ESA's position on copyright, etc.

[GBGames]

I was reading about the ESA on their website, and I came across their positions on things like DMCA legislation. I note that the members of the ESA are major industry members, like Activision, Microsoft, and the like.

Here is something I found interesting:
In describing their opposition to "harmful" changes to copyright law:

The bills’ supporters argue that consumers expect to be able to shift the platforms they use to access entertainment products, and make multiple copies of products for their personal use. But there is not a shred of evidence to support that proposition when it comes to entertainment software consumers. All entertainment software consumers, whether they are buying games for console or PCs, are fully aware that the games can only be played on the platform for which they are published. Therefore, the platform shifting argument simply does not apply to the entertainment software industry.


Well, isn't that the point of platform shifting as fair use? If buy a music CD, I know that I can't use it in a tape player. That's why I can transfer it to a casette tape.

I think it is relevent to games. It is currently possible to play your older console games on your PC using emulators and the like. That's platform shifting. I can buy a game for the SNES now, knowing that I can't play it on my PC, convert it to a rom file, and now do so.

If I buy a game for Windows, I can play it on Linux if it works in Wine or if someone writes a port for it.

Platform shifting therefore can apply to the entertainment industry.


H.R. 1066 and H.R. 107 would allow consumers to circumvent, or hack, a product’s technological protection measures for various purposes which are not currently allowed under law. In addition, devices that are currently illegal circumvention devices would be legalized, a pirate’s dream come true. For the entertainment software industry, this is not some theoretical danger but a problem our member companies face daily. Video game consoles have built-in access controls designed to prevent the playing of counterfeit versions of the games. Today, there are illegal devices (“mod chips,” “game copiers,” etc.) which circumvent these access controls, and allow for play of counterfeit games. These bills would legalize many such devices, opening the floodgates to massive game piracy.


H.R. 1066 would also apply the “first sale” doctrine to digital works, a step which would invite widespread illegal reproduction and distribution of entertainment software and other works. The traditional first sale doctrine allows, for example, an individual who has a lawfully acquired copy of a work to give or sell the copy to a friend or family member. We have no problem there. The problem arises because H.R. 1066 would create a “digital first sale” right that would permit lawful owners to transmit a copyrighted work over the Internet if they delete their own copy. However, no technology exists to ensure such deletion occurs, and it defies logic and ignores the unfortunate experience of copyright owners with file sharing to believe owners will voluntarily dispose of their copy after a single transmission. The Copyright Office even rejected the plausibility of a “digital first sale” and called the analogy to the physical world “flawed and unconvincing.” The reality is that, unlike in the physical world, owners of copyrighted material do not delete the original after distributing a copy online. Therefore, the likely result is that there will be mass illegal reproduction and distribution of copyrighted works via the Internet.


Here they demonstrate that they believe that the only reason why their customers are not being criminals is because they are preventing it. I'm not sure how to enforce digital first sale, but you can't very easily enforce first sale either. It may cost money for someone to make a copy of a book, but scanning it and then selling it is something that can be done as well. Music CDs can be ripped before selling to someone else. To look at digital first sale as something uniquely dangerous is a bit of a stretch, I think (I'm open to hearing arguments saying otherwise).

I'm personally offended by the assumption that they take it upon themselves to assume that they represent the entertainment software industry. I don't want to believe that my customers are criminals first, customers second. I believe that the DMCA is being abused and needs reforms, some of which the ESA opposes. I can't be alone here.

That all said, I would like to know what everyone else's views are on this. I know some people here support the DMCA. I know that it has been agreed that casual copying happens and so small copyprotection measures keep people honest. Still, does anyone here support the ESA whole-heartedly? Oppose it vehemently?

On a side note, where do they get their figures when they calculate the losses due to piracy? They never cite actual reports. It is always, "It's been calculated that..." Where has it been calculated? Who calculated it?

[Greg Squire]

Well said. You're not alone, as I also think the ESA's position on DMCA legislation goes a bit far. There needs to be provision for fair use, like platform shifting. If I buy a playstation game, I should be able to play in on my PC or Mac also (if the technology [emulator] is available to do that). It should be about the game, not the platform. I really hate buying things twice (i.e. buying console version and then PC version, or buying a DVD to which you already have the VHS video, etc.)

On the other hand, the ESA has done some other good things in the industry such as the ESRB ratings, so I'm not fully against them.

[GBGames]

I actually just thought of that. An ex of mine had bought The Sims for the PC, and then she bought a Powerbook. She found out that the Sims are also available for the Mac. She had bought all of the expansion packs, and was not going to go pay for the same game twice. EA wasn't willing to do much since they weren't the ones who developed the Mac port, so effecitvely it was like there were two products. In this case, I think it can be argued that if she downloaded the Mac port illegally that it isn't the same as opposed to downloading the game without having bought it originally.

Situations like this are why I like companies like id. Quake 3 for Linux runs out of the box for Linux but also works on Windows. Similarly people who already paid for a Win32 version can play on Linux. You paid for the game (data files), and how you get the executable at that point shouldn't matter.

Here's something I've been wondering about. I was a fan of the NES game Spy vs Spy. It hasn't been available for a long time so I thought I would never see it in stores. When I found a rom of it, I downloaded it with this justification, which I now know is wrong. Then an almost perfect port of the game came out for the Game Boy. I was less inclined to buy it since I already had it. So here is a case where it can be argued that platform shifting can prevent a market from succeeding. Then again, platform shifting is why WineX is commercially viable. So when they are concerned about preventing a market from succeeding, what do they look for? VHS rentals became a huge business because of VCRs, which the entertainment industry claimed would result in piracy and lost revenue.

[papillon]

That's one reason it would be nice if copyrights were short and renewable - so you'd know the company WAS still interested in the product if they kept renewing it and they might rerelease it...