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Wii Businesses Nintendo Entertainment Games

Atari Sub-Sub-Contractor Used ScummVM For Wii Game 313

MBCook writes "In several recent releases, it seems that Atari published games for the Wii based on ScummVM, which was released under the GPL. Atari contracted Majesco, who contracted a company named Mistic Software with offices in the Ukraine. When the fact that the GPL was being violated was brought to Atari's attention, they were kind at first until it was discovered that Nintendo doesn't allow open source software to be used with the Wii SDK, so updated documentation mentioning the GPL wasn't an available solution. So, what happens to the games? 'There is a period of time in which all current copies have to be sold. Any copies beyond this period or any reprints get fined with quite high fine for each new/remaining copy. The remaining stock has to be destoryed [sic].' Atari and Majesco seem to have been very cooperative about this whole thing, but had their hands tied by the agreement with Nintendo."
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Atari Sub-Sub-Contractor Used ScummVM For Wii Game

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  • Wow (Score:4, Insightful)

    by Jaysyn ( 203771 ) on Wednesday June 24, 2009 @10:49AM (#28453381) Homepage Journal

    Nintendo literally hates open source. Guess I'll skip that DSi.

  • Companies do have to be careful how they use GPL code, sure. But the real lesson here is that companies have to be much more careful about who their subcontractors are!
    • Re: (Score:3, Interesting)

      by DavidTC ( 10147 )

      This does not, in any way, demonstrate that companies need to be careful of how they use GPL code. They do need to be careful of how they use GPL code, but this doesn't demonstrate it at all.

      This entire thing would be fine if it wasn't for Nintendo's rules about what can be used on their devices. Atari would just have to make the modifications to ScummVM available somewhere, which it sounds like it was perfectly willing to do until someone realized that OSS violates the agreement with Nintendo, period.

      • by Rogerborg ( 306625 ) on Wednesday June 24, 2009 @11:09AM (#28453715) Homepage

        Atari would just have to make the modifications to ScummVM available somewhere

        s/would have have to/do/

        Cessation is not a remedy. The deed is done. Let's see the source.

        • Apparently, once it was realized that Atari couldn't legally distribute the game under any circumstances (Because they can't just give the source away, it has to compilable, and it can't be without the SDK, which they obviously can't give away.), Atari's lawyers then went crazy and decided to threaten ScummVM with a lawsuit for reverse engineering...something.

          What, exactly, I don't know, as I don't know what stuff Atari owns that ScummVM reverse engineered.

          But threaten they did, at least to the point that ScummVM gave up on the 'distribute the source' and said 'As long as you stop shipping the game, it's fine, we will not sue'.

          Legally, it seems unclear if Atari could actually get the source, as the code went through at least two subcontractors, in three different countries. And going to court to get a port to the DS that required the Nintendo SDK (Rendering it illegal to actually distribute binaries of, and impossible to have people compile themselves) seemed of dubious value anyway. So any suit forcing Atari to release the code would be sorta silly anyway.

          Anyway, I wasn't trying to make Atari out to be angels, I was simply pointing out that, if not for Nintendo's rules about their SDK, Atari would be fine with just releasing the game OSS. (I mean, it's not as if you can play it without the copyrighted data files, which would not be under the GPL.) Once they realized they couldn't do that, the lawyers said 'Oh, crap, we can't make this legal with both ScummVM and Nintendo, and hence we're legally liable either way. So we're going to have to threaten to countersue one of those guys to make them preemptively drop a suit against us.'.

          • by Hurricane78 ( 562437 ) <deleted&slashdot,org> on Wednesday June 24, 2009 @11:58AM (#28454595)

            No, you don't get, just how twisted those lawyers' minds are:

            They thought, if their code can't be a illegal copy of ScummVM, then ScrummVM must be the illegal ones.
            So they started, just like children, to say "No you are stupid and have stolen it from me!".
            They seriously think they can act as if ScummVM reverse-engineered "their" oh-so-precious game so that Nintendo does not realize they broke a license with them too!
            And they think that, because they are a big company, they can get trough with it.

