Video Games and Copyright Infringement

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U.S. law provides copyright protection to original works of authorship such as literary, musical, dramatic, pictorial, graphic and audiovisual works. It provides copyright owners with a number of exclusive rights concerning such works, including the right to reproduce and distribute copies of the works and the right to perform and display the works publicly.

Video games—which typically feature numerous forms of digital content as text, image, video, music and software—are protected by copyright. The piracy of these works is estimated to cost the video game industry millions of dollars every year, prompting the industry to spend substantial resources combatting such piracy.

Anti-Piracy Efforts in 2012

The Entertainment Software Association (“ESA”), the U.S. association that serves the business and public affairs needs of companies that publish computer and video games for video game consoles, personal computers and the Internet, manages an anti-piracy program designed to combat video game piracy in the U.S. and in certain countries around the world. Its efforts include investigations and civil litigation against individuals and companies engaged in piracy, monitoring and enforcement efforts against online piracy, supporting investigations and prosecutions by law enforcement officials and government agencies, and training and educating customs agents and law enforcement officials in the U.S. and several foreign countries. The threats addressed by ESA’s efforts include downloads of illegal game files, sales of pirated games, and offerings of console circumvention technology and services, both online and via retail outlets.

Recently, ESA released its 2012 annual report highlighting the organization’s initiatives on behalf of the video game industry, including its efforts to crack down on copyright infringement. According to the report, through November 2012, ESA undertook takedown efforts with respect to 5.4 million infringing files on host sites, resulting in the removal of more than 96 percent of the files (with about 55 percent of those taken down within 24 hours of notification).

ESA also procured Google’s takedown of more than 99,500 search engine results containing links to infringing game files. The organization generated takedowns of 31 websites engaged in infringing activity, and, through October 2012, obtained the takedown of 94,719 advertisements for infringing items on online marketplaces such as eBay, Craigslist and Amazon. In addition, the report summarizes ESA’s investigative work and efforts to procure criminal prosecutions of video game piracy in the U.S. and abroad.

No Slowdown In Sight

Video game industry statistics confirm the increasing popularity of this form of entertainment and the growing demand for products produced by this industry. “ESA’s 2013 Essential Facts About the Computer and Video Game Industry,” for example, reveals that 58 percent of Americans play video games, with consumers spending $20.77 billion on video games, hardware and accessories in 2012. Fifty-one percent of U.S. households own a dedicated game console, and those that do own an average of two.  And in light of the proliferation of smartphones and wireless devices, it is estimated that 36 percent of gamers play games on their smartphones, and 25 play on their wireless devices.

The increased popularity of and demand for video games, together with ongoing technological innovations providing greater access and connectivity, likely means that video game piracy will continue to pose a problem for the video game industry (as it does for other copyright-based industries). It also means that organizations like ESA will continue to invest substantial resources enforcing the rights of businesses and individuals involved in creating and distributing video games.

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