since before software existed in the form of mix tapes, videotapes, or even basic audio recordings earlier yet. How about even music (Chamber) after a composer creates it? Same idea. They (ignorant 21st century folk) just can't give up the control.

The smart folks embrace the trials, the ignorant ones simply try to stop you (and are shown to be pricks when they act like children that refuse to give up a toy).

I knew it would happen...

[pushing-robot]

The response to "talk like a pirate day" was strong and swift.

Pirates

[Khemisty]

I love how close this was posted to international talk like a pirate day :-)

Arrrr...

Ratted them out

[Anonymous Coward]

How do they catch 'em? Unless somebody blabs, doesn't seem likely.

$30k - $150k?

[Caboosian]

A game costs roughly $60.00. For each act of infringement, Activision wants, at the very least, 50000% of the initial price, or at the most, 250000% of the initial price. How is it even legal to demand that much? I truly don't understand our legal system. If he had stolen the game 5 times, he'd probably be fined $500 - $1000, but for distributing 5 copies, he now has to pay (if activision gets their way) $150k?

I'm sorry, but that's just incredibly fucking stupid.

Re:$30k - $150k?

[martinw89]

Well, they are not file sharers and we don't really know what they did.

Re:$30k - $150k?

[spire3661]

The reason being is that copyright law was setup to fight off larger scale pirate operations, back when reproducing material was alot harder.

Re:$30k - $150k?

[Hanyin]

A game costs roughly $60.00. For each act of infringement, Activision wants, at the very least, 50000% of the initial price, or at the most, 250000% of the initial price. How is it even legal to demand that much?

I'd say that there are two reasons for asking for that much money. The first is that by asking for such insane amounts someone is much more likely to settle for *just* $5000 or something similar and the second is that I think it can be argued that the pirate is responsible for each and every downloaded copy of the game he posted. It's also much easier to sue the pirate instead of tracking down each and every download via IP address.

I'm not saying that I agree with the tactic and have no idea whether it's legal or not as IANAL but there are reasons for their actions.

Re:$30k - $150k?

[pak9rabid]

The point of punitive damages is to punish the offending party and to deter others from commiting the same offense, such that others would be stupid to even consider trying to pull something like this off.

Re:$30k - $150k?

[Joe Jay Bee]

Because the fines for copyright infringement aren't based on how many of Album/Game/Book X you copy, but the infringement of the rights of the copyright holder.

Put it another way; if you steal someone's stuff and sell it, the punishment isn't "pay for what you stole and we'll leave it at that". You have to go over and beyond that to deter people, otherwise it'd just be a sale through force.

Re:$30k - $150k?

[91degrees]

I believe an "act of infringement" is any number of copies of a specific work. So if he makes a single copy or 1000 copies of Call Of Duty, that's a single act. If he makes a single copy of each of 2 games then that's 2 acts.

Re:$30k - $150k?

[SuperMonkeyCube]

With this, and the RIAA stuff, what I'd really like to see is the punishment be some combination of actual replacement cost, reimbursement of documented legal fees, and community service helping out IP enforcement in some capacity. I'm tired of hearing about these insane unjustifiable damages with the sole intent of burdening the defendant far beyond their financial capability. If the defendant had $30K laying around, he could theoretically start a legitimate business instead of getting caught with the shady one. Is it too much to ask that people actually know in advance what the punishment is instead of finding out how many zeroes go on the end of the damage figure by the jury or judge's roulette wheel spin?

What's worse with this particular case is that since Call of Duty 3 XBox has been out for a while we're only talking about a $30 replacement cost, and the actual impact on Activision's initial investment is lower than had the guy been pirating CoD4. (If he was pirating CoD3:Wii, then we're talking $50 RC and I presume that was just a port and not a rebuilt game.) That makes $150,000 seem pretty crazy. The other $100,000 fines make me even more nervous, since TFA talks about some of them not having representation. As much as lawyers may give us the willies, not having them in some cases is a lot worse.

Re:$30k - $150k?

[JackieBrown]

Agreed, but if someone stole my couch, should is it really reasonable to sue for $50,000?

Re:$30k - $150k?

[Jerry Smith]

Agreed, but if someone stole my couch, should is it really reasonable to sue for $50,000?

Depends how many copies they stole of your couch, and resold.

Re:$30k - $150k?

[Yartrebo]

Then why were the penalties recently doubled? The part of the law governing statutory penalties is less than a decade old.

My opinion is that they (media companies) are looking out for number one, and they've paid enough bribes (ie., lobbying) to make sure that they get their way.

Re:$30k - $150k?

[syousef]

You have to go over and beyond that to deter people.

By that reasoning, to deter people from committing murder, we shouldn't just bring back the death penalty. We should instead execute the offender, the offender's immediate family, the offender's extended family, his neighbours, his pets, his friends and his friend's family.

Or if you'd like something a little less extreme that does not involve the death penalty, to prevent an offender from speeding, his car should be confiscated, his family's cars, his friend's cars, his neighbour's cars etc.

Here's an idea: If someone steals a loaf of bread let's send them off to the colonies for the rest of their life. After all if they're willing to steal that bread they'll do it again and without a good deterent we'll have more theft. Oh wait, that kind of barbarism was outlawed a century and a half ago

A disproportionate punishment for a crime is never reasonable. Once you've punished someone sufficiently for committing the crime there is a diminishing return on deterence in making the punishment more severe. What you end up with instead is a harsh and unforgiving society in which the innocent are often punished severely for crimes they may not have committed with devasting consequences. In such an environment some criminals will become much bolder because hey once they've been caught for something minor their life is over anyway so might as well commit the bigger crime.

Re:$30k - $150k?

[gnasher719]

A game costs roughly $60.00. For each act of infringement, Activision wants, at the very least, 50000% of the initial price, or at the most, 250000% of the initial price. How is it even legal to demand that much? I truly don't understand our legal system.

Making an arbitrary number of copies of game 1 = one act of infringement. Making an arbitrary number of copies of game 2 = another act of infringement. If Activision believes the damage is more than $150,000, then they have to go for actual damages.

Re:$30k - $150k?

[Joe Jay Bee]

You've spectacularly missed the point. Either that or built a lovely straw man. Either way... nah.

The point is you can't just have fines for copyright infringement/theft on a large scale set at the cost of the equivalent number of copies you could have bought legally/the goods you stole. Because that way, there's no deterrent. If someone who pirated a £10 CD and sold 50 copies was fined £500, that conceivably comes under the realms of "cost of doing business". It's not a deterrent. Same way as if a thief had to pay the owner of the goods the value of the things he took, or was fined that amount, then that's not a deterrent, because he's just made someone sell shit to him against their will.

Bear in mind that commercial copyright infringement is a profitable industry (of course it is, or else nobody would do it) and that it (and non-commercial copyright infringement, but that's another thread altogether with a few different arguments) does take away business from the people who make the stuff being pirated unfairly. It does do actual harm, and merits punishment. Having to pay retail price for every copy you made, considering the profits involved in the business, isn't a punishment or a deterrent.

