HomeI managed to get the second edition of the now “neutered” NPD analysis up yesterday. Thanks to timely leaks, I was still able to get the sales figures for the three home based consoles. It was another good month for the Xbox 360, and a really really bad one for the Wii. The momentum in the this-gen format war has definitely shifted away from the Wii, and Nintendo would be wise to release the Wii 2 as soon as possible, but as I noted in the analysis, there may not be much Nintendo can do. I mean, if they come out with a more accurate Wii-mote, then that’s basically the Move. If they ditch the remote altogether, then that’s basically Kinect. And even if they add Blu-ray and HD, then they would only be doing catch up with the other consoles. The only thing in Nintendo’s favour is that they’re good at making family/casual games, so Wii Sports 2 will probably be better than anything Sony, Microsoft and their third party developers can come up with. But Nintendo are good at surprising the market, so I won’t rule them out yet, but it’s not looking great.
In the analysis, I also notice that Fallout New Vegas was the second best selling game (all platforms combined) for October. Just saying, like. The rest of this paragraph talks about FNV, so feel free to skip ahead (and I promise this will be the last time I talk about FNV in this edition of the WNR). I’ve also experienced my first serious glitch with FNV this week, in that I was not able to get Boone’s Bitter Springs mission to start, even after getting the quest and then travelling to the marked point in Bitter Springs. What happened was that I wanted to do the Bitter Springs quests first before starting Boone’s mission (as recommended, since it may be impossible to finish those quests after Boone’s quest), so I had him wait just outside the town while I did those quests. This somehow glitched the quest and it was not possible to proceed with the quest afterwards. I solved it by returning to an earlier save (this is a Bethesda game, so save often, and keep the save files, don’t overwrite them), travelling *with* Boone to the marked location to advance the quest (to go to “Coyote’s Tail Ridge”), and then left Boone somewhere safe so I can then proceeded to finish the Bitter Springs quests alone, before retrieving Boone again to finish his quest. FNV is great so far, but it’s not as well structured as Fallout 3, especially with the main storyline, but there’s so much more to do in this game (maybe even too much to do – I’m 30 hours in and still have barely discovered a third of all the locations). Still a highly recommended game though, especially for Fallout 3 fans. Anyway, I’ve now got the FNV stuff out of my system, so we can continue with the WNR.
Let’s start with the copyright news. We first start with porn downloads, and the lucrative business of suing the downloaders of the pirated versions.
The Chicago Tribune profiles the main man behind the lawsuits, Chicago lawyer John ‘Pirate Slayer’ Steel. Steel has portrayed himself as the saviour of the porn industry, but really, anybody can see it’s all about the money. And as I’ve mentioned before, suing for porn downloads has the added advantage of further embarrassment, which may force the alleged downloaders to pay up, even if they don’t really think they did it. And then there’s the issue of discrimination, as hinted by the EFF. For many who are not out in the open about their sexual preference, being identified in downloading non mainstream porn may be an extremely terrifying experience, and this kind of “legal blackmail” (not my term, but one that has been used before to describe these kinds of lawsuits) is not helpful, especially with the recent issues with sexual discrimination and bullying. Isn’t this a form of bullying as well, to threaten to make the private (even if illegal) activities of the accused public and demand payment to keep it quiet?
But all will happen is that people will stop BitTorrenting porn and get them via other sources that are not being monitored by these law firms, like the many “Tube” sites or Usenet. And how does this actually help the porn industry, exactly? Of course it won’t, but it will help people and firms like John Steel’s, and that’s what this is all about really.
John Steel's Law Firm in Chicago is heading the "porn lawsuits"
While porn lawsuits may be making big money for the law firms involved, suing bloggers for using only excerpts of newspaper articles may not be. It appears that Righthaven, the law firm leading these types of lawsuits, appears to be facing far too many obstacles in their attempt to make money. First of all, the people they go after are usually bloggers, writers, business people and usually people with opinions that are not easily suppressed via lawsuits, nor are the type that are easily embarrassed. So going after the likes of Democratic Underground (DU), probably the largest political forum for left-leaning Americans, was not really the best idea to begin with. And it appears Righthaven is now in retreat mode, and wants to drop the DU lawsuit if the other side agrees not to pursue legal costs, something that would make their mass lawsuits unprofitable. This comes after they already lost a lawsuit in which they tried to get a Las Vegas Realtor to pay up for using excerpts, a lawsuit they ended up losing. So it hasn’t been smooth sailing for Righthaven, and perhaps in time they’ll realise that it’s just not worth the trouble to sue bloggers, many of whom want nothing less than a full day in court, which would make great material for their blog, not to mention the publicity.
