Video games and pirates: a love-hate relationship

In 2017, the independent developers of Darkwood (Acid Wizard Studio) themselves published a DRM-free¹ version of their game on The Pirate Bay, one of the most iconic file-sharing platforms on the internet, widely associated with illegal downloading. The gesture seems absurd: why would creators choose to distribute their own game on a platform historically linked to piracy? Yet this decision illustrates a reality more complex than a simple opposition between studios and pirates. In the video game industry, piracy is at once an infringement of copyright, an economic threat and, sometimes, a lever for visibility.

I. Video game piracy: a clear infringement of creators’ rights

The term “piracy” covers several realities. In computing, it refers first of all to fraudulently accessing or remaining in an automated data processing system. In this article, however, it will be understood in its sense relating to protected works: the unauthorised downloading, copying, sharing or making available of a work protected by copyright.

Such a practice infringes the economic rights of the author or their successors in title, which are the rights to exploit the work commercially. Article L. 122-1 of the French Intellectual Property Code provides that these rights include the right of performance and the right of reproduction. The right of reproduction consists in the material fixation of the work by any process allowing it to be communicated indirectly to the public, in other words, more simply, making a copy of it on a medium, including a digital one. The right of performance covers the communication of the work to the public by any process, that is, making it accessible to other users, notably by putting it online or sharing it on a platform, a peer-to-peer network or a download server.

Legally, these acts may constitute infringement: Article L. 335-3 of the French Intellectual Property Code covers in particular the unauthorised reproduction, performance or distribution of a work of the mind, as well as the infringement of the rights of the author of software. The penalties can be heavy: up to three years’ imprisonment and a fine of 300,000 euros, rising to seven years and 750,000 euros when committed by an organised gang. In practice, illegal downloading and sharing online have also been regulated by the graduated response mechanism, historically associated with Hadopi and now exercised by Arcom (the French audiovisual and digital communication regulator): it first involves sending warnings to the internet account holder, before the case may be passed on to the judicial authorities.

But let us come back for a moment to what a work is. To benefit from copyright protection, a creation must meet two essential conditions: take an identifiable form and be original. Copyright therefore does not protect ideas or concepts as such, but only their concrete and original expression.

This logic follows from Articles L. 111-1 and L. 112-1 of the French Intellectual Property Code: the author enjoys an exclusive right in their work by the mere fact of its creation, whatever its form of expression, merit or purpose.

The question remains: is a video game a protectable work? Spoiler: yes. Its classification was however gradual, since it can be reduced neither to software nor to a classic audiovisual work. It combines code, graphics, sound, music, animation, narrative, interfaces and interactions. The French Court of Cassation first accepted, as early as 1986, that electronic games could benefit from copyright protection where they are original. This approach was then clarified by the Cryo ruling of 25 June 2009, which classified the video game as a complex work that cannot be reduced to its software dimension alone: each of its components falls under its own legal regime.

This classification as a complex work is decisive. It means that a video game does not fall under a single legal regime: the software, music, graphical elements, animations and any narrative components can each be treated according to their own nature. Video game piracy therefore does not only concern access to a computer program, but the unauthorised exploitation of a composite object, several of whose components may be protected by copyright.

The Court of Justice of the European Union follows the same logic when it notes, in Nintendo v. PC Box, that video games include not only a computer program but also graphic and sound elements with their own creative value, which cannot be reduced to their computer encoding.

II. A short history of video game piracy: from physical copies to emulators

The first illegal copy of a video game I ever got my hands on was probably Warcraft III. At the time, in 2002, the internet was gradually making its way into homes and was about to upend the circulation of digital works… Those who grew up in the 2000s will remember: at the cinema, a message shown before every screening warned us about the evils of illegal downloading, comparing it notably to stealing a car (a shortcut worthy of Mario Kart).

Yet video game piracy, like that of other digital works, did not wait for the consumer internet. Long before torrents, direct download platforms or peer-to-peer networks, games were already circulating as informal copies: swapped floppy disks, burned CDs, modified consoles, copied cartridges or circumvented protections. The history of video game piracy is thus inseparable from the history of its media.

In the 1980s and 1990s, piracy first took a very physical form. On microcomputers, games were copied onto floppy disks and then swapped between friends, in school playgrounds, computer clubs or enthusiasts’ networks. Publishers then tried to regain control with sometimes makeshift protections: codes to look up in the manual, physical dongles, protected disks or checks at launch. Already, the pattern was set: every protection measure was met by a circumvention technique.