            Obviously they are stuck between a rock, and a hard place, and pretty much fucked either way. Essentially all because of Nintendo and that small sub-sub-contractor.
            If I were Nintendo, I would lift the ban for open source games, and profit from it. But those managers have to much exaggerated egos, and think changing their minds would look weak. (When in fact, being so stiff, does make them look weak and stupid.)
            If I were the EFF, I would sure Atari, and instantly call them up, and tell them, that this is not directed at them, but meant to be redirected to the real sourceos of this (The sub-sub-contractor and Nintendo.)
            If I were Atari, I would then sue the sub-sub-contractor, to pay damages to the EFF, the ScummVM team, etc, and be out of it.
            Then the EFF should lobby a bit at Nintendo, to show them, how much they can actually profit from allowing open source software on their console. (Explain to them how essential a community is for a game and a console, and quote right out of Jesse Schell's (chairman of the international game developers association) book, chapter 22.)

            • The first thing I would do is preview my posts. So many errors because the typo made a legitimate word...

          • by h4rm0ny ( 722443 )

            Isn't a simple way out for Atari to purchase a non-GPL licence from the ScummVM developers. I don't know how many there are and whether you'd need to replace some minor parts of the code base where a developer couldn't be contacted / didn't respond, but maybe Atari could just say "We fucked up. You know what legal systems are like! If we donated $ to EFF (or other cause popular amongst the developers), can we get a licence for the code for use in games X and Y, please?"

            The developers are probably pretty
        • Atari would just have to make the modifications to ScummVM available somewhere

          s/would have have to/do/

          Assuming you meant the first "have" to be "just", that results in:

          Atari do make the modifications to ScummVM available somewhere

          Huh?

      • Re: (Score:2, Insightful)

        Despite what supporters of OSS believe Should or Should Not be allowed or done, Nintendo still has the right to decide what software is acceptable for use on their hardware.

        The issue or lesson here is that companies have to be more diligent when fulfilling their contractual obligations. I Atari feels that it does not have to check on its suppliers, then the short coming lies with Atari, not Nintendo.

    • This isn't a problem specific to GPL code. If you are selling software, you have to make sure none of the code in your program is plagarised, regardless of the licence such plagarised code might be available under.

      • Unless it is BSD licensed. Regardless of the operating system you are using right now, I am pretty sure that there is BSD code in there.
    • What exactly were the violations? Modifying GPL code is allowed, and sources do not have to automatically provided unless someone requests this. Did someone request the sources? If there is no GPL license text available, is that a willful and egregious violation, or an oversight.

      Granted, there's going to be a big problem between Atari and subcontractors. But the whole tone of the article sounds too much like"omg I found GPL code in a commercial game!"
    • Re: (Score:3, Interesting)

      by bennomatic ( 691188 )
      That's true in so many cases. I friend of mine runs a clothing company which prides itself on being a good corporate citizen. They have good working conditions, wages and benefits for their employees.

      Occasionally, they need to subcontract, and once, several years ago, one of their subcontractors subcontracted out to another company without due diligence, and this sub-sub-contractor did some Very Bad Things. They hired undocumented workers. They did not pay a fair wage. They closed up shop after the
  • It's only copyright (Score:4, Interesting)

    by Anonymous Coward on Wednesday June 24, 2009 @10:51AM (#28453411)

    Based on what people posted for the Jammie Thomas $1.92 million settlement article, opinions will likely be divided into these different viewpoints:

    1. Atari should pay 3x the retail cost of the GPL code. 3 x $0 = $0
    2. It's only copyright which should be abolished anyways, no harm no foul
    3. Code wants to be free, man... why is the GPL holding it back?

    What's more likely is this response: OMG! GPL was violated! String Atari up by their balls!!11!!1! The GPL is sacred and must not be blasphemed like this. Grab your torches and pitchforks... we're going on a witch hunt!

    • by aristotle-dude ( 626586 ) on Wednesday June 24, 2009 @11:04AM (#28453647)

      What's more likely is this response: OMG! GPL was violated! String Atari up by their balls!!11!!1! The GPL is sacred and must not be blasphemed like this. Grab your torches and pitchforks... we're going on a witch hunt!

      What's even more ironic is that those very same people probably have no qualms violating the copyright of Apple, MSFT, members of the RIAA or the MPAA. That is hypocrisy at its finest.

      • it's copyleft not copyright get it right man.
      • Damn it, /. ate my comment. I'll try to recreate it.

