The video game industry is once again attempting to demonize websites that offer consumers access to cheat codes and ROMs, ignoring how these sites are often a direct result of the industry’s own failure to provide gamers the products, prices, and support they’re looking for.
Once a year, the Office of the US Trade Representative issues a report highlighting what it deems to be the most “notorious” online and offline markets contributing to copyright infringement and counterfeiting around the globe. The group just put out a call for feedback on the most nefarious enablers of such behavior for its 2018 report. In response, the Electronic Software Association (ESA), whose members include Microsoft, Ubisoft, Nintendo, and Capcom, sent a filing to the Trade Representative’s office outlying what the video game industry deems the most alarming, “notorious” piracy institutions of the day. Sites that have raised the ESA’s hackles include BitTorrent indexes like The Pirate Bay, linking websites like p30download.com and darksoftware.net, “cyberlocker” websites like rapidu.net, and cheat websites such as IWantCheats.net.
The majority of the websites operate outside of the United States, and can be viewed here. Private game servers were also a target of the video game industry’s ire in its filing, which was first spotted by TorrentFreak.
“Establishing and maintaining unauthorized game servers often involves multiple acts of copyright infringement as well as the circumvention of technological protection measures,” the ESA complains, specifically citing Warmane.com and Firestorm-servers.com—both dedicated to providing users access to custom, home-brewed World of Warcraft servers.
But copyright experts and lawyers say that while many of the ESA’s concerns are valid, the lion’s share of the complaints have absolutely nothing to do with copyright, and in many instances are a direct result of failures in the industry’s business models.
“A lot of ESA's complaints are, at most, tangentially copyright-related,” Meredith Rose, a copyright expert and lawyer at consumer group Public Knowledge told Motherboard.
“Auctioning in-game items for real world currency is a headache, but it's not copyright infringement,” Rose said. “Reselling access to an account is a little vaguer, but at its core it's more of a contract problem (violating the TOS) than a copyright issue.” Rose said the industry’s claim that cheat code focused websites are contributing to widespread, “notorious” copyright infringement was also notably flimsy. “Cheats use, at most, a small portion of copyrighted code from the original, but ESA's primary complaint seems to be that they have to expend resources playing whack-a-mole with cheat developers, to keep the non-cheating players happy. That's a business model problem, not a copyright problem,” Rose said.
Critics charge that many of these websites have been unfairly demonized by ESA members like Nintendo, which recently sued two ROM-hosting websites for engaging in what Nintendo claimed was a “brazen and mass-scale infringement of Nintendo’s intellectual property rights.”
But as Motherboard recently noted, such ROM sites are often passion projects run by hobbyists, providing access to games that are no longer meaningfully supported by manufacturers, as well as providing an invaluable archive of video gaming history. And while there’s certainly piracy occurring via these websites by folks that absolutely refuse to shell out money for a cavalcade of retro gaming consoles no matter what, piracy is, as usual, a far more nuanced discussion than industry is usually willing to admit. Painting all pirates with the same broad brush can often be counterproductive, Rose argued.
In many instances, folks “pirating” the content in question are simply under-served customers by another name, who’d stop engaging in copyright infringement if the game industry was offering better, cheaper, more flexible products, she suggested.
“At least some piracy—particularly in overseas markets—is a response to a lack of local, affordable, practically accessible options,” Rose argued. “Valve has gone after these people aggressively by trying to serve them—localizing their games faster, differentiated pricing in different markets, diversifying payment options to account for local customs—and had great success.” As the music, film, and TV industries have found, one of the best ways to stop customers from engaging in piracy is to provide them with cheaper, better, more open, and more flexible access to the content they’re looking for. Instead, the video game industry, like countless industries before it, tends to reach for scorched earth tactics that can often make the problem worse.