Three Strikes Coming In?

Implications for the UK?

In the UK, the government's final Digital Britain report (published in June 2009) set out several proposals intended to reduce unlawful file sharing. The key proposal would impose a legal duty on Ofcom to secure a significant reduction in unlawful file sharing (the government suggested this should be a 70 per cent reduction) by requiring ISPs to notify the holders of accounts suspected to have been used for copyright infringement and making available to rights holders (on the basis of a court order) data to enable serious repeat infringers to be identified and court action taken.

However, the government also proposed that if such significant reduction was not forthcoming within 12 months of that system coming into force, then Ofcom should be provided with backstop powers including the ability to compel ISPs to impose technical measures to reduce copyright infringement (such as protocol blocking, bandwidth restrictions and content filtering). The report stopped short of proposing a full 'graduated response' system.

Then in August 2009 the UK government issued a statement that it is now considering providing for Ofcom to be given the power to suspend the accounts of serious repeat infringers. Most recently, Lord Mandelson has made comments about the need to implement something like the French Hadopi system. All of this suggests the government may be somewhat closer now to proposing the introduction of a graduated response system, or at least something like it, into the UK.

That said, a key point about both the French law and British proposals (as well as the proposals of other governments) is that it remains to be seen what and when concrete technical arrangements will actually be put in place to combat online piracy/copyright infringement, how successfully they will work and, crucially, what consumers' reactions to them will be.

And Implications for the Games Industry?

The games industry will be at the forefront of these developments. If governments adopt legal regimes which permit technical measures to be taken against suspected online pirates/copyright infringers, it would give the games industry a powerful weapon to deploy against games piracy/copyright infringement - which is of course often said to be the single greatest threat that the industry faces. So, in principle it would be possible to deploy technical measures against individuals who repeatedly download and distribute illegal copies of games – which could prevent a repeat of Spore, said to be one of the most pirated games in history.

But it may cover rather more than that - in principle, it may in the future be possible to take technical measures against all forms of online copyright infringement relating to a game, including individuals who distribute unauthorised game modifications (eg additional game levels or a total conversion mod) and/or who create user-generated content relating to games (eg unauthorised in-game footage posted on YouTube).

So the person who distributes a brilliant but unauthorised mod of a defunct but well-loved game, or the person who repeatedly posts unauthorised footage of upcoming or released games online, could potentially face technical measures against his/her internet access in the future. Obviously, the devil would be in the (legal) detail but, clearly, if this kind of action was possible it could transform the games industry.

On the other hand, time and again gamers have shown themselves to be hostile to what can be seen as attempts by the games industry to impose limitations on the way in which they can play and interact with games (as seen recently for example the DRM debacle or the reactions to the recent Pirate Bay case).

The games industry would likely have to tread a fine line between relying on technical measures to protect their games but, at the same time, not alienating their customers or stifling the enjoyment and innovation derived from the creation and use of mods and other post-release user generated content. In an industry which depends heavily on the loyalty and enthusiasm of its customers, this is likely to become an issue of great importance in the future.

Ultimately, the question for the games industry may not be whether they can legally deploy these strategies to defend their games, but whether commercially they can risk it.