Grubby Hands

"What's it going to take," I was asked recently, "to get a videogames story that isn't 'ban this sick filth' onto the front cover of a national newspaper?" Actually, I've been asked that question, paraphrased in various ways, several times in recent months, and I confess that I've never had a truly satisfactory answer (other than "Lara Croft", and plenty of newspaper editors are starting to suspect that that one's a bit old hat these days).

Yesterday, we found out the answer, and few people in the industry are terribly happy with it. After decades of ill-informed drum-bashing over violent content, the games business finally managed to get a new narrative onto a newspaper front cover - by threatening to send extortive legal letters to thousands of consumers based on extremely dubious evidence.

Having appeared on the front cover of The Times yesterday morning (in the interests of transparency, I should declare an interest here, since I am a contributor to The Times), the story developed in the media over the afternoon. Only a tragic plane crash in Spain prevented it from being more thoroughly explored in the evening bulletins of at least one major television news channel in the UK.

For that, the industry should breathe a sigh of relief. Don't get me wrong - piracy is an extremely damaging and costly affair, and one which the games industry should approach in a robust, united manner, exploring all avenues to crack down on those at the heart of the piracy trade, and finding ways to change the business landscape to render consumer piracy irrelevant. It's possibly one of the greatest challenges facing the interactive entertainment industry today.

This grubby, nasty little action, however, is about as far as any games company could ever get from the right way of tackling piracy.

It's important first of all to make clear that this is not an action on the part of "the games industry". On the contrary - the games industry, as a whole, seems to want as little to do with this as possible. None of the big publishers or platform holders have touched the action with a barge pole - you won't see the names of Electronic Arts, Activision Blizzard, Sony, Microsoft or Nintendo on this action. Even ELSPA, which is normally full of strong words on the matter of piracy, murmured in a carefully composed statement about how it didn't "condone" this action.

So what has actually happened, in real terms? A group of tier 2 and tier 3 companies, the largest among them being Atari and Codemasters - both firms who can turn out fine games on occasion, neither of them firms who cause the top tier of publishers to lose any sleep - have hired a firm called Davenport Lyons to take action against private individuals for using file-sharing networks to distribute games.

This, it appears, is a Davenport Lyons "speciality". It doesn't take much Google sleuthing to discover that this is a company whose reputation is coloured by a history of threats against private individuals. This is a sort of carpet-bombing, legal "shock and awe" approach which, in this case at least, may be designed to frighten people into paying a fee and signing an admission of guilt, rather than following any due legal process through the courts.

What takes a little more stone-turning to uncover is the fact that Davenport Lyons - and by extension, their clients in this matter - appear to be using data from a company called Logistep. This is an anti-piracy company which uses a variety of methods to extract user information from peer to peer file sharing services, and claims to be able to identify which Internet users have been sharing specific files.

This raises two problems. Firstly, there have been serious concerns over the legality of Logistep's methods in several European states. In the company's home country of Switzerland, it stood accused of violating the law in its pursuit of pirates, by pushing for the initiation of meaningless criminal cases against sharers and then dropping them once their ISPs had coughed up personal data on their customers. Needless to say, the Swiss authorities weren't best impressed when this behaviour came to light.

Concerns have also been raised in other European countries. In France, a lawyer who was working with Logistep was recently banned from practising law for six months for almost exactly the same behaviour which Davenport Lyons has just demonstrated in the UK. Her letters, which demanded 400 Euro from alleged sharers - while scaring the recipients with the implication that a failure to pay this money and subsequent court appearance could cost "hundreds of thousands of Euros" - were deemed to be, in essence, extortion.

Yet those debates, despite their relevance to the situation in the UK, pale in comparison to more serious problems with Logistep's methods. There is, quite simply, a vast gap between what Logistep can prove technologically, and what a court of law requires for a case to be proven.

From the documentation I've seen, it appears that all Logistep can do is link an IP address (and hence a broadband connection) to the sharing of a file with a certain filename, at a certain time. That's to be expected - there's not much other data they can collect. However, even without legal training, it's clear to me that there are huge holes in this approach. How do you prove, beyond reasonable doubt, who was using the computer in question? How do you prove, beyond reasonable doubt, that the file contained the data its filename suggested?

In an age when Wi-Fi networks are abundant, and usually poorly secured, it's easy for your home connection to be hijacked by someone else - and used for nefarious purposes. Many consumers live with other adults, and share their broadband connection with them. Others even share with their neighbours, again using wi-fi. Then there's the fact that peer to peer networks are often full of fake files, which puts a serious question mark over the identification of a pirate file by filename alone.

This isn't to say that the majority of those who receive letters from Logistep will be innocent. In fact, the vast majority will probably be guilty as charged. However, a significant minority will genuinely be innocent - and frankly, even in the cases of the guilty parties, it seems to me that Davenport Lyons will have a tough day in court proving their claims if those involved find a decent, clued-up lawyer.

That's seems to be why the shock-and-awe tactics of this mass mailing are being employed. £300 or thereabouts is a nice figure - enough to sting badly, probably enough to cover the costs of the operation, but not enough for most people (innocent or guilty!) to be willing to go and hire a lawyer and fight the case. Moreover, once you've paid the £300 and admitted your guilt, you don't really have any comeback. This looks like a legal dragnet, designed to haul in as many people as possible - with little regard to whether they're actually guilty, or whether there's enough evidence for a real court case.

In that case, "grubby" doesn't begin to describe it - just as, when innocent people start receiving those letters and clamouring in large numbers to the media, as they inevitably will, "PR disaster" doesn't begin to describe what will happen next.

Fight piracy. Fight it with every weapon in the arsenal - but play fair. This kind of dirty, nasty and legally questionable action will do nothing other than bring the industry into disrepute. Certainly, some people will be scared away from the torrent and peer-to-peer networks - but is that drop in the ocean really worth it, compared to the incredible ill-will that will accrue to the industry as a whole from core consumers wrongly accused, and furious families writing to their newspapers and even MPs about these threats? Is it worth the egg on everyone's faces when Davenport Lyons' and Logistep's tactics are aired publicly, like so much filthy laundry?

Moreover, ask yourself this - have these kind of actions really done anything for the music business in the USA, other than creating strong public dislike of music publishers and their representative body, the RIAA? It has garnered a reputation for music publishers as persecutors of pensioners, the disabled and single mothers - has it stopped piracy? Of course not.

What's chipping away at music piracy is the rise of services that beat the pirates on convenience and ease of access, like iTunes, and of bands who are brave enough to change their business models to adapt to the new landscape, like Radiohead and Nine Inch Nails. The court cases? They've just shed decades of goodwill like a snake shedding its skin. The world would grimly applaud if a major record label went bust tomorrow.

The rest of the industry would do well, frankly, to distance itself from Codemasters, Atari and pals - not just by remaining silent, but by reassuring people that this isn't how they do business. Then, perhaps, when the ashes settle on this whole sorry affair, we can go back to asking that opening question again, in a more general tone - what's it going to take to get a positive story about games onto the front covers? Stop consorting with snakes and trying to abuse the legal system, and we might find out a hell of a lot sooner.