Developers ask players to pirate games rather than buy from G2A, painting a thorny legal picture

James Brightman, Wednesday, July 3rd, 2019 2:20 pm

G2A, a controversial online key reseller, has been in the news for years, primarily because small developers and indie publishers have alleged that the reseller is directly enabling a grey market for game keys, costing game makers — many of whom already struggle to stay afloat — hundreds of thousands of dollars in lost revenues. The on again, off again battle with G2A has once more become heated as Mike Rose, founder of indie publisher No More Robots, directly requested that players actually pirate games rather than spend anything on game keys with G2A. 

Rose, in a series of tweets, pointed out that G2A purchased some sponsored ads on Google and lamented that the G2A links will be the first thing anyone sees when searching for his label’s games. Not only that, but users cannot actually turn off the ads. 

He then made the bold statement: “Please, if you’re going to buy a game from G2A, just pirate it instead! Genuinely! Devs don’t see a penny either way, so we’d much rather G2A didn’t see money either.”

Rage Squid, the developer behind the No More Robots-published Descenders, quickly backed up Rose’s comments on pirating, advising players to torrent the title rather than pay for it on G2A. 

Vlambeer’s Rami Ismail showed his support as well, tweeting, “If you can’t afford or don’t want to buy our games full-price, please pirate them rather than buying them from a key reseller. These sites cost us so much potential dev time in customer service, investigating fake key requests, figuring out credit card chargebacks, and more.”

Raw Fury scout Callum Underwood emphasized to GameDaily over email that the indie publisher will absolutely not do business with G2A and he’s not opposed to players pirating games either if the alternative is giving G2A any money. G2A’s very existence is harming the entire indie development community, Underwood believes.

“Honestly, I have a strong dislike for G2A’s business practices. As Jim Sterling said, ‘You, G2A, are shit.’ I understand why gamers and consumers want to pay less than the market rate for games, I genuinely do, but it doesn’t mean I condone it,” Underwood said. “A lot of effort goes into pricing games, and a lot of assumptions are made – mostly that a certain number of people will like your game enough to want to buy it. Having G2A so prominently in the industry (they still sponsor some major streamers) means that those assumptions become more difficult to make. I can’t speak for other indies, but for sure at Raw Fury we are not fans of G2A, and will not work with them. There is a very fine line between a game developer making profit off their game, and not. G2A makes that more difficult.

“With that said, G2A exists, and so does piracy. Mike’s initial comment that he would rather people pirate the game than buy G2A was a somewhat interesting view on the matter, but I have to say, I probably agree. I’d rather those people bought the game from a store, of course, but if they have no intention of ever giving Raw Fury or the developers we work with their money, then yes, I’d rather the money did not go towards a website that is outright hostile to the industry it resides within and claims to serve.” 

Tweets from Rose, Ismail and others shouldn’t be misconstrued as some wholehearted endorsement of piracy either, but as Underwood explained to us, G2A is capitalizing on the “easiest route” for gamers looking to get a bargain. “It is a lot easier to buy a key from G2A that was bought using a stolen card, than it is to download a cracked copy,” he noted.

G2A and scammers profiting off of G2A’s business model makes life challenging for PR agencies, as well. We spoke with Aidan Minter at Plan of Attack and he stressed that he sees “attempted key scams almost every week.” It’s become such a problem that Plan of Attack now keeps an active list of scammers. Minter has to make sure that clients are always up-to-date on who’s doing what in order to “reduce that risk.”

“Normally, these are individuals posing as press in an attempt to get a review key in order for them to resell the key, which according to the last article I read on Kotaku was big business for some scammers,” Minter told us. 

From a legal perspective, developers publicly saying it’s okay to commit a crime isn’t exactly a great move, but attorney Richard Hoeg of Hoeg Law told us that it’s unlikely to provoke legal action, either.

“I think the risk of lawsuits for telling folks to pirate is ‘non zero,’ but remote,” Hoeg remarked to GameDaily. “Particularly if the individual or entity holds the entire copyright (they are a developer/publisher or publisher with full distribution rights) while they are technically encouraging a federal crime, it’s a crime which only hurts themselves, and, in any event, they always have the option to reduce the price to ‘free.’ I suppose an overzealous ‘rule of law’ type [attorney general] could try to make an example of them (‘we should not be encouraging the flouting of law’), but I think it very unlikely.”