To refer to your absolutely fucking stupid analogy, my point wasn't that I wanted harsh punishments for everything as a deterrent, like sending someone for the colonies for stealing a loaf of bread. Just that the punishment should total more than the cost of a loaf of bread. Is that really so hard to understand?

Re:$30k - $150k?

[Threni]

> I'm sorry, but that's just incredibly fucking stupid.

No, stupid would be if companies spent millions of pounds/dollars lobbying for changes in the law only to not get any money back in return.

Re:$30k - $150k?

[Anonymous Coward]

A game costs roughly $60.00. For each act of infringement, Activision wants, at the very least, 50000% of the initial price, or at the most, 250000% of the initial price. How is it even legal to demand that much? I truly don't understand our legal system. If he had stolen the game 5 times, he'd probably be fined $500 - $1000, but for distributing 5 copies, he now has to pay (if activision gets their way) $150k?

I'm sorry, but that's just incredibly fucking stupid.

Its not legal.

Damages greater than a 9:1 (statutory only) are automatically unconstitutional (14th amendment) according to the SCOUTS.

Answer? Expect the RIAA's lawyers to suddenly get paid $5000 an hour for any case they win so they can ask the judge to award them legal fees. Conversely expect them to get paid only 20$ a hour of cases they lose, in case the defendant gets awarded legal fees.

Of course a judge has many tools at their disposal other than statutory damages, but thats something entirely different at this point.

Re:$30k - $150k?

[Anonymous Coward]

That's a meaningless question.

You don't own the couch, you're merely licensing it from the furniture company. If you want to move more than three times, you'll have to call them and beg for a product activation.

Obviously you know this, since its in the click-through license you agreed to before you bought it. And if you don't agree, tough shit; opened items cannot be returned.

Enjoy! Its the future!

Re:$30k - $150k?

[davolfman]

Ah, the Kaizer Souze school of sentencing!

Re:$30k - $150k?

[syousef]

To refer to your absolutely fucking stupid analogy, my point wasn't that I wanted harsh punishments for everything as a deterrent, like sending someone for the colonies for stealing a loaf of bread. Just that the punishment should total more than the cost of a loaf of bread. Is that really so hard to understand?

Thanks for demonstrating your people and debating skills so well.

My point, which YOU missed spectacularly is that it's a slippery slope once you start making the punishment more extreme than the damage done by the crime "as a deterent". Is that really so hard to understand?

Don't let that get in the way of being abusive or trolling though. Please continue. This place is becoming a haven for trolls like yourself.

Re:$30k - $150k?

[Peyna]

Wow. Someone compared copyright infringement to theft of personal property and got modded up around here? What happened to you, Slashdot?

Re:$30k - $150k?

[JackieBrown]

I don't think you read the post I replied to.

I am not arguing your point.

"This is me..."

[benjfowler]

... playing the world's saddest song, on the world's smallest violin.

I have little sympathy for people who get busted doing the wrong thing and pirating games. It's not like games are a human right or anything. As a developer myself who depends on our software being SOLD FOR MONEY to make a living (as opposed to peace and love and lentil burgers, as the freetard hippie commie FSF crowd would have us do).

Frankly, if somebody is dumb enough to get caught not paying for something that cost somebody a lot of time and effort to make, then they probably have it coming.

Re:"This is me..."

[Zosden]

Except the people who actually made the game (Programmers, artists, ...) will never see a drop of this money. Just keep that in mind. Also as one of the other posts mentions this guy is getting charged 50000% of the cost of the game. That seems incredibly stupid.

Re:"This is me..."

[Drakin020]

While that may be true, it's still not right to demand 5000 times the value of the product in damages.

Re:"This is me..."

[whisper_jeff]

The programmers and others will see the money in their continued paychecks as they strive to find their next big success. If Activision wins the lawsuit(s), that money doesn't go straight into some executive's pocket - it goes into the company's coffers in the same way that each game's sale does. So, yes, the programmers and others _will_ see that money.

Also, I assume the people being sued aren't being sued for making a copy of the game - they're being sued for copying _and selling_ the game(s). The damages have been well established for that sort of conduct. They deserve to be sued (if I'm correct in my assumption that they are pirates-for-profit).

Re:"This is me..."

[spire3661]

While I agree you should get paid, I dont agree that the only way to see your work is to be paid. What if i want to lend it to my friend, would you be mad at that too? I get why you want to be paid, what i dont get is why you feel slighted if someone who would have NEVER bought your product, uses it anyways? What have you lost? And also jsut as important, what have you gained? (word of mouth, loyalty, possibility of purchasing future releases)

Re:"This is me..."

[benjfowler]

You've hit on a really good question there. Is it right to demand 5000x the sticker price of a game in a civil copyright infringement case?

Did the plaintiff's lawyers just pull the figure "5000" out of their butts, or is there a very specific formula, designed, with the odds of getting busted taken into account, to maximise deterrance (assuming they're aiming to deter casual piracy)...

Re:"This is me..."

[Sasayaki]

As a soon-to-graduate-and-become-a-developer, I have to disagree in the strongest possible terms to your statement.

Commercial piracy- sure. That's just plain theft. Taking someone else's art and selling it without permission is theft.

Individual piracy? The key question you have to answer here is: "Did this act of piracy cost me a sale?"

Sometimes it did. Frequently it didn't. Was this person willing and able to pay for your software, but chose to pirate it instead? Perhaps you're not adding enough value to the product. Perhaps you're charging too much. Perhaps your product is inconvenient (read; DRM-ridden). Perhaps your product is crap and not worth paying for.

Generally, people will do the right thing and buy games if the pirated version is not significantly easier to install/maintain (read; DRM-ridden), easily available, decently priced and contains benefits beyond the software itself. Things like a nice manual, a fold out map of the galaxy you're fighting over, official forums where (if you register using your CD key) you can get offical insider tips on what's coming out in the next patch or vote on requested features... stuff like that. If you're developing more serious software, telephone/email/forum support, free replacement CDs for verified customers, option to opt-in to beta version of the next version, vote on features, etc... creativity, people!

Once you start seeing your own customers as potential criminals... your business suffers.

Re:"This is me..."

[db32]

Yet insane fees are exactly what is required to stop the bigtime crimes. When the companies are fucking up fair use, then no support for their actions. However, that doesn't seem to be the case. And if you want MS, or Apple, or whatever megacorp doing illegal shit to stop then you have to support the monumental fee to remove all profit and raise the risk of that action to extremely high levels. These are business decisions. It also serves to set an example to others.

I don't download music because other people have gotten torn up for it. Of course, it can cut both ways if they are a little too zealous like the RIAA has been. I haven't purchased any music since the lawsuits kicked off.

Re:"This is me..."

[jenn_13]

hmmm.. I think "Flamebait" is going to0 far here. He has a point. I am a fan of open source software, when the developer chooses to make it open source, and no one should be forced to choose non-free software. But when some say that all software should be free and open source, I'm curious as to how they envision developers making a living. Not be argumentative here, I really want to know. Do I need to make a career change soon?

