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Document Type

Article

Publication Date

Winter 2018

Publication Citation

93 Indiana Law Journal 975 (2018)

Abstract

Current academic and policy discussions regarding video game piracy focus on the economic losses inherent to copyright infringement. Unfortunately, this approach neglects the most significant implication of video game piracy: malware distribution. Copyright-motivated efforts to shut down file-sharing sites do little to reduce piracy and actually increase viral malware infection. Pirated video games are an ideal delivery device for malware, as users routinely launch unverified programs and forego virus detection. The illicit nature of the transaction forces users to rely almost entirely on the reputation of websites, uploaders, and other users to determine if a file is safe to download. In spite of this, stakeholders continue to push for ineffectual anti-infringement actions that destroy this reputational infrastructure.

Scholars and policymakers have not made a case for utility by considering only first-stage economic incentives to create content. In addition to the economic consequences, malware must be taken seriously as a threat to infrastructure and national security, especially in light of Russia’s efforts to infect machines to influence and delegitimize elections. Accordingly, this Article proposes that we adopt a harm reduction philosophy that both dissuades piracy and decreases the malware risk attendant to ongoing piracy.

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