Business ramifications of piracy *spawn

[obonicus]

DMCA doesn't apply in this case. Beyond the fact that you aren't violating any copyrights, there is the issue of expressed exception in the DMCA for application compatibility.

What exemption is that? I don't see it on the copyright.gov LoC list. Simply applying CFW to say, boot into Linux should be safe, but I'm not talking about that. I'm talking about implementing new loaders that circumvent Sony's DRM, there doesn't seem to be any exemption that covers that.

And in fact, unless they reimplement all the GameOS functions, wouldn't there in fact be a copyright violation?

It really is an issue of getting out from under any NDAs and contract language which has already been agreed to. If someone went through the effort to utilize these hacks to completely document all the interfaces, published it, and then some greenfield developers use it to write a game and utilize the publicly available keys to sign it, it is all above board. Now Sony could always sue and try to delay things, but they'll lose just like IBM did.

Ah, you're talking about some publisher releasing a game on the platform? I mostly agree, but I wonder just whether the legality of the keys would hold up under scrutiny. It doesn't matter in general, especially not to bootleggers, as the cat's out of the bag.

I was referring to the legality of the CFW itself. That while groups involved in software piracy will be able to do basically whatever they want, legitimate developers may be hampered by GameOS custom firmware variants being potentially illegal.

 

[Shifty Geezer]

A custom FW can boot straight into Linux, or any other OS, bypassing XMB/GameOS altogether and turning PS3 into a basic Linux box. A serious homebrew effort could create a new PS3 specific OS. How's about porting AmigaDOS?! TBH I'd like to see that. It's not piracy related, although homebrew apps that don't pay Sony would be cheeky and bad for the platform. But if we could get a new Amiga with suitable, innovative productivity software like we used to get, I'd be in favour. This is where I wanted Sony to go wtih OtherOS, but they didn't follow up that business opportunity.

 

[ban25]

What exemption is that? I don't see it on the copyright.gov LoC list. Simply applying CFW to say, boot into Linux should be safe, but I'm not talking about that. I'm talking about implementing new loaders that circumvent Sony's DRM, there doesn't seem to be any exemption that covers that.

And in fact, unless they reimplement all the GameOS functions, wouldn't there in fact be a copyright violation?



Ah, you're talking about some publisher releasing a game on the platform? I mostly agree, but I wonder just whether the legality of the keys would hold up under scrutiny. It doesn't matter in general, especially not to bootleggers, as the cat's out of the bag.

I was referring to the legality of the CFW itself. That while groups involved in software piracy will be able to do basically whatever they want, legitimate developers may be hampered by GameOS custom firmware variants being potentially illegal.

The private key is not copyrighted (obviously Sony doesn't want a copy sitting in the Library of Congress). As for custom firmware, it's probably a similar case to jailbroken iPhones.

 

[obonicus]

The private key is not copyrighted (obviously Sony doesn't want a copy sitting in the Library of Congress).

I didn't say it was, but I was wondering if the mechanism through which they got it was 100% aboveboard. If they did it entirely via OtherOS on a fat, it should be fine, but if they used a dongle to execute homebrew, that might be a DMCA violation in itself. Where does the law stand in that type of situation? (Again, this is an application of Finagle's law -- the people who will do the most damage don't give a rat's ass about legality in the first place so it's all irrelevant.)

As for custom firmware, it's probably a similar case to jailbroken iPhones.

The LoC exemption is explicit about applying to wireless devices.

 

[ban25]

I didn't say it was, but I was wondering if the mechanism through which they got it was 100% aboveboard. If they did it entirely via OtherOS on a fat, it should be fine, but if they used a dongle to execute homebrew, that might be a DMCA violation in itself. Where does the law stand in that type of situation? (Again, this is an application of Finagle's law -- the people who will do the most damage don't give a rat's ass about legality in the first place so it's all irrelevant.)



The LoC exemption is explicit about applying to wireless devices.

Well, as is so commonly stated on the Internet, I am not a lawyer, but regardless of whether the key was obtained through legal means (I'd say so based on the description), it's now out in the open and unencumbered by copyright, so anyone can use it.

 

[obonicus]

Well, as is so commonly stated on the Internet, I am not a lawyer, but regardless of whether the key was obtained through legal means (I'd say so based on the description), it's now out in the open and unencumbered by copyright, so anyone can use it.

Back when the HD-DVD keys were leaked, wasn't AACS actually able to force sites to take it down? I'm not a lawyer either, so I have no idea what mechanism they did to say, force digg to remove it from their postings.

Of course, internet reaction made that moot, as it became a popular forum signature, but that's sort of my point. Uses of the key that are completely ethical (homebrew projects) are more likely to be hampered than those that are less ethical, as the latter don't really care about legitimacy.

 

[ban25]

Back when the HD-DVD keys were leaked, wasn't AACS actually able to force sites to take it down? I'm not a lawyer either, so I have no idea what mechanism they did to say, force digg to remove it from their postings.

