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Hey! Turns Out Piracy Isn’t Theft! Cancel the Confessionals!

You may have heard this little ditty from GDC today but if not, it’s quite the statement. Markus “Notch” Persson, creator of the indie smash Minecraft, told Edge and I quote:

“Piracy is not theft,” he said. Referencing the most common anti-piracy argument, he said: “If you steal a car, the original is lost. If you copy a game, there are simply more of them in the world. There is no such thing as a ‘lost sale’,” he said, debunking another popular myth. “Is a bad review a lost sale? What about a missed ship date?”

I am not going to get into the whole “does piracy hurt the industry” debate because it’s a debate you aren’t going to win and I am not about to get on some high horse and preach to you guys about the evils of software piracy because my use of Napster back in the day tells me that I ought to shut the hell up.

But I’m having a really, really hard time wrapping my head around how downloading software that isn’t free, using said software, and not paying for said software isn’t “stealing” said software regardless of the morality issues that may or not be tied to that.

Isn’t that the definition of the term?

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Bill Abner

Bill has been writing about games for the past 16 years for such outlets as Computer Games Magazine, GameSpy, The Escapist, GameShark, and Crispy Gamer. He will continue to do so until his wife tells him to get a real job.

29 thoughts to “Hey! Turns Out Piracy Isn’t Theft! Cancel the Confessionals!”

  1. The subject about sums up what this could very well be. Software (and indeed, media in general) ‘piracy’ is a relatively new phenomenon. It’s similar to stealing in the sense that you are taking something which ostensibly has an intrinsic value, but different in the sense that the act of doing this is not reducing the number available to the rightful owner.

    If I steal an apple, the fruit seller both does not get paid for the apple, and now has one fewer apples. The apple has an intrinsic value, and there’s a fair certainty that had I not stolen that apple, he would have been able to sell it to another customer. If he has 100 apples at $1 apiece, and I steal one, the most he can make from selling apples is now $99. This is true whether I had any intention of buying an apple in the first place or not.

    If I copy media, the media owner does not get paid for that media, but has no fewer copies to sell. In fact, if it’s a digital good, the number of copies is functionally infinite… but that point can be glossed over. Now assume the digital media seller, in a parallel to our fruit seller, normally sells 100 copies at $1/copy per day. My copying that media did not in any way affect his ability to sell his typical 100 copies per day and make $100, unlike the fruit seller who could only make $99, as my theft deprived him of a potential sale.

    There are now two possibilities that arise from this. If I was a potential customer who just nabbed the media for free, then the seller is down a potential sale, making only $100 instead of $101. If I was not a potential customer in the first place, and would only be interested in the product at a price point of “FREE” or better, then the media seller has lost nothing, and makes $100 out of a potential $100 in sales.

    There’s also the possible scenario that someone who copies the media enjoys it to the point where they actually make a purchase, and the seller makes $101 instead of the typical $100, and I feel obligated to mention it, but I’m not going to use it as a justification, since I feel the seller should have the option to use that tactic if they wish, but not be forced into it by people just doing what they want.

    Stealing something deprives the seller of *A* sale to somebody, no matter what, and they have lost a good with intrinsic value in exchange for nothing. Copying something only deprives the seller of *YOUR* sale, and only if you were a potential customer in the first place. They have only lost a potential sale, not a tangible good or something with intrinsic value.

    At any rate, the preceding rambling paragraphs were meant to illustrate that the two are not the same. Stealing is not the same as copying. I’m not advocating that it’s right to just copy media outright because you feel like you want it for free, against the seller’s wishes. The take-home point is that if you do, what you have done is copying, not stealing. The economics of the two are completely different. A lot of time is spent trying to equate copying to stealing, because at first glance, they are similar. The differences are subtle and as far as human society is concerned, a very new thing. An intangible, virtual object with zero intrinsic value and functionally infinite reproducibility at near zero cost by anyone is not something that has really existed in mainstream culture before the last couple decades.

    So, wall of text aside, I guess what I’m saying can be broken down into:
    Illegal copying is not stealing.
    Stealing is stealing.
    Illegal copying is illegal copying. (tautology is tautology?)
    The two are different. Neither one is something I would endorse doing. I wouldn’t suggest that justifying copying with statements like “I wasn’t going to buy it anyway” is defensible. It is, however, worth considering how differently the two acts function rather than trying to force a new phenomenon into the familiar trappings of established classifications.

  2. “But I’m having a really, really hard time wrapping my head around how downloading software that isn’t free, using said software, and not paying for said software isn’t “stealing” said software regardless of the morality issues that may or not be tied to that.”

