Using Copyright Law to Sue Cheaters?

This post is the first of a series looking at the two-sided issue of using the legal system to protect your player base that may result in a negative public reception.  Will you be viewed as the protector of your players or a greedy evil corporation looking for another revenue stream? In Part 1, we will explore the history and current events facing an industry that’s rapidly evolving.
The Video Game Industry is evolving at a rapid pace, one that is constantly pushing the boundaries of technology. The demand to make games more connective, more challenging, and more social comes with associated risks that developers have to balance every time they approach a new project.  Multiplayer or player versus player games are a testament to the ever-changing landscape of video games. No longer are you sitting on the couch with your best friends playing a game on the same screen. Today, popular multiplayer games such as Fortnite, Call of Duty, Overwatch, and mobile titles like Clash Royal pits players from all over the globe against each other on a wide range of devices. What makes these games so popular? A high competitive player base, and fair accessible gameplay.
One of the most difficult challenges any developer of a multiplayer game faces is keeping people playing your game. At the end of the day, no one wants to play a multiplayer game if they are the only player, and with so many competing entertainment options available at any given time, companies face an ongoing battle for your free time. Now, throw in the cheaters and the hackers, players that gain unfair advantages by using the malicious software. You can ban their accounts, but they just keep coming back, and as their numbers grow your player base starts to drop. What can you, the developer/publisher, do to protect your game and your players? The answer… You sue your players.
Video Game Developers and Publishers filing lawsuits to protect their games and intellectual property is not an uncommon notion. In 1999, Sony sued Michael and Carol Chaddon over a PlayStation “game enhancer,” or as Sony’s attorneys described it, a console hack. In 2008, Blizzard filed a lawsuit against the makers of a World of Warcraft Bot that allowed users to go on “autopilot” and advance in the game.  In 2012, JageX launched a series of legal proceedings against bot developers and users in an effort to eliminate illegal gold farmers. Also in 2012, Nexon America, creators of MapleStory, filed suit against the creators of UMaple, a for-profit venture that enables users to copy, access, and play MapleStory on private servers without Nexon’s consent. In 2017, Blizzard was again back in the courts this time going after the German company Bossland GMBH best known for creating the “Watchover Tyrant” cheat tool used in popular first-person shooter Overwatch. Blizzard was awarded over 8 million dollars in damages as a result of the Watchover Tyrant tool.
What do all of these lawsuits have in common? Each one was filed against the companies reasonable for creating hacks and cheating software which installed malicious software that edited the game’s code to allow players to cheat. Additionally, some studios went as far as to go after the websites and message boards where players could purchase the cheating tools. Not one of these high profile titles and studios went after the actual cheaters, with one exception. JageX filed suit against “John Doe” in an effort to identify bot using players by subpoenaing records from PayPal. It appears from court filings, after JageX discovered the players identify and contact information, it dropped the lawsuit and banned the players. Additionally, JageX sent out settlement letters giving the banned players an option to walk away freely, and never return.
The list of games and Studios above is not all-inclusive, they’re many studios through North America and all over the world filing lawsuits to combat cheaters. Most if not all of these Studio’s lawsuits are aimed directly at the coders, sellers, websites and message boards that support and create the tools used by players get an unfair advantage in a game.  Each filing paints an image that the Studio is the protectors of the player, going above and beyond protecting the equal playing ground that causes their games to thrive. The Studios’ weapons of choice, violations of the end user licensing agreements and copyright infringement.
End user licensing agreements commonly referred to as “EULA” is the first legal line of defense Studios can use to protect their intellectual property, their game, and their players. An EULA is a contract entered into between player and studio that set forth the legal terms and conditions a player must agree to in order to play the game. In other words, it lays out the rules each player must abide by, and a failure to do so will constitute a breach of contract between the parties.
In 2010, as part of the Blizzard case against the World of Warcraft bot maker, the 9th Circuit Court of Appeals confirmed that under Blizzards EULA, a player who purchased a copy of World of Warcraft and agrees to the EULA, are deemed as a licensee and not owners. Therefore, Studios are no longer selling players a copy of the game, rather they are selling a license to use the software. That license as stated above comes with very specific terms and conditions and failure to comply results in a breach that may subject a player to legal consequences.
Blizzard is not alone in going after cheaters who breach the EULA, Riot Games the creators of the wildly successful MOBA League of Legends filed suit in 2016 against the creators of the hacking took Leaguesharp. What Blizzard set in motion, the 9th Circuit confirmed, and Riot expanded on, is the legal theory that the player is the licensee and as such when a player breaches the EULA the license is void and infringes on Riots copyright. This is a gross simplification that requires some explanation to truly understand how Studios are successful in these lawsuits.
The Digital Millennium Copyright Act (“DMCA”) is the sword that studios are using to assert copyright violations against hackers and cheaters.  The DMCA states, “No person shall circumvent a technological measure that effectively controls access to a work protected.” This one clause often referred to as the Anti-circumvention clause effectively gives Studios the right to go after the creators of cheats that circumvent anti-cheating barriers the Studios put in place.  This is exactly what Riot Games did in 2016 when they sued Leaguesharp. League of Legends is arguably the first real mainstream E-Sport title in the United States, and as such, Riot Games had more on the line than just losing its player base. Riot faced a hit to its reputation allowing cheats like Leaguesharp to taint its competitive gameplay.
In 2017, Blizzard was award over 8 Million dollars against Bossland for creating the “Watchover Tyrant” cheat tool. Blizzard used the DMCA sword to protect its popular E-Sport title Overwatch from the Watchover Tyrant tool that created among many things: wall hacks, aimbots, and placed an overlay that provided the player with a gameplay advantage. As part of their lawsuit Blizzard claims that Bossland used a “tripwire” to “watch the watchers” in an effort to circumvent Blizzards anti-cheating barrier “the Warden.”
Most if not all of these cases are filed against the creators of the cheating tools. What happens when a studio shifts its focus from punishing the creators of malicious software and targets the actual players using it? Does this shift the perception of the Studio from a protector of players to the evil greedy corporation? What happens when the games are played by individuals under the age to give consent, does the EULA still apply? In Part 2 of this series, we will examine the recent events taking place with Epic Games, the creators of the wildly popular game Fortnite, who filed suit against a 14-year-old kid who was caught using malicious software that altered the game’s code on his local machine to gain an unfair advantage over players.