With consoles, piracy changed in nature. It was no longer just a matter of duplicating a medium, but of modifying the environment in which the game runs. Modchips, “cracked” consoles and then linker cartridges made it possible to run unauthorised copies or downloaded files. The pirate no longer always merely copied a work: they also circumvented the technological protection measures designed to control access to it.

The arrival of the consumer internet then changed the scale of the phenomenon. In the 2000s, peer-to-peer networks made the mass distribution of pirated games possible. Software such as eMule, launched in 2002, became emblematic of that era: anyone could download files, but also make them available to other users. Piracy was no longer just local or physical; it became decentralised, fast and global.

Even without advanced computer skills, some devices could sometimes be circumvented quite easily. At the end of the 2000s, the Wii offered an example with the Twilight Hack and then BannerBomb, which allowed homebrew programs to be launched without hardware modification. In the same vein, jailbreaking iPhones popularised the installation of apps outside official channels, including games obtained without authorisation. These practices do not always constitute piracy in themselves, but they could make it easier.

With torrents, piracy changed scale again. Founded in 2003, The Pirate Bay became one of the symbols of this new era: the site does not necessarily host the infringing files, but indexes links allowing them to be located and shared via BitTorrent. This technical nuance did not prevent the Court of Justice of the European Union from holding, in Stichting Brein v. Ziggo, that operating such a platform could constitute a communication to the public where it facilitates unauthorised access to protected works. In the French-speaking world, YggTorrent followed the same torrent index logic, before being listed by Arcom in 2023 among services seriously and repeatedly infringing copyright, and then announcing its closure in 2026 following a cyberattack.

Piracy does not only concern full games, either. Soundtracks, sometimes extracted directly from the game files and then uploaded to YouTube, are also protected works that may be subject to unauthorised reproduction or communication. Nintendo is a particularly vigilant example: several channels specialising in archiving video game music have faced waves of claims for soundtracks from franchises such as The Legend of Zelda or Super Mario.

As piracy practices became more sophisticated, anti-piracy measures hardened too. On PC, DRM became one of publishers’ main protection tools. Denuvo in particular illustrates this logic: protecting the first weeks of exploitation, which are often decisive for sales. But these protections also fuel tension with legitimate players when they are seen as intrusive, restrictive or likely to affect performance. The paradox is obvious: a tool designed to protect the work can sometimes worsen the experience of those who bought it legally.

Today, the debate has partly shifted to emulation, ROMs and hosting sites. Emulation is not, in itself, synonymous with piracy: it can serve preservation, research or interoperability. It does, however, become legally sensitive when it is accompanied by unauthorised copies of games, decryption keys or tools for circumventing a console’s protections. The Yuzu case, settled in 2024 with Nintendo, illustrates this contemporary tension between technical preservation, community uses and the fight against the mass distribution of illegal copies.

The history of video game piracy is therefore a history of constant adaptation. Copied floppy disks, burned CDs, modified consoles, peer-to-peer networks, torrents, hosting sites, emulators: the media change, but the logic remains. Piracy follows the technical evolution of video games and, in return, forces rights holders to invent new forms of protection.

III. The pirate: enemy or ally of rights holders?

At first glance, the answer seems obvious: the pirate is the enemy of rights holders. They access the work without authorisation, bypass legal distribution channels and potentially deprive creators of payment. For an independent studio, whose first weeks of sales can determine a project’s profitability, the threat is all the more acute. A recent study on the impact of Denuvo DRM thus estimates that a game cracked very soon after release can suffer a significant loss of revenue during its launch window.

Yet the economic impact of piracy cannot be reduced to a simple equation in which an illegal download necessarily equals a lost sale. This assumption is shaky: it presumes that the player would have bought the game if they had not been able to access it illegally. Yet some players pirate precisely because they would not have bought the work: for lack of money, of access to a means of payment or of regional availability, or simply because they want to try it before buying. A study commissioned by the European Commission had already highlighted the absence of robust statistical evidence of systematic sales displacement caused by online copyright infringement, including for video games.

