The law’s a funny thing, isn’t it, viewers?

The Man On The Street’s been having a few interesting experiences recently, and you might find some of them relevant to the glamorous and action-packed world of videogame retailing, so why not read on, if you’ve got nothing better to do today?

Computer software, including videogames, is the subject of a clause in UK copyright law which, to your reporter’s slight surprise, doesn’t apply to other forms of media, namely the right of backup. Section 50A of the Copyright, Designs and Patents Act explicitly grants purchasers of computer software to make a backup copy, a right which doesn’t exist for music CDs, DVD movies and so on. (This is why DVDs usually say “No copying” on the disc, while games say “No ILLEGAL copying”.)

 The Man On The Street isn’t quite sure why DVD owners don’t have the right to protect their purchase of legitimate intellectual property licences in the same way that game buyers do – perhaps the law is merely acknowledging the ludicrous over-pricing of games, or the fact that the games industry is so incompetently run you can’t rely on a publisher to still exist six months later if your disc goes dodgy, who can say? In any event, the consumer has an inalienable legal right to make a backup of any videogame they buy, despite the bullying lies propagated by the industry to the contrary (such as the ones found until recently on the ELSPA website, which were amusingly altered after Trading Standards were alerted to them). So far so mildly interesting.

Where it starts to get fun, as with so many other things, is with the soon-coming implementation of the draconian, badly thought-out mess that is the European Union Copyright Directive. Taking its lead from the oppressively unfair American Digital Millenium Copyright Act, the EUCD seeks to “harmonise” EU copyright laws, and impose far more restrictions on the act of copying. It is widely anticipated that one of the measures implemented in the UK’s compliance with the directive will be a clause similar to the one in the DMCA whereby any device or code which has the purpose, primary or otherwise, of circumventing copy-protection, will be rendered unambiguously illegal in all circumstances.

In practice, this means that even selling or owning a black felt-tip pen will be an offence, with severe potential punishments, if it is considered that you’re using that pen to draw a line around the edge of a protected music CD so that it’ll play on your PC. (And if you think that sounds ridiculous, you may want to look into some of the DMCA cases which have already been filed across the pond.)

What no-one seems to have spotted, though, is the terribly large loophole this opens up in copyright law. Because if all copy-protection-circumvention is by definition illegal, yet you have the legal right to back up your legitimately-purchased software, then it follows that copy protection in itself will be illegal. Because if there are no legal means by which a consumer can bypass copy protection, then the existence of that protection is depriving the consumer of their statutory legal right to a backup, and depriving consumers of their statutory rights is itself illegal.

What this means, obviously, is that should the EUCD be implemented in the expected manner, the minute Sony or Nintendo or EA or Microsoft or anyone else then releases a copy-protected game, they could be sued by consumers for depriving them of their legal rights, and according to the law all publishers would subsequently be forced to release games without any copy-protection whatsoever.

So what’s The Man On The Street’s point? Simply this – the harder you try to crush a can of worms with the iron fist of law, the more worms you end up squeezing out onto the floor. Sooner or later, the games industry is going to have to give up the spectacularly-failed 20-year campaign of bullying it has conducted against consumers on the subject of piracy, and finally try to actually win the hearts and minds of its customers by not treating them like criminal scum by default. Because, as ELSPA found out last month, the law applies – in theory at least – to everyone. And the sharper the teeth you give it, the more it’ll hurt if it turns round and bites you with them.