Re:"This is me..."

[cfulmer]

$150,000 is the maximum statutory damage that can be awarded per infringed work. The minimum is $750 ($200 if the infringement was innocent). See 17 USC 504. The judge has to pick a number between the two.

Nobody ever goes into an infringement suit saying "I know the maximum we can get is $150K. But, we're only going to ask for $50,000." It's just bad strategy -- ask for $150k and you may get $30K. Ask for $50K and you may get $3K.

Re:"This is me..."

[Drakin020]

I want to touch on the first part of your statement.

"Yet insane fees are exactly what is required to stop the bigtime crimes"

Ok, let's move to another "Big time" crime...Hmm DWI. Pretty Big time crime right? Why is it that those who pirate have bigger fines than those that put peoples lives at risk?

I understand that the penalty needs to be big, but common...When I'd rather get nabed for a DWI than pirating a game...that's pretty bad don't you think?

Re:"This is me..."

[msromike]

Individual piracy? The key question you have to answer here is: "Did this act of piracy cost me a sale?"

Sometimes it did. Frequently it didn't. Was this person willing and able to pay for your software, but chose to pirate it instead? Perhaps you're not adding enough value to the product. Perhaps you're charging too much. Perhaps your product is inconvenient (read; DRM-ridden). Perhaps your product is crap and not worth paying for.

That is not the key question. Instead the key question is did the criminal steal (to take the property of another without right or permission) the software? It is obvious that the software pirate does not have either the right or the permission to do so, therefore he is a criminal and has broken the law.

There is nothing like a good bookstore analogy. My wife will never buy a $500 coffee table book. However, if she stole one from the bookstore we would use it. When she steals the $500 book it isn't really a lost sale, and therefore isn't really a crime.

Perhaps the the key question is NOT "Did this act of piracy/theft cost me a sale?" Perhaps the key question is "When is it okay to steal?" That is what all of the justification going on in this thread really is about, right?

Re:"This is me..."

[MPAB]

In your analogy, it would be more like if she went to the store and took a picture of each and every page of the book. By stealing the book she's getting that one irreplaceable copy out of the market and directly harming the last buyer (the storekeeper).

If the book gets its value from being a nicely put-together book (which is the usual thing in coffee table books) then it would be more like games where you get maps, action figures, helmets, etc. (which you don't get by pirating the data on the disk).

OTOH, if your wife -which never intended to buy the book- spreads copies of the photos from the book and one of them gets for free to someone that intended to buy the book, not because of its looks but because of its contents, then it would indeed be a lost sale.

Re:"This is me..."

[Friggo]

Except in this case nobody has stolen anything, someone has committed copyright infrignment. Not quite the same...

Re:"This is me..."

[PitaBred]

What's common? DWI? Oh, you probably meant "come on", which has a completely different meaning. Words are spelled the way they are for a reason, kids. It's so we can communicate!

Re:"This is me..."

[dbcad7]

I think there is a percentage of downloaded copies in which a sale is lost.. but it is minuscule.. the great majority of these down-loaders would not buy the game at all.. and in fact there are probably more sales generated, by both people who find that they like it and are willing to pay for it, or from others who possibly see the game at the down-loaders house and decide to purchase it.. I imagine it all works in favor of the game companies on the better games.. regardless of what they think... Now movies, are probably a different story.. there are I am sure, quite a bit of rental dollars lost, that will not be recovered (although perhaps a rental now and then long down the road may happen).. There may be some gain in the theaters on the better movies, but I doubt much.. however, the majority of the movie industries problems with theater sales, are that they have priced themselves too high in the first place. Most of what you get at the theater, is just not worth it.

Re:"This is me..."

[Anonymous Coward]

Talk about misplaced schadenfreude. You'd be completely right in having no sympathy for these guys, they've sold copies of Activision's games (you know, actual software piracy). You seem to think it's about suing some Average Joes who've downloaded games off Bittorrent, which is far from the case.

I do hope you're a troll, seeing as you threw in the standard line about commies and hippies, but I suspect you might just be an idiot who can't read properly before posting.

Re:"This is me..."

[db32]

1. Because as callous as it sounds a DWI only directly affects a small number of people. Here we are watching the fed bail out a bunch of companies that did stupid shit because it has put us on the verge of economic collapse that will put the hurt on everyone. Look at the people affected by Enron, Worldcom, or the whole Colorado Stocks n Bonds thing. It is the same reason that walking out of the store with a game is such a small issue. They don't seem to be going after the casual downloader, but rather the people who are bootlegging and selling copies of stolen works. The real bitch here is that in the modern age a copyrighted work can still cost a fortune to produce (artists, programmers, film crew, studio crew, whatever), but the cost of duplication is virtually nil. It makes it terribly easy to steal copyrighted works and sell them and that can put a big hurt on all the people who get paid to produce the original copy. 2. I think DWIs aren't nearly as severe as they should be. It is nice to see them getting a little tougher on DWI, but as long as people can walk away without really suffering it will continue to happen. If they said any DWI counted as attempted manslaughter you can bet your ass that paying for a cab becomes a much more acceptable alternative than trying to drive home drunk.

Re:"This is me..."

[Drakin020]

Wait what? I'm sorry how many development companies have gone out of business due to piracy? How many people have lost their jobs because of it? How many people have starved on the street?

DWI only affects a small number of people?

Let's take this quote...

"250,000 people have died in alcohol related accidents in the past 10 years."

Source: http://www.nh-dwi.com/caip-206.htm

Now common dude...Use your head.

Sounds like a good move

[phorm]

There are plenty of these guys around here, and they're pretty arrogant too. I had a buddy looking for some XBox 360 games, and there was a pirate shop that was apparently selling (copies) for cheap. Curious about how they operated, I dropped in and found they have a huge binder listing game titles, and it's about $8 for a Wii/PS2 game or $20 for an Xbox 360 game. This is for a *BURNED DISC*

So I asked why the price differential for the 360 games (hell, it's all copied BS, no originals) and they said it's because XB360 discs are double-layer and cost more.

So let's see. About $0.50 or less for a single layer DVD, maybe add the cost of a label, is about $7 profit. At what, $1.50 for a dual-layer DVD is maybe $18 profit. For copied games.

Oh, and nevermind the problems he had returning one of the discs that didn't work.

Yeah, I think I'll stick with legit retailers and used but original discs (not that I game much these days anyhow).

If movie/music/game companies want to make a real killing nailing *real* "pirates", just go to one of the big Chinese malls and nail all of these guys. They're raking in cash selling copies of other people's work, and if anyone should be sued for "piracy" I think these are a good place to start.

Re:Sounds like a good move

[benjfowler]

Amen to this. The pros operate on an industrial scale and must surely account for a significant amount of revenue foregone, when people realize they can just buy a disc for a fiver off some fat Chinese kid.

