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The Legal Side of Gaming’s Digital Revolution

Peter Nowak has a great interview with Maxime Gagne, a lawyer with Heenan Blaikie who represents video game developers. Asked specifically about an exception to the Bill C-11 digital lock rules for private use, Gagne states:

I haven’t seen the exception but there could be ways that it’s crafted that wouldn’t necessarily make it pointless. It would allow private copying but still prevent the uses that are technically restricted to the author of the work, meaning distribution or public performance of the work. That would still be considered infringement. You could break the DRM and make a private copy but you can’t break the DRM and make 160 copies and sell it. It doesn’t render the provision pointless, it just makes clear that there are certain limited uses that you’ll be able to do.

10 Comments

  1. Jason J Kee says:

    Director, Policy & Legal Affairs, ESAC
    To be clear, Maxime Gagné is a business lawyer who, according to his bio, has done legal work for some game development studios among many others. He does not “represent video game developers” in the sense of representing their views on C-11 or any other matter of policy. While M. Gagné is entitled to his opinion, his personal views on the anti-circumvention provisions of C-11 are not consistent with the position of the broader game industry.

  2. @Jason
    …Then the broader game industry is unreasonable and wholly deserving of the piracy they are victims of!

    -Signed,
    Just a guy sick of DRM on games impeding legitimate users.

  3. Un-Trusted Computing says:

    @Jason J Kee
    After reading the article, I feel as though Maxime Gagne is painting a somewhat rosy picture of DRM, and perhaps misconstruing Canada’s obligations under international treaties.

    Where would you say Maxime and the gaming industry at large differ?

  4. DRM on games.
    DRM does not have to be impeding and does not have to be super invasive or restrictive to be effective. In the gaming industry Steam is a prime example. With a few exceptions such as Bioshock 2, games purchased on Steam can be downloaded to and played on any number of machines you see fit, as long as you’re only using one copy at a time. If you finish and with to remove the game, so be it. In 6 months, if you want to play it again…it’s still there and you can simply redownload it. This is all included in the original purchase price. As long as Steam is running, and space is cheap, you will always have access to any game purchased there. Some of the restrictive DRMs game companies are using these days are obscene.

    Here’s an interesting bit of knowledge from the back-halls of Bioware. They don’t use DRM to try to stop piracy. They realize there will always be this element and there is little they can do about it. They use DRM and first sale perks to try and stem second-hand sales. This is something they’re far more concerned about than piracy. For every person who pirates a game, there’s probably at least 10 who buy it second hand from somewhere like EB Games…potentially the same copy of the game multiple times if people keep trading it in.

  5. @second hand sales
    What the eff is the problem with second hand sales? They’ve been around FOREVER for every other type of goods – books, furniture, appliances, whatever

    Do you see all these companies crying over it? What makes a game so much more valuable that it would warrant a denial of second hand sales !?

    The ONLY case in which I will say second hand sales are wrong is for PC games that don’t require an online account to play, because the seller can retain and play the product while the buyer gets a new “spawned” copy of it.

    But as far as console games go, the seller loses access and the buyer gains access. There is NOTHING wrong with this and it’s been going on since the dawn of FREAKING time.

  6. Re: Second hand sales
    Personally, I’m much more likely to pay $50-$70 for a game if I know that I can get half of that back when I’m done with it (even though I rarely avail myself of that option). If the industry manages to destroy the second-hand market, I’ll wait until the price drops to something more reasonable.

  7. George Geczy says:

    Co-Founder, Independent Game Developer BattleGoat Studios
    @Jason … I would also note that ESAC’s positions are not consistent with the broader game industry, as you and I have discussed in the past.

    Of course there are many segments to the game industry, from the multi-national megapublishers like EA and Nintendo, to the hundreds (even thousands) of independent Canadian studios and publishers. From the perspective of Canadian-owned game developers, restrictive DRM positions like in C-11 are very from from their major interest… most would mirror the comments made in the interview that non-infringing personal copying is quite acceptable. Prohibition of circumvention of DRM’s doesn’t make the top 5 list of nearly any Canadian developer I’ve talked to. For console devs the #1 issue is almost always retail-level resale, for PC devs it is limited retail shelf space and distribution availability, for mobile devs it is market fragmentation and product awareness, etc etc. ESAC’s focus on the restrictive provisions of C-11 continues to be ill-advised and prompted only by US media interests.

    The second hand retail sales issue is much more complex and a 100x more serious issue… as the post above mentions, there is an expectation that “first sale” principles apply, meaning you can sell (or give away) something you bought… the problem is when retailers like EB and FutureShop make an industry out of buying and selling used games, making a lot of money on it themselves, but no money goes back to the original developers… the retail stores get richer, the people who made the game do not. There is no simple solution here.

    But it’s time to wake up to the fact that C-11 is both bad for consumers and for digital media developers in its current form.


  8. Today I played this non-digital game where I would throw a ball and my dog would run after it and bring it back to me. Then we both ran through the woods nearby and got home just before sunset. We had a fabulous time and are in better mental and physical condition than if we were eating chips and drinking coke while fumbling in front of a computer game with a contrived and frustrating DRM mechanism.

  9. RE: George Geczy
    “The second hand retail sales issue is much more complex and a 100x more serious issue… as the post above mentions, there is an expectation that “first sale” principles apply, meaning you can sell (or give away) something you bought… the problem is when retailers like EB and FutureShop make an industry out of buying and selling used games, making a lot of money on it themselves, but no money goes back to the original developers… the retail stores get richer, the people who made the game do not. There is no simple solution here. ”

    While I do understand where you are coming from George, I don’t understand how this is any different then say, the sale of used cars. Ford doesn’t get a cut of a pie if a unaffiliated used card dealer decides to sell a used Taurus. Another example, the Beetles don’t get a cut when some guy sells his vintage Beatles record on Ebay. Why do you think your industry should be treated any different in this regard?

  10. Entitlement
    In general, the whole creative industry has a perverse sense of entitlement…much like a self-centered teenager. Let them have their DRM. The only real effect it will have for the average consumer is that new material will find it’s way to obscurity and ultimately bargain bins faster…the places I most often shop.