Interview with K.Karg (of the IDSA)... (12/14/98)

Peace's Response

<EliteGamer>First I would like to thank you for your time, and please explain who you are, and what you do at the IDSA. (for those that don't know what the IDSA is). It is also important to note, if you are not a regular reader of my page, (which I am guessing you are not [and hoping ;>]) that the majority of these questions come from the public. Meaning this is what the real public is wanting to know, not just EliteGamer.
<IDSA>My name is Kathlene Karg and I am the Director of Intellectual Property and Public Policy for the Interactive Digital Software Association (IDSA). My daily responsibilities include the development and operation of the IDSA's anti-piracy programs domestically, internationally and in the online environment. Our piracy program includes policy work (things like legislation and regulatory changes), education and training (of the public in general as well as law enforcement personnel) and enforcement (including preparation of criminal cases and taking civil cases).

Formed in April 1994, the Interactive Digital Software Association (IDSA) is the only U.S. trade association exclusively dedicated to serving the business and public affairs interests of companies that publish video and computer games for video game consoles (such as Nintendo 64, Sega Saturn, and Sony PlayStation), personal computers, and the Internet. Our members collectively account for more than 85 percent of the $5.1 billion in entertainment software sold in the U.S. in 1997, and billions more in export sales of U.S.-made entertainment software. More information on the IDSA and a list of our member companies can be found at www.idsa.com.

As a trade association, we are totally funded by our members and the industry-at-large; we are a private sector organization, independent of the U.S. government, although we work closely with them on piracy issues.

<CyberWarriorX>"exclusively dedicated to serving business and public affairs interests of companies, etc, etc." - I understand that they are there to protect against copying software of their members, but their problem is that they don't listen enough to the public's opinion, let alone realizing that not all games that are pirated would've been bought in the first-place. I've tend to have found that it's usually people who don't have a whole lot of money that don't buy software.

<ManBeast> My main statement in all this is that I can't refute these claims made by the IDSA. I wish that companies would wake up and realize the love that retrogamers have for these old games and that they are merely taking away these old games to rot away. Sure some company may own the right to a game but what if that game no longer exists to own anymore? I wish companies had as much respect for their creations as gamers do.

¥ - (re:CyberWarriorX) Correct it doesn't.... overall though, it doesn't matter, it is still theft... if you steal a penny from a bank, it is still theft....

<EliteGamer>I should probably state, I agree with what the IDSA is doing [mostly]... Obviously if I was creating software, that had the chance to generate profit, I would want someone protecting my best interest. I have also read your FAQ about how an older game can still generate profits (such as the sale of Atari games library to Hasbro Interactive. Does the distribution of Pitfall for the Atari really hurt the sales of Pitfall 3D for the Playstation? It seems that it would generate more interest, than to hurt the sales.
<IDSA>One issue that we have dealt with a lot in the past year is the issue of unauthorized "classic" games being made available on the Internet. Many gamers have told me that they feel that if a game is not commercially available, then no one is being hurt. This is absolutely false. It is up to the rightsholder (usually the publisher) to decide how to market their games. Some may decide to release older versions of these games for public use on the Web -- but that is their decision to make. Providing versions of these games -- for sale or for free -- without getting permission first makes your actions illegal. The bottom line is that harm is not the only issue here -- distributing and copying ROMs without permission is breaking the law.

<CyberWarriorX>What a bunch of BS. People don't buy "remakes" or re-releases of games because it has all it's old, original things. They buy it because it has something better to offer the gamer. If a person obtains a ROM, this doesn't mean they won't buy the commercial game. In some cases, it might even be good advertisement for the game. I know even with myself, I only got into the Final Fantasy Series because I first played the FF3 rom. Then, of course, I bought FF7, and the original Final Fantasy. (for nes) I've also done this with alot of other games I didn't know existed.

¥ - Again, I agree with the IDSA in this point... if we want to make some real headway... we should put together a list of companies that made old games that we would like to own legally.... and convince the companies to sell the roms for cheap, or allow us to play them for free.. if that doesn't work... we could start a community pool of money, and buy games from the companies... I mean buy the actual rights, and then release them to public domain...

