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). If actual infringement was proved in court, however, the fact that users thought they were downloading an illegal copy might affect the awarded damages. 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. Why would it bother embedding that message if it didn't want that message broadcast widely?" The ol’ bait and switchīut 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? Advertisement "It shows that the maker wanted the work to be as widely distributed as possible. "I think the embedded 'message' (oh, poor us, we're being victimized by piracy) is the key fact here," he said. It would arguably mean the rightsholder has agreed to whatever distribution was the logical consequence of seeding the work on BitTorrent."Ĭhicago-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. That wouldn't mean the license would be so broad as to allow BitTorrent or P2P downloaders to redistribute the file at will. 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. 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. That defense might only apply to people who downloaded the game directly and exclusively from Greenheart's seed, though. Downloading in this circumstance is not just foreseeable, it's practically inevitable." "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. "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. Still, if it wanted to sue any downloaders, would it even have a theoretical case? Advertisement 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"). In this case, Greenheart was the one that originally put the "cracked" version of the game on BitTorrent and promoted it on P2P sites. To be guilty of copyright infringement, you need to obtain the software without the permission of the copyright holder. 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. 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. 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?Īs a moral question, it's pretty cut and dried as far as we're concerned. 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.īut 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. 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.
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