Sunday 30 August 2015

IP Infringement and Indie PR Campaigns

To save myself from an inbox of hate-mail complaining that I'm "a dirty pirate who steals games" (because the shelves of games behind me, digital games coming out my ears, etc are apparently just not enough for me!) I need to preface this by saying that I don't download games I haven't purchased and copyright is ok. Copyright is certainly much better than patents at sanely protecting creators, even if the terms are now insanely long (and locked in by international trade agreements). I have, throughout my various careers, relied on copyright to provide value to my labour (and so meet my basic needs). Be that formulating products in a chemistry lab, writing, creating art, editing videos, or engineering code (to list the most rewarding). It has been rare when I didn't need some level of copyright protection to ensure my work retained value.

However, as I've extensively covered in the past, there are limits to copyright and to not scamming the people paying for our labour by purchasing what we create. When we play fast and loose with copyright, we lose the moral high-ground from which to express our concern about software piracy. If we engage in IP infringement or claim something is infringing when it definitely isn't then all we gain is muddying the waters of what it does mean to deprive us of revenue. If you use this as an explicit target to gain press coverage then you're working as hard as you can to destroy an understanding of copyright in our customer base and you should reflect on the harm you're doing to the industry to try and push your own revenue stream.

There have been several cases over the last few years that are cause for concern where indies have attempted to make a big PR splash by lying about when their games are and are not being pirated. Usually these involve a claim that a defective version was created by the authors and seeded out, a version that punished people who downloaded it. Recently this involved a case with an explicit claim to infringement of a band's likeness, ie a trademark violation, on top of lying about "piracy". Some people pushed back when I characterised this sort of thing as both PR by harmful deception (as explained above - this sort of thing hurts us all) and technically demoware.

Here is what happened, without any deception, so you can see if you can spot any "pirates":
  1. The developer put aside significant effort to create a defective version of their new game. This was done with the explicit aim of leveraging it into a PR campaign that gained coverage and sympathy for the title on the sites that ran the story.
  2. The defective (unbeatable) version included IP infringement of a 3rd party to spice up the story.
  3. The developer uploaded this version of the software to a BitTorrent tracker and so, as noted in the terms of BitTorrent copied above, asserted they owned rights to all IP and granted a license to all others to distribute it (the process by which this technology works, allowing everyone who downloads the content to also resend it to others, requires this sort of granting of the right to duplicate, otherwise it wouldn't work).
  4. The developer sent out a press release and got as many sites as they could to provide them with free advertising for the release of their new game based on this "piracy".
As you can see, distributing a defective version of your software isn't piracy, it's demoware. The torrenting that you caused was... caused by your own hand. To facilitate this fun PR story for your game, you had to give away that broken version as demoware. No one came to your office, created the broken version themself, and then took it from you to distribute. That was all the work of the developer. All that effort to annoy people who were looking to download a game from a torrent site. But, rather than it wasting the time paid for by your actual customers who got no benefit from it, it was leveraged into PR success. Which is why this is done so often: because this story of self-sabotage plays as if it isn't self-destructive when wrapped in the cry of piracy.

I find it really sad that so many devs are basically turned into these caricatures by the weight of something they can't control and have no method to fight. The fear of piracy, that something is owed and if only copyright could be guaranteed then they'd be rich* because of those recouped "lost sales". That a $100k/year software developer who gives it up to live on Ramen deserves to be rewarded for trying to do it all themself and trusting in closed platforms to surface their content to an uncaring world that SHOULD care.

And you can't beat piracy. You can make it less of a problem; you can make your content more available and try to create goodwill (eg humanise your labour). But you can't DRM and buggy-demoware torrent-bomb your way to lasting success and you're selling your soul trying to. But it's hard to say that when you used to have a really nice software contract and now you're having a hard time making ends meet. You were sold the Just World fallacy as justification for your privilege and now the real, semi-random world is starting to become apparent.

I had a decade of crappy jobs and now have a good job that still doesn't beat minimum wage to ground me and beat the bratty kid out of me. I laugh at the idea of ever being able to live in London or NYC or SF (or afford luxury items like my own car). I still want to be a consumer advocate and can't understand why devs are so quick to say "screw the customer, I need to get mine". Devs who see the Bethesda mod stuff and say Bethsoft should have made their cut even larger because they own the game (no, the customers who purchased each copy own the copy of the game the mod runs on - you already got yours). Devs who say DRM is something that is just a reality of doing business (despite GOG). Devs who consider it a land-grab for the traditional law of goods to be exerted onto their digital law-free playground of plenty (refunds for distance goods - digital downloads should be classified as such just as much as posted disc games; the spectre of used games). Devs who would normally be with the hackers talking about DMCA horrors until someone reverse engineers something in their game and then they're suddenly happy to make engineering a crime. Devs who intentionally muddy the water by making torrents of their own games to score some free press.

* An assumption that everyone has infinite money to spend on media and so piracy is lost sales rather than most people who consume media being rather hard up and so assign their hobby/media budget as best they can and usually pirate the rest they're interested in. Ever wondered why "all you can eat" subscriptions are so dominant for media consumption: it makes it affordable and a fixed cost to fill whatever free time you need to unwind in.

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