<EliteGamer>It is known that you cannot eliminate all piracy, it is to big, you even say so on your site. What is the approximation of dollars recovered (or kept from being lost) by the IDSA, due to it's efforts to stop piracy?
<IDSA>Let me start by discussing a bit the size of the industry. The U.S. industry generated over $16 billion last year in terms of economic impact for the U.S. and it continues to grow faster than any other sector of the entertainment industries -- movies, music, books. Piracy is the downside of all this remarkable growth. Piracy that occurs today depletes what the industry is able to invest in terms of research and development of future games. So, although the industry is growing quickly, piracy could mean that there are fewer good choices in the future.

Software illegally manufactured in 55 countries during 1997 robbed our industry of more than $3.4 billion -- that equates to more than 1600 new games that could have been developed if pirates had not stolen that money from the industry. Internet piracy is growing at an alarming rate and it is something that the IDSA is actively and aggressively attacking.

<CyberWarriorX> - I very much doubt that. Piracy may be a problem, but if anything will cause any companies to go bankrupt it will be from over-releasing their games. Unfortunately, too many companies try to get as many products out to the market as fast as they can, hoping that one will hit big. Of course, with such a big selection of games in the market, the gamer doesn't know what exactly to buy. I hope the IDSA remembers the big crash of the Video Game market in the US back in the late 70's.

¥ - To add a bit of humor to this one... if piracy caused 1600 new games from coming out last year... we aren't doing good enough... we need to make that number much higher.. that way the market won't be flooded with crappy games, I would rather have a LIMITED selection of GREAT games, than a bunch of crappy ones to wade through... :>

<EliteGamer>I have looked at the list of members in the IDSA, (Nintendo, Sega, and Sony to name a few) does a company need to join the IDSA, in order to be protected (piracy wise) by it? (I know you offer several other benefits to members only, this is only in regards to the anti-piracy issue).
<IDSA>Let me broaden the perspective a bit. When the IDSA takes actions against pirates, we publicize those actions to deter other pirates from their illegal activities and to better inform consumers about how piracy affects the amount of games they have to choose from, as well as the price of those games that are available. This, we hope, is a benefit for all that are in this industry, not just our members. Similarly, everything that we are doing on the policy side of the piracy program -- including work on the domain name issue, internet taxation and trade-related issues -- benefits the whole industry. However, it is true that in choosing which sites to target for enforcement actions, our members are very involved in the selection process and we only target sites that carry our members' products or sites that violate the rights of our members.

¥ - Basically this says... Any company that isn't a member of the IDSA isn't DIRECTLY protected by the IDSA.. meaning your site won't get taken down [by the IDSA] if you have SNK (NEOGEO) roms.. because they aren't a member... for anyone interested in that... [http://www.idsa.com/members/index.html]

<EliteGamer>In your FAQ, you mention that "Worldwide piracy is estimated to have cost the U.S. entertainment software industry $3.2 billion in 1997." Is that the amount of pirated games/software? or is that the amount that it actually cost them? (in other words, some people that "steal" software wouldn't buy it in the first place, and technically, they are not costing the company anything) I guess what am I asking is, is that the amount of software illegally copied? or is that number even higher?
<IDSA>Let me explain a bit about the loss numbers that we generate. Those numbers account for the pirated PC and video game software manufactured in 55 countries, which does not include some major markets, such as the U.S. and the EU. It also does not include the massive amount of illegal software being distributed in the online environment.

I believe that the $3.2 billion dollar number is actually lower than the real dollar impact. For instance, it does not include the lost tax revenues that result because pirates do not collect sales tax nor pay import/export duties. It does not account for the fact that there are a lot of "compilation" CDs out there which contain more than one software program on a single disc. We count that as one lost sale, not a lost sale for each software program on the disc. Also, these numbers focus on commercial manufacturing -- cartridges and silver CDs -- it does not take into account the growing problem of recordable CDs.

The issue of should every pirated copy of a software program be counted as a loss to the company is something that needs to be addressed. The argument from the pirate community seems to be that people who bought a pirated copy of a game may not have bought the real version of the game. This is a flawed analogy. The fact of whether they would have bought that software program or not is immaterial -- they stole it. The crime of stealing software is in no way less illegal if the pirate had no intention of ever buying a legal version of the product.

<CyberWarriorX> I hear a conflicting story here. First they make it sound like a money-issue, now they make it a moral issue? Which is it? I'd personally like to know.

<ManBeast> This number is only relevant to current software and not too ROMs, this $3.2 billion is only attributable to warez and not to emulation. Since these titles are no longer being sold then there is no money lost and it is diffucult to say if any money would ever be made.

