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THE UNWINNABLE WAR - November 1998

Is it that time again already? It hardly seems like days since the last "big crackdown on piracy", but here we are again, reading more tales of dramatic raids on market stalls and 200,000 campaigns to confiscate more suitcases full of dodgy CDs from scruffy blokes in dirty jeans.

And yet, despite 20 years of increasingly vigorous attempts to stamp it out, piracy seems to be a bigger problem than ever in the games industry. Which is weird, since you'd think even slightly dim six-year-old schoolchildren could have worked out what the whole thing was about by now. But seemingly this isn't the case. It's almost as if the industry is completely wasting its time on the futile pursuit of an invincible enemy. It's almost as if everyone is displaying a wilful ignorance of the most easily observable facts about the whole issue. Luckily, I coincidentally happened to hear a six-year-old schoolboy actually observing these very facts in the street the other day and noted them down in the notebook I always carry in case of just such an event, and I thought it seemed only fair, what with it being such an important issue and everything, that I should share these remarkable insights with you, the readers of CTW. Stand by, alert viewers, for some shocking revelations. As well as their being simply the opinions of a six-year-old schoolboy, I did some research, and it turned out that every single one is an empirical fact which has apparently escaped all of the industry's lavishly-salaried MDs and CEOs for two decades. This time, pay attention.

 

PIRACY FACT NO. 1

The Industry Has Absolutely No-one To Blame For Piracy Except Itself.

A contentious start? Hardly. For a start, and I make no apologies whatsoever for banging this worn old drum again, the price of games is stupid. The mainstream consumer has made it absolutely plain time and time again that the price he or she will pay for standard new-release items of leisure software, be they books, movies, pop albums, graphic novels, concert tickets or absolutely anything else, is 15, give or take a couple of quid. The games industry's feeble old argument for games being priced at between two and four times this sum ("But games are much more expensive to develop whine whine Silicon Graphics moan moan sports cars zzzzzzz") is irrelevant, misleading and stupid. For one thing, the average game costs significantly less to make than a pop album by any moderately-renowned artiste.

And more relevant yet, the development cost of, say, a hardback book compared to that same pop album is almost infinitely tiny (total equipment necessary: a bloke and a typewriter), yet the two still sell at the same price (in fact if anything, the book is usually slightly more expensive). Why? Not for any development-cost reasons, but because it happens to be the price the consumer is prepared to pay for leisure software items. Do you understand yet? As far as the real world outside the Indin is concerned, development costs just don't come into it. They're nothing but a red herring, used to excuse short-sighted greed by the kind of idiot management that's been responsible for the world's leading software publishers collectively (and in a few cases, individually) losing tens of millions of pounds over the last few years, so please, let's hear no more ill-bred nonsense about them.

Secondly, let's look at something a bit more specific. The reason Playstation piracy is apparently growing is the corresponding growth in the number of Playstations which have been "chipped" to enable the easy playing of gold-disc copies. The reason no-one has successfully cracked down on chipping is because it's legal, and has a perfectly legitimate - and certainly morally acceptable - purpose (the playing of imported games). Why is playing imported games a legitimate purpose? Because the PAL versions are still far too often disgracefully shabby (stand up and be pelted with rotten cabbages, Namco and Virgin), desperately far behind the rest of the world's release (hello Konami, Nintendo and Namco again) - if released over here at all, that is - or frequently both.

Eliminate the reasons for people wanting to play imports, and you eliminate the ability of people to chip Playstations with impunity (the act might not be illegal in itself, but if it has absolutely no other purpose than enabling the playing of pirate copies, you can still stop it), then you deal piracy a hammer blow. (This also applies to the new external units like the "Game Enhancer", which we'll deal with a little later.) Doing this, however, would involve software publishers treating their customers with a degree of care and respect, which is why it'll never happen in the lifetime of anyone reading this paper.

 

PIRACY FACT NO. 2

The Industry Massively Overstates The Amount Of Money "Lost" Because Of Piracy

Whenever piracy is discussed by the games business, you'll invariably hear figures bandied about claiming that so-and-so-many billion pounds is "lost" every year because of illegal copying. These figures are arrived at on the basis of estimates that anywhere between five and 20 pirated copies of a game are in circulation for every one honestly bought. Now, the first and most obvious thing that our six-year-old child spotted here is that you can't just multiply these figures up and say that that means five to 20 times the value of the market is being "lost" every year. A very great percentage of ordinary people using pirate copies accept those copies PRECISELY, and solely, because they're so much cheaper than the real thing - at 35, they simply wouldn't bother.

The industry never tires of turning a blind eye to this stunningly obvious principle, but if anyone out there is still naive enough to entertain honest doubts, conclusive proof has just been delivered in the form of Sony's Medievil. This decent little 3D runaround has been well received in reviews, and forms the beach-head of a new technical assault on copying hardware, which has apparently flummoxed all existing systems and all but completely eradicated casual piracy of the title. If the industry is to be believed, then, Medievil will have sold 5 to 20 times as many copies as it might normally expect to, and will be shattering sales records all over the shop and sitting comfortably and proudly atop the All-Format Charts (especially since at the time of release, the only PS titles challenging it were the months-old Tekken 3 and Colin McRae, and - hey, what do you know? - a load of old but cheap Platinum games). I'll pause for a moment for you to flick to the appropriate page and check.

