Jimmy's weblog

This morning The Age treats us to yet another pirated software scare campaign, this time on behalf of game developers.

Buying and selling pirated games attracts penalties of between two and five years in prison, and a fine of up to $55,000. Despite the penalties, games are being pirated in Australia at a rate approaching one fake for every legitimate title, according to research published last year by Pricewater-houseCoopers for Sony Computer Entertainment.

I’m happy to be corrected if I’m wrong, but this seems like a a deliberate twisting of the legal situation. Yes, you can certainly be jailed for selling illegal copies of games or other software, but in Australia buyers (who get caught) can be subject only to civil, rather than criminal, action. I couldn’t find the exact section in either the 1968 Copyright Act or the 2003 Digital Agenda ammendment but even the Business Software Association of Australia seems to agree:

Infringement of copyright may constitute a criminal offence, exposing individuals and companies to substantial penalties and in the case of individuals, even imprisonment.

Criminal Penalties

Under the Copyright Act, making an infringing copy of software with the intention of obtaining a commercial advantage or profit and if the person knows or ought reasonably to know that the copy is infringing copyright and is now a criminal offence. Offenders may be liable for:

• Fines up to $93,500 and /or up to five years imprisonment for individuals;
• Fines up to $467,500 and/or up to five years imprisonment for companies.

Civil Penalties

Making or using illegal copies of software for your personal use or at work is a civil offence under the Copyright Act and offenders are liable for:

• Damages of an unlimited amount (determined by the Court);
• Court costs in many circumstances, which can also be substantial

Buying or making illegal copies of software can certainly land you in legal trouble, but it’s only when you start selling those copies that you wind up in jail.

“Piracy remains the single most important issue facing the interactive entertainment industry today,” says Watts, who is also the Asia Pacific managing director of game publisher Activision. He rejects the suggestion that high retail prices contribute to the piracy problem. “The pricing of the product in the retail stores has no impact on the pirating activity,” he says.

Watts is trying to say one of two things here. He’s either saying that the pricing of games has no effect on whether people buy a legal or illegal copy, or he’s subtly twisting his statement to say that illegal copies will continue to be made no matter what. Both statements are demonstrably false.

In the first case, let’s use common sense. You (or your kids) desperately want a copy of the hot new game - “Bullshit scare campaign”. A legitimate copy of the game costs $100 while a pirated copy costs only $5. Which one would you buy? Now imagine that the legal copy costs $10 and the pirated copy costs $5. Which one would you buy now?

In the second, pirated copies may continue to be made after a price drop but demand would soon dry up as people started buying the cheaper legal copies. Criminals in the retail business know all too well the effect of the laws of supply and demand on market pricing (just ask the BMW driving drug dealers) and as the market turned unprofitable, they would quickly move on to another one.

The article then moves on to another scare - buying pirated software may apparently get you involved in drugs or guns! What, not terrorism as well?

Piracy may be just another activity for some outfits. Among firearms, drugs and other contraband, it’s not uncommon for police raids to uncover counterfeit booty such as video games. “At any particular time, they [criminals] could be involved in any particular kind of offence,” says Drennan. “It’s a matter of what’s generating a return.”

And those buying the pirated software may also be involved in guns and drugs. How is this relevant?

I’m not a supporter of pirated software (90% of the programs I use are free and open source anyway) but scare campaigns like this really annoy me. One week it’s drugs, the next terrorism and now pirated software. What next, how you can go to jail for taping television and skipping over the ads?