¥ - ...

<EliteGamer>Also in your FAQ "In other words, emulator/ROM piracy is affecting games that are still on the market." As far as emulators go, what is the legal standpoint, if the emulator only plays original CDs/ROMs? (meaning the ROMs/CDs still have to be bought like normal).
<IDSA>Regarding your next question (on the use of emulators), I am not sure that I understand your question but let me take a crack at it and then you can let me know if I answered your question. Emulators are used to play software from one platform on a different platform -- for example, to take an old Atari console game and then play it on a Windows 95 platform. This type of use is illegal because you are creating a derivative work -- a work that is slightly different from the original. The copyright owner is the only one who is allowed to authorize the creation of derivative works. Thus, without first getting permission from the copyright owner, use of an emulator to play software on a different platform is illegal, whether you are running a legitimately purchased piece of software or not.

ROMS are illegal derivative works if they are made without permission of the copyright owner. Emulators are not illegal IF they only play ROMs that have been authorized by the copyright owner as playable with emulation. However, if the primary purpose of the emulator is to play ROMS on a medium or platform different than that which the ROM was originally designed for, then the emulator itself may be illegal.

<CyberWarriorX> That is seriously unfair. So if little Johny here doesn't have enough money to invest in all this extra equipment just to play a PSX game, he's totally out of luck? He can't even buy some of the games he enjoyed playing at a friend's place? No.... I seriously think some of these "laws" need to be changed. This is starting to get ludicrous.

<Anon>You want to make a cake, so you buy some sugar. You then decide to make a pie instead, but you still want to use the sugar. If the IDSA had their way, you couldn't use the "cake" sugar for the "pie". If you want to throw out the sugar, that's your choice. If you want to burn the sugar, that's your choiec. If you want to make a cake, or a pie, or anything else, that's your choice. You bought it. You own it. With a game, it's similar... You don't OWN the intellectual rights to it, but you DO own the physical property rights. You OWN that physical plastic. You can stick it in a microwave and melt it if you'd like. But you can also choose to put it into your PC. There's really no difference in the two acts. The key is that you OWN something... That's why you bought it. The argument that you don't own the copyright to it, is perfectly valid. That's why you can't copy it and give it out to your friends. You only own your PHYSICAL copy of the game that you bought, not the IP rights or the copyrights to it. If you chose to paint onto the CD and put it into a different colored box and then SELL it, *that*'s called a derivative work. Because you're DERIVING something frmo the original. The exception is when you're simply transferring the rights of ownership of your ONE copy... That's perfectly legal. But, you're well within your rights to go out and buy 10 copies of the CD, paint all 10 of them, and then sell them. Because you BOUGHT all 10 in the first place. But you can't buy ONE, and then sell 10. You've only bought ONE. That's the issue with ROMs and WAREZ. And to claim that transferring a ROM to a disk file is a derivative work, is simply preposterous.

¥ - You can kind of see this in a DOS/WIN3.1/WIN95/WIN98 Perspective.... games that were produced for DOS... they are saying it is illegal to take that and play it in Windows98... because it is a different platform than the creator of the game wanted it to be played on... NOW... lately "dos" games say Dos/Win95/Win98.... but I am sure there were games at one time that said only "DOS".... now this isn't exactly right... they aren't saying that is illegal.. but by explaining it this way, that is the basic gist of it... it also says that Windos Programs can't be used on OS/2.... also to be seen in the Mac/Win pc's... the macs that will use windows programs... now... Microsoft allows MAC to use whatever they need to support windows... BUT in this explination, if the person that makes the individual program doesn't say it is ok, you can't use it on Mac's emualted "windows"...

<EliteGamer>And still in that same area, recently people have told me that copiers are illegal... things that allow the copying of n64 games, or other console games. Is this true, and did the IDSA help get that legislation passed?
<IDSA>Copiers such as Mr. Backup and Doctor 64, as well as mod chips used on the Playstation, are illegal because their primary purpose is to circumvent the security programs that publishers put on the software to protect those programs from being copied. So, while copying the cartridges or CDs has always been illegal, now the acts of manufacturing, importing, exporting, selling or owning these devices is also illegal.

The IDSA did lobby actively for passage of the Digital Millenium Copyright Act, which makes illegal any device that is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner. The DMCA, which is now public law, thus does outlaw, among other things, devices that are primarily designed to defeat copy protection measures.

