Piracy or baiting? The thorny legal question of Game Dev Tycoon’s honeypot

Is it piracy just because the user thinks it is? What if the developer encourages it?

by Kyle Orland - May 1 2013, 3:25pm PST

Earlier this week, the developers at Greenheart Games distributed a crippled version of its new game Game Dev Tycoon disguised as a "cracked" version of the full game. The little Internet experiment served as an ironic and humorous poke at software pirates and a smart way to call attention to the challenges indie developers face with piracy.

But the whole incident also stirred up a tricky legal and ethical debate among commenters and editors here at Ars Technica regarding the actual nature of piracy. The basic question is this: can the people who downloaded the crippled version of Game Dev Tycoon, thinking it was a "cracked" version, really be considered pirates?

As a moral question, it's pretty cut and dried as far as we're concerned. The version of the game that Greenheart Games posted on torrent sharing sites came with a description that said the file was a "FULL VERSION... CRACKED AND WORKING!" Whatever the other facts in the case, the downloaders who saw that description obviously intended to download a free, unlocked version of Greenheart's game rather than paying for it. Morally, that's piracy.

Legally, though, it's another matter. To be guilty of copyright infringement, you need to obtain the software without the permission of the copyright holder. In this case, Greenheart was the one that originally put the "cracked" version of the game on BitTorrent and promoted it on P2P sites. Yes, the developer was doing it to prove a point, so it seems unlikely it will actually pursue any damages from the "pirates" it thwarted with the crippled game (UPDATE: Greenheart Games' Patrick Klug told Ars Technica directly that "it was never our intention to pursue any legal action against those people who downloaded the cracked version"). Still, if it wanted to sue any downloaders, would it even have a theoretical case?

"There's a good argument that by making something freely available for download, you are authorizing downloads," Denise Howell, host of This Week in Law on the TWiT network, told Ars. "A court could find an implied license despite the fact no express license has been stated, simply because there's no other logical conclusion to be drawn from the conduct. Downloading in this circumstance is not just foreseeable, it's practically inevitable."

That defense might only apply to people who downloaded the game directly and exclusively from Greenheart's seed, though. Even if Greenheart gave away the game for free, the people downloading and sharing subsequent copies wouldn't actually have a legal license to redistribute the software as they saw fit. Right?

Not necessarily. Howell told Ars that you could argue the very nature of BitTorrent means that the implied license of seeding the file "encompasses whatever distribution functionality is generally understood to be associated with and necessary to P2P or BitTorrent distribution. That wouldn't mean the license would be so broad as to allow BitTorrent or P2P downloaders to redistribute the file at will. It would arguably mean the rightsholder has agreed to whatever distribution was the logical consequence of seeding the work on BitTorrent."

Chicago-based copyright lawyer Evan Brown added in an e-mail that the nature of the modified game Greenheart was distributing goes a long way to suggesting a broad implied license that would protect downloaders. "I think the embedded 'message' (oh, poor us, we're being victimized by piracy) is the key fact here," he said. "It shows that the maker wanted the work to be as widely distributed as possible. Why would it bother embedding that message if it didn't want that message broadcast widely?"

The ol’ bait and switch

But what about the other message that went with the download—the one on P2P sites promoting the download as a free, "CRACKED AND WORKING" copy of the game? Does that serve as proof of the downloader's intent to pirate the software, making them liable for damages? Or does it suggest that Greenheart was unfairly baiting downloaders into attempting a crime that didn't, in the end, actually exist?

Howell clarified that a users' intent wouldn't have any bearing on the actual infringement portion of a copyright case—that decision would come down to the interpretation of whether or not the download and distribution were licensed, as discussed above. If actual infringement was proved in court, however, the fact that users thought they were downloading an illegal copy might affect the awarded damages. The idea of intent could raise a simple infringement penalty of $750 to $30,000 per work to a "willful infringement" penalty of $150,000, she said (this would only apply to a copyright that was officially registered at least three months in advance of the infringement, though).

That said, Howell continued, "There is a kind of a 'come on' factor here, in the hypothetical lawsuit. They would need to develop and present and say, 'Look, you can't just trick someone into infringing.' If I were [the defense's] lawyer, I'd try to make something out of the fact that it was a honeypot, it was bait, and try to reduce the damages that way." This would be similar to the argument YouTube made against a Viacom copyright infringement claim that involved Viacom uploading its own "stolen" content to the service as a form of inducement.

Brown, however, thinks the fact that the torrent was advertised as an illegal copy "would probably, on balance, go against the users. That fact could paint a picture that they went into the 'transaction' knowing it was infringing technology. In other words, that users responded to something that was 'marketed' as 'cracked' says something about their mindsets—namely, that they went into it with eyes open to the fact they were doing something that the copyright owner would normally not approve of."

"The weird thing is, of course, that the copyright owner in this situation did indeed approve of it," he added. "It's a perfect example of why legal arguments can be so confounding. A single fact can be spun in two directions 180 degrees opposite one another."