How Far Should a Publisher Go to Stop Cheating in a Massively Multiplayer Game?

How I wish I had time to play computer games. Heck, how I wish my children had time to play them (other than Minecraft, of course, which remains very popular with my younger child), because then I could play computer games with them. The other day, I wondered out loud to my elder child whether she’d like a Nintendo “Switch,” and she sort of shrugged. Between homework, orchestras, role-playing games, horror films, bad movies and death metal, who had time for computer games, Dad? I was a little crushed, but I take her point.
But, hey, there’s always the law of computer games. And, hey, this case involves the Digital Millennium Copyright Act (DMCA), one of my favorite laws. And, hey, this case also involves a David slinging back at Goliath, which looks like about 90% of my practice.
But first, some sympathy for Goliath. The computer game in question is Fortnite by Epic Games (that’s your plaintiff). It’s a massive, multiplayer shoot-em-up. Imagine dozens of players dropped in a terrain, each trying to pick each other off with interesting guns, explosives, etc., with the last one standing the winner. The schtick is that you can make fortresses on-the-go (hence “Fort”-nite). Sounds fun! (Alas, I’ll never play, as explained above.)

Cheating is a problem, though, because we can’t have nice things. Little cheats in a game like this can give a player a huge advantage. If you can aim a little faster, scope a little farther, see through the odd barrier—that sort of thing. There are also big cheats, like teleporting opposing players into the open.
Games have been ruined before by cheating. Epic Games, however, has made the decision to push back hard on cheaters. If banning the cheater repeatedly didn’t the trick, Epic Games was going to sue. It was also going to send DMCA takedown notifications31Remember, they’re ALWAYS “notifications,” not mere “notices.” to YouTube, etc., to remove videos showing how to implement cheats.
Our defendant, whom we’ll call “C.R.,” is a proud cheater. He made a video showing himself cheating at Fortnite. Epic Games sent YouTube a takedown notification. YouTube told C.R. about it. And, rather than just roll over, C.R. sent YouTube a counter-notification, asking that the video be put back up, which YouTube apparently did.32I say “apparently” because I can’t find the video on YouTube, but Epic Games seems to think it was put back up. At this juncture, if Epic Games wanted the video taken down, it would have to file a lawsuit against C.R. So it did. It’s one of nine such lawsuits it has filed since early October.
C.R. didn’t think he did anything wrong. On October 29, he uploaded a video explaining why he thinks the lawsuit is bogus. His main argument is that, while he did cheat (quite a bit), he only did it for fun, not to win. He disputes that he was blocked 14 times for cheating: “I did not get booted 14 times. It more only, like, 10 or 5 times.” Judging by the comments to his video, the YouTube community isn’t very persuaded, and basically thinks C.R. is just a dirty cheater. The main effect of this video was to admit to the key allegations of Epic Games’ complaint.
The case got a lot of publicity—such as from Cory Doctorow and The Vergewhen C.R.’s mother intervened with this letter to the judge. She makes only one salient point, but it’s a good one: C.R. is only 14 years old…

Major Minor Issues

It’s not illegal to cheat—at least, not generally. Some specific forms of cheating, such as cheating at gambling, are illegal, of course, but as a general proposition, cheating isn’t automatically illegal. The closest thing is perhaps regular old fraud, but that’s really hard to prove, and it doesn’t cover everything.
But, what you can’t get through the general law, you can get through contract—if you can get the other party to agree, that is. If you can get folks to agree not to cheat, then you can sue them if they do cheat. In Epic Games’ case, it probably just wants the cheaters to stop cheating. Money isn’t going to fix the problems caused by cheating. Luckily, this is precisely the type of situation where a court will issue an injunction (i.e., an order telling someone to stop doing something). Injunctions are designed for times when money can’t solve the problem. Here, cheaters are making Fortnite less fun for the non-cheating players, which likely drives some of the non-cheating players away. This results in a loss of revenue for Epic Games, but it’s impossible to tell how many stopped playing because of the cheating. Also, once a game gets a reputation for hosting too many cheaters, it might not matter if the game gets cleaned up. The damage is done.
When C.R. downloaded Fortnite, and when he registered with Epic Games (which appears to be a prerequisite for playing Fortnite), C.R. essentially promised he wouldn’t cheat. But there’s a problem, as C.R.’s mother pointed out: C.R. was only 14 when he clicked on the “I Agree” button.
Minors can enter into contract, but they can repudiate the contracts at will before they turn 18 (at which point, they have to decide whether the ratify or repudiate the contract once and for all). To put it mildly, this isn’t a great situation if you’re the other party: you can’t get out of the contract, but the kid can. According to C.R.’s mother, users are asked their age after agreeing to the End User License Agreement, which is rather too late. And even then, Epic Games would have to get one of C.R.’s parents—such as the redoubtable Mrs. R.—to execute the agreement on his behalf.
Let’s assume, then, that C.R. isn’t bound by the EULA and, therefore, hasn’t promised not to cheat. Not only does this knock out Epic Games’ strongest claim, but it probably knocks out its ability to sue C.R. in North Carolina. C.R. lives in Delaware. The EULA has a “forum selection” provision, through which users agree that they can be sued in Epic Games’ home district, the Eastern District of North Carolina. But with the EULA out, the forum selection provision is out, too. Without going into too much detail, I strongly doubt that, merely by playing Fortnite, C.R. has “availed himself of the privilege of conducting business” in North Carolina. I think Epic Games needs to sue C.R. in Delaware.