In London, DVD piracy is a huge, and very sophisticated business. They're big enough that they have proper presses and proper glossy three colour printed jackets, all manufactured here in town. They have runner who move the good to the sellers, who are trafficked into Britain and paid a pittance to sell the disks.

It's a sad thing to watch, when sitting in a pub, some desperate looking kid in a shopping bag sneak in and offer 'DVD' 'DVD' to everyone in the pub until the manager comes and moves him on.

The guys behind this are the real parasites, and given its prevalence around here, not nearly enough effort is done to bust down on it.

Re:Sounds like a good move

[phorm]

Here we don't have any kids hawking the goods, but we have malls full of the stuff (which I'm really unsure why they don't get busted).

One of the fake-movie resellers actually tried to move into one of the small shopping centers closer to where I live, and disappeared within about a week, so I'm guessing they got nailed. However, about 20 minutes from here is a *HUGE* Chinese mall wherein probably 80% of the merchandise is either fake knock-offs or burned DVD's, games, and music.

I really don't how these places are left up to operate, as there's no way the police don't know about them, and even the media companies likely should have gotten wind of it.

My girlfriend (who is from Chinese) actually commented that maybe she should setup a shop and sell these sort of things. When I told her it was illegal she mentioned that at first she was shocked to see people selling this stuff (which even in China is illegal), but figured that since so many were doing it without apparent penalty she figured it was somehow legal here. Luckily after finding it was in fact not legal, she quickly dropped the idea of doing anything similar.

Re:Sounds like a good move

[Your Pal Dave]

The worst part is when you get it home and discover that it's actually crab porn

Re:Sounds like a good move

[Falstius]

Oh, and nevermind the problems he had returning one of the discs that didn't work.

In china at least, the street vendors selling bootleg copies would be happy to exchange a bad disc for you. The legit shops however wouldn't. So for 1/100 of the price you get 100x better service and convenience. Not to excuse this or other piracy, but if you treat your customers like pirates they're more likely to become pirates.

Re:Sounds like a good move

[Anonymous Coward]

I would guess that that cost difference between disks is mostly that dual layer disks take longer to burn and are more unpredictable than single layer disks.

Re:Sounds like a good move

[MPAB]

In Lima, Peru there's HUGE MALLS of piracy, bootlegging and stolen goods where the police don't venture. Either because they're paid off or because the politicians in charge don't want to get involved because they fear a bloodbath.

The very few times the police have intervened and confiscated stuff, there's been lots of bruised, stoned, scalded and even shot people and cops. Tons of merchandise ended up hauled out and next morning business would be resumed as usual.

Re:Sounds like a good move

[MPAB]

Which is a trap to keep CRAB PEOPLE busy and out of the way.

Re:Sounds like a good move

[Artemis3]

You must also add the risks of getting raided for selling illegal goods. For returning discs, ask if you can right before you buy, they usually let you as long as you do it fast, ie. test it today, fails to read, then go tomorrow; not like a week later or so.

So in China the studios decided to sell movies for like 3$ to combat illegal copies, well games should follow. 60$ way is too much, not including DRM or "anti-copy" junk, which is already removed in "illegal" copies, making them the superior product.

Re:Sounds like a good move

[Anonymous Coward]

"go to one of the big Chinese malls and nail all of these guys"

Cops have better things to do than get killed. Haven't you ever seen Big Trouble in Little China? I believe the Princess Bride also had a bit of wisdom about not starting land wars in Asia. A police raid is a little smaller than a war, and Chinatowns are a little smaller than Asia, and therefore the same principle applies. Actually, you can scale this up to the current state of relations between the US and China. There's arguably plenty of cause for the US World Police to go in there and make a bust, but you'd have to be suicidal and at least partially stupid to even try.

For less whimsical fare that nonetheless gets the point across, watch The Corruptor. The tendency is that cops are owned by (or afraid of) Chinatown interests. That's why you don't see random Chinese pirates getting busted like this. You never know which of these busts might be the uncle of the roommate of the son of the head of the local triad. Then you and/or your family is put in risk of deadly physical harm and for what, because Activision wants $50,000 on top of the millions of dollars of profit they already make because some guy is sitting in a dank run-down shop with a disc duplicator? I imagine the response of any officer responding to a piracy complaint is "fuck that -- hey look, Spore is only $10 here, sweet!".

Let's not turn copyright into the drug war of the new millennium. All it's going to accomplish is to escalate criminality, desperation, and violence. I honestly couldn't care less how much money Activision and Louis Vitton are losing to counterfeiters, especially because most of that is money they'd never see anyhow. If they want to recover those sales, they should lower their prices instead of using taxpayer-funded law enforcement as part of their business model. Everyone who pays taxes should be offended by this.

Re:Sounds like a good move

[khchung]

So let's see. About $0.50 or less for a single layer DVD, maybe add the cost of a label, is about $7 profit. At what, $1.50 for a dual-layer DVD is maybe $18 profit. For copied games.

You got the economics wrong, on both the price setting mechanism and the pirate's cost. Not to say that pirating is right, just stating the facts here.

Simply put, the price is determined by how much the buyer is willing to pay and what other options the buyer has. Since legit XBox360 games costs more than PS2 and Wii games, XB360 buyers will usually be willing to pay more (it didn't bother them that legit XB360 games costs more, so why should they care pirated XB360 games cost more?). Your buddy is good example.

On the cost side, for the pirate the main cost is not the physical disk, but the dubbing equipment and the time it takes to burn the disk. For DL disk, both the time cost and the equipment cost are higher, and thus he will charge you more. Simply assuming DL took twice as long to burn as SL, plus the additional cost of the DL burner can explain a lot of the cost difference.

Re:Sounds like a good move

[Anonymous Coward]

It's a sad thing to watch, when sitting in a pub, some desperate looking kid in a shopping bag sneak in and offer 'DVD' 'DVD' to everyone in the pub until the manager comes and moves him on.

... shopping bag sneak in and offer 'DweeD' 'DweeD' to everyone in the pub until the manager comes and moves him on. There, fixed it

Re:Sounds like a good move

[Anonymous Coward]

It's a sad thing to watch, when sitting in a pub, some desperate looking kid in a shopping bag sneak in and offer 'DVD' 'DVD' to everyone in the pub until the manager comes and moves him on.

It's a sad thing to watch, when sitting in a pub, some desperate looking kid in a shopping bag sneak in and offer 'DweeD' 'DweeD' to everyone in the pub until the manager comes and moves him on.

There, fixed it

Re:Sounds like a good move

[Anonymous Coward]

Actually, burning a dual-layer DVD will take at least 4 times longer, so the single layer DVDs are actually subsidizing the DL-DVDs.

Re:Sounds like a good move

[Anonymous Coward]

In china at least, the street vendors selling bootleg copies would be happy to exchange a bad disc for you. The legit shops however wouldn't.