        You're confusing the purpose of the GPL with it's mechanism. The GPL uses copyright law to try and advance the goals of free software and access to source code. Just because it uses copyright law doesn't mean that everyone who supports the GPL agrees with the goals of copyright law (the two are very different).

        It'd be perfectly reasonable for someone to complain about GPL violations but also be violating Apple's copyright, e.g., by working on a Hackintosh

      • by jedidiah ( 1196 )

        Now that you little wieners are done with your little mutual admiration society
        I will give you a clue: The GPL isn't about money. So talk of eggregious monetary
        damages is assinine. GPL is about sharing. Any GPL suit seeks to get the "offending
        party" to SHARE.

        Money really doesn't have anything to do with it.

        Atari either gets to SHARE or stop using the stuff in question.

        There simply isn't really any opportunity for a megabuck damage award here.

      • by jedidiah ( 1196 )

        In order for the latest RIAA victory to be on par with a GPL suit,
        they would have had to have caught her using Kazaa repeatedly once
        they had already told her to stop.

        The only hypocrites here are the corporate toadies.

      • by toriver ( 11308 )

        Ah, proof by using the word probably; that will stand up in any debate.

      • by Tetsujin ( 103070 ) on Wednesday June 24, 2009 @12:59PM (#28455721) Homepage Journal

        What's more likely is this response: OMG! GPL was violated! String Atari up by their balls!!11!!1! The GPL is sacred and must not be blasphemed like this. Grab your torches and pitchforks... we're going on a witch hunt!

        What's even more ironic is that those very same people probably have no qualms violating the copyright of Apple, MSFT, members of the RIAA or the MPAA. That is hypocrisy at its finest.

        I don't know who these hypothetical people are, who you're talking about... It seems that when you're talking about imaginary people you can apply whatever level of hypocrisy to their opinions that you like - in reality, I suspect you're seeing different groups of people who post on Slashdot and assuming they all hold the same set of opinions... More "groupthink" bullshit...

    • Re: (Score:3, Informative)

      by julesh ( 229690 )

      Based on what people posted for the Jammie Thomas $1.92 million settlement article, opinions will likely be divided into these different viewpoints:

      1. Atari should pay 3x the retail cost of the GPL code. 3 x $0 = $0

      Actually, the retail cost of GPL code is "you give us your source code changes back, including a way of building the software and making it run". I think the ScummVM authors would be more than happy with just 1x this.

      2. It's only copyright which should be abolished anyways, no harm no foul

      This i

      • Re: (Score:3, Informative)

        by TheRaven64 ( 641858 )

        Actually, the retail cost of GPL code is "you give us your source code changes back, including a way of building the software and making it run".

        No it isn't. The GPL contains absolutely no requirement that you give any changes back. The only requirements relate to forward distribution. If you make changes and distribute those changes, then you have to give the code and accompanying rights to whoever receives the binary. You do not have to give them back to the original author, and neither does anyone else.

        • by sqlrob ( 173498 )

          And if you RTFA, you'd see the maintainers had a copy of the binary. So they can get the changes.

          • Which, if you RTF comment I replied to, or even the bit I quoted, has absolutely nothing to do with the retail cost of GPL'd code.
      • by i.r.id10t ( 595143 ) on Wednesday June 24, 2009 @12:03PM (#28454673)

        Releasing the compile or whatever to run the code isn't required - it is just the code that is required.

        Otherwise I could buy a license for Redhat or Novell for zOS (or use Debian's port to the s390, etc) and "they" (RH, Novell, Debian) would need to give me an IBM mainframe since that is the only way I could run the code?

        So where's my free mainframe?

    • I'm sure there are a fair few of us who take option 2/3 and we are totally aware of the hypocrisy of the open source crazies.

      I don't believe in intellectual property at all and I am accepting of every consequence that goes along with that.
  • by dmomo ( 256005 ) on Wednesday June 24, 2009 @10:51AM (#28453417)

    Here you go:
    http://sev-notes.blogspot.com/2009/06/gpl-scummvm-and-violations.html [blogspot.com]

    From The blog Post:

      The finals

    Thus, the facts were:
            * There is a GPL violation (their denial has to be proven in a court, strings in executables and the bug above clearly show it)
            * Atari could not release source codes because of Nintendo NDA
            * Atari could not put GPL clause because of Nintendo NDA
            * Atari could not "buy out" ScummVM from us
            * There is no possibility to double license ScummVM, at least SCUMM engine
            * We do not need any money as a "bribe to keep silent"

  • by Sj0 ( 472011 ) on Wednesday June 24, 2009 @10:54AM (#28453463) Journal

    I'm certain I'm not alone when I say "Way to go, nintendo".