    A quick look at both Webster and Wikipedia tell me what I had suspected: theft involves depriving someone of an object. Which means if I make an exact duplicate, it’s not theft.

    It is, however, a violation of copyright. There’s not a single word for that, and it’s not a morally freighted term (I think there should be, and it should be), but that’s what is being done. Someone is taking my house keys and making a copy, and giving me back the original. If we’re friends– or partners– that’s perfectly fine. But strangers don’t get to do that.

    We media consumers should, I think, whenever possible pay for the stuff we read, watch, or play. Otherwise we’re telling the people who create the stuff we enjoy that the fruit of their labor isn’t worth the fruit of our labor. That’s all kinds of disrespectful.

  3. I think that argument is sophistry. For many of us, without ever thinking about it, the main value of anything we pay for is the convenience of not working for that product or service. Whether it be fruit, or cars, or dining out, or listening to music or a video game. So any form of piracy is still theft, because while you’re not stealing an object someone still worked for it whereas you didn’t. Take even pirating groups for example. Groups will fight one another for “stealing” their rips, which I’m pretty sure is the definition of irony.
    The new format doesn’t change much except semantics. In terms of intellectual property being some abstract concept, the example that made me open my eyes was a comedians jokes. I know a few comedians and they’re incredibly possessive of their material. It seems childish, but think about it. A joke that’ll work with different crowds isn’t easy to make. So if you find a joke that’ll work 6 out of 7 nights, and it gets lifted, that sucks.

  4. I think there was a weekend where pirated copies of Minecraft worked because of a problem with the authentication server on Mojang’s end, and the following week was their biggest week in sales to date. Hence Notch’s [perhaps extremely skewed?] perspective.

    In addition to that, the timing for the “piracy-weekend” was close to when Minecraft was getting increasing talk on Twitter and general exposure on the Internet, and so it’s tough to tell if the increase in sales was due to people playing it and then buying it, or simply people hearing about it from friends and press, and then buying it.

    Correlation vs causation, etc.

  5. If stealing is “taking something physical from someone else” and in no way involved with “copying something that someone else doesn’t want you to have”

    Then how can you steal an idea?
    Steal information?
    Steal someone’s blue prints?
    Steal a design layout?
    Steal someone’s identity?

    These are all the common phrases for the action taken, they are just copying but are referenced as ‘stealing’.

    Its not like you would say “oh a spy came into our base and committed copy rite infringement on all of our maps and battle plans with his camera”, no, he came in a frigging stole that information, copy or not.

    Stealing should be defined as coming into possession something that the owner does not want, or has not permitted you to have.

  6. Money exists so that goods and services can be more easily distributed. If money didn’t benefit the poor (we all have flat screens now, and yes, WE are the poor) then we would have to discard money as a bartering method, because it has another, negative effect: It creates economic overlords. Since there is very little cost in distributing software, using money as a bartering method doesn’t make sense, at least on a purely logical level.

    As far as the moral argument, it’s pure nonsense. Morality is another word for ‘best practices.’ If morality can’t be enforced, and everyone does something amoral, then morality isn’t ‘best practices’ at all.

    If you invest resources into entertaining others, it is entirely your responsibility to make sure you get paid.

  7. Sorry, I don’t see the logic in this argument.

    When you buy an apple or some other physical object, the cost associated with that object is not just the cost of distribution, it also (theoretically) reflects the cost of production, labor, raw materials, distribution, shipping, etc. Specifically for video games, there’s years of development, teams of people, production costs, distribution costs both digital and physical, etc. But that&#821#8217;s getting ahead of myself as there are multiple ways of pricing an object and “Cost Plus” is just one of them.

    Either way, even if you think of video games as objects or services, it still makes sense for people to use money as there is time and equipment and software all used to produce these pieces of entertainment. Would you like to pay EA or Mojang in some other fashion?

    As for your last line, you’re entirely correct. That’s why larger companies and smaller companies (if I’m not mistaken Mojang uses a form of server based DRM essentially) have efforts underway to stop piracy and make sure they get paid for the products they’ve spent time and money developing.

  8. The thing is (coming from a security manager) if you make an illegal duplicate, you deprive the sellers a chance to sell you the copy.

    thus, by copying a game, you do deprive sellers.

  9. Notch and Mojang have done well for themselves. they created a piece of software that I, and many other people, have paid for and enjoy.

    Speaking from a security perspective however, the chap is utterly, utterly clueless. I work in retail security managment, and yeah, shopliffting “all the little bits” add up and causes the closure of thousands of retail outlets every quarter. Piracy is just like shoplifting, except you haven’t gone into a shop.