Let’s Play!

OK, so let’s say Epic Games does sue C.R. in Delaware (where he lives). After all, Delaware has courts—indeed, one of the most robust court systems in the country. And Epic Games’ complaint has other claims, most notably a claim for copyright infringement and for violation of DMCA anti-circumvention statutes.
Epic Games frames its copyright claim in a couple of ways. First, C.R. video-captured (and live-streamed) himself playing Fortnite (and, not incidentally, cheating). This violates the reproduction and public performance rights, even though (1) Epic Games cannot control the exact output (because the players do unpredictable things), and (2) the user’s computer has to render the display by interpreting Epic Games’ code. Thanks to cases that date to the video-arcade era (specifically, Pac Man), courts agree that the owner of the copyright in the code also owns the copyright in the display of gameplay.33I can imagine some interesting possible exceptions to this rule, where the user’s creativity is part of the game, such as Minecraft. At some point, the computer program is less like a game and more like a painting program or word processor. Let’s save that rabbit hole for another time. Furthermore, Epic Games owns the copyright in specific elements of the gameplay, such as the player avatars.
Isn’t live-streaming and video-capturing your own gameplay fair use? Isn’t that what “let’s play” videos are based on? Let’s play videos are popular and surprisingly enjoyable. 34Now that I think of it, why am I surprised? In the arcade days, we gathered around a video game to watch a really good player. Even looking over a guy’s shoulder, it was a spectator sport. I myself have watched every single one of Stampylonghead’s let’s-play videos of Ni no Kuni: Wrath of the White Witch because (a) the game is really terrific, and (b) Stampylonghead is really good at making let’s-play videos.
We don’t really know if let’s play videos are fair use, regardless of their popularity. Game publishers seem content to tolerate them, under the enlightened doctrine of Don’t Piss Off the Fanbase (or Fandom Is Good for Business). For story- and character-based Let’s Play videos, I think extensive walk-throughs aren’t likely to be fair use, because it involves reproducing and public performance of copyrightable narrative and character elements, as well as pictoral elements. However, I think C.R. video was probably different. Unfortunately, we don’t know very much about the video, which he named “Fortnite Hacking COME JOIN MEEEE.” But it appears to be a typical live-stream of him using some of the cheats in Fortnite. There aren’t any narrative or character elements—it’s just an elaborate shoot-em-up—and any pictoral elements are incidental to just showing people your mad gaming skills. While watching someone play a narrative  video game—complete with all the spoilers—might well substitute for the game, there’s no such substitution in Fortnite. Watching someone else play Fortnite isn’t going to make you less likely to want to play it (all other things being equal).
There’s a more fundamental, strategic problem with this legal theory: it doesn’t really get Epic Games what it wants. All it gets is the video taken down, which doesn’t stop cheating. What it needs is an injunction preventing C.R. from cheating at Fortnite.