This is where piracy becomes ambivalent. For an independent game, invisibility can be as dangerous as illegal copying. A player who downloads a game illegally may still talk about it, recommend it, show it to other players or help build a community around the title. The developer of ULTRAKILL, Arsi “Hakita” Patala, thus defended the idea that a player unable to buy a game could still support it through word of mouth, provided it is not forgotten that those who can afford to should support independent developers.

This logic is particularly visible in the example of Darkwood. In 2017, Acid Wizard Studio deliberately made a DRM-free version of its game available on The Pirate Bay, while inviting players who enjoyed it to buy it later via Steam, GOG or Humble Store. The studio was not seeking to legitimise piracy in general, but to take back control over a distribution it knew to be difficult to prevent, while steering players away from key resale sites, which it considered more harmful to independent developers.

Other examples show that some creators sometimes prefer illegal access to no access at all. When Hotline Miami 2 was banned in Australia, its creator Jonatan Söderström reportedly advised an Australian player to pirate the game if it was not officially released in the country. Here again, the remark does not make piracy lawful; rather, it reveals the difficulty of the legal market in responding to certain concrete situations: regional unavailability, censorship, unsuitable prices or lack of accessibility.

Piracy then acts as a revealer of the flaws in the legal offering. Gabe Newell, co-founder of Valve, summed up this idea by saying that piracy is less a pricing problem than a service problem: if the legal offering is less convenient, slower or less accessible than the pirate one, some players will choose the illegal route.

The pirate should not be romanticised, however. Exposure pays neither salaries, nor servers, nor years of development. Piracy remains an infringement of creators’ rights and can severely weaken a studio, particularly when it happens at the game’s launch. But in some cases it can also produce indirect effects that rights holders seek to capture: visibility, word of mouth, a signal of demand, later conversion or an implicit criticism of an insufficient legal offering.

The pirate is therefore not really an ally. Rather, they are an intimate enemy: someone who threatens the normal exploitation of the work, but whose existence forces rights holders to think differently about their relationship with the public. This is the whole paradox of video game piracy: legally unlawful, economically dangerous, but sometimes capable of producing visibility that some independent studios try to turn into legitimate support.

Bibliography

Legal texts

• French Intellectual Property Code, Art. L. 111-1, L. 112-1, L. 122-1 and L. 335-3
• French Criminal Code, Art. 323-1 (fraudulently accessing or remaining in an automated data processing system)

Case law

• French Court of Cassation, plenary assembly, 7 March 1986, No. 84-93.509, Atari Inc. v. Valadon (copyright protection for original electronic games)
• French Court of Cassation, plenary assembly, 7 March 1986, No. 85-91.465, Williams Electronics Inc. v. Claudie T. and Sté Jeutel
• Cass. 1re civ., 25 June 2009, No. 07-20.387, Cryo (the video game as a complex work subject to distributive classification)
• CJEU, 4th chamber, 23 Jan. 2014, case C-355/12, Nintendo v. PC Box (regime for technological protection measures)
• CJEU, 2nd chamber, 14 June 2017, case C-610/15, Stichting Brein v. Ziggo (communication to the public and torrent sharing platforms)

Studies and reports

• Ecorys, Estimating displacement rates of copyrighted content in the EU, study commissioned by the European Commission, submitted in May 2015 and published in September 2017 (no robust statistical evidence of sales displacement by online piracy, with an estimated effect that is rather positive on video game sales)
• W. M. Volckmann II, “Revenue effects of Denuvo digital rights management on PC video games”, Entertainment Computing, 2024 (revenue loss of up to around 20% when Denuvo is cracked very early, near-zero effect when the protection holds for at least twelve weeks)

Statements and professional sources

• Acid Wizard Studio, release of a DRM-free version of Darkwood on The Pirate Bay (2017)
• Arsi “Hakita” Patala (ULTRAKILL), remarks on supporting developers through word of mouth
• Jonatan Söderström (Dennaton Games), on the unavailability of Hotline Miami 2 in Australia
• Gabe Newell (Valve), on piracy seen as a service problem rather than a pricing problem
• Arcom, listing of YggTorrent among services seriously and persistently infringing copyright (2023)
• Nintendo / Tropic Haze settlement concerning the Yuzu emulator (2024)

Notes

1. DRM-free: describes a version distributed or sold without DRM, that is, without any technological protection measure restricting the copying, installation or use of the game. ↩

Faris MELAHILawyer in intellectual property and audiovisual law, certified DPO

https://lexludica.com/en/articles/video-games-and-pirates