IP Laws and the Games Industry: What Next?

The games industry has an uneasy history when it comes to intellectual property law reform and piracy. Despite the industry's rapid growth over the last few years, it has tended to stay out of the limelight compared to the film and music industries when it comes to debates about these difficult topics. As a result, previous waves of laws on or around this subject, from the US Digital Millennium Copyright Act in the early Noughties to the UK Digital Economy Act in 2010, were passed with relatively little (organised) input from the games industry.

However, IP reform and piracy have risen to near the top of the agenda for the games industry in the space of just a few months, following the rise and (partial) fall of three acronyms: SOPA, PIPA and now ACTA.

There was a torrent of discussion about these proposed laws at all levels of the industry: consumers, developers, publishers and the industry bodies. Clearly, it was in part influenced by the perception that these are draconian laws that would harm the industry's future prospects or very existence. But more than that, they arrive at a time when the industry is just beginning to become aware of its legislative muscle, while the other creative industries have been using theirs for years.

The problems with SOPA and PIPA

But was all the sound and fury about these laws justified? Let's look at the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) first - although it started out in a different part of the US legislature and has some differences, PIPA is essentially similar to SOPA so I'll bundle them together for our purposes.

The stated objective of these draft US laws is to tackle websites that are "dedicated to illegal or infringing activity," but that are outside the USA's legal reach (i.e. they're based outside the USA geographically). Basically, they would work by giving rights holders - a movie studio or games publisher, for example - and/or the US government the power to target the support network around a website: its ad network, payment provider or possibly even its domain provider.

The rights holder/US government would be able to force that network to withdraw its support from a site, initially by a legal letter but ultimately by court action if necessary (subject to some relatively weak defences for the website). Previously, they were even going to have the power to get court orders against DNS registries to effectively block the website from being visible on the web.

However, there were at least three legal problems with SOPA and PIPA. The first is that they would circumvent due process, by enabling the rights holder to put demands on the support network that would only be put before a judge if the website or support network put up a fight. Secondly, the actual wording of the legislation was far wider than its stated objective; in theory, SOPA could have been used to tackle any website that involved IP infringing content. Thirdly, there are already mechanisms to tackle content piracy (look at what has happened since with Megaupload) and no evidence was put forward that new powers were needed.

We could go on about the problems with SOPA - whether it restricts free speech, whether legal action is even a legitimate solution to piracy and so forth. Anyway, following a wide range of protests, in mid-January it was announced that SOPA would be put on ice until a "consensus" could be reached - and frozen it currently sits. Similarly, PIPA seems to be in temporary political limbo.

Were SOPA and PIPA really that bad? Yes, and maybe no. Yes, because, given their problems, they really needed to be stopped before they became law. But maybe no because, based on my reading of the draft legislation, I don't think they were quite as bad as some suggested. The drafters didn't seem to want some kind of Wild West scenario where they can take aim at any website they like - they were trying, at least initially, to focus upon sites which are built for content piracy.

But still, it was too dangerous as it stood. Maybe we'll see a second attempt with a more moderate SOPA or PIPA sometime in the future.

How about ACTA?

Let's move on to ACTA, the Anti-Counterfeiting Trade Agreement. Although it has existed since at least 2008, it only entered the limelight following the furore over SOPA and PIPA and, as a result, it has been much maligned and misunderstood. It is undeniably concerned in part with copyright infringement, and to that extent is related to SOPA and PIPA, but beyond that there is relatively little resemblance.

The first difference is that ACTA is a treaty between various sovereign countries and is subject to their existing laws. The second difference is that ACTA applies to much more than just online content piracy; it also applies to counterfeit goods and IP infringement generally. For example, the pharmaceutical industry has been just as, if not more, keen on ACTA than any of the creative industries.