Deriving Nonsense

OK, but Epic Games has another theory: that C.R. made a “derivative work” when he downloaded and implemented a publicly-available cheat code for Fortnite. The theory is that the cheat code is injected into the regular Fortnite code, making it a slightly different work. If this theory worked, then Epic Games really could enjoin C.R. from cheating.
Too bad it’s nonsense. If I took a novel that I had purchased and stuck an extra page into it, I wouldn’t have made a “derivative work” of the novel. I would not be liable for copyright infringement. By definition35The Copyright Act defines “derivative work” as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work.” This is a helpful, but hardly precise, definition., a contribution or alteration to an underlying work isn’t a derivative work unless that contribution or alteration “represent[s] an original work of authorship.” Adding a bit of cheat code to the game code hardly qualifies.
The “derivative work” right comes to us from the “adaptation” right, which covers such things as turning a novel into a movie, or translating a book into another language. It was later determined that “adaptation” was slightly too narrow a term, since it didn’t include editorial efforts, so “derivative work” was substituted, and it has sown confusion ever since. Part of the problem is the word “derivative” sounds as though it should encompass any alteration to the underlying work, no matter how trivial (unlike “adaption,” which sounds—dare I say it—transformative). The other problem is the concept of “derivative works” does double duty in copyright law, which aren’t (or shouldn’t be) quite coextensive: it is one of the exclusive rights (i.e., thinks you’re allowed to do—and stop others from doing—with the copyrighted work), and it’s a separate copyright when someone adds or alters an underlying work enough to constitute its own protectable contribution (and the relationship between the derivative work and the underlying work is very complex and fuzzy).
Arguably, adaptations are really just reproductions in disguise, and the adaptation right is superfluous. You can tell because you almost never have a case involving violation of the derivative work right that doesn’t also involve the reproduction right. There a handful of cases in which the defendant legally purchased multiple copies of a copyrighted work, then used those copies to make and sell something else. No reproductions are made, and the distribution right is defeated by the First Sale Doctrine, leaving only the derivative work right. Courts are split, alas, as to whether this really is cause of action.

But Who Will Cheat the Cheaters Themselves?

So why all these mental gymnastics? After all, C.R. was a cheater, and cheating is forbidden by the EULA. So, while he was cheating, wasn’t C.R. acting outside the scope of the license to play Fortnite and, therefore, an infringer? That’s what I would have thought, too, at least until 2010. That’s when the Ninth Circuit decided MDY Industries v. Blizzard Entertainment. In that case, Blizzard Entertainment had gotten sick of players using bots to play their characters in World of Warcraft and sued MDY, which developed and sold these bots. The WoW EULA explicitly forbade using bots. As the Ninth Circuit explained, some breaches of a license agreement take you outside of the scope of the license, making you an infringer, but others are just breaches of contract. To take a classic example, if I gave you the right to reproduce my work and distribute up to a certain number of copies, you’d be infringing my copyright if you exceeded that number. But if you just didn’t pay me my royalty, you’re not an infringer; you’re just a deadbeat.
Is cheating at a game, in violation of a license agreement, more like exceeding the permissible number of copies, or more like failing to pay? The Ninth Circuit36Following Storage Tech. Corp. v. Custom Hardware Eng’g & Consulting, Inc., 421 F.3d 1307, 1315–16 (Fed. Cir. 2005). held it was more like failing to pay:

Were we to hold otherwise, Blizzard — or any software copyright holder — could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player’s abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player’s computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners.

The Ninth Circuit specifically suggested, however, that violation of a prohibition against making derivative works would take the licensee outside the scope of the license. Ah, and that would explain that derivative work theory.

Anticircumvention Circumvented

All is not lost for Epic Games, though! That’s because Epic Games claims that, in order for the cheat code to insert itself into the game code, it had to circumvent technological security measures, in violation of the DMCA.37The OTHER, less sexy part of the DMCA, i.e., the part that doesn’t create safe harbors to infringement actions. In the MDY v. Blizzard case, the Ninth Circuit held MDY’s bots violated one flavor of the DMCA. But even here, it’s not clear sailing. That’s because other courts disagree with the Ninth Circuit about how to interpret the DMCA. The Ninth Circuit held in the MDY v. Blizzard case that all you had to do was circumvent some technological security measure, period. This interpretation suits Epic Games. But other courts have held that it’s only a violation of the DMCA if you do so in order to access a copyrighted work without permission. This interpretation would defeat Epic Games’ DMCA claim, unless its “derivative work” theory worked, because C.R. probably had a right to access Epic Games’ copyrighted materials. In other words, under this interpretation, the DMCA claim is no more likely to succeed than its copyright claim and thus doesn’t really add much to its case, except perhaps some additional statutory damages.