<CyberWarriorX> I do agree with the IDSA on this. Console Copiers are illegal, and should be. The pure design of a copier is to dump games you currently don't own.

¥ - I talked to CyberWarriorX about this... this is kind of like a CDR.... I own a CDR... I backup software that I own... and I also archive thigns I download from the net... (Zelda AVI's, Soud Bytes, etc)... now... CDR's are not MADE to primarly copy registered software... but what are the primarily used for by most people? I doubt the majority of the people use theirs like me.. I know most people are prolly copying programs for their friends etc... but the CDR isn't illegal... z64/v64 (etc) aren't made primarly to steal software.. in fact, to buy a z64, you have to agree that you won't... now, some people are still doing it.. and maybe even most (like with CDRs)... BUT that shouldn't make it illegal... just because SOME or MOST people use a product for illega activities doesn't mean it should be outlawed all together... instead people like the IDSA should work with them, to ensure it meets government guidelines... (more on this in a bit)...

<EliteGamer>If copiers are now illegal to produce and sell... how is the public to exercise their "right to make backup copies of computer programs [and video games] for archival purposes, as embodied in 17 U.S.C. Section 117(2)" (copy from your FAQ) if the right to buy the equipment is now illegal?
<IDSA>The DMCA in no way interferes with rights given under Section 117 of the U.S. Copyright Act. The DMCA does not prohibit anyone from making a backup copy of a computer program for archival purposes. Nor does the DMCA prohibit devices that enable the making of such back up copies, as long as those devices are not primarily designed or produced to circumvent copy protection measures. Section 117 does not give anyone a right to produce a device primarily designed to circumvent copy protections.

<NAZ> you are allow to make an archival back up.. by law. But if the unit has a copy protection, u can't... that doesn't make sense

<Anon> This is flawed. IT simply hasn't been tested yet in court.. But it WILL fail... The simple fact is that the game manufacturers take steps to PREVENT the AUTHORIZED and LEGAL archival of a user's physically owned property. These devices provide the users of the software with a legitimate method to achieve the right which is granted to them by law.

¥ - Both of these people have hit it head on... if the z64/v64 is illegal, because it defeats copy protect... but we are allowed to copy our games (for archiving).... but Nintendo copy protects the games... which makes it impossible to copy them, and still play them because the machine to do that will always be illegal... So it seems to me... that someone could easily SUE nintendo for infringing on your right to make working backups of your legally owned Nintendo Software.... It's just an idea.. :>

<EliteGamer>Does this right also include video games (along with computer games)?
<IDSA>Yes.

<EliteGamer>What would a backup unit have to have, to be considered legal? in other words, a n64 cart goes bad... you had a v64 and backed it up... now you can still play it... you have protected your investment... but because someone decided the v64 was "...primarily designed or produced to circumvent copy protection measures." it is "illegal" to protect their invesment?
<IDSA>No, it's not illegal to protect your investment so long as you do not use an illegal device to make the copy.

<EliteGamer>Also along with that, are there any backup units that are designed as of now (v64, z64, etc) that are LEGAL, because they are not "...primarily designed or produced to circumvent copy protection measures."?
<IDSA>Not that I am aware of.

¥ - So it's legal to back it up... but not with an illegal unit... but all units are illegal because they bypass copy protects.. which have been put in place to keep you from acomplishing your legal given rights... makes PERFECT sence ;>

<EliteGamer>Are there any known companies that have waived the rights to their old games, and don't mind them being distributed?
<IDSA>Companies give permission to individuals to use older software without entering the usual licensing scenario. However, that decision is up to the company and is evaluated on a case by case basis. I am not aware of any company which has unilaterally decided not to retain ownership and control of their rights. Since many of these "classic" games are being reborn on new platforms and for a whole new generation of gamers, it is logical that most companies want to keep tight controls on their investments.

¥ - Again.. I think there is a good idea here.. we need to get together.. and find some companies that will sell off some of their old roms to us.. or donate them to the public domain... or actually sell the rights to us...

