rates make it nearly impossible to
effectively combat piracy, those very
same norms and entry restrictions
actually preclude video game piracy
from expanding to Napster-like levels. Entry into the most pristine and
lavish piracy forums and platforms
is selective and well out of reach for
most members of the general public.
Noncommercial video game pirates
have every incentive to keep the piracy landscape self-contained. Legal
video game sales not only sustain the
development and production of costly
blockbuster video games, but also enable pirate communities to stay under
the enforcement radar as they continue to share illegal versions of video
games among themselves.
Although video game consoles
were once considered severely outdated, and questioned as an acceptable
alternative to gaming on more powerful personal computers, video game
consoles have now proven themselves
as a sustaining force for game development industries. Piracy inconvenience is a big part of the success story of video game consoles. That leaves
the more sobering part of this story.
Even if the processing power and flexibility of PCs offer superior platforms
for the development of game technology, piracy opportunities are likely to
inhibit the full development of gaming on these systems.
1. Carrier, M.A. Copyright and innovation: The untold
story. 2012 Wisconsin Law Review 891 (2012).
2. Drachen, A. and Veitch, R. W.D. Patterns in the
distribution of digital games via Bit Torrent.
International Journal of Advanced Media and
Communication 5, 1 (2013), 80–99.
3. Greene, T.C. SDMI cracks revealed. The Register (Apr.
23, 2001); http://www.theregister.co.uk/2001/04/23/
4. Hiatt, B. and Serpick, E. The record industry’s decline.
Rolling Stone (June 19, 2007); http://msl1.mit.edu/
5. Koroush G. PC game piracy examined. Tweakguides
(Apr. 2012); http://www.tweakguides.com/Piracy_5.html.
6. Molina, B. Gartner: Global video game market to hit
$93b this year. USA Today (Oct. 29, 2013).
Ben Depoorter ( firstname.lastname@example.org) is Harry
& Lillian Hastings Research Chair and Professor of
Law at the University of California, Hastings College
of the Law, and is an Affiliate Scholar at the Stanford
University Center for Internet & Society. A graduate of
Yale Law School, he writes on copyright law enforcement,
technology, and intellectual property, with an emphasis
on behavioral research. His copyright blog is located at
The author is grateful to three anonymous referees,
Zachary Eskridge, and Jacob True for comments and
Copyright held by Author.
never come to pass for video games?
Why did video game piracy remain at
First, the move from personal
computers to console platforms such
as Sony PlayStation and Microsoft
Xbox has significantly slowed down
the negative effect of piracy on video
game development. In order to run
pirated games on consoles platforms,
hardware modifications are necessary; most notably soldering modification chips inside the console. Even
less intrusive ways of circumventing
copy protection measures that do not
involve hardware modifications, such
as console jail breaking, require multiple steps and technical know-how in
order to obtain root access to console
operating systems. The risk of damaging the console and voiding its warranty has severely hampered the potential development of black markets
in pirated console video games.
As the failure of the music industry’s Secure Digital Music Initiative’s
watermark protection system illustrated so vividly,
3 no copy-protecting
technology is fail-safe: the very same
technology that is used to create a lock
can be applied to break that lock. The
console video game experience suggests an amendment to this maxim:
rather than creating a supposedly unbreakable lock, the gaming industry
is best served by creating locks that
necessitate keys that are inconvenient
for consumers to turn.
Second, as a generation of console
gamers grew up to become young
professionals, game producers now
benefit from having a group of avid
gamers that are more likely to be deterred by the inconvenience and effort involved with evading copy protection measures. Contrary to most
teenagers, young professionals are
more concerned with time constraints
than with the $60 or so price of the
latest blockbuster video game. For
these professionals, the availability of
games for sale on cloud systems and
online stores further tips the balance
in favor of purchasing video games
lawfully over the inconvenience and
risk of pirated games that might not
work properly or will not accommodate online gameplay.
Third, video game console plat-
forms also benefit from a distinct
selection effect: the average console
user is less tech savvy and therefore
also less likely to successfully circum-
vent copy protection measures than
its PC counterpart. When PC users
put together a “build” for gaming,
the expertise and curiosity involved
also enables them to track down, in-
stall, and run pirated versions of video
games on their computer systems. As
Cliff Bleszinski, a lead creator at Epic
Games notes: “[T]he person who is
savvy enough to want to have a good
PC to upgrade their video card, is a
person who is savvy enough to know
BitTorrent to know all the elements
so they can pirate software. Therefore,
high-end video games are suffering
very much on the PC.”
Fourth, over the past two decades, legislation and litigation have
erected legal barriers that impede
the development of markets in copy
circumvention technologies and applications. Article 1201 of the Digital
Millennium Copyright Act (1998) prohibits the manufacture, import, and
public distribution of any technology
(product, service, device, component,
or part thereof) primarily designed
or produced for the purpose of circumventing a technological measure
that controls access to a copyrighted
work. Likewise, a series of decisions
by U.S. courts have rendered illegal
technologies and business models
based on copyright infringements.
As a result, the shadow of copyright
liability looms large over technology markets. Interviews with venture
capitalists and investors indicate the
fear of copyright infringement directs potential investors away from
technologies and business models
that involve entertainment and copyrighted content.
1 So although hackers
are always able to develop applications that circumvent copy protection
measures, legal restrictions prevent
entrepreneurs from marketing these
technologies to the public.
Finally, software gaming communities are usually tight-knit and their
members tend to favor secluded networks over public file-sharing sites.
As a result, copyright law has always
been more difficult to enforce in this
segment of the piracy spectrum. But
while secretive networks and closely
held norms among video game pi-