How To Respond To Criticism: EA's Tiger Woods Walks On Water Ad

RIAA Exec Jumps To The ESA: Expect Lawsuits Against Video Gamers

from the what-sort-of-references-does-he-have? dept

Thu, Aug 21st 2008 2:41pm — Mike Masnick

You would think that anyone taking an objective look at the RIAA would recognize what a complete disaster the organization has been over the past decade. It's fought off every new innovation in the marketplace (remember, it tried to kill off mp3 players as illegal), alienated a huge number of its biggest customers and failed to do much to actually get the industry in a position to capitalize on new distribution and promotional methods created by the internet. In other words, it's done plenty to hurt the industry while doing almost nothing to help it. You would think that might make folks in similar organizations think twice about hiring execs from the RIAA, but perhaps not.

The Entertainment Software Association -- basically the RIAA for video game companies -- has apparently hired a high level RIAA exec. And not just any high level exec, but the guy who was in charge of the RIAA's disastrous litigation efforts. The ESA hasn't been as widely reviled as the RIAA or MPAA (or even the BSA), but it has had its run-ins with folks in the past. And, of course, it was just about a year ago that the ESA's boss was whining that he wished more countries copied the DMCA. No wonder Davenport Lyons is having a field day suing people for file sharing video games. It appears that the video gaming industry is looking to follow in the footsteps of all the RIAA's mistakes.

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Filed Under: esa, kenneth doroshow, litigator, riaa
Companies: esa, riaa

25 Comments

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Anon Cow, 21 Aug 2008 @ 3:24pm

The RIAA has been incredibly useful....if you are a copyright attorney or if you've built some half-baked tool for collecting IP address from P2P softwares.
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GeneralEmergency (profile), 21 Aug 2008 @ 3:40pm

I'm actually looking forward to this!
I can see it now. ESA target #1...The Pirate Bay.

ESA Litigation Manager Kenneth:
"Hey Jerry, did we send those Takedown's out to the Pirate Bay last week like I asked?"

ESA legal staff member Jerry:
"Umm...Yes Sir."

ESA Litigation Manager Kenneth:
"Well...What happened?"

ESA legal staff member Jerry:
"Well...Umm...They posted our letter on their website and pointed out that their servers don't hold any of our stuff and we can't enforce U.S copyright law in Sweeden anyway. And...well...ummm..."

ESA Litigation Manager Kenneth:
"Spit it out Jerry!"

ESA legal staff member Jerry:
"And they suggested we go do something...umm...un-natural with 'retractable batons'!"
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Anonymous Coward, 21 Aug 2008 @ 4:02pm

NICE! Loved it, great comment #2 GeneralEmergency
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Anonymous Coward, 21 Aug 2008 @ 4:08pm

good luck pissing off gamers
ESA is going to be in a world of hurt if they start going down the path of RIAA and piss off gamers. Can't wait for the showdown.
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Anonymous Coward, 21 Aug 2008 @ 4:10pm

Re: I'm actually looking forward to this!
TPB Legal Dept is THE best read on the net.
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Anonymous Coward, 21 Aug 2008 @ 4:47pm

If ESA draws negative criticism on this site, then it must be doing something right.
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Anonymous Coward, 21 Aug 2008 @ 4:59pm

Meh... At least games developers have a good reason for going after file sharers of games.

With music you can make the (sound and valid) argument that file sharing actually increases the band's exposure and at the loss of potential profits from CD/MP3 purchases, they make it up in merchandising, free promotion and live shows etc...

But with games, the game *is* the product. The company either makes money off the game, or they don't make money... especially with PC games, considering the state of the PC games industry at the moment (with increasing amounts of people believing it's dead or at least dying).

So while it's not exactly smart to hire someone who's messed up so bdaly in the psat, at least his "expertise" can be put to legal and ethical use in this.
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Anonymous Coward, 21 Aug 2008 @ 5:07pm

For the ESA's sake they better not start doing what the RIAA did, or they will lose all of their members. They already lost the biggest company in the industry in Activision/Blizzard which was quickly followed by Lucas Arts. If the ESA starts making an ass out of itself I wouldn't be surprised to see more of companies that have ESA membership start canceling said memberships.
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Mike (profile), 21 Aug 2008 @ 5:25pm

Re:
But with games, the game *is* the product.