<EliteGamer>One of the big questions for people is, they have downloaded an emulator, they have downloaded a ROM that they legally own a cart to (even though the ROM didn't come from their cart perhaps) and they play it on their laptop, or whatever. What kind of trouble can they get in (if any)? or is the IDSA only after people distributing the ROMs, and selling the ROMs, etc.
<IDSA>People who download software, whether they legally own the game or not, are illegally making a copy of that software and are thus breaking the law. Let me answer your question with an often used analogy -- speeding. You are traveling down the highway where the speed limit is 55 m.p.h. but you are going 60. You get pulled over by the police, who give you a ticket. Despite your protests that everyone around you was going 60 m.p.h., you still have to pay a fine for breaking the law. Same thing with downloads. You are breaking the law and if you are caught, you will be charged with committing a crime. Infringing a copyright has a remedy of up to $100,000; trademark violations, $250,000. With each download you are, at a minimum, going to be found for one copyright and one trademark violation.

More importantly, as a group of hard-core gamers who eagerly await the latest software releases, you must realize that illegal copying and distributing software hurts the industry as a whole, as well as individual developers and publishers. In order to protect the industry's infrastructure, creators of software need to be rewarded for their efforts, or else who will be there to create the next generation of software?

<CyberWarriorX> Another law that should be changed. If you legally own an original copy, that shouldn't prohibit you from playing a "copy". Also, i'm not sure how this is in the states(or other countries for that matter), but in Canada, if you did do 120 km/h in a 100 km/h zone, and got a ticket, you could easily go and defeat it in court. Bah... I also don't think it hurts the industry as much as they think. They should really get their head out of the water and breath the clean air for once. They're full biased opinions and wrong assumptions. Not once in this interview, did the IDSA representative mention any sort of compremisation. Only this "down to anyone who's ever copied a game in their life! Even if it's a backup copy". That kind of attitude will never help their cause, nor will it ever bring some peace between Companies and Software-pirates. This is my last pet-peeve of day -> Which shrink did they have this woman programmed by? I mean, she sounds like she's either some sort of robot, reads a book full of every US law and regulation before she goes to bed every night, or else, has somebody dictating the laws or something of the kind.

<NAZ> Infringing a copyright has a remedy of up to $100,000; trademark violations, $250,000... $350,000 for owning your backup SMB from NES... wow that's cheap.. Is that the ISDA sale price? and if i back-up roms, that's illegal.. even if i own the boards? ... when i read roms they got to the pc to be reburn back to chips... so that is illegal? ... thats messed up. The law is too vague. it doesn't cover certain things, and anything pretty much not covered is considered illegal.

¥ - I know some people who could easily be in the 1 billion dollar mark... I myself have offloaded all my roms.. I don't play them anyway.. I used to collect them... but I have been so busy with bleem, the page, family and such.. there is no reason for me to keep them, and with the public attention I get :>... I am not saying anyone else should do that... if you play em.. keep playing them.. it is unlikely they will concentrate on busting one person, unless they run out of sites and illegal sales to bust.. which is very unlikely...

<EliteGamer>People in emulation, seem to hate the IDSA, many think you should attack "warez" more than emulation... I am sure you are working on the piracy of PC games too, can you tell us what the IDSA spends the majority of its resources on? (such as 50/50% warez/emulation - or some other sort of breakdown)
<IDSA>The IDSA's online piracy program works on all different types of pirate sites -- warez and games, emulation and ROMs, download and linking sites, and others.  We mainly investigate sites that are sent to us through the anonymous leads page (from our Website), sent to us by our members or found by our own investigators.  There is no exact percentage of which sites we focus on and it changes weekly so I cannot give you any sort of breakdown or stats.

I appreciate the opportunity to discuss with you these important issues and I hope that my response answers your questions. To the extent that you have other questions, or would like to see additional comments, please let me know. For readers who are concerned by piracy, both online as well as in the traditional distribution chain, we have developed a page on our Web site which allows people to provide (anonymously if they wish) information on illegal software sites and distribution. We encourage your readers and everyone who cares about the future of this industry to use this page to report those that are stealing software.

¥ - Well overall.. it is long... they didn't really answer a lot of questions as STRAIGHT as I would have hoped.. and they have good points.. mainly "stealing is stealing".... but a couple other ones hidden in there too :> overall... nothing is going to be done to stop the IDSA... they are making money off the companies.. and the companies would do it themselves if the IDSA didn't do it... (or someone else would).... I still don't see RETROGAMING HURTING companies.. playing Frogger (atari) doesn't affect the sales of Frogger3d... BUT that doesn't make it right... anyways... hope you had as much fun as I did :>

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