Right then. That's that paticular myth cleared up once and for all. (And don't try the old "Ah, but there are big criminal gangs making LOADS of money out of piracy" routine either - there may well be, but the fact that they're making money from it doesn't mean that that money would otherwise go to legitimate publishers. Try this - do you refuse to subscribe to Sky because they charge 30 a month for, basically, The Simpsons and some football, or refuse to cough up for pay-per-view sporting or music events on the grounds that they're a rip-off? If the answer to either question is "yes", and if some bloke in a pub offered to sort you out with every channel for a fiver a month, guaranteed for ever, no way you could ever get caught or arrested... would you do it? Of course you would. It wouldn't mean Sky were "losing" 30 a month, though, because you'd never have paid it, because it's not worth the price being asked to have it legitimately. Is there a single person out there reading who still wants to fight this one?)

 

PIRACY FACT NO. 3

You Will Never, Ever, Ever Stop Piracy

If there's one thing that, over the last 20 years or so, has really shown the games industry's alarmingly stupid and pig-headed refusal to accept irrefutable fact, it's the constant battle against the pirate. Elaborate code books (cracked or photocopied within hours). Fancy custom loading routines (hacked out within hours). Dongles (prohibitively expensive, violently resented by consumers, games shunned). Funny plastic distorting lenses as thick as a bathroom window that you had to look at your screen through to read a password before you could play the game (I'm not joking). Every one a revolutionary technical breakthrough. Every one of them the product of expensive research and implementation. And every single one of them comprehensively destroyed by the crackers within hours of release.

Even as Sony pat themselves on the back over Medievil, a hardware device euphemistically known as the "Game Enhancer" has come out, promising (through simple principles) to circumvent every past, present and future method of Playstation copy protection, as well as offering myriad "legit" uses like import playing and Action Replay-style cheat searching. At an eminently affordable price (the same as a single game), and with its wide range of uses, it will attract the people who either didn't know about, or were put off by the shady nature of, Playstation chippers. Result? Another huge chunk of money lost to the industry, not because of ordinary pirate copies but because of the lorryload of cash blown on another futile protection system, and because of the knock-on effect of bringing a whole new group of people into the piracy loop who weren't prepared to have some dodgy bloke muck around inside their PS with a soldering iron, but don't mind plugging a neat little box into the back.

Nobody's denying that there IS some money genuinely lost to the business because of piracy, albeit nowhere near as much as the business would have us all believe. The point, however, is that it will never, ever be possible to stop that loss (because of, amongst other things, fundamental human nature), so wasting piles of cash in pointless attempts to do so is simply throwing good money after bad. In fact, as shown by the Game Enhancer, it's actually even more counter-productive than that - hackers and crackers are, by definition, the kind of people who like a challenge. It's not too fanciful to say, then, that a fair proportion of them only get involved in piracy of games because someone's trying to make it difficult for them, and would otherwise leave the business alone.

Recently, ELSPA's Roger Bennett spoke to me about a feature I wrote in this very organ a few weeks back, in which I suggested running a concerted postcard campaign to force the BBC to fulfil its public-service remit and put on a regular games TV show. I explained the theory to him in more detail, and he was enormously keen on the idea, accepted all the reasoning behind it, and agreed that a regular national show would be of enormous and tangible benefit to absolutely everyone in the games industry. He then went off promising to attempt to raise the necessary budget, a total figure which amounted to the princely sum of 60 from each ELSPA member. I'll say that again, in case you think it's a typo - 60. Sixty pounds. Six-oh. To achieve national television coverage, bringing astonishingly obvious and huge benefits to the entire business. I'm sure that you can all guess the rest.

Meanwhile, the business devotes its biggest-ever slice of resources to battling piracy, spending hundreds of thousands of pounds prosecuting people who'll be back doing the same thing a week later (and even if they do get sent to jail or give up, there'll be two or three more people right along to fill their shoes - for the pirates, the benefits outweigh the risks by miles and always will). And as we saw right at the start, over the exact same period as this unprecedented crime blitz, piracy reached its highest levels ever. Am I the only person here who isn't completely stupid, or what?

Yes, of course piracy is a terrible thing. Of course it costs the business some money, and it would be lovely if it didn't (if nothing else, it might save us all from having to suffer yet another cash-in Tomb Raider sequel). But there isn't a damn thing anyone can do about it, and throwing all the money in the world down the toilet after it won't make a blind bit of difference. Every single person reading this article knows this is true, but pirates are an easy target - go after them and you feel like you're tackling a problem. We should be beyond such simplistic, juvenile drivel by now, but unfortunately, some people like playing Cops And Robbers too much. The six-year-old schoolchildren, on the other hand, grew out of that game years ago.

HOIST THE JOLLY ROGER

In the interests of fairness, I put the points raised in this piece to ELSPA's Roger Bennett, who responded with his traditional impeccable charm. Unfortunately, the substance of his answers were less encouraging, as the subsequent analysis shows.