The street vendors there are great! Not only do they take back defective discs but they'll totally scan through the scenes on a disc for you so you can see if it's something you'll like. Try getting that kind of when you buy a movie at Blockbuster. You'll be lucky if they tell you where the disc is, and if they do need help they'll often suggest you just steal the disc.

Re:Sounds like a good move

[MWoody]

Yes, it's amazing how much money a "company" can spend on customer support when they have no development costs.

The same way you catch small-time drug dealers...

[Chmcginn]

if he's selling pirated discs on the sidewalk, the same way others have been selling CD's for years, it's a simple matter of the right person walking by and seeing it.

Good

[whisper_jeff]

If it's not related to file sharing and, presumably, is targeting people who make copies _for sale_, then good - they should be sued. As soon as you make a profit from someone else's copyrighted work, without their permission, you don't have a hint of a leg to stand on. You deserve to be sued and, hopefully, the copyright holder will win. You can make whatever argument you want about it being acceptable but, as soon as you turned a profit from the piracy, every argument you make is false. You're a crook and deserve to be punished. Period.

Re:Good

[IceCreamGuy]

You're a crook and deserve to be punished. Period.

You don't think that there's a difference between justly punishing someone and ruining their life by making them pay $150k for each $60 game they sold? I believe that there should absolutely be repercussions, but they should be appropriate to the crime. I feel like your "period" comes a little too soon in this matter.

Re:Good

[cdrguru]

How is file sharing not being a crook also?

I find someone in France that bought the game. I get a copy of it and stand outside of a store where the game is sold passing out cards with a URL where the game can be downloaded for free. Anyone walking in the store to buy it gets a card and suddenly knows they don't have to spend $50.

Does it really make a difference if I charge $1 for the card?

Re:Good

[IceCreamGuy]

In my view, pirating a game and not selling it is OK

Care to elaborate? Someone put their hard work, sometimes years of their life into a product and it's "OK" for you to enjoy that product in it's entirety without compensation to the creator, and more and more, the artist?

Re:Good

[whisper_jeff]

You make it sound like $150k in punitive damages is outrageous. What if this guy sold 1000 copies of the $60 game? Is 3x his illegal income outrageous? Ok, sure, he probably didn't sell the games for full price. Probably something like $20. And, with the internet, he could have sold 10,000 copies (or more...). So, he pulls in $200k, most of which would be profit, and he's sued for punitive damages of $150k. Does that seem outrageous? Actually, it does, but not in the way you seem to suggest...

The story doesn't state it explicitly, but my assumption is this was piracy-for-profit (making copies of the games and distributing them for a price) and thus the person deserves to be sued for the amount the law permits. Absolutely. I don't think my "period" comes too soon in the least. Piracy-for-profit deserves to be punished. Always. Period.

Re:Good

[IceCreamGuy]

FTA:

damages ranging from $30,000 to $150,000 for each infringement of each copyrighted videogame.

Re:Good

[IceCreamGuy]

The article also states that they are seeking statutory, not punitive damages.

Re:Good

[Richard_at_work]

'Ruining their life' is a risk they decided to take - break the law, you pay the consequences for a long time. Its called 'deterrent' but many people here seem to miss the point...

Re:Good

[IceCreamGuy]

break the law, you pay the consequences for a long time

Really? how long did it take you to pay the consequences for the last speeding ticket you got? Did you get charged $150,000 for breaking the law and putting peoples' lives at risk? You're right though, we should treat this guy like a corporate fraudster, or someone who manufactures drugs. There definitely should not be any discretion with regards to criminal punishment. Maybe this guy should get a lethal injection, I mean, murderers break the law too! Your logic is amazing, QED.

Re:Good

[DustyShadow]

That's because statutory damages for copyright are higher than what punitive damages would be. Actually, I think for copyright, the statutory damage takes the place of punitive damages.

Re:Good

[DustyShadow]

If you don't like, write your representatives and vote them out if they don't do anything about it.

Re:Good

[cpt kangarooski]

As soon as you make a profit from someone else's copyrighted work, without their permission, you don't have a hint of a leg to stand on. You deserve to be sued and, hopefully, the copyright holder will win.

You might want to back down a little bit.

Consider, for example, if Alice creates a copyrighted work, and Bob, without permission, creates a parody of that work, and sells copies for a profit. Or if Bob buys used copies of Alice's work, and resells them, without permission, and for a profit. Both of these are likely to be perfectly legal, despite the fact that Alice doesn't get to have a say, and isn't seeing any of the money.

Just because it involves someone else's work, a profit, and no permission, that doesn't make it illegal.

Re:Good

[Lehk228]

yes there is a moral difference between piracy for "fun" and selling someone else's work for personal profit.

Re:Good

[Kibblet]

Either way, the other person misses out though, no?

Re:Good

[Richard_at_work]

Ok, stop taking the drugs, they don't seem to be doing you any good. Seriously, get some fucking perspective please - there are degrees involved here, just as there are in speeding.

If I speed, I get a ticket and some points on my license. If I speed a lot and accumulate points, my license gets taken away from me and I get to take my test after my ban expires. If I speed in such a manner that my driving causes immediate risk to other persons, then it becomes a whole different ball game - if theres simply speed involved (eg I'm going 30mph over the limit rather than 5mph over the limit) then I get larger fines and an immediate ban. If there are other considerations, such as bad weather et al then I get charged with a whole other offence - dangerous driving. All of the above are things that I have to declare to my employers or prospective employers, especially if I drive on business.

If this person was simply giving copies away to friends, he wouldn't be facing these sorts of penalties. But he isn't. He took the risk. Him. I'm not going to cry for him.

Boo fucking hoo - Activision are well within their rights to take this person to the cleaners. There isn't any way I'm going to tow the Slashdot party line here, because its ludicrous.

Re:Good

[Sancho]

I think the idea is that if I wouldn't (or couldn't) pay for the item anyway, it's not unreasonable to copy it because the artist isn't out anything.

I can use an extreme case to illustrate this. Suppose there were a computer game which sells for $50,000. Very few people could afford this. A person with the above philosophy would find nothing morally wrong with copying the game, as he's not really depriving the author of any money. There's no way he'd buy the game legally.

There are various flaws with this line of thinking. First of all, most media market strategies rely on selling the media at a certain price initially, and then dropping the price over time. It's entirely possible that a hypothetical person might never be willing to pay $50 for game, so they pirate it, rationalizing it using the above method. Later on, the game drops to $20. The person might have been willing to pay $20, but now that they've already played the game, they probably won't.

Another flaw has to do with value. If everyone ascribed to this way of thinking, the value of games would plummet. Developers would not be able to invest such time and money into creating the games, and the gaming market would suffer--and this is the exact situation which Copyright purports to prevent.

Re:Good

[gnasher719]

There are various flaws with this line of thinking. First of all, most media market strategies rely on selling the media at a certain price initially, and then dropping the price over time. It's entirely possible that a hypothetical person might never be willing to pay $50 for game, so they pirate it, rationalizing it using the above method. Later on, the game drops to $20. The person might have been willing to pay $20, but now that they've already played the game, they probably won't.

