More piracy bullshit? Whodathunkit?

Gaming sites everywhere are reporting the story of an Australian man who’s just been ordered by a court to pay poor Nintendo AU$1.5m – about £845,000 – for pirating New Super Mario Bros Wii. (By uploading it, that is. He actually paid for his own copy, and the version he uploaded wouldn’t run without being modified by hackers. His motivation for uploading it was in fact just to prove he’d been sold it by the shop before the official release date and brag about having it early.)

The figure has supposedly been arrived at by calculating that the perpetrator’s uploading of the game cost Nintendo 30,000 lost sales, presumably at a cost of AU$50 each. (NSMBW’s sales, incidentally, were 10.5m copies worldwide in its first two months, with over 200,00 of those in Australia – a record for the territory.) It’s being widely implied – or even stated outright – that this is a court judgement. But guess what? As usual, it’s a load of bullshit.

An actual Australian news site offers a bit more detail on the story. The alleged criminal is in fact a 24-year-old Electronics Boutique employee (or part-time freight worker, depending which reports you believe) who still lives with his parents. Unless EB pays its staff an awful lot better than the average High Street retail chain, it’s pretty unlikely that he’s earned $1.5m while working for them since the age of 18. So why would a judge fine him such an obviously ludicrous sum, and one based on a plucked-from-the-air figure backed up by no kind of evidence of any sort?

Well, clearly they wouldn’t. And they haven’t, because this outlandish and spurious sum is in fact an out-of-court settlement between Nintendo and the accused. The only sense in which the payment is “court-ordered” is that obviously, when a defendant and plaintiff reach an out-of-court settlement, the court tells them to abide by it as the formal means of closing the case.

But hang on. Why would a 24-year-old shop assistant accept an out-of-court settlement for such an absurd sum, that he has no chance whatsoever of paying even if he works until he’s 100? What would he have to lose by taking the case all the way? Well, it’s pretty obvious. By avoiding a legal judgement on the case, the accused avoids any prospect of a jail sentence, and also doesn’t risk jail for defaulting on the “fine”, since it’s not actually a fine.

Nintendo, meanwhile, gets a terrifying headline with which it can attempt to intimidate other would-be pirates, because it’ll be repeated without question by useless pretend journalists everywhere (or even embellished with added idiot wrongness, as in the Nintendolife link above) and everyone will assume you can really be fined life-destroying amounts of money, based on completely made-up evidence, for what in the greater scheme of things is an absurdly trivial crime.

What Nintendo CAN’T afford is for the case to proceed to hearing and judgement, because then (a) they’d have to come up with some sort of evidence to prove these 30,000 lost sales (something which is empirically impossible, wildly illogical and almost certainly a staggeringly wild exaggeration), and (b) they’d run the risk of the defendant being convicted but fined a realistic and modest sum, which would be a huge embarrassment and a blow to the content industry’s expensive campaign to portray piracy as both the ultimate in human evil and more dangerous than buying heroin off a vampire werewolf.

Here’s WoSblog’s view: Nintendo will never receive a penny from this alleged criminal. He doesn’t have it, and what he does have it’d cost them more to have their lawyers pursue him for. I’m betting that this “settlement” quietly agrees that he pays them nothing, but keeps quiet about it. For the flood of free and apocalyptic anti-piracy propaganda the story will generate, Nintendo would be getting a bargain, and Mr Burt will get off with a bit of tarring-and-feathering in the press rather than taking his chances in the increasingly draconian climate of IP law. Everybody wins, except us poor dumb schmucks hoping for decent news reporting.

20 Responses to “More piracy bullshit? Whodathunkit?”

  1. Wait a second?

    You can pirate Wii games? Awesome, I didn’t even know that. This big news story over all the news websites has informed me of that. Almost as if without Nintendo taking this action, piracy might have had a lower profile!

    To google!

  2. Name required Says:

    “presumably at a cost of AU$50 each”

    $100 AUD, actually.

  3. Blimey. So, what, they let him off with an assumed pirate-copies-to-real-sales conversion rate of 50%? Those soft-hearted cuddlebunnies.

  4. Wow.

    Do you really believe he was only uploading a rip of the game to prove that he bought it early? I’m pretty sure the online photos and scanned receipt were enough proof…

    Do you really believe that Nintendo doesn’t have enough proof to push for conviction and jail time, and that settlement details are being intentionally lied about so as to create headlines? Spend 15 minutes online doing some research (hint for the lazy and stupid out there: you can probably start at gbatemp.net unless the articles have been removed already to protect the site from litigation) and you’ll know that isn’t true.

    I’d make a comment about “useless pretend journalists”… but since this is a blog and not a news site I’ll have to stick to “ignorant self-deluded fools”. People who find themselves nodding in agreement when reading this blog (and probably disagreeing with my comment here) need to take their heads out of their asses and look around once in a while.

  5. “Do you really believe that Nintendo doesn’t have enough proof to push for conviction and jail time”

    Yes, of course they had enough proof. He obviously did what he was accused of doing, namely upload the file. What does that have to do with anything in the article?

  6. This has to be the dumbest article in the world.

    He only uploaded the game to brag about buying first? That’s ridiculous. There is no way he would spend that much time uploading it just to prove he owned it when he could’ve just made a video of him playing it.