And while this suing for settlement thing is just getting started in the US, it may already be winding up in the UK, after their legal authority has started investigating these practices, with key players facing punishment. At the heart of the issue is the apparent fact that lawyers for the law firm Davenport Lyon (which has since stopped participating in these types of lawsuits) may have knowing proceeded with lawsuits even when they may have been aware that the alleged parties were innocent. This is largely due to the fact that IP addresses can hardly be considered to be conclusive evidence of illegal activities, especially when IP addresses can be shared between many users, at different times of the day. And at best, it identifies which ISP account was used to make the download, it does not identify the individual, or whether the account holder even had knowledge of the act, let alone gave permission. The legal system really needs to examine whether just a single IP address is enough to prove infringement, because remember that I could connect to a BitTorrent swarm for just a single second, and have my IP address recorded, but have I really committed copyright infringement? For just a second? In my opinion, they should at least establish how long it would typically take to download the content in question (say 1 hour for a movie at typical download speeds), and if the identified person’s IP address(es) hasn’t been connected to the swarm for at least this time period, then you cannot say that the person even managed to download the file in question. And via the same system, they can work out how much was uploaded, and count the number of infringements based on these two numbers. Because I don’t think it’s fair that “attempted infringement” is punished in the same way as actual, mass, infringement (if someone stays a seeder for say weeks, compared to someone who attempted to download the file but failed and didn’t upload much in return either).
Bipartisan support in Washington? Yes, but only on the issue of online piracy
But the legal establishment is mostly too clueless to understand these arguments, or just how BitTorrent works. And the same goes for the government as well, and both groups are easily persuaded by lobbyist, if not by the political/financial favours, then at the very least by the scary, Armageddon scenarios that the industry likes to invent (“Hollywood will be bankrupt, millions more unemployed, if we don’t stop college students from downloading Avatar”, for example). And Hollywood relies on this to further their aim of *not* having to evolve their business model. But it appears that not everyone in Hollywood agrees with what the bosses think is the best way for the industry to move forward (by not moving forward). Many seems to believe that innovation is still at the heart of the solution for the piracy problem, and even though I’m not in the industry, I have to agree as well.
Just look at the Netflix and their trouble of getting their Android app. Now, some of it is due to the way the Android system is set up (fragmentation, the lack of a common DRM/security platform), but in the end, the problem comes down to DRM, and the way major studios demand DRM to be in place before Netflix can get an app up for Android. Now, how many people are going to be pirating movies via their Android phone? For one, the video quality provided will be quite poor, sub-DVD standard crap that any decent rip online would better. And who pays for a Netflix streaming service and then pirates videos, when they can skip paying and still pirate movies from the variety of sources. But nevertheless, innovation, which can actually lead to more profits for movie studios in the future and a new way to deliver movies to consumers, is stopped dead in its track. If record labels had gotten their way in regards to DRM and making sure portable devices won’t play non DRM’d music (as to not “encourage piracy”), then they would have ensured failure for the iPod/iPhone, and does that really help anyone? It certainly would have hurt Apple, but lawmakers are more than happy to put up with the ridiculous demands of one industry, even if it means hurting another. So the likes of Netflix, Apple and ISPs have to suffer in order to protect the dying business model of the entertainment industry, and somehow this is fair?
And now the US government (and by that, I mean both sides of politics) is willing to screw up the entire Internet, just so the MPAA can block The Pirate Bay, with the controversial Combating Online Infringement and Counterfeits Act passing unanimously through committee. The MPAA immediately defended the decision, via their usual way of lying and exaggerating about everything. What this means is that the US government can effectively censor websites that the MPAA (and RIAA) deems “bad”, and this could be anything from The Pirate Bay to perhaps an innovative competitor that could become a threat. And this kind of Net censorship destroys the United States’ moral authority on online freedom of speech. That’s far too big a price to pay just to give the MPAA/RIAA a false sense of security, because people will still find a way to download pirated content.