Of course, internet reaction made that moot, as it became a popular forum signature, but that's sort of my point. Uses of the key that are completely ethical (homebrew projects) are more likely to be hampered than those that are less ethical, as the latter don't really care about legitimacy.

They might huff and puff, sure. SEGA did the same to EA, but ultimately realized they wouldn't succeed in court. I didn't follow the AACS stuff, but I'm sure that the most they did was to send scary looking letters from their legal council to sites publishing the key.

 

[obonicus]

They might huff and puff, sure. SEGA did the same to EA, but ultimately realized they wouldn't succeed in court.

Things aren't the same as they were in the late 80s/early 90s. For instance, there was no DMCA.

 

[I.S.T.]

The rest of your post is pretty interesting and I agree with a lot, however here's this:



That isn't completely true nowadays. As customers start to go for safe purchases more and more, it's becoming quite easy to predict that the next AC, COD, Halo, UC are all going to become hits. Publishers also realize this trend and are focusing more and more of their resources on these 'safe' titles, further justifying the customer behavior.

On the other hand the lesser known titles and new IPs are becoming more and more risky and that is where most of the cost cutting probably happens. We've started to hear about more and more canceled projects, the most interesting is ShootMyMonkey's comment about how the new Tomb Raider is basically a new skin for a previous no-name project.

When/where did he say that?

 

[Laa-Yosh]

In the new game's topic as I recall

 

[patsu]

One really bizarre thing I noticed when looking at the comments on the recently released CFW for PS3 is some people admitting they pirate anything they can and hate DRM but hoping Sony puts some kind of DRM, ownership validation, or other intrusive protection scheme in order to protect their beloved console.

I swear, sometimes reading comments from console fans is like watching brainwashed cult followers.

Seeing stuff like that I can imagine diehard Playstation fans that pirate music, video, and PC games will avoid pirating on PS3.

Nah…. it's just that they have been trained for decades in the closed box console mindset. And perhaps afraid that their favorite franchises will go away. We may have renewed interests in software-based DRM because of this incident. Under this new open world, may be I should go influence someone to create my WebKit browser and Internet Home project.

A custom FW can boot straight into Linux, or any other OS, bypassing XMB/GameOS altogether and turning PS3 into a basic Linux box. A serious homebrew effort could create a new PS3 specific OS. How's about porting AmigaDOS?! TBH I'd like to see that. It's not piracy related, although homebrew apps that don't pay Sony would be cheeky and bad for the platform. But if we could get a new Amiga with suitable, innovative productivity software like we used to get, I'd be in favour. This is where I wanted Sony to go wtih OtherOS, but they didn't follow up that business opportunity.

Linux and OtherOS is fine and all, but I hate to dual boot.

 

[aaronspink]

Things aren't the same as they were in the late 80s/early 90s. For instance, there was no DMCA.

But DMCA is largely toothless in these cases.

 

[Shifty Geezer]

It never was, pubs base their marketing budgets on sales expectations, so you end up with circular dependency, and the usual - low-risk = low(but relatively consistent)-rewards mantra applies...

If that's all true, why do 70% of games fail to even break even? The business model regards software has always been cast a net wide to get lots of empty catches but a few monster fish. If publishers actually new before a game was produced whether it'd flop or not, surely they wouldn't invest in it and wouldn't have years of negative earnings?

Linux and OtherOS is fine and all, but I hate to dual boot.

If it were me, I'd provide an icon to switch into either mode in both modes, and the option to select which OS to boot into. While I'm gaming, I'd have it boot into XMB and use an icon to change to AmigaDOS when I wanted, and when I'm more working on some project, would select to boot into amigaDOS initially with an icon to launch XMB when I want to game. Although I suppose that sort of feature leads to hacks.

 

[ERP]

If that's all true, why do 70% of games fail to even break even? The business model regards software has always been cast a net wide to get lots of empty catches but a few monster fish. If publishers actually new before a game was produced whether it'd flop or not, surely they wouldn't invest in it and wouldn't have years of negative earnings?

Faf's right, but the estimates aren't very accurate.
It usually turns into a game, producers trying to convince sales people that feature x adds y units and therefore should increase the budget by z dollars.
In high profile titles it can get really out of hand, leading to massive flops.
In low profile titles, it can lead to minimal investment, and an I told you so mentality when no one buys it.
It's been true since the late 80's if sales and marketing don't buy into a game, you may as well not bother, sales projections are self fulfilling to a large extent.

 

[Shifty Geezer]

Oh, l okay, I see what you're saying. There are internal equations that do try and attach dollar figure ROIs on features, and as such, there can be dollar-figure choices punched into such an equation given piracy appearing on a console. I suppose that makes sense, given those who control the purse strings can't think in any other way than numbers, and have to base all decisions on number crunching!

 

[Squilliam]

As long as they didn't use any Sony IP(copyrights, trademarks, patents, trade secrets) that they didn't already have a license for or weren't covered under fair use (aka "works on playstation 3"), then yes. In fact anyone could do it for any of the consoles.

The issue is it is pretty hard to do that without knowledge of the hardware, using middleware, etc. They would probably have to firewall a team which would only be able to utilize publicly available information and likely no third party or internally developed middleware.