    I know why they did it, there has been a constant worry from closed-source developers that the GPL would force closed source code open. Nintendo is just covering their ass.

    Of course, Majesco made Psychonaughts, so the idea of booting their content off of a console for any reason sounds like a suicidal path.

    • Re: (Score:2, Informative)

      by Anonymous Coward

      Of course, Majesco made Psychonaughts, so the idea of booting their content off of a console for any reason sounds like a suicidal path.

      DoubleFine made Psychonauts. Majesco was merely the publisher.

  • by bzzfzz ( 1542813 ) on Wednesday June 24, 2009 @10:55AM (#28453483)

    Provisions prohibiting open source software are not unusual in development and distribution agreements for closed systems. There are similar provisions for all gaming platforms, for example, and for signed drivers for Windows. On the other hand, paid licenses for third-party libraries are fine as long as there is no requirement to release source code.

    Something to think about if you believe the playing field is level.

    • What's the reasoning behind disallowing it? I don't understand.

      The platform is closed and Nintendo control the approval process, what's the downside for them?
      • by bzzfzz ( 1542813 ) on Wednesday June 24, 2009 @11:17AM (#28453845)

        What's the reasoning behind disallowing it? I don't understand.

        The platform is closed and Nintendo control the approval process, what's the downside for them?

        Their attorneys think about the GPL and the FSF the same way slashdotters think about ASCAP and the RIAA.

      • "The platform is closed and Nintendo control the approval process, what's the downside for them?"

        Nintendo derives a great deal of revenue from payments from game developers, who are required to pay Nintendo for the privilege to develop and ship games for Wii. Allowing a GPL game would very quickly cause Nintendo problems, because the GPL requires royalty-free copying and distribution -- it is possible that the surcharge for blank Wii discs and signed games would become a problem. That alone would be en
    • On the other hand, I have Yellow Dog Linux and several open source emulators running on my PS3 at home all without even voiding the warranty, and Sony isn't exactly known for their openness. Hell, if I'm being honest it's probably even costing them money, I've been playing old school games for the past few of months and haven't bought a single new game in that time. But, come next generation, having the ability to instal Linux and run whatever software I want is going to be a major selling point for me.

      • Re: (Score:2, Informative)

        by acoster ( 812556 )

        Sony allows Linux to run on the PS3 to allow it to be taxed as a computer, not as a video game.

  • GPL Grey Area (Score:2, Offtopic)

    by Adrian Lopez ( 2615 )

    Considering SCUMM is a virtual machine, wouldn't the files being interpreted by SCUMM be considered data rather than code? I'm not aware of any terms in the GPL which require the authors of a data file that's read by GPL'd software to release that data under the terms of the GPL.

    • Re: (Score:3, Insightful)

      by Jailbrekr ( 73837 )

      Uhm,

      The SCUMM interpretor is the problem, not the data it is reading.

    • Re:GPL Grey Area (Score:5, Informative)

      by MBCook ( 132727 ) <foobarsoft@foobarsoft.com> on Wednesday June 24, 2009 @11:04AM (#28453649) Homepage

      The problem, from my readings of the story and associated stuff, seems to be that ScummVM was ported to the Wii (or at least to the official Nintendo APIs), but didn't release the changes. That's probably a GPL violation.

      The really big issue from the initial complaint was not that ScummVM was being used (they seem rather happy about that), but that it was used without credit or attribution. That's a clear GPL violation.

      • I see. In that case, I agree.

      • The problem, from my readings of the story and associated stuff, seems to be that ScummVM was ported to the Wii (or at least to the official Nintendo APIs), but didn't release the changes. That's probably a GPL violation.

        The really big issue from the initial complaint was not that ScummVM was being used (they seem rather happy about that), but that it was used without credit or attribution. That's a clear GPL violation.