StarCraft II is one of the most downloaded games of all time, but it also a best seller
And remember, this all assumes that piracy is costing the industry millions and billions every year, and there’s no way to tell what the monetary damage is, because we don’t know what people who pirate a lot of stuff will do if all pirated content is removed. The industry say that these people will *all* start buying things, which is as ridiculous as saying that *all* shoplifters would become customers if we make it impossible for them to steal (and we all know how the MPAA/RIAA likes to use the shoplifting analogy). Perhaps all that will happen is that a very small minority of downloaders will convert to customers (and they will buy much less than they download today), and the rest will simply find something else to occupy their times, with barely an improvement in the bottom line for the industry (and all this achieved at great costs, both financially, and in terms of civil rights). Just look at the best selling game in recent times, StarCraft II. It made huge amounts of money, some 1.5 million copies of the game was sold in the first 48 hours alone. And yet, it is the most pirated game in history! And sales continues to be brisk, with 3 million copies sold by the end of September. Blizzard, the company that made the game, have been extremely happy with the results, and have made little if any noise about the high piracy rate. And despite the game being easy to pirate (although online multiplayer is not available in the pirated versions, again this goes towards innovation and making an online experience that’s just not “piratable”), people are still buying and I suspect many that downloaded the illegal version have “upgraded” to the paid version, bringing more profit to the company. So piracy will probably always exists, not all piracy will automatically convert to sales if piracy is prevented, but piracy can lead to sales if the product/content is good. Only those industries that churn out crap and expect consumers to lap it up will be ultimately hurt most by piracy, and I guess that explains why the entertainment industry is so concerned.
In HD news, the stats for the week that Toy Story 3 was released came out, and it wasn’t as good as I had expected (didn’t break any records, for a start), but it was certainly still a great week for Blu-ray – you can read the analysis here.
There was one story which caught my eye, and I’m still not sure if it was a hoax or not, but Best Buy UK offered all the Harry Potter movies on Blu-ray, and a Toshiba Blu-ray player, all for only seven pounds, which works out to be $11 USD. And it wasn’t a typo either. But the condition of sale was rather harsh – you had to have the same legal names as one of the three main characters of the film, Harry Potter of course, Hermione Granger or Ron Weasley. And even if you were unfortunate enough to share their names, you had to be the first 100 to get the offer (although are there really 100 people, even in the UK, named Harry Potter, Hermione Granger or Ron Weasley?)
That’s one interesting sale, but some more mainstream sales will be here this week as part of the US Black Friday sales. I’m on the lookout for some bargains too (mainly focusing on Amazon), and perhaps I’ll post about any deals I find on the blog, or in the deals section. Something like Iron Man 2, Avatar for under $10, and some older titles for under $5, won’t be too much of a surprise.
And in gaming, I’ve already talked about the NPD analysis above (as well as rambled on about Fallout New Vegas). I’ve thought more about what I said last week about Kinect, and I still firmly believe that Kinect will be more successful than the Move.
The main reason is all those families who have Wii’s but are now bored with it, and looking for something new. They will look at the Move and say, well, I’ve already got something similar, is it really different enough, even if it is better? Those that want Blu-ray players may go for the PS3 + Move, but others will look at Kinect and feel that this really is something different. And Sony goes on about the Move being for hardcore gamers, but really, that’s not where the money is or has been ever since the Wii was introduced. Microsoft’s plan, on the other hand, seems to be to convert every casual/family Wii owners into a Kinect owner, and if they succeed, then it will enable to comfortably win this generation’s console war. It’s risky, but it might just work.
The people behind the PSJailbreak has a new piece of software, called PSDowngrade, which will be added onto the existing function of the PSJailbreak device. What it does is allow the PS3 firmware to be downgraded to an older version that supports the PSJailbreak device, namely 3.41. So there is a way out for those stuck with the new firmware, which has become a requirement if one wishes to play some of the latest games. It just goes to show how resourceful hackers can be, and that any so called foolproof system will not be for very long.
And that’s all for this week. More next week.