People claim that with every industry, and with every industry it's not true.

The music industry says the music *is* the product. But it's not.

The movie industry says the movie *is* the product. But it's not.

Video games have learned that there are plenty of other business models that don't rely on copyright -- such as services (subscription services for access to a gaming server) advertising or even as an advertisement for something else.
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Mike (profile), 21 Aug 2008 @ 5:26pm

Re:
If ESA draws negative criticism on this site, then it must be doing something right.

How do you figure?

I'm curious, as an IP lawyer, do you think that the RIAA's strategy over the past decade has been good for business?
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Anonymous Coward, 21 Aug 2008 @ 5:50pm

Re: Re:
Look at the game developers that are members of the ESA. Aside from EA, many of these have reputations that suggest they will pull out of the ESA becomes the Video Game RIAA.

EA is iffy. They seem to be trying to change recently, which is a good thing but I'm taking it with a grain of salt.
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Chris Charabaruk (profile), 21 Aug 2008 @ 7:41pm

Developers? In my ESA?
Look at the game developers that are members of the ESA. Aside from EA, many of these have reputations that suggest they will pull out of the ESA becomes the Video Game RIAA.

Developers aren't part of the ESA. The ESA is the lobby organization for game publishers. Developers generally go for individual or studio membership in the IGDA, if they get involved in any industry organizations at all. (Well, some also join the ECA, the consumer organization, too, but I digress.)
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Chris Charabaruk (profile), 21 Aug 2008 @ 7:43pm

Re:
Often, we don't make money anyway... The publisher gives the development studio an advance to cover payroll and costs of development, and then keep all the royalties after release to pay it back. As well as insert into the contract terms that make it almost impossible to get any profit from additional deals. Kind of like how the big record labels screw over musicians. Actually, very much like that.
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Chris Charabaruk (profile), 21 Aug 2008 @ 7:50pm

Re: Re:
Not all games can work via a subscription service or as advertising for other things. It's interesting watching the idea of putting ads in games play out, though, but there's still a lot of hate in the industry over that idea, especially since for some games it would be very kludgy to work in.

What we should be doing is going back to the 80s model and include extras like cloth maps and such again. Give people a reason to actually buy the physical copies. Of course, that doesn't work when things go to digital distribution, but that there has some of its own, mostly working safeguards against piracy.
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i_hate_ny, 21 Aug 2008 @ 7:52pm

Re: Re: Re:
EA Sports boss Peter Moore has said he doesn't support the move to sue consumers for illegal downloading - warning, "It didn't work for the music industry."

http://www.gamesindustry.biz/articles/ea-exec-warns-against-suing-file-sharers
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Anonymous Coward, 21 Aug 2008 @ 10:52pm

insanity is alive and well.
EA has not earned their lack of support for broken games for nothing..... Not many games being released that is worth buying....unless it's the bargin bin for old games that had support because customers had value....so products had to have value....see the germane issue? value is not the latest or greatest....it's something that just works.
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Anonymous Coward, 21 Aug 2008 @ 11:41pm

Re:
I disagree with post 7. A lot of people buy games based on their friends opinions. If 50 people pirate a game and tell their friends how awesome it is, they will go and buy it. I think piracy saves millions in marketing every year.
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Jake, 22 Aug 2008 @ 1:45am

If it's any comfort, the ESA does at least have a fixed length of time -albeit a rather long one- for how long a piece of software remains protected, after which it can be freely distributed. In this instance it's actually a few independent publishers who are the villains of the piece, insisting on lifetime protection even for programs that require an emulator and a fair bit of technical know-how to get them working. New boss Gallagher might well have other ideas about the fifteen year limit, but seeing as Activision Blizzard and Lucasarts both resigned their membership soon after he got the job, I imagine he'll be inclined to think twice about any drastic policy changes.
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Anonymous Coward, 22 Aug 2008 @ 5:58am

Yeah its a similar dynamic
You have developers who work in constant debt to publishers. You have consumers whom publishers view as potential criminals and you have content, the great majority of which is pure garbage. I think the biggest problem around here is the market does not share our view of RIAA. They and thier model are actually considered quite successful and you will see these same litigious methods used in any similar business from here on out because of that.
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Gesta, 22 Aug 2008 @ 11:17am

DL Scam
The problem is that Davenport Lyons is suing people for over £350 with no evidence.