    As for “makeing a copy”, the person who produced the item and the persons selling the item have been deprived a chance to sell you the game, so yeah, that argument holds about as much water as a colander.

    This reaks of “I know my game is being pirated, and this is how I deal with it.” May work when he has low production costs for his little indie title, but a mentality like that is just going to cause him to be robbed left, right, and centre and do nothing about it. He’ll honestly be targeted.

    When Boots, a pharmacist, opened in Ireland, they had a “no arrest” policy to shoplifters. they took the item back, and sent the thief on their way. In the first two weeks they lost thousands and thousands of punds worth of merchandise. The same will happen to Notch if he’s flippant like this.

  10. To simplify, I’m arguing that games shouldn’t cost money.

    Since that sounds preposterous in our modern world, I added the caveat at the end: if you’re dead set on making money, then you need to create realistic solutions like subscription services.

    So why shouldn’t games cost money? Because the people who actually come up with the ideas don’t make any money at all. This may be something you don’t want to hear, but that doesn’t make it a lie: creators make nothing beyond sustaining their lifestyle, unless they are very savvy about money. And of course, the irony is that it’s sufficient to just be good with money. You don’t have to be creative at all. You don’t have to play video games to succeed in this industry. (see Bobby Kotick and thousands like him)

    If you don’t want these kinds of people to feed off of you parasitically, you have to stop using their currency. (in whatever way makes sense to you) This leads up to my opinion that games should not be sold for money. Name any games with massive budgets that ended up being good. I can name about 5 in the past decade. That’s a TERRIBLE success rate. It’s all bad, designed to take money from children.

    So, if they make these awful games, and they can’t even figure out how to make me pay for them, then why should it enter into my imagination to feel guilty, for not feeding a gaping maw, determined to give nothing in return?

  11. Thats fine when you’re not playing the games AT ALL, but useing that as an excuse to commit theft is just pathetic, and thats how a lot of people justify their theft.

    It’s the equivelant of shopliffting from a particular shop because they pay their staff less.

    If you think a game is awful, don’t buy it. Simple as. I hate people who think they’re “sticking it to the man” by stealing the game. You know who’s going to pay? Not the big publisher. He doesn’t give a damn. He’ll just fire the studio, those little money savvy chaps. You literaly kill the studios, not the big bad wolf of the publisher.

    Also, “good” is an opinion. I bet I think most of your magic five aren’t worth wasting my eyes on.

  12. The legal definition of “theft” requires that the thief has deprived the rightful owner of his property. Making a duplicate is not theft, nor is your cute theory about “being deprived the chance to sell you a game.” Companies are deprived the chance to sell me things constantly for a huge variety of reasons. If that were actually considered theft, the game stores you presumably work for would be charged constantly for selling used copies of games, since each one of those deprives the developer of his right to sell that game.

    This is a purely semantic argument, but it’s a necessary one. Copyright infringement is illegal, but it doesn’t have the automatic moral connotations that “theft” does. People who like to call piracy “theft” are aware of this, and that’s why they do it. Notch is perfectly correct to point out that these things are not theft. Anybody who cares about being accurate in their language rather than just appealing to emotion would do the same. Whether or not pirating games is acceptable is an entirely different argument.

  13. All you’ve done is made a personal assertion. It’s not a personal argument. What you or I think, or whether our hearts are noble, or whether we’ve reinvested our resources into the industry affects nothing at all. What affects the industry is whether there is a working model that allows creators to be compensated.

    I assert that any model that doesn’t force the end-user to “pay” is flawed, and these game-makers are themselves morally unjustified. Crybabys telling us that ‘piracy is wrong’ are once removed from the worst kind of prophets and preachers, those who place heavy obligations on people, based on the authority of forces that exist only in the imagination.

  14. You’ve ALSO just made a personal assertion by saying “any model that doesn’t force payment is flawed.”

    That’s your opinion of the current buisness model. Use that logic to try and claim you have rights to a house for sale some time. You’ll be told to either get lost, or if you decide to move in, the police will be called. They haven’t forced payment from you. they’re just trying to get you to stop acting like a dick.

    Same with games producers. they release the game hopeing you won’t be a dick about it and will pay for it. Instead, people just steal it.

    It’s called “living in a society” and all the exostentialist bull won’t change it. If you want to live in a different social makeup, either go start a comune or go live a hermetic lifestyle in a little cave somewhere, because you’re only fooling yourself.

