Anti-Piracy Frequently Asked Questions
- What is the scope of the Anti-Piracy Program?
- Does ESA have any affiliation with the U.S. Government?
- Isn't it legal to copy computer and video games as a backup as long as you own a legitimate copy?
- Isn't it OK to copy games that are no longer distributed in the stores or commercially exploited?
- Haven't the copyrights for old games (like Atari & Commodore) expired?
- Some people think that people making emulators and ROMs are helping publishers by making old games available that are no longer being sold by the copyright owner. They say that this does not hurt anyone and allows gamers to play old favorites. What's the problem?
- What gives you the right to enforce United States copyrights outside of the U.S.?
- Who decides which sites to shut down?
- Does ESA make money by shutting down a site?
- Why is it illegal to share computer and video games on peer-to-peer networks or through Bit Torrent sites?
- Why are mod-chips illegal?
ESA's Anti-Piracy Program is designed to combat entertainment software piracy in the United States and certain countries around the world. Global piracy is estimated to cost the U.S. entertainment software industry millions of dollars per year, not including losses attributable to Internet piracy.
ESA's anti-piracy efforts include: investigations and civil litigation against individuals and companies engaged in pirate activities; monitoring and enforcement against online piracy; supporting investigations and prosecutions of game software pirates by law enforcement officials and government agencies, such as the U.S. Department of Justice, the Federal Bureau of Investigation (FBI), the Bureau of Customs and Border Protection of the U.S. Department of Homeland Security, as well as foreign enforcement bodies; and training and educating customs agents and law enforcement officials in the United States and a number of countries overseas.
ESA is an independent trade association that is funded by member dues and revenues generated from other association functions. ESA is not affiliated with the U.S. Government, or any other government.
U.S. Copyright laws permit making a "backup" copy of computer programs for archival purposes. However, the right to make backup copies of computer programs for archival purposes, as embodied in 17 U.S.C. Section 117(2), does not in any way authorize the owner of a copy of a video or computer game to post or download a copy of that game to or from the Internet or make such copy available to other people for their use. Section 117(2) only gives the owner of the copy a right to make an archival copy of the actual copy that he/she legally possesses, not to make a copy of the ROM that someone else legally possesses, nor to post an archival copy of his/her original copy for distribution. The law clearly does NOT provide any right to sell "backup" copies. In fact, Section 117 is quite explicit in stating that any archival copy prepared under Section 117(2) can only be transferred to another person if, and only if: A) The original copy is also transferred, and only with the authorization of the copyright owner, and B) The transfer is part of the sale of all rights in the program.
No, the current availability of a game in stores is irrelevant to its copyright status. Copyrights do not enter the public domain just because the works or products they protect are no longer commercially exploited or widely available. Therefore, the copyrights of games are valid even if the games are not found on store shelves, and copying or distributing those games is a copyright infringement.
U.S. copyright laws state that copyrights owned by corporations are valid for 95 years from the date of first publication. Because video and computer games have been around a little more than three decades, the copyrights of all video and computer programs will not expire for many decades to come.
Some people think that people making emulators and ROMs are helping publishers by making old games available that are no longer being sold by the copyright owner. They say that this does not hurt anyone and allows gamers to play old favorites. What's the problem?
The problem is that it's illegal to make or distribute software or hardware emulators or ROMs without the copyright or trademark owners' permission. Moreover, copyrights and trademarks of games are corporate assets that are sometimes sold from one company to another. If these titles are available far and wide, it undermines the value of this intellectual property and adversely affects the copyright owner.
In addition, the assumption that the only games involved are vintage or nostalgia games is incorrect. Many popularly available emulators emulate current game systems. In other words, in many cases, emulator/ROM piracy is affecting games that are still on the market.
Finally, in the current highly competitive market, a top quality game costs millions of dollars to develop, and sometimes double or triple its development costs to market. Software publishers must generate a meaningful return on their investments if they are to continue to meet the growing demand for technologically advanced products. The suggestion that some piracy is benign and not harmful undermines respect for the intellectual property rights on which software companies depend in investing millions of dollars in creating and publishing new games. Piracy of any kind on any scale erodes this foundation.
U.S. copyrights are protected and enforceable in over 100 countries that have signed the Berne Convention, the TRIPs Agreement and/or have entered into in bilateral accords with the United States. The Berne Convention and TRIPs Agreement set international standards for the protection of intellectual property rights. Therefore, a game from a U.S. publisher is automatically protected in most countries and they have every right to enforce our copyrights under local laws.
ESA acts upon leads that are given to us by member companies, generated by ESA's online monitoring program or through outside sources, such as members of the gamer community. Decisions to shut down sites are made on a case-by-case basis.
No, ESA derives no financial benefits from shutting down sites.
It is illegal to post copyrighted materials on the Internet for copying or download through peer-to-peer networks without the expressed authorization of the rights holders. When individuals or groups place part or all of a copyrighted video or computer game on one of these networks or sites, it is a clear violation of U.S. copyright law. The activity on these networks is NOT sharing but copying.
Copyright owners often use technological measures to control or manage access to their works, and to control unauthorized copying their games' content. These technologies are critical to developing viable marketplaces for copyrighted computer and video games, as well as other copyrighted product. Congress recognized the importance of these technologies in the Digital Millennium Copyright Act (DMCA) when it outlawed the manufacture and distribution of products or services aimed at circumventing these copy and access protections.
Some mod-chips circumvent the security technologies that Microsoft, Nintendo and Sony have incorporated into their console systems to stop people from accessing and illegally copying the content of their games. These mod-chips are illegal circumvention devices under the DMCA. People caught selling them or installing them may be subject to criminal prosecution and are liable for civil damages resulting from such activities.