Many people targeted flatly deny DL's allegations but are being threatened with a "pay up or take your chances against us in court" attitude. They claim to have evidence but refuse to show it. The only cases they have actually taken to court have been carefully selected and DL know that the defendants won't show, they therefore win a default judgment and can claim what they like. The case is then used as a PR stunt to frighten even more people into paying up despite their innocence

Isn't it suspicious that NONE of the 4 people they have "successfully" sued have aired their views? This is a scam exploiting a legal loophole and many similar cases in Europe have been thrown out of court. One lawyer has even been banned from practicing for 6 months for his immoral ethics.

Typical lawyers, praying on the defenseless. They really are the scum of the earth and I look forward to DL's demise
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Hacker Killer, 22 Aug 2008 @ 6:47pm

Looks like something is finally happening against the massive piracy of games. I have known a few people who have downloaded single player games and said they were good. But they said they wouldn't purchase it, IE Bioshock. Multiplayer games that have some sort of a checker are the ones that are pirated the least. Now I bet someone would say well there are plenty of cracked servers out there...Well tell me if those servers aren't filled with cheaters or annoying players?

People argue that they pirate because of DRM. Can these people making the complaints prove DRM is causing the problem? I have owned several games with Safedisc, Securom, and Starforce. Never had one issue with them yet. If I pirated say a RTS game with LAN ability. Am I going to purchase it to play with friends online? Hell no. I would use Hamachi to do LAN play with them. Someone tell me that isn't a lost sale right there if I'm constantly playing the game hmmm???

Granted tactics employed to bring these downloaders and distributors are quite unethical. Always two sides to a story.
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ircd, 23 Aug 2008 @ 10:55am

shell
Better make sure you have a good provider!
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Kamen, 23 Aug 2008 @ 8:35pm

Enough with the lies in court.
In response to Hacker Killer post #21, I can say that is not a lost sale because you cannot lose something you never had to begin with. One can only speculate on future sales, never with certainty, else we'd all be millionaires off the stock market.

The bottom line here is that even in a world free of piracy there is no proof the "sales lost" the industry cries about would have been "sales gained". Therefore any damages sued for by or on behalf of game developers or publishers is questionable testimony at best.

I would also like to point out that developers these days usually work a deal for X many copies printed by a publisher, who lines up the sale of that many copies to distributers before manufacturing them. Thus the sales of developers and publishers are already in place before a games release, and so piracy has zero effect on them. What piracy *does* affect are the sales of the retailers.

Example: Bioshock is both developed and published by 2K.
2K sells X many copies to Gamestop, Walmart, other retailers. Some players buy some copies, some download pirate copies, but 2K has been paid for *every* copy they produced and shipped. Their net loss from piracy is ZERO.

Therefore any damages sued for by or on the behalf of game developers and publishers is FALSE testimony.
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me, 24 Aug 2008 @ 11:47am

scrw off ESA
and we love http://www.sourceforge.net becacuse nooby greedy bastards need to have there patee up there ass.
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Anonymous Coward, 25 Aug 2008 @ 6:21am

Re: Enough with the lies in court.
"Example: Bioshock is both developed and published by 2K.
2K sells X many copies to Gamestop, Walmart, other retailers. Some players buy some copies, some download pirate copies, but 2K has been paid for *every* copy they produced and shipped. Their net loss from piracy is ZERO."

I agree with your point completely, but one technical thing. Bioshock was actually created by Irrational Games (who was largely funded by 2K), they were gobbled up completely by 2k and renamed 2k Boston as I recall, after the game was nearly complete but just before relase. Again, its makes no difference to your very valid point.
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