Greenheart Games is an independent game developing company, famous for its series of the popular game named Dev Tycoon. Not long ago, GG thought it would be funny, and also make a valid point, to upload on BitTorrent a tweaked version of their latest game (Game Dev Tycoon), masked as a “cracked” torrent especially designed for those who infringe copyright. What came out of this stunt was a very interesting debate.
The “cracked” version is almost the same as the original one, except for one thing:
“Initially we thought about telling them their copy is an illegal copy, but instead we didn’t want to pass up the unique opportunity of holding a mirror in front of them and showing them what piracy can do to game developers. So, as players spend a few hours playing and growing their own game dev company, they will start to see the following message, styled like any other in-game message:
‘Boss, it seems that while many players play our new game, they steal it by downloading a cracked version rather than buying it legally. If players don’t buy the games they like, we will sooner or later go bankrupt,’” GG’s team commented.
“I’m not mad at you. When I was younger, downloading illegal copies was practically normal but this was mostly because global game distribution was in its infancy. To be fair, there are still individuals who either can’t make a legal purchase because of payment-issues or who genuinely cannot afford the game. I don’t have a quarrel with you,” they continued.
As clever as this move was, the whole thing started a heated debate about the legal and ethical concerns of piracy. To be more precise, ArsTechnica and their commenters asked the following question: are people who downloaded the “cracked” version of the game pirates? Taking a moral stand, the answer is simple: yes, they are pirates. The torrent’s description reads “FULL VERSION…CRACKED AND WORKING”, so people’s intent to download the game for free is obvious.
What follows is a big and obvious “but”. But, from a legal point of view, things are not so easy. In order to be called a pirate, one needs to obtain the targeted content without permission from the owner. In this case, even if people downloaded GG’s tweaked game, they did so with the company’s permission. But what if GG was willing to sue them? Could it built a case on such grounds? While Patrick Klug (working with the game company) told Ars Technica that “it was never our intention to pursue any legal action against those people who downloaded the cracked version”, the question still needs an answer.
“There’s a good argument that by making something freely available for download, you are authorizing downloads,” Denise Howell told Ars.
“A court could find an implied license despite the fact no express license has been stated, simply because there’s no other logical conclusion to be drawn from the conduct. Downloading in this circumstance is not just foreseeable, it’s practically inevitable.”
The argument is indeed valid; however, a court could argue that these circumstances would offer safe harbor for those who downloaded the “pirated” version of the game directly from Greenheart’s seed. How about the others who, for the sake of the argument, downloaded and shared a subsequent copy of the game? Well, according to copyright laws from basically any country, without a license they would not have the right to share that piece of software.
Denise Howell, a popular figure known for hosting “This Week In Law” on TWiT network, continued by saying that the very nature of BitTorrent means that the indirect license of seeding the file “encompasses whatever distribution functionality is generally understood to be associated with and necessary to P2P or BitTorrent distribution. That wouldn’t mean the license would be so broad as to allow BitTorrent or P2P downloaders to redistribute the file at will. It would arguably mean the rightsholder has agreed to whatever distribution was the logical consequence of seeding the work on BitTorrent.”
Evan Brown, a lawyer specialized in the copyright law, said in an e-mail to Ars Technica that GG’s tweaked game suggests an ample indirect license that would protect those who download the game.
“I think the embedded ‘message’ (oh, poor us, we’re being victimized by piracy) is the key fact here,” he explained.
“It shows that the maker wanted the work to be as widely distributed as possible. Why would it bother embedding that message if it didn’t want that message broadcast widely?”
Going back to the users’ intent to download a “cracked and working” version of the game, things get even more complicated.
Howell explained that someone’s intent alone would not help with building a copyright lawsuit; what could help, however, is establishing whether the torrent file and its distribution were licensed by the producer. If the act of copyright infringement is confirmed by the court of law, the user’s intent could be penalized with $750 to $30.000 per work. If the court finds the defendant guilty of “willful infringement”, the penalty goes up to $150.000, Howell said.
Note: the $150.000 penalty would apply to works licensed three months before the infringement occurred.
“There is a kind of a ‘come on’ factor here, in the hypothetical lawsuit. They would need to develop and present and say, ‘Look, you can’t just trick someone into infringing.’ If I were [the defense's] lawyer, I’d try to make something out of the fact that it was a honeypot, it was bait, and try to reduce the damages that way,” Howell continued.
Due to the fact that GG advertised the torrent as being an illegal copy, a court of law “would probably, on balance, go against the users. That fact could paint a picture that they went into the ‘transaction’ knowing it was infringing technology. In other words, that users responded to something that was ‘marketed’ as ‘cracked’ says something about their mindsets—namely, that they went into it with eyes open to the fact they were doing something that the copyright owner would normally not approve of,” Brown said.
“The weird thing is, of course, that the copyright owner in this situation did indeed approve of it.”
“It’s a perfect example of why legal arguments can be so confounding. A single fact can be spun in two directions 180 degrees opposite one another.”