A recent decision outlined new grounds to challenge software cheating of videogames due to breach of contract and copyright infringement.
The word cheat conveys the concept of a lie. But, cheating – more than the worst lie –implies the choice of harming someone to get a benefit to the cheater. Cheating in videogames has traditionally underestimated because people that you play with are often friends. While the advent of online computer games and esports tournaments has changed how people can cheat (e.g., identity theft, phishing, eDoping, etc.), there are new ways of cheating in videogames and entirely new legal problems caused by the violation of rules of a videogame. This article is aimed at identifying the legal grounds under which a potential software cheating may be challenged following a recent ruling of the England and Wales High Court (Patents Court) for breach of contract and copyright infringement for the cheating activity perpetrated against the software designed for Grand Theft Auto V (GTA V).
Cheating as a breach of the end-user license agreement
When launching a game, the purchaser of a videogame agrees to be bound by the rules outlined in an End User License Agreement (EULA). The essence of a EULA is the licensing clause, under which the licensor grants to the user rights to install and play the game, and to use any accompanying documentation. By default, a videogame may only be used for non-commercial purposes, and the user must not sell, loan, redistribute, modify or reverse engineer the videogame. The EULA shall also contain a wide range of acceptable use and anti-cheating provisions that are particularly relevant in competitive online games.
In the case mentioned above, the EULA of GTA V contained an explicit ban both on cheating in any form and on providing guidance or instructions to any other individual or entity on how to cheat. The following provision comes from an extract of the EULA:
“You agree not to, and not to provide guidance or instruction to any other individual or entity on how to…”.
It then follows with a list which includes copying and reverse engineering:
“cheat (including but not limited to utilizing exploits or glitches) or utilize any unauthorized robot, spider, or other program in connection with any online features of the Software;”
“violate any terms, policies, licenses, or code of conduct for any online features of the Software”.
The judge held that the elements of the test inducing a breach of contract by the users of the software were established. Therefore, the defendants must have been aware not only of the existence of the agreement but that what was being done was unauthorized.
The judgment reaffirms the key function of EULAs since their terms will be fundamental in establishing breach, and their existence will weaken any argument from cheat software developers or distributors disclaiming knowledge of violations.
Cheating as copyright infringement
The claimants’ copyright infringement claim fell into three broad categories:
- the copy of substantial parts of the GTA V computer program which contained instructions to run the game on the player’s computer and libraries which provided the graphics, sound and other artistic material used in the videogame;
- the unauthorized infringements of copyright in the form of copying and adaptations;
- the circumvention of technical devices built into the game, which generally protected its operation against unauthorized tampering and hacking.
Using the definition of copyright as the bundle of rights granted to the author of the original work for a limited period, copyright is infringed if, without a license from the copyright owner to do so, a person either does or authorizes another to do various acts, which include copying.
In this regard, Section 16(3) of the UK Copyright, Designs and Patents Act 1988 makes it clear that infringing copyright can relate to the whole work or a substantial part of it. Section 17(6) expressly provides that copying includes the making of copies, which are “transient“.
That has to be considered necessary because a critical part of the defendants’ defense is that using cheating software does not involve any copying of a lasting nature, or indeed any permanent or lasting change to anything on a player’s hard drive.
On the contrary, the answer of the judge to this argument is that “because copying expressly covers anything that is transient, the way the cheat [software] works does involve a breach of copyright in the form of making transient copies.”
As a result, it was found that there was no other compelling reason to proceed to trial, and summary judgment was granted in favor of the claimants.
Are publishers and developers ready to deal with software cheating?
This case represents a victory for publishers and developers in their fight against software cheaters. Cheating can lower game traffic, revenues, and ruins the overall gaming experience for players causing potential reputational damage. Publishers and developers of videogame shall be ready from a legal standpoint as rights holders to prevent unauthorized use of their software. In any case, copyright and contract law should be used in conjunction with technical measures to make it harder for cheaters to incorporate cheating tools into games.