However, to make money from the consoles, the console companies lock out developers using copyright laws that mean the console company's IP rights have to be respected when producing software, such as having to use Sony codes and encoding software, or documentation of essential systems covered by NDAs. Sony only agree to allow use of their IP for a fee, which is where the current model exists. The moment someone doesn't need to use Sony IP to create software, such as being able to sign their own code, they no longer have to pay Sony anything to publish to PS3. Sony have no software rights whatsoever regard what is run on a PS3. They only have control of what gets published through their mechanisms. It is quite possible and legitimate for an indie store to appear selling XMB apps as long as they aren't infringing Sony's software IP rights.

The other big question aside from how much piracy is going to happen is whether or not the game industry will take advantage of the leaked keys as well. Given their biggest cost in releasing games next to actually developing them is the right to develop the games in the first place there will have to have been some very interesting discussions at the various publishing houses as to the implications of this. It is bad enough if Sony needs EA as much as EA needs Sony, however this changes the relationship between the two of them. Worse still is if all the big publishers follow suit, Sony can't blackball all of them in the future for looking after their own best interests especially as all major publishers have had problems in this cycle of consoles returning a decent profit for their investment.

As an example EA for instance may be able to bypass PSN entirely and hook into their own servers directly. They already have the servers but now they even implement cross platform play between PC and PS3 or even cross console play. It is in their best interests to cross the divide between consoles, it is in Sony's current best interests to keep them apart. Beyond PSN, what if they bypass PSN store? They could sell content directly sans the 30% fee or any other content restrictions. They could distribute game demos, trailers or whatever they want without Sony's explicit say so right?

The same applies to the other publishers as well. They may have to jump through some hoops to take advantage of a now open console at first but the rewards may offer enough incentive for them to do so. So what can Sony do about it? Would they be forced to offer concessions on PSN, royalties, restrictions in order to keep the publishers happy and keep the status quo?

 

[Laa-Yosh]

PS3 is short term, especially after the security is compromised - I think we all agree PS4 will come as soon as possible - and the publishers' partnership with Sony is for the long term. I don't think any of them would want to ruin future cooperation for short term profits.

 

[Rotmm]

...I think we all agree PS4 will come as soon as possible...

Erm.... why do you think we all agree, and why do you think it will come as soon as possible?

Why is there:

(a) the assumption that all 45+ million PS3's out there at the moment will automatically become pirate PS3's, and not just (as is far, far more likely the case) a small minority of them? And

(b) publishers are going to be happier selling to a year one PS4 install base of say 8m, more than an install base by 2012 of say 60m PS3's?

So no, I don't think Sony are going to pull forward the release of the PS4 (unless all current PS3 owners DO become overnight pirates). I mean, they may have it on the slate for 2012 anyway, but if it's currently 2014 then I think they're still aiming for 2014. Also, as publishers are only now really in a position where they are comfortable with the financial returns on the current consoles, I'm pretty sure the later the next gen comes, the better.

Did MS rush a 720 to market when they discovered that most 360's had the ability to play pirated software? Is the WiiHD a reality because of the same thing for Nintendo?

Of course not. So why should Sony play it any differently. The concept is about as realistic as expecting Sony to recall all current PS3's.

 

[Squilliam]

Erm.... why do you think we all agree, and why do you think it will come as soon as possible?

Why is there:

(a) the assumption that all 45+ million PS3's out there at the moment will automatically become pirate PS3's, and not just (as is far, far more likely the case) a small minority of them?

Its because about 8.5M est live in areas where piracy exceeds 50% on other systems. Thats Eastern Europe, Iberia, Middle East etc along with South America, and various other asian nations.

 

[Trejser]

Erm.... why do you think we all agree, and why do you think it will come as soon as possible?

Why is there:

(a) the assumption that all 45+ million PS3's out there at the moment will automatically become pirate PS3's, and not just (as is far, far more likely the case) a small minority of them? And

(b) publishers are going to be happier selling to a year one PS4 install base of say 8m, more than an install base by 2012 of say 60m PS3's?

So no, I don't think Sony are going to pull forward the release of the PS4 (unless all current PS3 owners DO become overnight pirates). I mean, they may have it on the slate for 2012 anyway, but if it's currently 2014 then I think they're still aiming for 2014. Also, as publishers are only now really in a position where they are comfortable with the financial returns on the current consoles, I'm pretty sure the later the next gen comes, the better.

Did MS rush a 720 to market when they discovered that most 360's had the ability to play pirated software? Is the WiiHD a reality because of the same thing for Nintendo?

Of course not. So why should Sony play it any differently. The concept is about as realistic as expecting Sony to recall all current PS3's.

Exactly. They probably will release new hardware revision in ~6 months with something special like more usb ports, PS2 BC etc.

I think no one right now wants new consoles next year - maybe except Nintendo, but MS have Kinect, Sony 3D, Move and they are finally are making money on PS3 units. Publishers don't want bigger budgets for Next-gen games etc. Rushed PS4 is not going to happen IMO