Law of the Game on Joystiq: Activision's stealth enforcement
Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:
There's been a torrent of discussion about a series of mysterious Activision anti-piracy actions as of late. Given the rumors and secrecy, I thought I should give my thoughts on the matter. For the record, this is just speculation. I don't have an inside source at Activision that is feeding me information, nor have I spoken with any of the alleged pirates. Hopefully, my analysis of the activity will give a little clarity to those of you trying to piece together this puzzle.
Here's what we know: Activision had suits against six people, all of which seem to have settled out of court. The cases had something to do with piracy but did not involve file sharing. The rest of the goings on were largely a mystery, other than one of the defendants alleging that he was encouraged not to seek counsel. So, that means there are far more questions than answers, but I think I have a pretty good theory to resolve most of these outstanding questions.
GamePolitics posed a series of questions at the end of its last article, which I will attempt to answer. For reference, those questions are:
What exactly did the "Activision Six" do? Not file-sharing, an attorney for the publisher told GP, but beyond that we are left to guess. Cracking? Mod chipping? Disc reproduction?
Why did Activision keep the lawsuits secret? Isn't deterring other prospective pirates a major reason to bring such actions?
What did Activision know of the tactics its lawyers employed? If GameCyte's source is correct in his assertions, he was persuaded not to exercise his right to counsel.
Why did Activision pursue this course, as opposed to a more coordinated, industry-wide strategy? Activision, of course, dropped its membership in publishers group ESA earlier this year.
With respect to the first question, I would guess that what the defendants did was likely disk reproduction. It's almost certainly not modchipping, as that's generally an action pursued by console manufacturers rather than software publishers. Further, it would fall in line with the statement that it was not related to file sharing. The fact that no PC games are involved means that "cracking" isn't likely, as those actions generally have to do with interfering with DRM for PC games. It's possible that it had to do with cracking for emulation, but again, disk reproduction seems like the most likely thing Activision would go after.
Questions two and four are likely related. I would imagine that Activision did this alone and discreetly in order to prevent negative press related to the suits. Everyone is familiar with how well the RIAA's suits against individuals have gone over in the public eye. As game companies become more savvy, they have to weigh the preventative nature of piracy busts in the news with the potential backlash from the consumer over lawsuits against people they see as just another average consumer. It's pretty easy to see a bust of a multi-national piracy ring as something disconnected from you, the end consumer. It's much harder to separate a bust of the guy down the street who seemed no different than you from yourself. You're likely to put yourself in the shoes of the pirate and feel outraged, which leads to the kind of negative online publicity that Activision doesn't want.
Had these been major piracy operations, I believe Activision would have turned this into a big campaign with many other publishers at its side. The secrecy leads me to believe that these were smaller operators and Activision wanted to keep it out of the press. I would imagine that may be in the settlement agreements to some degree as well.
The third and final question, related to the lawyers tactics, may be one of willful ignorance on Activision's part. I'd say it's unlikely Activision told its counsel to tell the defendants not to get their own attorneys. However, in telling the attorneys to "get the job done and make sure it stays quiet," Activision may be implying that allowing these people to retain counsel would likely result in more press. So, the lawyers may have gently encouraged these defendants to not seek counsel on the basis of "added cost" when the real motive was keeping these proceedings quiet. Of course, lack of counsel may speak to bargaining power if the settlement agreements are ever challenged in court, but this is not the same as requesting counsel in a criminal proceeding. It was a private negotiation, and Activision isn't legally bound to end the negotiation if these people ask for a lawyer but stay at the negotiating table.
Given the information available on this situation, that is my take on Activision's chosen course of action. This was largely designed to be a quiet way to deal with some small-time pirates whose punishment might draw public ire. Of course, it's entirely possible a different story will emerge, but that is the most plausible explanation with the facts that are available thus far. I wouldn't be surprised to hear that other publishers have been involved with similar cases. Whether or not this is the first step to RIAA-style punishment of file sharing is anyone's guess, but it's by no means a certainty based on the activity to date.
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.
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