 

On piracy being our own fault:

"This is a fatuous argument to maintain. Regardless of the price point at which product is sold, it is a criminal offence to copy (pirate) and distribute or sell that copy, without the written consent of the copyright owner. The value of the product is entirely irrelevant in that context. The perceived value of any one product may vary from one consumer to another. Making comparisons with other entertainment media is not a logical argument to pursue, as there are so many differences in content and entertainment value. Why is development cost a "red herring"? All costs have a bearing on retail price and are you suggesting that it is cheap to produce a top game? That is a long way from what I'm hearing. Further, what do you mean by "other leisure software".

I do agree that if it were logistically possible to release on a globally compatible basis it would help. It's the first time I have heard the argument in respect to the "PAL shoddiness" and being of simple mind, I cannot give an answer to that.

Of course, a high price point for games software is an easy target for the criminally inclined where circumvention of protection or just straight copying is an available and easy option."

ANALYSIS: The industry still appears to be maintaining the head-in-the-sand approach to the pricing issue, describing the perceived value of games to customers as "irrelevant" in the context of piracy, which seems a frankly staggering view. It also seems to be sticking to its guns over the "you have to have a high price because of development costs" thing, despite it being clearly demonstrable that no other entertainment business in the world thinks this way. El Mariachi cost $8,000 to make (a sum which you couldn't make a game for), Titanic cost $100,000,000 (a sum which you could make perhaps 200 games for). Yet you can watch or buy them both for exactly the same price, and both made a profit. I'll say it again - development costs are a red herring in terms of pricing. If development costs were relevant, hardback books would cost 50p each.

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On overstating the damage:

"No-one is claiming that if piracy were to solved overnight, the 20 pirated copies would come into legit sales, but many of them would. If no-one is putting a finger in the piracy dyke, it will sooner or later collapse and the market becomes flooded and unviable. Medievil is being pirated! If everyone wants to buy their software at 6 and will pay no more, we have no software development or industry. In our society, someone will get rich from any successful commercial activity. I do not believe in anarchy!"

ANALYSIS: Medievil is being pirated? ELSPA would seem to know something that nobody in the pirate underground does. And if games are unviable at 6, how come we've got an industry at all? The likes of Ocean, EA and Virgin got to be big and rich in the first place by selling software at that very price for years.

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On stopping piracy ever:

"With the much greater accessibility to CD burners and "chipping", casual piracy is now on the cards, just as it was on floppy. It is primarily the casual copier we want to target through protection, if there is any viable system. Assuming the commercial pirate can circumvent it, he then becomes more exposed since he must advertise in one form or another. The Crime Unit is doing a great job in targeting them (74 raids, 14,500 CD's, 30 computers, writers and scanners and two cars seized in the last two two months and that with just 3 investigators! What could be done with six? An ever increasing level of help and co-operation from the Goverment, the EC, Trading Standards, the Police and Judiciary is helping too. Self help promotes greater help from the enforcement agencies.

By the way, the law may well be changed in the foreseeable future to make it a criminal offence to produce, supply, advertise or in any way promote or sell a circumventing device or program."

ANALYSIS: 20 years of failure doesn't seem to have dimmed our enthusiasm any, or taught us any lessons. For all the Crime Unit's success, piracy is still bigger than ever, and growing. Hello?

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On bringing new people into the loop:

"I'm sure all owners would prefer to buy the real thing. The dodgy chipper will get done increasingly as they are targeted and the neat box supplier will enjoy the same fate.

As for hackers, to do nothing is not an option. You either make it easy to copy and flood the market with illegal copies or attempt to make it as difficult as possible and retain a viability."

ANALYSIS: Except the dodgy chipper WON'T get done, because he isn't doing anything illegal. The neat box has perfectly legitimate, defensible uses, of which the illegal uses can be explained away as a side-effect. You can't eliminate these things until you eliminate the import market, and you can't eliminate the import market until you stop PAL games being so much worse than imported ones. Brute force just won't work here.

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On rising piracy despite rising attacks on it:

"Two blacks do not make white. Our industry have not perhaps sufficiently addressed the problem effectively. The Crime Unit funding is still woefully low. The Italians and Spanish spend more on anti piracy than UK in markets worth less than half of ours.

We do no underestimate the problem and cannot be expected to catch all the thieves now, but we are catching up with them fast. We can, however, attempt to stem the flow and make an criminal example of the ever increasing numbers being prosecuted. The conclusion is that it would be a sad day for everyone if our industry were the first to accept that thieving, deception and fraud are an accepted part of our industry and society as a whole. Criminal leisure software anarchy will not rule. OK."

ANALYSIS: Unfortunately, thieving, deception and fraud ARE an accepted part of our industry and society as a whole (especially thieving from big, wealthy, faceless software publishers), as anyone who's ever watched Only Fools And Horses could tell you. Realising this - and the related understanding that if you want people to stop pirating, you're going to have to be nice to them and make them WANT to stop, rather than wading into them with dire threats and sledgehammers - is the first step to getting a grip on the issue. It's a shame it's a realisation that seems to be as far off as ever.