Is it copyright infringement to cheat at video games?

Copyright is intended to reward creative people like artists for creating works of art by granting artists a set of exclusive rights to the work. Computer games are considered creative works and authors of computer games can be granted copyright on the computer games. Copyright protection for computer games can cover the source code that makes up the game, artwork which is displayed to the players in the game, as well as the music and sounds in the computer game.

Human beings by nature are competitive. Games are popular because human beings are a competitive species. Games are defined by reaching a goal by following certain rules. From the time that people began playing games to satisfy their need for competition, there have been some people that ignore the rules to win. Breaking the rules to win a game is generally considered unethical but is generally not illegal. In games between a group of friends, it is up to the friends to deal with the cheater. The cheater could be scolded or excluded from future games depending on how serious the players take the game. It is a general psychological principle that when a player in a game knows that they cannot win because another player is cheating, it makes the game less satisfying. The players that follow the rules will eventually lose interest in losing and abandon the game.

Computer games connected to the internet allow people from around the world to play games together. Massively multiplayer online games are computer games which may have hundreds of people all playing the same game at once. Typically these games do not require you to use your actual name to play the game, instead players use accounts that have no connection to the players real identity. A cheater’s account can be suspended but there is typically nothing stopping a cheater from creating a new account to continue playing the game. The companies that have created the computer games have an interest in preventing players from cheating or else the computer game will drop in popularity faster than it naturally would.

Epic Games is a relatively well known development company that has developed a number of popular computer games. Epic Games recently developed a game called Fortnite. One version of Fortnite is free and allows players to compete with one another in battle mode. Epic Games felt that Fortnite was over run by cheaters who kept coming back even after multiple accounts owned by the cheaters were banned. The cheaters were using software to make the cheater’s character in the game more powerful than any other player’s character.

In October 2017, Epic Games sued a number of cheaters for copyright infringement, contributory copyright infringement, breach of contract and intentional interference with contractual relations. The third and fourth contract claims are related the the End User License Agreement that every user must agree to before they are allowed to play the game. The first and second claims for copyright infringement are the interesting points. Epic Games claims that the Defendant is infringing Epic’s copyrights by injecting unauthorized computer code into the copyright protected code of Epic’s popular Fortnite video game. In so doing, Epic Games claims that Defendant is creating an unauthorized derivative works of Fortnite by materially altering the game that the code creates and the experience of those who play it. Epic Games is asking for statutory damages of $150,000, which is allowed under the copyright act.

The key point in Epic’s complaint is – by modifying the computer game code to enable cheating, the cheater is creating a derivative work, which infringes on Epic Game’s copyright to Fotrtnite.

The defendants essentially do not have a good counter argument really. To win this lawsuit the defendants would have to argue, somehow, that the defendants use of Fortnite’s computer code falls under a fair use exception. The writers of this blog are not aware of any case law which would give the defendants a strong argument for a fair use defense. But in the United States few cases actually get debated on the merits, frequently interesting cases are settled before a judge makes any rulings. As of December 1st one of the defendants has already settled with Epic Games for a promise not to cheat again, if the promise is broken the defendant is obligated to pay Epic $5,000 and attornies fees. Settlement agreements are frequently confidential, the fact that Epic Games allowed this settlement agreement to be public record may be to let the other defendants know it is much cheaper to settle than fight in court.

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