    If, however, you want to live with the rest of us folk, kindly follow the rules outlined.

    Also, “based on the authority of forces that exist only in the imagination.” is the stupidest argument I have EVER heard against “Don’t steal things”. Law doesn’t exist in imagination. It’s a basic set of rule layed out that people have to follow when living in particular societies, and a lot of those societies get pretty pissy when you start bootlegging their income sources.

    TL;DR If you don’t like our way of life, go start your own somewhere else. Don’t try and convert us.

  15. I did mean to start this big personal argument about the nature of capitalism, but I don’t understand where you got the idea that the people who make games don’t make enough money. You seem to equate someone like Bobby Kotick as the personification of all the video game industry. He’s a business guy, and he has a role to play just like all the developers that work at Activision.

    I have a lot of friends who work in the industry and for the most part, they are happy in their jobs and making more than enough money to enjoy a comfortable lifestyle. Sometimes they have complaints but that’s like all jobs. There are also guys like the cofounders of Bioware who bet big, made their own studio, and have done pretty wellf or themselves.

    If you want to argue that games shouldn’t cost money… well you better convince all those people who work on games that’s true, and I’m gonna guess they all enjoy getting paid to do what they love whether that’s through big or small developers.

  16. you are right. Piracy isn’t theft, but commonly people will refer to it as that.

    And Ia gree semantic arguments are important in law. It was the first thing we’re thought. However, try explain law semantics to your average forum goer and you’ll hit a syclical argument forever.

    But yes, depriving someone of the chance to sell someone your product is a big issue. a lot of publishers would rather see the second hand market gone because of it, as their product is being sold and they’re recieving nothing for it. I agree it’s a pretty cheap argument, but it’s unfortunately a valid one nonetheless, as it creates unfair competition, much like a cartel.

  17. I’ll reread your words carefully after someone starts successfully punishing software pirates, or reducing occurrences of piracy.

    In the mean time, I think you should explore the possibility that you live in a world where the strong rule, and not the righteous.

  18. It’s all semantics. How do you define stealing? This is the central argument with the emergence of intellectual property. Free instant copies did not exist until very recently, and so these laws are still hashing themselves out. In the traditional definition of theft, someone is deprived of property (like in the car theft example above) but with intellectual property, it’s far more of a grey area. Something is taken by someone, but nothing is taken from someone.

    Let’s say that I really really wanted to play Blood Bowl. And so I downloaded the game from some warez site and played it. That’s fairly clear-cut as theft since I would otherwise have purchased the game. But what if there’s a game in which I had a passing interest and I downloaded it, played for 10 minutes, and then decided it was crap and deleted it. Seems to me to be fairly clear-cut as not theft. But the action in both cases is identical. I think that Persson has a good point and that he presents it very well.

  19. And what’s funny is that we can’t claim ignorance.

    Doom1 had a demo available for everyone to freely try, and it was an excellent game. I can’t remember if this game was successful or something?

    WoW’s quality is subjective, but as far as revenues go, it’s super effective against nearly every breed of nerd. And we’re wasting words on the MEANING OF THE WORD STEALING. If you think I’m trying to say that bad games don’t make very much money: that’s definitely what I’m saying.

  20. What about nintendo cracking down on the sales of R4 devices, or EA trying to implement “project ten dollar” or all the instances of sloppily applied DRM we’ve had to deal with.

    Oh, but I’m sure you have some other exostentialist broken logic to cover that aswel.

    And of course “the strong rule”. Difference is the world runs on financial strength and not the happy-go-lucky idiot commune mentality where people can rebel against the gold standard that runs the world now.

    But hey, keep your head in the clouds. It just makes it easier for people to rob you while they smile along to your fractured view of the universe. I’ll be around later to take everything you own. After all, I doubt you’ll force me to pay you, and I’m only breaking away from the norm.

  21. Just to argue from an extreme I haven’t heard expressed here, let me say that “intellectual property” (copyrights, trademarks, and patents) _deprives_ folks of some natural freedoms (their ability to say things, do things, etc.) This is what artificial monopolies do. But sometimes (often) what people do and say adversely affects other people, and so to make things “fair”, social contracts evolve (and there are different ones in our world pertaining to copyright and authors’ rights), and laws get passed to enforce them (but laws always lag behind evolving social contracts). The thing is, this evolution doesn’t stop.

    When monopolists try to erode my fair use rights, or try to keep things from ever going into the public domain, then that’s just as much a violation of our social contract as me committing copyright infringement. When neither side respects the other, things will break down.