        The fundamental problem that seems to be at work here that prevents a cure to the GPL bre

      • by GryMor ( 88799 )

        The meta problem is that they are letting Atari get away with it, without actually complying with the GPL due to interference of a third party. Any code produced by Mistic either as a modification to or linked with the ScummVM should have been released to satisfy the interests of those who have already purchased the software in question. I understand that the tool chain and libraries provided by Nintendo aren't theirs to release, and that failing would still lead to an ongoing GPL violation, necessitating t

        • Not really getting away with it. They have to stop selling the games and have to make a large donation to the FSF (hopefully some of this will be used to fund ScummVM development). I don't know what will go into the press release that the contractors have to put out, but I hope that it will point out how much money could have been saved had Nintendo allowed them to use open source code...
      • But wouldn't that only matter if they were planning to distribute the ported ScummVM, and not the application built with it? Or is there an integral part included in the application from the ScummVM?

        I mean, no-one complains that Windows has to be open sourced if a c++ compiler is ported from linux to windows and software built on that tool to run on windows. I believe, even in that case that software built with the GPLed tool can be closed source (not a derivation of the GPLed software but a work made with

        • Correct, output of a GPL program isn't GPL. The Affero (or whatever) GPL 3 does do this, but not the plain ol GPL. What apparently happened here is they ported the VM (which is GPL code) to a new platform, and shipped copies of it without attribution or an offer of the code.

    • by julesh ( 229690 )

      Considering SCUMM is a virtual machine, wouldn't the files being interpreted by SCUMM be considered data rather than code? I'm not aware of any terms in the GPL which require the authors of a data file that's read by GPL'd software to release that data under the terms of the GPL.

      That's not really the point. The point is SCUMM must have been ported to the Wii platform. This process will have included adding a step to its build process that signs it with a key authorised to run on the Wii. Under the GPL te

      • That's not really the point. The point is SCUMM must have been ported to the Wii platform. This process will have included adding a step to its build process that signs it with a key authorised to run on the Wii. Under the GPL terms, this _must_ be released along with the rest of the source code.

        I believe this requirement is only present in GPL v3.

  • by julesh ( 229690 ) on Wednesday June 24, 2009 @10:59AM (#28453557)

    Horse status: bolted.
    Would you like me to close the stable door?

    (Obviously, the reason for nintendo refusing to distribute open source software on their platform is that it may also _requires_ them to distribute a toolchain for the platform, including signing keys etc as required to get code to run. Anyone who has already purchased one of these games, or who receives a copy from someone who has, has the right to demand this now.)

    • Re: (Score:3, Insightful)

      by Sj0 ( 472011 )

      Since when?

      I've never seen anything even remotely close to such a thing.

      • by bsDaemon ( 87307 )
        I'm sure people have the right to demand whatever they want. It's whether or not Nintendo has to comply with said demands that actually matters though. I don't really see where he's getting that from either, however it's admittedly been quite some time since I actually read the GPL. It can't possibly actually apply to Nintendo in this matter as far as I can tell though.
    • by Richard_at_work ( 517087 ) on Wednesday June 24, 2009 @11:07AM (#28453687)
      They can demand it, but is an unknowing party subject to the license or simply required to cease distribution when informed? It would be difficult to legally force Nintendo to provide anything in this circumstance...
      • by Chris Burke ( 6130 ) on Wednesday June 24, 2009 @11:19AM (#28453897) Homepage

        They can demand it, but is an unknowing party subject to the license or simply required to cease distribution when informed? It would be difficult to legally force Nintendo to provide anything in this circumstance...

        Even assuming that any of Nintendo's code would be involved (it's not obvious to me that this would be the case), you couldn't force them to do anything. If they don't comply with the terms of the GPL, then they are not licensed under the GPL, ergo they are guilty of copyright violations. It'd be their choice to comply with the GPL or accept the penalties for copyright violation, which would include having to cease distribution. You can't force a company to comply with a license agreement they never agreed to, you can only punish them for not having a license to begin with.

        So yeah, you're right.

        • There is a common and dangerous misunderstanding that the GPL is a contract. It isn't. No one can be forced to comply in court. However, noncompliance makes the license invalid, which can mean copyright infringement, per the parent.

          Of course, a 1.85 million dollar verdict is unlikely....

    • by matt328 ( 916281 )
      Anyone who has already purchased one of these games, or who receives a copy from someone who has, has the right to demand this now.