    And Nintendo proving their losses is not all that difficult. Find out the number of times it was downloaded… I know some people bought AND downloaded the game so I don’t know if there is a way to prove that. Still, this guy did something CLEARLY illegal and he’s being intimated and made an example of by the company.

    Boo fucking hoo. I hope he has to pay some of that fine for being a retard.

  7. Um, uploading something to an FTP takes about five seconds. (In terms of what you have to be present for – the actual upload takes a while, but you don’t have to be there while it does it. You can go for a walk or do some shopping or cure cancer.) Making a video of yourself playing a game is MUCH more complicated and time-consuming. It took me the best part of 45 minutes of irritating and fiddly effort to make a 38-second video clip of something playing on my TV this morning for the PSN story, and it wasn’t very good even then.

    There is NO way to prove how many downloads resulted in lost sales, particularly since the file he uploaded DIDN’T WORK. And nobody anywhere has said he didn’t do anything illegal.

    In conclusion, then, you don’t have a clue what you’re talking about.

  8. well i guess that shits subjective, because it took me all of 5 minutes to record and upload to youtube, a 1 minute video of me playing a game.

    and yea, there are these things called trackers, thats how you can tell how many downloads resulted in lost sales, you look at the feed, if gives you a number of times downloaded, then you take the number of sales, do some math (i dont know the formula) , the resulting number gives you a mean, which is able to determine an approximate number of sales lost, the game’s sales can be plotted to a trend, and compared with the tracker history, which will give you a percentage

    lets say the result ends up as 1 in 300 people have pirated copies instead of real copies (keep in mind this is the mean, it leaves out a good chunk of people), that doesnt seem like much, but it means that nintendo looses over 33 THOUSAND sales

    maybe its because you run a wordpress blog, but 33 thousand sales is a BIG ASS DEAL to those of us who rely on product sales to keep our homes.

    (also, the copy was cracked less than a week afterwards, pirates get the game, crack it, and distribute the crack)

  9. Sorry, where is all this bullshit maths coming from?

    1. Where did you find the number of copies downloaded from this particular upload?

    2. How many of the people downloading it had the technical know-how to turn it into a runnable file?

    3. What evidence brought you to the figure of 1 in 300? (Rhetorical question, obviously – you pulled it out of your arse totally at random, since you admit to not knowing “the formula”.)

    4. Do you seriously imagine that 33,000 lost sales of NSMB, even if true, would make a bee’s bollock-hair of difference to Nintendo’s finances? That many sales would represent a gross profit to them of AT MOST £600,000 or so. This is a company that makes PROFITS of around £1bn a year. £600,000 is 0.06% of those profits. Oh no! Poor Nintendo might have to get by on only 99.94% of the money they ought to have!

    Now piss away off and come back when you can debate like a grown-up, or at least count past the number of fingers you’ve got.

  10. It looks like Kotaku.com rewrote this exact story almost, without linking to this one.
    http://kotaku.com/5468379/somethings-not-quite-right-about-nintendos-aussie-pirate

    I don’t know, that’s kind of odd to me.

  11. That IS rather naughty. This piece was quite widely circulated on the net on Tuesday and Wednesday (yesterday was WoSblog’s biggest-ever traffic day), including on Neogaf, and the Kotaku version makes the argument almost identically. It does look a lot like they’ve just nicked it and not bothered with any acknowledgement. Particularly as I noticed that someone had posted a link to this page earlier this morning (was it you?) and their comment has now been deleted.

  12. WillyBlanko Says:

    No, I was the one who posted the comments. The original one with the link is still deleted, but wierdly my one complaining about it being deleted is visible now.

  13. I dropped the author of the Kotaku story a line, and he says that he wrote it two days ago and it was held back to get the TV footage in. And it seems that their comments displaying system is just really bizarre – clicking “Show all discussions” now makes both your posts visible, though they certainly did seem to appear and disappear before. So it’s all worked out in the end, or something.

  14. The article is really good. I am now going to follow your blog. Sucks that Kotaku rewrote it and claimed it as their own. Kotaku isn’t held in high regard in many places, so I wouldn’t believe that “I wrote it two days ago” excuse.

  15. Oh! Also, even if they could account for every download actually resulting in someone playing the game, that does not mean they would have bought the game in the first place. Many people play illegally downloaded games because they are free and do not care as much about the quality. Some who download the game use it as a sort of rental, and would buy the game if they want to support it.

    And if it is just going by torrent downloads, you would not know how many actually completed the download.

  16. Hey Daniel,

    You say at the end of your post that “33 thousand sales is a BIG ASS DEAL to those of us who rely on product sales to keep our homes.” So I assume you work in the games industry?

    Cool job bro, what games have you worked on?

    Because I want to make damn sure I never buy a game that has been worked on by someone who can’t work out how to calculate a mean. Or do any kind of basic maths by the looks of things.

  17. althougyh i agree with stuart’s argument, uploading a wii game seems rather difficult to me, well not the uploading part but the “getting a workable iso from the wii game”, or is the Wii so cracked now anyone can do that?

  18. Rev: Where are all the spacks coming from? Which “gaming blog” linked to you?

  19. Geamandura Says:

    I just read a couple of your pieces on piracy and I love them. Glad someone linked to here from Eurogamer. Or maybe you did it yourself :D Either way, keep at it man!

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