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June 15, 2004

Videogame Publishers Launch DMCA Lawsuit

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Posted by Ernest Miller

CNN reports that videogame publishers are getting into the DMCA action (Video game makers sue software firm). The lawsuit apparently involves the anti-circumvention provisions of the DMCA and is targeted at the publisher of Games X Copy, which allows users to backup and/or run PC games from a virtual drive.

My favorite line from the article:

[Doug] Lowenstein [president of the Entertainment Software Association] said the product nevertheless violates copyright law and is "masquerading as a consumer-friendly tool."

You know, it is unfriendly to consumers because it lets them play games from the hard drive, without having to constantly swap CD-Roms and what not. I can't see how any consumer would want to have to deal with the convenience and all.

My favorite line from Gizmodo's post (Atari, EA, VUG Sue as One):

Not that I want publishers to suffer from piracy, just that I'd wish they'd give their lawyers something better to do than beat a dead horse. Maybe like forming a dance team, or building a soup kitchen to feed their developers.

Comments (7) + TrackBacks (0) | Category: IP Abuse


1. Brad Hutchings on June 16, 2004 7:02 AM writes...


I appreciate your view of what copyright should be from the previous thread. I disagree in scope, but so be it. Safe to assume, I'm sure, that you oppose the DMCA on all counts. But would you agree that this action under the DMCA has more legitimacy than, for example, Lexmark?

Court costs money, and these are public firms on the plaintiff side accountable to shareholders. It is safe to assume that they believe that the existence of Games X Copy is eating into their sales, i.e. that if Games X Copy were more difficult to legally obtain, that their sales would increase. That suggests that Games X Copy has significant infringing uses. Would you at least agree that these are likely business facts in this case? It's OK if you don't agree, I'd just be curious why.

I eagerly await the procession of this course, especially to see if EFF et el file amicus briefs siding with 321. I wonder what subtle tact such briefs would take, as the history seems to be to pck apart the copyright holders enforcement rights on nit picks, e.g. Johnny's neighbor is the real music sharer because Johnny's Dad configured an open wireless access point, and let's just overlook that this ignorant idiot would have to port-forward to the neighbor's computer. But I digress...

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2. Seth Finkelstein on June 16, 2004 9:23 AM writes...

Purely as a matter of logic, you have a reasoning flaw right here:

"that if Games X Copy were more difficult to legally obtain, that their sales would increase. That suggests that Games X Copy has significant infringing uses"

This is logically wrong, in a strict sense. The wrong assumption is that only infringing uses decrease sales. But the companies would increase sales if consumers could not make the *legal* *fair-use* archival copy which is their legal right to do under standard copyright law even if the companies don't like it and their business model would be better served by disallowing it (phrasing deliberately tedious, to preemptively avoid the why-do-you-HATE-COPYRIGHT reply)

I'm not, err, playing games, in that I'm not making an argument that all uses are noninfringing. I'm pointing out that sales can also be lessened by noninfringing backups, and hence the business model is not the same as copyright.

And nobody has ever said there aren't infringing uses. Sigh. Maybe I shouldn't have bothered.

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3. Brad Hutchings on June 16, 2004 9:50 AM writes...


While you are right if you take that reasoning out of context , remember that the context here is that if they're going to expend resources taking this to court, they need to know they are being effective because their shareholders won't stand for it otherwise. (For example, SCO's big shareholders aren't particularly happy with the management now.) Conversely, if going to court and squashing this thing would increase their revenues, they would be negligent in their fiduciary duties by not going to court. So, yeah, it is conceivable in an academic sense that piracy via Games X Copy is negligable, but realistically, that view is BS and we all know it. I mean, I think we all know it if we're being honest ;-). It's not to say that there might not be legitimate "fair uses" of the product or people that restrict themselves to that, but... do you guys know any teenagers who are into games? I'm not saying the kids are evil, just that they're mostly not using it to make sure their CDs survive for more than 30 years.

This kinda goes back to my often labeled irrelevant point about the shareware market. Protect your shareware, increase your sales dramatically. Whether or not it's a result of rampant inherint dishonesty or just sending a signal to users that you expect them to be paying customers, the premise is near axiomatic in the software industry.

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4. Seth Finkelstein on June 16, 2004 11:05 AM writes...

One more time, briefly:

*By definition*, in this framework, any business which files a lawsuit has to think the outcome will benefit them. *By definition*. If copyright were identical to the companies' interests, then all lawsuits would have to be decided in business' favor, again *by definition*.

The _Sony_ VCR lawsuit was a classic example here - the companies thought they would benefit by outlawing the VCR, and that the consumer use was infringing. But their belief was not dispositive.

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5. Brad Hutchings on June 16, 2004 9:40 PM writes...


You are comparing apples and oranges. The Sony suit was about a new, disruptive, not-well-understood technology. The law didn't understand it. The DMCA encodes an understanding of the Games X Copy issue. You also miss, overlook, or ignore the subtlety of my argument. I don't have figures to show what % of use of Games X Copy is for backing up personal copies and what % is to make illegal copies for others. I do, however, know that the percentage of church-going, bow tie and Buster Brown shoe - wearing, straight part on the right hairstyle crowd is very small. From that, I'm pretty confident that what's going on here is that this commercially available tool is sold as (wink, nod) a way to make personal backups but used as a way to share games with all of your friends. I'm sure the attorneys for these companies have a similar realistic sense of human nature.

In court, they obviously need more law, more reasoning, more evidence, (and that is a good thing and a good reason for lawyers) but that is the execution part. We all know what's going on.

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6. Seth Finkelstein on June 17, 2004 11:11 AM writes...

Actually, my point is that business model and copyright are apples and oranges - one can't infer violations of copyright law strictly from negatives in the business model.

On 321, I had the nudge-wink view myself once, but after hearing out the maker at the DMCRA hearing, I'm not convinced of it.

But let me turn it around - in your view, is it even legitimate to sell a tool that has *many* infringing uses, if it has *substantial non-infringing uses*.

That is, do you believe the _Sony_ standard is in fact wrong, and should be overruled? There are people who advocate that, and it's been done in effect with the DMCA.

But I also think it isn't radical extremism to want to keep to the previous standard.

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7. Brad Hutchings on June 18, 2004 11:03 AM writes...

No, the Sony standard is a good one. Using the analogy of an open house... broadcasters wanted everyone to come to their house and see what was going on. The "non-infringing" use in Sony was that people could come visit later if they wanted. Legally, they couldn't host their own open house (an infringing use), but the VCR would not be banned because the non-infringing use was significant -- in context, you'd need two of the things to do duplication anyway, and how many people had or could afford two VCRs?

With this video game thing, the game companies are selling a copy of the house and a set of housekeys. Using the system as provided, the customer gets use of the house subject to using the keys. It's understood up front that you dont make copies of the keys for your friends, etc. The game companies have the keys in place not because they want to inconvenience anyone -- no software developer wants to do that -- but because if you don't put a lock on the door, everyone "borrows" the house and your sales go into the toilet. So someone comes along and says they have a machine that knows how to duplicate the very specific and unique keys used by the game companies. Of course the game companies are pissed because if people don't have to use their keys, they share (it's cheap enough to do it, not the cost of two early VCRs), and sales go in the toilet.

Some say that copying to a hard drive should be a non-infringing use. Well, allow that explicitly and suddenly the lock is not effective, people just share, nobody buys, game sales go in the toilet. Others says that copying for backup purposes should be a non-infringing use. In the early days of copy protection, it was fairly common for companies to ship backup copy disks. Unit shipments were much lower and prices quite a bit higher in those days.

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