If G2A really wanted to further enrage the development community, the company could choose to sue some of the indies telling players not to buy from them. That, however, is not very likely either.

“It’s possible [G2A] could come up with some type of ‘tortious interference’ (the developers are deliberately trying to destroy G2A’s ability to enter into contracts) or libel/slander claim if what they are doing is actually technically legal, but that too seems remote, primarily because it certainly seems that G2A likely wouldn’t want to go through any discovery process if they have any skeletons in their closet at all,” Hoeg added.

But what about legal action in the reverse direction? If G2A is as bad as developers claim, would a group be able to get together to serve them with a class action? Ethan Jacobs, an IP rights lawyer with Holland Law, explained that there doesn’t seem to be enough evidence pointing towards G2A deliberately supporting illegal game key acquisitions. The fact is we just don’t know what portion of the keys being resold were gained originally through stolen credits cards or other nefarious means.

“If G2A were intentionally acquiring keys they knew were stolen, that’s different from just being a reseller,” Jacobs stressed. “It may be that indie developers and publishers are frustrated by their inability to use sales and geographical pricing to maximize profits that they would get from people otherwise buying at full price or in their home market. Grey market sales are a source of frustration for lots of different industries, and depending on who and where they are, different kinds of remedies to combat grey market sellers are available. 

“If an entity knew or was encouraging people to do things like use stolen credit cards to sell keys at far below what they could have bought them for, developers might have some kind of claim against them. Or the reseller could then be violating statutes that could be prosecuted and enforced by a government agency. The other problem is that keys acquired using stolen credit cards probably will be some part but not the bulk of a reseller’s inventory of keys, and so it will not be easy to establish how much the reseller is to blame for the fact that some of its inventory comes from these sources.”

Hoeg largely agreed with this legal assessment. He cautioned that “there are likely to be a lot of contracts and contractual obligations flying around between developer/publisher/key purchaser/G2A, so every case would likely be different” and that could hinder any class formation.

“The various companies are likely to be experiencing different damages for different reasons. If G2A is really working with folks to steal keys, there might be a criminal claim they could bring working with authorities, but you’d probably need the beginnings of a real case first. A bit of a catch 22 there,” he continued.

It could be that Ismail is on to something with the cost to developers’ precious time. Hoeg added, “To my eye, that looks like the best vector for a damage claim, particularly if a developer/publisher spent a few months itemizing what it was spending to fix issues originating from G2A rather than others. Their recklessness, in other words, is costing the developers. I think you need to find a good forum to bring that claim though. Either way, it does look like a difficult case to make.”

Consumers have not been very happy with G2A either, given the ‘F’ rating that the reseller has earned with the Better Business Bureau. As one complaint on the BBB site states, “They sell grey market codes for games and gift cards. There’s a chance your code is worthless, and you won’t get a refund. Tried to file dispute, they take days to answer and give you the same answer that the code was provided and that’s all.”

G2A has been selling a kind of transaction insurance called G2A Shield for this very reason, although it should be noted that this Shield program is actually no longer available for purchase. Devolver Digital co-founder Nigel Lowrie didn’t hold back any punches, telling GameDaily that the very fact that G2A has been selling insurance should be cause for alarm. 

“The sheer idea that a store sells insurance to their own users because said store can’t guarantee the transaction is legit is extremely fucking shady,” Lowrie observed.

At the end of the day, despite developers’ protestations, G2A is likely to continue its business, potentially to the detriment of some indies. 

“A discount key reseller’s business model is in effect in competition with the developers for capturing the profits from sales of the games, and so even if they’re trying to comply with the law, developers aren’t going to be happy… Nobody is excited to have a person reselling their product in a channel that they didn’t intend, especially when it’s at a discount from the price they intended to sell it at,” Jacobs commented. 

“The reseller and developer or publisher are in conflict whether there’s legal claim or not. And I would expect that no matter how low the level of fraud goes, the developers are not going to be happy with their existence and they might look for technological or contractual or other ways to make the discount key reseller business model unattractive or impractical.” © 2024 | All Rights Reserved.