      Let me know how that goes for you.
    • This is only true of the GPLv3. There are a large number of other Free and Open Source Software licenses which do not make this requirement. The GPLv2, for example, does not. This is generally known as the Tivo loophole, since they were among the first to notice it. A Tivo includes the Linux kernel, and they comply with the GPL by releasing all of their modifications, but their bootloader will only run signed kernels.

      There is no reason for Nintendo to ban any open source licenses. Third party develo

    • Anyone who has already purchased one of these games, or who receives a copy from someone who has, has the right to demand this now.

      Actually this is not correct. The game was not distributed under the terms of the GPLv2, but rather was distributed illegally, by violating copyright. As shown in the blog post above, the copyright holder tried to get Atari to release the game under the GPL, but they were unwilling. The copyright holder then settled out of court for a nice contribution to the Free Software Foundation and a promise to destroy all remaining stock.

  • No problem! (Score:5, Funny)

    by smitty97 ( 995791 ) on Wednesday June 24, 2009 @11:23AM (#28453963)
  • Can they just license the original engine from lucasarts then? Give some royalty checks to steve purcell and ron gilbert and whoever else made it as part of the deal!

    • Can they just license the original engine from lucasarts then? Give some royalty checks to steve purcell and ron gilbert and whoever else made it as part of the deal!

      That would cost money. The copyright violation is free (until you get caught).

  • by patSPLAT ( 14441 ) on Wednesday June 24, 2009 @11:41AM (#28454295) Homepage

    This really should be a story about the legal risks of sub contracting... if you ship the work out, then it's very difficult to make sure all your ducks are in a row.

    • by Renraku ( 518261 )

      Risk?

      If Nintendo wanted, they could sue the contractor for millions and millions and millions since they violated the contract Nintendo set forth. Also, the contractor could sue the subcontractor for the same reason.

      Sure, Nintendo catches some flak for this. I don't blame the people for giving them said flak, but the real blame is on the actual contractor or subcontractor that decided to use GPL'd code without following the terms of the license. Seems like Nintendo is handling it pretty well, though, all

  • Speedracer: The Videogame --- there's a notice for Lua scripting on the copyright screen, so Nintendo can't be said to be forbidding opensource solely for being opensource, so there seems to be some sort of misunderstanding or miscommunication here.

    William

  • Given that you need a license to use Nintendo's API, would the GPL allow the source code to be compliant, even if there was no way to compile it without the missing API? I know there is the NDA which compounds the issue, but I am thinking of a scenario where there is no NDA.

  • by Toonol ( 1057698 ) on Wednesday June 24, 2009 @01:18PM (#28456045)
    The bit about open source/GPL software being used isn't the important part of this story. The major point that should be learned is that sub-sub-contracting out to development companies in (sorry, Russia) practically lawless countries can expose the parent company to SEVERE repercussions. Atari wasn't really to blame, other than being too trusting, but they're bearing the costs. The major development houses NEED to be actively involved, at least in an auditing sense, with whoever is actually writing the code.
  • by rsmith-mac ( 639075 ) on Wednesday June 24, 2009 @02:17PM (#28456905)

    After reading TFA, I get the impression that besides the GPL violations, the choice of license for ScummVM is itself an issue. The ScummVM developers seem to have no specific interest in getting the code back, rather they just want to be credited for their work on ScummVM and are proud of the fact that it was used in a commercial title. Accordingly, it strikes me that ScummVM was wrapped in entirely the wrong license.

    This seems like a textbook case for using the MIT license or some other non-copyleft license where the authors are attributed, but the code isn't forced open. You see this on other projects like LUA or the Vorbis reference decoder, where they are commonly used in commercial games with great success, including Wii games. If the ScummVM developers are as disinterested in the copyleft aspects of the GPL as they seem to be, then they should be looking at relicensing ScummVM under a more permissive license, which would avoid these kinds of snafus. If you just want attribution, it's much easier to just ask for that then to get in these boondoggles of asking for the code and tools too.

  • by Ant P. ( 974313 ) on Wednesday June 24, 2009 @03:55PM (#28458549)

    I seem to remember a story a few months back where they distributed code taken from a PC game crack in an official update.

    They obviously consider this sort of behaviour acceptable, so I expect they'll have no problem with people pirating their software en masse.

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