Law of the Game on Joystiq: Of Pirates and Prostitutes

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

From cheating to piracy, game security has become a major issue. In fact, the most recent Computer Law & Security Report features a piece by Steven Davis, author of PlayNoEvil, and W. Joseph Price about the state of security in the gaming industry. Their verdict was less than reassuring if you're a player or developer. Sure enough, just a few weeks after the report was issued, Grand Theft Auto IV was leaked prior to release. So what is a developer to do? What about the video game community?

To start, a "pirate" is someone who illegally reproduces or distributes something that is protected by an intellectual property right. In simple legal terms, that person is infringing on the rights of the copyright, patent, or trademark owner. While any intellectual property can theoretically be "pirated," I'm only talking about items that can be copyrighted. And before anyone points this out, yes, this is what groups such as the RIAA have taken pretty extreme steps to combat. Of course, the music industry and game industry are two different beasts.

But that doesn't change the irony of the situation: The game industry, which is entirely built on intellectual property, has generally had a far more relaxed attitude about piracy. And for the game industry, the sale of intellectual property is all there is. Musicians have live concerts, music videos, and licensing into other media as sources of revenue. Even movies have theater showings and TV licensing. If you are a game developer, the only source of income is selling copies of the game, unless you've sold in-game ad space or you're a subscription based game.

And therein lies the dilemma. It's "cool" to be more laid back about piracy, but if you're a developer, you have to weigh your public image against your paycheck. It's a similar issue with leaks. You're an internet hero if you leak an early copy of something online. But if that something is also your source of income, you're risking that people will not buy the product that they can get for free. While some leaks are simply publicity stunts, the ones that are genuinely stolen are a serious problem.

So, I ask again, what is a developer to do? For leaks, developers need to have clear rules that are both known in the company and in employment contracts. During the various stages of development, before copyright attaches to a "final product," a combination of trade secret and non-disclosure agreements are your only real defense. A trade secret is generally defined as "information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from no being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." Given that trade secrets are protected at the state level, there is some variation in the practical mechanics of trade secret law, but in general, a trade secret is only as strong as its value and the measures taken to protect it. Value is pretty evident for in-development code and other elements of the game. It's the measures taken to protect the trade secret that are completely up to the developer. Without going into too much detail, the more steps taken, from building security to network security, the more likely something will be protected in court as a trade secret.

Once a product is copyrighted and in the marketplace, combating pirates is a matter of locating the pirates and using the various international copyright laws to protect your rights. This is, of course, easier said than done as laws worldwide vary substantially and tracking pirates is not always a simple task. Thankfully, to date the game industry has generally taken what I consider to be the more logical approach to tracking those who distribute the material rather than the RIAA's approach of going after the end user.

And what about consumers? The simple answer is just: Show some restraint. I know everyone was dying to get their hands on GTA IV. And I'm hoping most people who chose to download a pirated version of the game were also in line buying a copy. In the grand scheme of things, though, what benefit did those people gain by being able to play the game a few days early? For most, the limit was bragging rights, and while that has some value, it isn't worth much. For a few who were trying to write their own independent FAQs or guides without being affiliated with one of the companies who were actually sent review copies, there is some competitive advantage in having the first content.

I'm sure the vast majority of you are playing legal copies of your games, and I'm likely preaching to the choir. But I would hope that the few of you who do choose to pirate games consider what's been said here and reevaluate your evil ways. Anyway, enough, shouldn't we all be getting back to our legally purchased copies of GTA IV?

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.