Let's say a game is sold for $50, and a person wants this game, and seriously cannot afford to pay more than $20. That person could reasonably do three things: A. Not play the game. B. Get a copy from a friend and play that copy for free. C. Get a copy from a friend and play that copy, send a letter with $20 dollar explaining the situation to the games manufacturer. What do you think how many letters like this do game manufacturers receive? Or how many does Microsoft receive?

Re:Good

[Anonymous Coward]

Do you believe that these copies of Call of Duty 3 were going to under-funned kids in africa? There really isn't a difference. Download it for free or burn a copy, you're still stealing...

Re:Good

[IceCreamGuy]

there are degrees involved here

That's exactly what I'm trying to say; that selling a pirated game should not equal $150000/game. I think that is really, really excessive; that it doesn't fit the crime. Absolutely selling pirated games is criminal and wrong, and of course there should be penalties, but that's my opinion, and I don't think it's unreasonable

Re:Good

[Anonymous Coward]

So if you can't afford to enjoy something, you should get to enjoy it anyway, because you can't afford it?
That's the most ridiculous self-justification I've ever heard.

If it's something you want, then pay for it. If the asking price is more than you're willing to part with then go without. That is how capitalism works.

Don't Sue Your Market

[9mm Censor]

Sue your fans and the people that are your market, and you will not have my business.

Re:Don't Sue Your Market

[DustyShadow]

The thing is though that people who pirate and purchase pirated games aren't in their market to begin with.

Re:Don't Sue Your Market

[RedK]

Except people pirating your game aren't your market, they aren't giving you any money.

Copyright violations assume it happened a lot

[Chmcginn]

A game costs roughly $60.00. For each act of infringement, Activision wants, at the very least, 50000% of the initial price, or at the most, 250000% of the initial price. How is it even legal to demand that much? I truly don't understand our legal system. If he had stolen the game 5 times, he'd probably be fined $500 - $1000, but for distributing 5 copies, he now has to pay (if activision gets their way) $150k?

The penalties for copyright violations were actually written for cases like this. The assumption is that someone selling a pirate game/movie/book/CD has sold many of them, and they're doing it to make a personal profit. The only way to stop the crime is to take the profit out of it - if he sold them for $20 each, and the fine was only 500 bucks, he'd only have to sell about 25 to make up for each time he was caught. He probably sold a hell of a lot more than that, if he's like many of the pirated goods dealers I've seen.

Re:Copyright violations assume it happened a lot

[Caboosian]

The penalties for copyright violations were actually written for cases like this.[...]He probably sold a hell of a lot more than that, if he's like many of the pirated goods dealers I've seen.

See, the penalties only work properly if you include that one caveat. I may be wrong here (please, correct me if I am), but wouldn't a party be able to apply the same penalties to a small scale pirate, for instance? If you copy a game 5 times and hand them out to friends (say you sell them for 5 or 10 bucks), does it make sense for the same penalties to be applied?

I understand that the idea behind the huge penalties is to deter others, but it seems to me that there should (at the very least) be different levels of copyright infringement, piracy, etc. Again, IAANAL, so please correct me if I'm wrong, but as far as I know, there aren't really any variations on these laws. Couldn't Activision sue the hypothetical you for $150k (minimum), seeing as you copied it five times?

It's not taking down the large scale operations I have a problem with, it's applying the same law in an area where it really shouldn't be applied that causes me to let out a "wtf".

Re:Copyright violations assume it happened a lot

[Anonymous Coward]

If you can't pay the fine, don't do the crime.

Re:Copyright violations assume it happened a lot

[Chmcginn]

It's not taking down the large scale operations I have a problem with, it's applying the same law in an area where it really shouldn't be applied that causes me to let out a "wtf".

This is a good point, which is also the reason that judges have a lot of latitude in assigning penalties in cases like this. It's unlikely that a guy making games for his friends is going to have a stall at the local flea market - the assumption is going to be that someone who has a setup like that is doing it for profit.

That being said, we don't really have evidence in this particular case yet - just what Activision has said about it. But I know that a number of flea markets I've gone to throughout the years have featured the same guy, month after month & year after year, selling somewhat suspect looking product. If it's a game that I know comes in a specific jewel case, but it's in a more generic looking case, with different graphics (or graphics that just look off), I'd have to assume that it's not legit. Which always make me wonder - why doesn't this happen more often?

Re:Copyright violations assume it happened a lot

[Zordak]

Statutory damages are awarded over a range, and according to how many works were infringed (not the number of copies of each work). The damages award is discretionary. Presumably, in the case of an individual file sharer, the judge would have the sense to craft a damages award that would be sufficient to deter that person, but not be astroomically stupid. One reason there's a range is it takes a lot less to deter me than it takes to deter a Microsoft or IBM. And despite what you think, most federal judges do have that much sense. Remember that they're appointed for life, so they're pretty much immune from lobbyists. It's actually illegal to bribe a judge (as opposed to a politician). You may disagree with their decisions, but most will do what they think is right most of the time.

Re:Copyright violations assume it happened a lot

[Fulcrum of Evil]

I wonder if the appeal on damage awards from one of the RIAA cases will be relevant - limiting penalties to 10x damages might be relevant, especially if they can come up a good number of counts.

Re:Copyright violations assume it happened a lot

[westlake]

I understand that the idea behind the huge penalties is to deter others, but it seems to me that there should (at the very least) be different levels of copyright infringement, piracy, etc.
.

If your are the neighborhood provider - the enabler - how many of your friends are burning and retailing their own copies of that DVD-R?

$5 bucks in your pocket, $50 bucks in theirs.

When you come right down to it, it is a neat and profitable little swindle. Much cleaner and safer than trading in the retail boxes that "fell off a truck."

That is why damages are calculated according to a statutory formula and that is why they are meant to hurt.

It is also why the small-timer can find himself brought up on the criminal charge.

Hell with actually selling games. Let's sue 'em

[Simonetta]

If a company is publicly owned and answers to shareholders for maximum profit, then it is in its best interest for them to be their own pirates. If they can sell an individual copy of the game for $30, but they can get $1000 from every person that they sue that has a copy of the game that wasn't purchased, then they should distribute as many 'illegal' copies of the game as possible. Suing your 'customers' is far more profitable than selling them games could ever be. They have an obligation to their stockholders to put most of their corporate resources into lawsuits instead of game development.

  Activision should work with their distributors to get the names of young people who are using the 'illegal' games. First they sell for pennies a mediocre game and get the names and addresses of the people whom they are going to sue. Then Activision gives a copy of the hot new game (HNG) to the distributors. The distributors give the HNG to the people who bought the previous game, and then give the names and addresses of those people to Activision. Then the lawyers are released from hell, and instead of collecting $30 from each person for a game, they get $1000+ from each person who received a 'free' HNG. The distributors get 20% as a bounty.

    Of course, it goes without saying that the distributors will tell the 'customers' that the HNG is an open-source program and that the only charge is 'register' your name and address. Activision should also remove all copyright notices from the HNG code and claim that it is a 'product under development'.

