The Piracy Isse

Anyone unlucky enough as to enter my bedroom would certainly note the sixteen original GameCube games, the seven Wii ones, the three Xbox 360’s, the eight PSP’s , the fifteen DS’s and the three Dreamcast’s games piled on my shelf. If such a person were to ask me for more, I would gladly show the box where my nine SNES’ and seven N64’s games are placed, as well as the digital copy of Mass Effect I have purchased from Live and installed on my Xbox HD. A further research would reveal dozens of CDs chaotically distributed all over the room and the twenty-something DVDs on my cabinet — not to mention the ones spread on other rooms of the house, including the countless seasons of TV series on the living room.

This might not sound that impressive if you are American or European, but when you live on a country where games cost twice as much as in the US, people are paid half as much, and “alternative” versions of all those games and movies are sold for less than US$5 on every corner, it takes a lot of will for one to stick to the legality.

That said, I love the theme of piracy.

If I ever see a discussion on the internet where people criticize the “pirates” while others defend their "right" to buy counterfeit products, I just feel an urge to step in. This is due to a number of reasons, but mostly it’s due to my anger against the “lies” that have spread around the world and that dominates this kind of discussion.

It is not to say that I approve piracy. Nor does it mean that I reprove it. I only dream with a world in which the matter is truly understood and discussed based on arguments, rather than absurdities.

So, here’s my altruist and heroic effort to lead the world closer to this utopia.

The Pirate Myth

First things first. The mere term commonly used to refer to copyright violation is filled with prejudice and leads to an erroneous interpretation of the actions to which it refers. In fact, its usage dates to as far as the 17^th century in England, in a period which will be later discussed on the ‘It’s a Right’ Myth section of this article, and obviously tries to associate the violation of copyright with sanguinary thefts. The reasonability of such association will be further discussed on the Piracy if Theft Myth section of this article, but it is important for everyone to realize that the word choice is not accidental: the term piracy serves a purpose and a specific ideology regarding the subject. It should not be used casually.

The Piracy is Theft Myth

The distinction is pretty obvious, really. Theft demands the subtraction of somebody else’s property. The violation of copyright does not diminish anybody’s property. Thus, it cannot be theft.

Notwithstanding that, every single movie one watches will start with the reminder that “piracy” is theft. The reasons for it are obviously economic: copyright holders are believed to benefit with the association of copyright violation with more ‘serious’ crimes.

Legally, though, the association makes no sense, both on statutory law (the Copyright Act clearly differentiate it from theft) or on common law. Of course that was an easy argument and one to which nobody cares. Legal terms are misused everyday and nobody gets hurt, right? Why, then, should this be different on this regard?

Well, basically because the association does not work. It should be clear, by now, that copyright holders are failing to beat the violations. A recent research revealed the obvious: copyright violators do not feel like they are doing something “wrong” — or at least, something as wrong as theft or, say, piracy. Thus, they cannot be convinced by this kind of argument, as they seem exaggerated and not appealing to them. A change in the approach for the matter is required not only because the current one is wrong, but also because it is ineffective.

The ‘It’s a Right’ Myth

Copyright is not a right.

Let me say it again: copyright is not a right. It never has been and it never will be. Copyright is a monopoly, it was born as a monopoly, it is legally treated as a monopoly and there is no way to argue that it is anything other than a monopoly.

It is, of course, a legally granted monopoly and it is also, arguably, a monopoly which is positive for the society as a whole. Still, it is a monopoly. So, let’s say it again. Aloud, this time, if you please: Copyright is not a right.

And, on the beginning, it was not even a “good” monopoly. The Stationary’s Company was granted the monopoly over written books on England as a tool for the King to easily censor all publications. Later, the monopoly subsided because society was convinced that the protection, for a small period of time, would serve as an incentive for artists and authors to create more. This argument is the sole justification for the subsistence of the copyright. Whether it is true or not is a completely different subject, but one thing is still true: it is not a right (and I don’t get tired of saying so).

On the other hand, other countries base their authorial protection on the French system. “Droit d’auteur”, instead of copyright. This kind of protection is, indeed, considered as a right, instead of a monopoly. Its particularities would be enough to fill another article, but it is suffice to say that even this is not a “proper right” and is subject to specific limitations that are enough to distinguish it from any other right — property, for instance.

The ‘It’s my property’ Myth

 That intellectual property is valuable, nobody doubts. That it more often than not demands effort and money from its holder, either. But it also holds too many differences from “regular property” to deserve the name.

First of all, because the intellectual property is uncontrollable. If I listen to a music or I read a book or I play a game, the ideas therein will be absorbed by my mind, will stick to my memory and no one will be able to ask me to give them back, much unlike something I could’ve borrowed from somebody. Furthermore, my “appropriation” of said musics, books or games will not diminish the patrimony of their “owners”, nor will it be an obstacle for such owner’s usage of their property. (Note that I’m not talking about violation of copyright, here. I’m talking about memorizing a song or learning new things from something one’s read.)

Thus, while it is true that some kinds of usage of other people’s IP are forbidden by law — even constituting crimes, depending on where you are — they are not the same thing as entering somebody’s house or stealing somebody’s car. It is an act against a legal monopoly, as seen hereinabove, and not against some sort of right.

The Damage to the Industry Myth

Now this one is tricky. Piracy obviously does bring damage to the industry. Companies lose profit with piracy. So what I’m trying to do here is not to deny the evident; it is to bring down some arguments. None of the facts listed below should be used as an argument in favour of piracy. Then again, nothing in this article should. They are just comments contrary to some widely spread facts that are sometimes not questioned.

So, ok, Microsoft don’t like you running pirate copies of Windows or Office. But do you know what it likes even less? You running Linux or OpenOffice. When you use Windows — even a pirate copy of it —, you learn how to use it and you learn not to use any other OS. Plus, you’ll purchase Windows based software. Likewise, as long as you are using Microsoft Word — pirate or not —, you are not spreading .ODT documents out there. As referring to games, and, specifically, console games, this is also true.

More interesting is the matter of used games. It is common, I believe, for people who criticize piracy to buy original, used games. At least that is something I do myself. It is a cheap way of acquiring games, sometimes in nearly perfect conditions. The old owners are happy to grab some money for a game they wouldn’t play anymore and you are happy for saving money. Game publishers, however, are very, very sad. It’s simple: you are buying a game that has already been purchased and no money will go to the publisher. It is no different, commercially, than buying a “Jack Sparrow” copy. Nor is it legally.

When you buy a game media (or a movie DVD or BRD, or a music CD or whatever), you are purchasing the media, i.e. the material object in which the game is stored, but you are purchasing something else: a license. Indeed, when you pay for all these things, you are paying for a license to use the copyrighted material stored in that media. Not to copy it, not to sell it, but to use it. So, when you sell your old CDs or books or games, you are incurring in the exact same violation than if you were copying it and putting it online. You are selling it without permission to do so. And if you are buying it, you are buying from someone who does not have the right to sell it. Just like if you were buying from someone who charges USD5 for a DVD-R with Halo Reach.

Why does it matter?

Basically, this is stuff for people to think about. While it is not directly related to the connection between games and arts, the copyright is a matter intrinsically connected to the production and the spread of all art forms — games included. The implications of the enforcement of copyright (and the lack thereof) are extremely serious for the future of both game industry and culture, and the discussions on this regard should be a lot more serious and well thought than they currently are.