The Pirate Bay torrent website is being sued by just about everyone for copyright violations. The big trial is taking place in Sweden where the defendants, three of whom run the site and one who has donated to it, are on the receiving end of criminal charges of “promoting other people’s infringements of copyright laws” according to an article in Wired magazines blog network.

We do not support illegal activities such as the sharing of copyrighted material without the permission of the copyright holder.  But, we do support free speech.  This trial hinges on the prosecution’s misunderstanding of how file sharing works.  It is very rare that I will discuss anything not directly tied to gaming here on the blog.  After all the purpose of this blog is to discuss gaming.  ”You Play It, We Discuss It” is our motto and one that I do my best to adhere to.  On the surface The Pirate Bay’s trial has nothing to do with gaming but we must dig beneath the surface to find the link.

Many electronic games such as those played on computers suffer loss of sales, or so we’re told, from gamers illegally downloading the games on the internet.  This loss of sales is supposedly the cause of major problems in the computer game industry covering everything from delayed releases, poor products, and lack of finances to fund new games and pay the developers for the games they’ve already made.

At the heart of the case is free speech and intellectual property.  Where does one end and the other begin?  The mighty Games Workshop corporation takes a hard line on intellectual property.  They have been kind enough to share a list of what gamers can and cannot do with their IP.  Most of it is benign but some is as draconian as to inhibit your freedom of speech on internet message boards and webcomics that you own and create.  If you discuss any Games Workshop game on an internet forum or webcomic in less than a positive light then Games Workshop may come after you for violation of their intellectual property.

From their official Can and Cannot Page regarding online forums:

We have no problem with people using forums to express their love (or even hate) of the hobby. We would, however, ask people to bear in mind that the hobby is for people all ages. Please be careful of the language used and the topics discussed. We would strongly recommend that you avoid any discussion of illegal behavior.

Regarding webcomics:

We would probably not take issue with anyone creating a web comic based upon our intellectual property – but as with forums, keep in mind that the hobby is for people of all ages. Please be careful of the language used and the topics discussed. We would strongly recommend that you avoid any topics concerning illegal behavior, obscenity, or libel.

Many gamers will remember the legal dispute between Games Workshop and the makers of the Warhammer 40,000 inspired fan film Damnatus (we discussed it here).  Games Workshop predicated their stance on their legal rhetoric below:

The video games that our licensing partners have created have done an incredible job of bringing the Warhammer and Warhammer 40,000 games to life, and we appreciate that hobbyists may even want to make movies based upon our intellectual property. Unfortunately, due to the nuances of the law in some territories, we cannot allow any unlicensed movies to be created which are based upon our intellectual property.

Other game companies use similar methods and take related stances.  These companies do spend a lot of blood, sweat, tears, and money to create the games we love and play.  They are entitled to ownership of their work and to protect it.  Nobody can reasonably support someone illegally copying and disseminating an entire rulebook for a game.

The recent legal disputes…represent only skirmish in what is likely to be a decade long war over intellectual property, a war which will determine not simply the future direction of digital cinema but the nature of creative expression in the 21st century.-Professor Henry Jenkins, Rethinking Media Change (Cambridge: MIT Press, 2003)

Then there are companies who seem to turn a blind eye to gamer activity that could potentially be in violation of the company’s intellectual property.  Wizards of the Coast sticks out in my mind.  They allow gamers a wide berth when it comes to creating works to use with and based on the Dungeons & Dragons roleplaying system.  I know many gamers who create their own adventures and derivative works from the D&D system.  In fact up to and including D&D edition 3.5 is covered by the Open Game License.  Their 4th edition is covered by a different license however WoTC has said they do not require others to switch to their new license to cover older versions of D&D (3.5 and below).

We spend a lot of time discussing War at Sea on the blog, which is also produced by Wizards of the Coast through their Avalon Hill subsidiary.  I’ve come across numerous gamers who create scratchbuild ships to use with the WAS rules or who convert existing WAS models.  Some make other ships from the models, some repaint them, some modify them to better fit the unit represented.  In none of these instances have I heard that WoTC slinging a lawsuit against the gamers for violating their intellectual property.

These two gigantic game manufacturers (Games Workshop and Hasbro, which owns Wizards of the Coast) have taken two different roads when it comes to intellectual property.  The trial on The Pirate Bay symbolizes the clash between free speech and intellectual property.  The defense lawyers used what is being called the King Kong defense to state that a user named King Kong could “very well be found in the jungles of Cambodia” to show that the owners of The Pirate Bay have not interacted with the user King Kong and do not have a close tie to them.

Instead of governments working to truly reform copyright and trademark law to both protect the creators of original products AND encourage creative outlets by customers, which ultimately serves to heighten the visibility of the games and products, we see the various industries lashing out at four guys in an attempt to terrorize consumers everywhere.  Their scare tactics won’t work and the day will come when free speech is vindicated.  A balance is necessary and obtainable.  We do not condone violating anyone’s intellectual property but at the same time game companies must realize and embrace the fact that fan actions taken with a positive attitude serve to broaden the scope of the games we play.  These fan movies, fan fictions, converted models, scans, and distribution projects help to raise awareness of the games while also inducting more gamers to purchase and play these games.

In the long run the game manufacturers will make out.  People need to be sensible and the game manufacturers should allow gamers to police themselves.  If the manufacturers place a little trust in their customers they will be greatly rewarded.  This is why we support The Pirate Bay’s King Kong Defense and why we hope The Pirate Bay is proven innocent at the conclusion of their trial.  We have not, do not, and will never support piracy but we do support free speech and free expression of ideas.

If you agree we ask you to DIGG The Pirate Bay Trial and raise awareness on this issue.