Some Final Points: Free Isn’t Free; No One Forces You to Sue; Epic Games ≠ RIAA; Defaulted

You know how C.R.’s mother keeps mentioning that Fortnite is free? It’s completely beside the point, for a couple of reasons. First, if the copyright and/or DMCA claims stick, they provide for statutory damages regardless of whether actual harm can be proven.38The Verge and other media outlets normally mention the $150,000 upper limit of statutory damages and how it would bankrupt the family (which it almost certainly would). But do you really think a jury is going to bankrupt a family over this—even if C.R. comes across at trial as a little snot? The jury can go as low as $750, and I’d expect statutory damages much closer to the floor than to the ceiling. Second, she misses how cheating hurts Epic Games. The game download might be free, but Epic Games makes money from gameplay (how else would they?). If other players start to avoid Fortnite because of cheating, Epic Games’ revenues will suffer. Although Epic Games will have difficulty proving how much revenue is has lost, it should have little difficulty proving irreparable harm to obtain an injunction, which is all it probably really wants from C.R.
When asked to explain themselves, Epic Games didn’t say, “Oh no, we didn’t know he was only 14.” Instead, it said, “Under these circumstances, the law requires that we file suit or drop the claim.” That isn’t true.39Well, more precisely, that’s true about any type of lawsuit: if you wait too long, the statute of limitations will eventually bar your suit. Epic Games appears to believe that, having asked YouTube to take down the offending video, it had no choice but to sue C.R. once he sent YouTube the counter-notification. Despite the counter-notification, the video remains down, and Epic Games doesn’t need to sue to cement that status. Further, assuming Epic Games has fixed the parental-consent problem, C.R. can’t play Fortnite any longer, unless he wants to agree not to cheat. Because he has repudiated the EULA, he no longer has a license to play. In short, Epic Games really could just leave well enough alone. This isn’t trademark law, where sometimes you really do have to fight to protect your trademark (and honestly, it’s not that often).
Both The Verge and Doctorow compare Epic Games’ strategy of filing multiple lawsuits to the RIAA’s decision to sue Napster users, which was truly one of the dumbest legal strategies ever. In both cases, the copyright owners are suing their own customers. I don’t think the situations are comparable, though. The reason the RIAA’s strategy was stupid was that it damaged relations with its customer base without doing anything about piracy. Infringement might not be a victimless crime, but the victim isn’t terribly obvious either40And is often imagined to be somebody with too much money anyway. Cheating, by contrast, immediately pisses people off. People who play the rules really, really resent cheaters. I invite you again to read the comments to C.R.’s video explaining himself. There’s almost no sympathy, because the same people who don’t think twice about downloading pirated content hate, hate, hate cheaters ruining their games. Also, the stakes aren’t as high: Epic Games is just trying to protect a game and the community that plays it, not an entire industry.
Doctorow thinks that C.R.’s mother missed an opportunity by failing to cite the Lenz (“dancing baby”) decision, which I blogged about extensively here. But Lenz has no real application here. It’s not a defense to a claim of copyright infringement. Instead, it relates to a claim that C.R. would have against Epic Games for issuing the takedown notification in bad faith. Lenz held that, when considering whether bad faith exists, the court should consider whether and to what extent the copyright holder considered fair use. The copyright holder need not consider it for long, or accurately, but only just consider it honestly. If C.R. wants to play hardball and file a claim based on § 512(f), then maybe we’d have something to talk about. But, although I said I think his use is probably a fair use, that’s not nearly as easy a conclusion as it was in the “Dancing Baby” video, where the music was incidental and in the background, not terribly audible.
For now, C.R. has more immediate problems, such as, how he is currently in default. You get three weeks to respond to a complaint, once it’s properly delivered to you, and C.R. has had the complaint since at least October 29. C.R.’s mother might have raised a strong legal defense, she did so in a letter to the judge, not in a pleading (where you’re supposed to admit or deny every fact alleged in the complaint). The judge won’t be eager to enter a default judgment against C.R. under these circumstances, but that’s not a chance I’d be willing to take. Defaults are terrible because you are deemed to have admitted everything in the complaint. Then again, Epic Games should probably voluntarily dismiss this case while it can. Maybe they’re already talking to C.R.’s mother about that. We can only hope.
Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.