Unbranding the Sheep: The ESA’s Loss of Good Faith

Something came across the news yesterday that caught my attention: the Entertainment Software Association (ESA) hired a man by the name of Michael Gallagher to be their new General Council. Regular, everyday gamers don’t know who that is or why it’s relevant, but if you read between the lines, this could be a very bad thing for end users all over the spectrum.

Michael Gallagher’s name is relevant to this case because his former job was as Senior Vice President, Litigation and Legal Affairs of the Recording Industry Association of America (RIAA). *DING!* THAT name should ring a few more bells! For those of you that have been living under a rock for the past few years, the RIAA’s claim to infamy is their massive litigation efforts to crack down on illegal file sharing and piracy, which would be a noble endeavour if they didn’t approach this task with the subtlety of a prison rapist, or if they didn’t use the tactics of a crime family offering “protection.” They’ve sued dead people, people that have never operated a computer in their life, children (and even tried to get – unsuccessfully – said children to give disposition and be cross-examined by a lawyer, likely with the purpose of bullying them into submission), college students, and anyone else who comes across their filters as having dared upload or download music illegally. They’ve streamlined the process so much that their website even has a convenient little portal for anyone who’s been given a letter from the RIAA, saying hey, just give us $3,000+ dollars, and we’ll make it all go away! It’s nice and convenient, like Paypal!

Personally, if that doesn’t scream “protection racket”, I don’t know what does, but let’s give a little review of the RIAA’s litigation history, accomplishments, and failures:

– In 2005, the RIAA followed suit against Gertrude Walton, from Beckley, West Virginia. This in itself isn’t notable. What is notable is that Gertrude was already dead, and never even used a computer. In addition to that, they sued a homeless man, twelve year old girls, and countless other people who have had their cases dismissed with prejudice.
– Lobbying of an intensely corrupt Congress led to a law that effectively forces underfunded public schools to act as copyright police, forcing them to purchase software specifically designed to help this cause. The thought of a private corporation forcing colleges – by law – to buy software from another private company would normally be enough to make an antitrust lawyer shit his pants, but no one seems to have noticed this.
– Speaking of John Doe, most of the lawsuits are put forth as an Ex parte lawsuit. What that means is that one side knows about it, the other doesn’t, so the other side defaults, usually after finding out too late to do anything about it.
– The tactics the RIAA use are illegal. They’ve used a company called MediaSentry/SafeNet to do their investigations, a company that is currently in hot water in a few states for conducting unlicensed, illegal investigations.

Most important, these, and countless other instances I’ve omitted for brevity’s sake, have caused consumer confidence in the music industry to plummet to an all-time low, partly because of anecdotal evidence, but also mostly because the RIAA’s tactics have directly impacted the end user in the form of Draconian DRM restrictions, increased prices for CDs, Sony’s rootkit fiasco, and the repulsion that comes anytime an organization that relies on customers starts attacking said customers as if they’re criminals by default. In addition to this, Mr. Gallagher’s very position and CV indicate that he spearheaded the majority of these efforts.

Now, I actually don’t mind the ESA. They have done a very good job of fighting piracy while still respecting the consumers, preferring to educate the consumers, and go after the really hardcore pirates. They basically make sure to protect the big names and big games, without worrying about all the small stuff; even “honourable” ROM sites have a list of games that the ESA has requested them not to carry on their sites, and the honour system, in my mind, works fine. However, with Mr. Gallagher involved, I fear that the ESA is going to take a more aggressive approach to their efforts. Conservative, pro-industry types tend to react to this by saying things like “all right, fuck the pirates!”, but this is far-reaching. Remember the fit about SecuROM? Picture that times ten. Now, imagine a crackdown – using largely illegal means – targeting anyone pirating the game, even to get around the DRM within? Imagine how many people could get caught up in that dragnet that are innocent?

Unlike the music industry, the games industry has had a massive, all-encompassing crash. It’s been dead in the water, and Nintendo had to catch lightning in a bottle in order to bring it back from the dead. Unlike games, music has its grips in society at all ages, across all social cliques, and ignoring social status altogether. The RIAA goes on their campaign of terror – the hyperbole really is appropriate with their tactics – knowing that the average consumer is stupid enough to keep buying their music, and if something they do is illegal, they know that their massive contributions to politicians will effectively change the books in their favour, because the entertainment industry is large enough to get what it wants. But the video game industry has none of those advantages, and as a matter of fact, the industry is constantly under attack by politicians looking to draw the votes of scared, ineffective soccer moms by painting them as murder simulators. Furthermore, video games are not nearly ingrained into popular culture enough to sustain the negative PR that would come from an RIAA-like assault on consumers. If customers deem that buying video games is no longer in their best interests, or is too much hassle, they will leave, and find something else to do. And if there is a massive, ESA sponsored push to criminalize the pirates, how far will it extend? I can understand fully wanting to protect the investment in a game like Call of Duty or Grand Theft Auto, but you mean to tell me some poor schmuck could see a massive lawsuit because he downloaded some shitty arcade game from the early 80’s to play it on MAME? And how large would that suit be? In every case they bring up, the RIAA demands the maximum fine of $150,000 per song, per user; Jammie Thomas had to pay a fine of $9,750 for each of her 24 counts. But an individual song – taking iTunes’ pricing scheme – costs only 99 cents. A video game costs $60; what’s the price of pirating one of those going to cost? Millions?

All of these efforts would be for… what? Stamping out piracy? Ending it forever? The mere thought that this is plausible is or even possible is laughable. From copying floppy discs to Bittorrent, piracy has been around since the beginning of time, and all efforts to stop it have done very little to stem the tide. Even in the music and movie industries, the hard-line tactics of both the RIAA and the MPAA have done nothing to so much as help keep these files off of torrent trackers, download sites and other distribution methods. Within an hour, I could be downloading The Dark Knight, and listening to Nas while doing it, having downloaded that from any one of numerous sources. And that’s just a couple of items; with four clicks, I could own the entire discography for the Rolling Stones, including bootlegs, live concerts, unreleased and dark tapes, etc. Shit, considering all of that, and the lack of DRM involved, it could be argued that pirating a product results in a better overall product than buying it from a store! An insistence on heavy-handed DRM and the price increases that come from these legal battles (anyone that doesn’t think the consumers are absorbing the cost of those is a fool) are the main reasons for that little conundrum.

I don’t like piracy. I believe the sheer scale of piracy of all games is startling, and it’s doing irreparable harm to the PC gaming industry, and I fully believe in purchasing a product to support it’s developers and programmers. But the recruitment and praising of Michael Gallagher – a boorish, short-sighted and dishonourable man, judging by his company’s actions under his tutelage – tells me that the ESA could be ready to go entirely too far to protect its assets. That would be a tremendous mistake that could have long-ranging effects for an industry just starting to get mainstream traction.

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