    This kind of thing is frowned upon in legal circles as being a form of entrapment, but that doesn't apply to civil or copyright cases. Even if it did, any applicable laws could quickly be changed to maximize the profit for Activision.

    In this situation, the customer base of Activision has four choices:
        > they can give up using game programs from any source, free, paid, legal, illegal, bit-torrent, whatever.
        > they can pay the $1000+ to Activision.
        > they can pay the $1000+ to Activision, then find out where the children of the Activision lawyers go to school, kidnap them, and hold them until they get their $1000+ back.
        > pay a finder's fee/bounty to a death-squad-for-hire to kill the lawyers and not pay Activision the $1000+.

    This is how various mafia crime organizations get started. When it starts to make more financial sense to all chip in to hire a killer than it does to risk being sued/entrapped by corrupt organizations that discovered that it was much easier to sue people than provide them with a product/service at going market prices.

  Sure beats selling software for a living.

Re:Hell with actually selling games. Let's sue 'em

[cdrguru]

Two points on your comments. First, doesn't the idea that piracy has some component of "wrong" to it make a difference to you? The idea that Activision could do just as much wrong as the pirates and win is silly. Your proposal falls flat on its face because no legal action would ever make it past the first 15 minutes in court.

Secondly, the objective of piracy is to make sure that nobody ever has to pay again. I don't see that Activision has much of a choice, really. They can sell a few more copies, have them pirated and everyone worldwide has their games. Or they can try to stop the piracy. Of course, they may be unsuccessful in stopping it. Same thing, either way then. They can either publish games for free or they can go out of business.

This is the sort of "new business model" the people keep talking about. Anyone that knows how to pirate gets to with no consequences. The noobs that do not know, well, they support everyone else. When the people in the know outnumber the noobs (rapidly approaching for music, a bit further off for games), publishers have to figure out some other way to get money. Maybe they can sell T-shirts.

Re:Hell with actually selling games. Let's sue 'em

[Anonymous Coward]

Wow, do you always get so easily inspired to paranoid fantasies? It must be a hoot to go shopping with you - a different delusional rant down every aisle.

Re:Hell with actually selling games. Let's sue 'em

[Microlith]

Maybe they can sell T-shirts.

Or maybe they'll just quit making games, since the profit's all gone.

Cue the people who think we'll reach some sort of magical "game utopia" when that happens.

Re:Hell with actually selling games. Let's sue 'em

[heffrey]

You can't make money out of suing games pirates. It costs to sue and you can only recover assets that the sued party actually has. It takes epic amounts of time too.

The reason they sue is to deter others.

Mass software pirates are scumbags who deserve to be brought to their knees in my view.

Re:Hell with actually selling games. Let's sue 'em

[tebee]

Strangely enough, some time ago, something very similar to this to this happened in the UK with videos. A friend is a lawyer who had to represent a video rental shop owner accused of renting fake videos. Now he'd bought these from a trade fair in London from some supposed American dealers - I don't know the details but I'm guessing he got a "good deal" so he may have some idea they where doggy so he's not whiter than white. Sometime later a hotshot set of lawyers - on behalf of the film companies - comes after him for everything he owns for hiring out fake videos. Everything looks bleak for him , they force his business to close and are after the rest of his assets when my friend happens to investigate the people who sold him the videos - they turn out to be American PI's and their hotel bill and return airfare was paid for by the hotshot firm of lawyers. Result - the case was dropped and lots of compensation paid to the shop owner for the loss of his business and the hassle.

Re:Hell with actually selling games. Let's sue 'em

[Anonymous Coward]

What is this "right" and "wrong" of which you speak? I've never heard of it before.

Re:Hell with actually selling games. Let's sue 'em

[KDR_11k]

It would still fail because the parties acted with consent from Activision, also receiving a copy is not sufficient to violate copyright. Buying stolen goods might apply if it was reasonably obvious that the copies were counterfeit (if it isn't the distributors are just guilty of fraud) but even then they wouldn't really be illegal if the action was sanctioned by Activision. Needs one whistleblower/investigator to destroy the whole scheme.

If you don't want to buy it, download it

[dunnius]

Those who sell copied goods for a profit are truly evil. Nobody should ever give them any business. If you don't want to buy a legit copy, then download it. It is still morally questionable, but at least it is better than encouraging profiteering from it.

Re:If you don't want to buy it, download it

[spire3661]

I think your definition of 'truly evil' is a bit skewed. There is nothing 'truly' evil about making a buck on the back of someone else. Immoral, wrong, parasitic, all those things yes, but not 'evil'

Re:If you don't want to buy it, download it

[KDR_11k]

Then again there's nothing people would really agree on being evil except Nazis and that's just because they're too dead to disagree.

Re:If you don't want to buy it, download it

[spire3661]

Harming another individual simply for fun is evil. Physically and mentally abusing your wife is evil. Those are good examples of evil, not copyright infringement.

The difference between branches of piracy...

[Chmcginn]

Personal-use pirates, who make a copy of the game for themselves, and perhaps a few friends, do it because they don't want to pay for the game. They might be able to afford it anyway, but (at least a fair number) will purchase at least some games legitimately.

Assuming Activision's info is correct, this guy is more likely a sidewalk vendor who made dozens of game copies to sell for his personal profit.

While both are committing the same violations of the law, the intent of profit in the second case makes it much more likely that the court will find in Activision's favor, and that they will get a big pile of money (or, at least, all the money this guy has.) Moreso, while you can find wishy-washy support for the first class of pirate all over the place, only a very tiny segment of people are going to tell you the second guy isn't doing anything wrong.

Re:The difference between branches of piracy...

[ScrewMaster]

Well, according to the relevant statues, the first type of infringer isn't a pirate (and no, I don't care what Webster's says, the legal definition is different.) He's a copyright infringer, but not a pirate. At least, that's my understanding and no I'm not a lawyer.

The second guy, selling unauthorized copies may be a pirate once he reaches financial thresholds enshrined in the law. You're right though, if you're profiting by your copyright infringement you're going to be in more trouble.

Re:The difference between branches of piracy...

[OrangeTide]

Generally people who pirate games can not afford more than 1 or 2 games a month. But if they pirate them they can try 10 a month. In this day an age you need to try 10 games before you can find one that is any good. All of the game review magazine are untrustworthy when it comes to reviews of big name games. I don't know if there is just a lot of hype or if the reviewers are getting paid off.

My choice is to just quit playing the crap, not to start pirating games. But I can at least sympathize with people who pirate games.

Re:The difference between branches of piracy...

[Chmcginn]

Well, according to the relevant statues, the first type of infringer isn't a pirate (and no, I don't care what Webster's says, the legal definition is different.) He's a copyright infringer, but not a pirate. At least, that's my understanding and no I'm not a lawyer.