  22. It is semantics, but they are important semantics. Manslaughter and Murder both ‘just’ mean you’re at fault for someone’s death, but they are generally important to distinguish and take in context.

    I have a few minds about it all, so I’ll ramble a bit on it- as I have a habit of doing.

    Is it theft if someone downloads a torrent for a game and then goes out and buys it or, as stated, dislikes it and deletes it from their comp after trying it? If they don’t have access to that game otherwise? Or if they wait for a sale after playing it and determining its true value? If it’s a kid without any income to buy your game in the first place?

    Those are just random examples and I’m sure are better than your average person who is getting the stuff like so, but I think at least some of us went through a lot of it during the days of not knowing whether anything would run on our computers or youthful days where bandwidth and time were much more plentiful than money. Heck, I know a few people that pirated recent games just to get a working copy of what they paid for, humorously enough.

    I wouldn’t call any of the people in the above examples thieves or ‘pirates’(I’m really curious how that got to be the term, as it’s another example of semantic labeling and posturing I’m sure), but I wouldn’t consider them some kind of golden saint either. Most of them I’ve seen are generally not the target audience anyhow for some reason or another and if/when the companies assume and treat their customers as thieves-in-waiting, you’ll generally find them turning into said thieves as a result and perfectly justified (or at least rationalized) in their reaction. Then again, being benevolent and all that still seems to have a certain amount of ‘piracy’ associated with it anyhow (I suppose it’s just a given that it will exist to some degree), but it’s hopefully made up for on the business end by those of us that see and appreciate that type of benevolence and have the money to show it.

  23. The term “piracy” applying to makeing an illegal copy dates to around 1557. the Stationers Company of London recieved a Royal Charter and permission to have a monopoly on publishing it.

    Ayone who made or sold illegal copies was labeled a “pirate”.

    The term just stuck.

  24. Interesting. I’d still bet that it came back into use today more due to the more accurate term of ‘copiers’ being not quite as villainous sounding for officials to use (and cool for those doing the copying to help spread it- Ahoy!), but it is interesting for it to pop back up in such a context after so long. Thanks for the info!

  25. From Judge John Noonan: Ninth Court of Appeals, MGM v Grokster (2004)

    Judge Noonan: Let me say what your problem is. You can use these harsh terms, but you are dealing with something new. And the question is, Does the statutory monopoly that Congress has given you reach out to that somthing new? And that’s a very debatable question. You don’t solve it by calling it theft. You have to show why this court should extend a statutory monopoly to cover the new thing. That’s your problem. address that, if you would……rather than use abusive language.

  26. Arguments that dance around the semantics of theft and physical property loss are disingenuous; the simple fact is that it takes time and effort to produce software; if the product is being sold, and the only two options for acquisition of it are to either buy it legally or pirate a copy, then you are stealing. Did you pay for it? No? Then it really doesn’t matter whether its a copy or actual property exchanged hands; you’ve just contributed to a loss of revenue for the creators and publishers, and likely no matter how much you enjoy that game you’ve just stacked odds against any more content like it in the future from being released.

    The only counter-argument I can posit about piracy is that, in my opinion, pirates are too damned cheap/poor to pay for the stuff they download anyway, and therefore the likelihood they would have paid for the content they pirated legally is pretty slim, anyway. Most of the people I know who pirate things fall in to two categories: hoarders who, while having money, seem to have an obsession with getting copies of everything under the sun even if they only look at each game or PDF or whatever for 10 minutes and move on…..and the starving student, who is amazed that I somehow have the money to own 300 games on Steam because owning anything more than a hand-me-down computer or 360 with one or two legally bought games is out of their reach.

    Anyway, one thing I see that’s very common among piracy advocates and defenders is a (with the Minecraft creator being an exception) a complete and utter lack or respect for the actual authors and creators of the works they are ripping off. It’s essentially equivalent to a guy who goes to an art show and snaps hi-res photographs of artwork he likes while complaining that it all costs too much in front of the artists.

  27. 5 games in the last decade? Really? Designed to take money from children? I think you should avoid such discrediting statements, or acknowledge that you are extremely biased on the matter.

    I think there’s plenty of profit to be made from a focused microtransaction model or a subscription model, but suggesting that 99% of all games in the last decade are crap is about as elitist an attitude as you can get.

    Mass Effect 2, COD Black Ops, Fallout New vegas, Dead Space 2 and Darksiders are all five games that came out within the last year or so that were hugely successful, big budget, and all good games by any rational standard. And very few “children” bought these games, I bet; adults, either for themselves or for kids are doing all the buying here.

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