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Feb. 9 2010 - 12:04 pm | 11,943 views | 0 recommendations | 16 comments

Why Doesn’t the Punishment for Game Piracy Fit the Crime?

Pictured: A Video Game Pirate

Pictured: A Video Game Pirate

I just finished reading an Australian news story about James Burt, a 24 year old Brisbane resident who is facing a $1.5M fine for illegally distributing his copy of Super Mario Bros. Wii, which he received six days earlier than the release date. Nintendo actually hired a P.I. to track Burt down, and they claim his copy has been downloaded “thousands of times” since it was uploaded.

Is this verdict fair? Is one copy of Mario Bros. Wii put on the internet really worth $1.5M in damages? Most distribution of stolen property or grand larceny laws max out fines at around $7,500 to $10,000. So why the hell does piracy inspire such ridiculous sums of money? Is it legal to increase fines to such a preposterous proportion just to “make an example” of a pirate to other pirates? To me, that’s like saying you can cut off the hands of a murderer to “make an example” of him to other murders, which might be an effective deterrent, but we don’t do that in the U.S. (or presumably Australia), as it’s what’s known as “cruel and unusual punishment.” So to fine someone that large of an amount of money for an offense that minor would seem to be over the top, much like the recent verdict of the woman fined $1.9M for downloading twenty-odd songs from the internet.

That being said, I believe there should be a difference in punishment between someone distributing illegally gotten merchandise and someone taking it. If someone downloads a game illegally and is caught, it would seem to be fair that the punishment be the same as if that person was caught shoplifting the game from a store, which would likely be a fine of $250 to $500 and probation. On the other hand, a distributor of stolen goods (like say, someone selling copies of Mario Bros. Wii from the back of a van) should face a steeper penalty, like the aforementioned $10,000 fine and maybe even a bit of jail time or community service. Note that none of these numbers are anywhere close to $1.5M, and I can’t for the life of me figure out just who the hell thinks that kind of number is justified in cases like these. And in the case of a distributor like Burt, his offense would seem to be even less severe than someone selling stolen merchandise out of the aforementioned van, seeing as by giving it away for free, he’s not even profiting from the endeavor.

The moral of the story here is that yes, I do believe game piracy is wrong (unless it’s combating idiotic DRM issues), and there should be consequences for those who steal games or give them away for free. But because pirates are seldom actually caught, this allows companies to believe that when they do hook someone, they should be able to publically filet them to an inch of their life with fines that have no bearing whatsoever to actual damages caused by the piracy itself.

There is currently nothing short of a price fixing scheme going on in the video game industry right now. Game prices are WAY higher than that of any other form of media, but seemingly not for any good reason. You may argue that 60 hours worth of Mass Effect 2 is worth $60, but what about five hours of playing time of Halo Wars? The across the board, sky high prices of games exist solely because all the companies have agreed that’s how much games should cost, and frustrated consumers have turned to piracy for titles they think aren’t worth their hard earned cash.

In order to combat problems like this, game companies should be looking into straight-up digital distribution, and eliminating price-gouging middlemen like Gamestop which would make games more affordable for everyone, and would create a legal download system that would be a welcome alternative to brick and mortar purchases. This is already happening with places like Steam, which offers downloadable games on the cheap for PC users, but as of yet, there’s nothing really like that for consoles, though I predict that will change soon enough.


If you view piracy like a virus like most companies do, don’t try to stamp it out altogether, which is a feat you will find impossible. Rather study it, and maybe you’ll be able to come up with a cure.


2 T/S Member Comments Called Out, 16 Total Comments
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  1. collapse expand

    I’d say your likely to get more than 5 hours out of Halo Wars.

    Plus its priced high because its a huge IP and brand name and theres going to be alot of people playing the new Halo game at launch (when it was priced high).

  2. collapse expand

    It is the golden rule… those with the gold rule! I was reading how here in Milwaukee, WI, Nike was working with local authorities to stop illegal selling of fake shoes. With all that is wrong with this city, I can’t for the life of me see the importance of stopping a few fake shoes from being out there, and why not go get the makers, not he stores that may or may not know they are selling fakes.

    As for this case, I would venture a guess that the monetary damages are for the amount the company lost from games that are not sold as a result of people downloading the copy this guy had. If you steal one copy, it does not get used by 100k people but in a case like this, it can be taken over and over. But it does look excessive…..

  3. collapse expand

    “…and eliminating price-gouging middlemen like Gamestop which would make games more affordable for everyone…”

    You had me till this line. The prices charged by GameStop for new games range between a $10-$5 markup on what GameStop is charged. This is common knowledge. This is also the reason GameStop would rather sell you a an overpriced used copy of a game rather than a new one.

    Keep the blame where it belongs, with the publishers. Adding in areas of blame that are not accurate just helps to muddle the whole situation and keeps it from being clear who is the cause of the issue.

  4. collapse expand

    When companies eliminate costs for themselves they do not translate into savings for the consumers. Ever. They pocket the savings and call it “growth.”

    I too think piracy is wrong, but this case does not seem to be about piracy. Piracy is stealing, yeah? Illegally seizing what you want. This guy did not do that. He took his copy of Super Marios–before it was even released–put it on the internet and let thousands of people download it. If he had just downloaded it himself, I’d agree, shouldn’t be that high. If he had just uploaded it, it should not be that high. But he uploaded it, he released it prior to its release date, and presumably acquired it illegally. All together, he deserves to get nailed. Its called bankruptcy.

  5. collapse expand

    “To me, that’s like saying you can cut off the hands of a murderer to “make an example” of him to other murders”

    If you’re going to use this analogy, I think it’s more accurate to say it’s like murdering a guy who cutting off someone’s hands to make an example of him to other hand-removers.

  6. collapse expand

    This was a civil case, not a criminal one. There was no fine imposed on him, and he has no criminal record as a result. The defendant was ordered to pay damages to the plaintiff. The damages would have been calculated with reference to the losses accrued by the plaintiff as a result of the defendant’s actions. You cannot compare criminal sanctions and civil damages, they are very different beasts with very different purposes.

  7. collapse expand

    The punishment for game piracy (and other copyright violations) doesn’t fit the crime because the schedule of fees for copyright violations didn’t (and couldn’t) consider the personal computer and the internet as a means for reproducing and distributing copies of products for essentially no marginal cost. If you look at who lobbies Congress to make changes to the copyright regime, you’ll find a lot of money being spent to keep fines high, extend copyright terms, and continue to confuse the public about whether there’s a difference between copyright infringement and theft. Copyright law is surprisingly confusing in practice, but because everyone thinks they know what it entails, clarifying and improving it is a hugely difficult task.

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    After rising to blogging fame as the University of Michigan's answer to Gossip Girl, I took the EIC job at a student blog network spreading my wealth of college experience across the nation. My passion project is a movie/tv/gaming site called Unreality and I'm a movie news editor at JoBlo.com. I'm new to this business, and I think I'm a part of the first generation of journalists to skip print media entirely. When I started out, I had zero idea blogging could be a career, but I've learned more in the last ten months than I did in four years of college. What exactly did I major in again?

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