There's not so much a differing (legal) definition of copyright infringment versus piracy - it's all, really, copyright infringment. The difference between doing it for yourself, doing it for your friends, and doing it for money is the difference between a civil and criminal case. (Although a civil case can still be brought in criminal cases - no possibility of jail time, but the amount that the copyright holder will get back is likely larger.)

Re:The difference between branches of piracy...

[KDR_11k]

The second guy, selling unauthorized copies may be a pirate once he reaches financial thresholds enshrined in the law.

The legal definition of piracy requires an armed attack against an airplane or ship on international waters using another plane/ship.

Re:The difference between branches of piracy...

[basscomm]

Generally people who pirate games can not afford more than 1 or 2 games a month. But if they pirate them they can try 10 a month.

If they can afford to buy one game a month, then they can get a membership at Gamefly or their local Blockbuster and play far more games for the same amount of dollars.

Re:The difference between branches of piracy...

[shark72]

Trouble is, the US Supreme Court has been using the term "piracy" in the current context since roughly the 1840s.

I don't know what "legal definition" really means, but your observation is pointless. We're all able to cope with homonyms.

Re:The difference between branches of piracy...

[KDR_11k]

The parent poster said "(and no, I don't care what Webster's says, the legal definition is different.)".

Re:The difference between branches of piracy...

[shark72]

Mea culpa. I should have read one post upward from yours.

I can't make heads or tails out of the parent poster's statement. Throwing out his nonsensical "copyright infringer" vs. "pirate" claim, he appears to be stating that the law treats you differently if you're selling copies vs. giving them away. Selling copies is liable to put you into criminal infringement territory (S506(a)(1)(A)), but my understanding is that the feds have treated the expectation of in-kind reciprocation -- ie. trading warez -- as a form of financial gain. That's how they're busting the scene kiddies, even if they're not being paid hard cash for their efforts.

Re:The difference between branches of piracy...

[Anonymous Coward]

Unless they're playing PC games.

Re:The difference between branches of piracy...

[electrictroy]

In the long run, it's cheaper to "try before you buy". I've bypassed wasting my money on a lot of trash via using this model.

If I come-across something I genuinely enjoy, like MicroProse' Pirates or 24, then I'll buy it for the sole purpose of supporting the wages of the writers, actors, and staff that created the article.

COD3?

[lattyware]

If I was being sued for it, I'd at least want to be sued for pirating a good game, blimey.

Re:COD3?

[Ecsa0014]

Thats exactly what I was thinking. I feel burned for the $20 I spent on my legit copy.

Re:first post?

[kdemetter]

only off by 5 minutes . Keep trying

Nice strategy...

[Anonymous Coward]

You know, with how much money they can get from each infringement, you wouldn't think they'd bother with DRM and such. I mean, it seems like it'd be _much_ more profitable to just let everyone pirate the game and then sue 'em all. I mean, I highly doubt this guy distributed copies to thousands of people, which is what would be required for those kinds of fines to make any sense at all.

I could get sued too?

[Anonymous Coward]

Ok, wait a second. I could get sued for copying my copy of CoD4 for purely personal purposes? AKA I have 2 consoles - I don't want to buy two copies just to play a LAN game.

Re:I could get sued too?

[toadlife]

"Purely personal purposes"

Nice Euphemism.

Re:I could get sued too?

[Anonymous Coward]

Nice Alliteration as well.

If you ask me...

[cliffy2000]

Having to play Call of Duty 3 is punishment enough.

(Note to Activision: Giving another entry in the franchise to Treyarch is a very, very bad idea.)

Re:first post?

[Narnie]

He had to spell check it first.

Excessive punishment

[tepples]

[Punitive damages are] a PUNISHMENT to the offender intended to discourage them from committing the offense in the first place.

But wouldn't an excessive punishment run afoul of constitutional protections in numerous developed countries? For example, in the United States (home of Slashdot), the Eighth Amendment bans "excessive fines [from being] imposed", and the English Bill of Rights has nearly identical language.

Re:Excessive punishment

[gnasher719]

But wouldn't an excessive punishment run afoul of constitutional protections in numerous developed countries? For example, in the United States (home of Slashdot), the Eighth Amendment bans "excessive fines [from being] imposed", and the English Bill of Rights has nearly identical language.

It would be a bit stupid if the worst case that an offender would face would be to give up his gains. Not getting caught = keep the money, getting caught = don't keep it. There would be no reason not to offend. Clearly the offender must lose something if he is caught, and should lose a lot if only few offenders get caught.

Re:Excessive punishment

[91degrees]

There would be no reason not to offend.

These are statutory damages. They're not punitive. Punitive damages can be awarded on top of these ludicrous amounts!

Honestly, I'm not keen on the idea of punitive damages anyway. The victim has no right to be rewarded for being a victim. Only compensated. Excessive damages result in people suing hoping to get a disproportionate payout. There's a perfectly functional criminal court system which is designed specifically to discourage this sort of behaviour.

No deposit, no return

[westlake]

Doesn't Activision have the right to recover their development costs and profit from the risk they took to produce the game?
NO. They have a right to TRY.
.

If Activation fails to make a profit they have the right to abandon the market.

The small independent producer lives on even tighter margins - and doesn't have a significant backlist of titles to carry him through hard times.

Re:No deposit, no return

[Anonymous Coward]

who cares screw the small guy while we are screwing the big corporations...

people don't think that deep around here while defending thepiratebay.org

Love it though as the only thing holding back Linux for the masses is because of pirated Windows, so the nerds will bicker on defending Warez pirating. It almost seems like Socialism sucking on the tit of Capitalist the way the pirates work with the corporations material.

Re:first post?

[Anonymous Coward]

Congrats on that. There trolls are such stupid spellers, it comes out as "frost piss" "fri$t p05t", etc. Thank you for promoting literacy among trolls :D

My two cents

[dataninja]

I would support the anti piracy effort if the estimate of the losses were based on production costs not inflated numbers and had the option to obtain the content in other non abusive formats and restrictions. But I guess I am smoking pot to even think of a solution.

"Individual?"

[slimjim8094]

Don't flamebait the title, please. Individual conjures up images of little Joey copying a game for his friend Billy and writing the CD key on the disk.

This is actual game piracy, you know the kind that's actually wrong? The profit-making kind?

This is the shit that's unfair to game manufacturers and really does cost them money. Joey and Billy's sharing is up for discussion.

Re:"Individual?"

[Anonymous Coward]

What exactly makes giving your friends free copies of games right? I mean, I do it too, but at least I'm not deluding myself.

Re:"Individual?"

[Anonymous Coward]

What exactly makes giving your friends free copies of games right?

They won't rat you out to Activision.

Unless you can prove your loss

[Anonymous Coward]

you shouldn't be *asking* for anything. It is for the judge to adjudicate what constitutes reasonable damages to be redressed.

If there is to be punishment included, that punishment fine is to go not to the company coffers but into the coffers of the government.

Two reasons why Activision are in the wrong.

This does not make the pirate right.

Hah

[lamarhornet]

Xtreme firmware ftw!!