Where DRM fails, companies sue. That's the philosophy of the RIAA, MPAA, and now Activision, who recently filed an infringement action against James R. Strickland of New York for reproducing and distributing copies of CoD3. Not only is there a public suit, but like the RIAA, Activision has been quietly suing individuals for infringement for quite some time. The settlement agreements include a confidentiality provision prohibiting the defendant from discussing the matter.
On the heels of this news comes the recent turnover of the only case the RIAA ever won against an individual file-sharer.
A number of issues come up here. First, what can be gained from suing individual infringers? Are these actions strike suits that only succeed in infuriating the general populous, or are they actually an effective deterrent? Finally, is there a less controversial way of dealing with the problem of piracy in the U.S.?
In my last post I pointed to an article by Draginol of Stardock, a game (i.e., Sins of the Solar Empire) and desktop enhancement developer. In his assessment, blaming the lack of success in the PC games market on piracy isn't the most efficient way of managing one's business. His suggestion is to focus on making games and products that cater to the market of people who pay for those products.
This is difficult in games and entertainment generally. Developers and publishers want to make fun games that cater to a large market. Trying to market those games exclusively to people who will pay for those games isn't always a practical answer. One problem is that many infringers do not view copyright infringement as criminal conduct. Another problem is that the suits brought against individuals aren't criminal prosecutions, they're civil actions brought by Big Business against The Little Guy. Most can accept government enforcement of criminal conduct as a social necessity. Yet many may not be comfortable with Big Business taking on this role. The RIAA, MPAA and now Activision have, as a result, earned some very negative press, and the gaming media is fairly vocal about expressing their discontent.
Who is in the Right?
Any copyright owner is entitled to and probably should enforce their copyright against infringers. The big content providers are within their rights to seek legal action against pirates who reproduce and distribute their works. The problem is that the primary contributors to piracy import and export come from large black markets in countries with lax or non-existent intellectual property laws and little to no enforcement. Yet according to Big Business, the "everyday" infringer sitting at home in New York burning and selling dozens of copies of cracked games is just as culpable for piracy as the black market criminal syndicates. In the eye of the copyright owner, the only distinction is jurisdictional (disclaimer: this is hypothetical. As yet, the facts surrounding Strickland's conduct have not been made public). Yet in the eye of the public, there are almost always varying degrees of wrong.
So we have a pretty big disconnect as far as public perception. On the one hand the industries are frantically scrambling to get pirates out of the market. And piracy is a huge problem to content providers, including the little guys. On the other hand you have kids getting slammed with hundreds of thousands of dollars in judgments that no plaintiff can ever reasonably expect to see, and the kid isn't being charged with a crime, he's being sued by corporate thugs. Content providers are trying to remedy this by lobbying for legislation that allows the Department of Justice to bring civil suits against infringers on behalf of content providers. So far, the DoJ has refused to take on any such responsibility.
Now content providers, who really are the victims as far as piracy goes, are viewed as the bad guys and the individual pirates are treated as martyrs. Big Business may legally be in the right when they bring these lawsuits, but at the end of the day, who cares? We are no closer to eliminating piracy, and now the creators of content are viewed as the obnoxious 5th grade bullies on the playground, stealing lunch money from kindergartners.
Strike suits have a long and glorious history. They have been used by every major corporate entity and cult to intimidate, beleaguer, and abuse "troublemakers." Scientology's "Fair Game" legal tactics are the stuff of legend. To clarify, a strike suit is a lawsuit that is brought for the sole purpose of settlement. The plaintiff never intends on going to trial—the suit is a strategy to force the other party to settle on the principle that the cost of settlement will be less than the defendant's cost to litigate the matter. Often the suits themselves are meritless, but bringing that kind of lawsuit against someone who has no knowledge of the law and no legal representation practically guarantees that the plaintiff will at the least get a semi-decent settlement and at most a big fat default judgment in its favor. Your every-day Joe doesn't understand a concept like "sewer service," they aren't aware that they have legal rights at all, and as a result the defendant is intimidated by or oblivious to the lawsuit.
Activision's silent litigation against individuals is a very good example of your average strike suit legal tactic. In truth, most companies do not want these cases to go to court. As demonstrated by the recent ruling in the RIAA file-sharing case, they don't want to create potentially damaging precedent to future cases. This is where major content providers hurt their case—you can't view someone who engages in this kind of Mafioso intimidation game as a victim.
Finding a Better Way
I strongly believe that business and law should only rarely interact, and that's primarily for the purpose of enforcing contracts and creating alienable property rights. I don't believe suing individuals should ever become a viable business model. However, I also know that piracy is a multi-billion dollar problem across all of the entertainment industries, and I don't believe that the public is entitled to free content. I'm sorry, but you're not. Companies spend millions producing films, music and games for your entertainment, and if it's not worth paying for you have no business enjoying it. So my suggestions to big business are three-fold, and two of them are reiterations of prior points:
1. Develop a new business model that relies on selling access to content, not physical or digital "copies". Once you put "copies" into the business model, you introduce the possibility of piracy. Selling access to content as opposed to individual bits and bytes of content significantly handicaps pirates because it kills their market. The only ones who can actually provide access to the content is the content provider. Anyone can make a copy.
Reduce the cost to the consumer. Currently, it seems that the entertainment industries are passing along the cost of piracy directly to the consumer. I like this about as much as I like the idea of my taxes being used for the big Wall Street Bail Out. It's not the consumers who created this problem. Stop making it their problem. It only inflates the piracy market by creating a higher demand for less expensive product.
3. Educate, Educate, Educate. Do not litigate, educate. Using strike suits and intimidation tactics only reinforces the belief that content providers are the bad guys, which is a very backwards view of the entire situation. Instead of paying your lawyers (and it desperately hurts me to say that), put your money where your mouth is and inform people of the problem, why it's a problem, and why it is illegal. Most people do not view file-sharing as wrong. They don't understand the cost of creation. It's important that your potential consumer base is made aware of the issue and realize that contributing to piracy will eventually mean less content for them.