Developer Conducts P2P Experiment: Piracy or Entrapment?

Greenheart Games pulled a switch on gamers this week by providing a crippled version of a game on BitTorrent. The illegal version of “Game Dev Tycoon” will stop at a certain point, indicating that the product has been pirated. While this strategy was initiated as an experiment to draw attention to software piracy, and not to seek out and prosecute offenders, it has raised some interesting and complex legal issues.

According tot he Greenheart Games blog, when the gamers who play the “cracked” version of the game hit the wall, a pop-up reads: “Boss, it seems that while many players play our new game, they steal it by downloading a cracked version rather than buying it legally. If players don’t buy the games they like, we will sooner or later go bankrupt.”

“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 Technica. “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. Downloading in this circumstance is not just foreseeable, it’s practically inevitable.”

When the company promoted the game on the P2P site, the download came with a note saying “CRACKED AND WORKING,” claiming that it was a pirated version. However, the company itself uploaded the game. Because of this, there is the argument that there is no real copyright infringement since Greenheart uploaded the version to the site.

“Is it piracy just because the user thinks it is?” asks Ars Technica. “What if the developer encourages it?”

“The weird thing is, of course, that the copyright owner in this situation did indeed approve of it,” added Chicago-based copyright lawyer Evan Brown. “It’s a perfect example of why legal arguments can be so confounding. A single fact can be spun in two directions 180 degrees opposite one another.”