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One of the largest, and fastest growing, multimedia industries is the field of video games. With greater popularity and revenues comes stronger enforcement, and this increased enforcement is starting to run right up against one of the oldest plagues for game developers, and game users alike; Cheaters. While game developers have always taken measures to keep cheaters away from their games, and affecting the experience of other players, this has usually come in the form of technological tools to find/ban cheaters and their tools. As such, the arms race between game modifications and game developers is always continuing. Recently, with the aid of the much-discussed DMCA (Digital Millennium Copyright Act), game developers have begun to use the law as another tool in their arsenal in combatting cheaters. The application of these laws however can be controversial.

In late 2017, game developer Epic Games, producer of the hit game “Fortnight” filed a complaint for copyright infringement, and breach of contract (relating to a breach of Epic’s End User License Agreement, “EULA”) against a 14 year old boy (hereinafter “CR”). CR had installed a modification to his copy of the game “Fortnight”, and then live-streamed a video of him playing the game with said modification. Epic Games claimed this conduct violated copyright law because, by the installation of code modifying the local copy of his game, CR had essentially created a “derivative copy” of the game. Further, when he live-streamed a video of the modified game, this counted as a distribution of the “derivative work”.

While the modification of a work could be permitted under a “Fair Use” defense, in the case of modifications that facilitate cheating, the argument is much more complicated. Game developers have a history of ignoring modification of games that are of a single player nature, and only are seen/felt by that local user (as this has no commercial effect on the game, so long as the modifying user initially legally acquired a copy of the game). Games like “Fortnight” however are exclusively a multi-player experience. This means that any cheating modification affects not only the game for the user applying the modification, but also can have an effect on the overall game-playing experience of all users, and hence, have an effect on the game’s bottom line. A “Fair Use” argument is very difficult to sustain if there is a negative commercial effect on the underlying work.

When asked for comment, Epic Games said that the lawsuit stems not from CR using the cheat but for publishing what amounts to a how-to guide promoting it on his YouTube channel. While circumventing digital rights management (“DRM”) mechanisms can be a violation of the DMCA (Section 1201), linking to said information is not a violation under the DMCA.

In conclusion, it is clear that intellectual property rights enforcement is being used as a growing tool in the arsenal of video game developers. However, how these rights are being asserted, and how potentially infringing conduct is being analyzed, is a very muddled area.

Is Video Game Cheating Illegal?