Digital Dance Moves… the newest wave of litigation to hit Fortnite creator Epic games. Do these creators have a case, or is this a failed attempt to change the law?

Over the past few months, Epic Games the creators of Fornite saw an increase in the negative press over the Fortnite’s use and sale of digital dance moves via Fortnite’s in-game store. A number of creators came out against Fornite’s practice claiming Epic Games “stole the creator’s intellectual property, and is profiting off its use.”  Famous rapper, Terrence Ferguson a.k.a 2 Milly, Actor Alfonso Ribeiro, known as Carlon from the TV Fresh Prince, and even the mother of “Orange Shirt Kid” all filed copyright infringement cases against Epic Games claiming the studio willfully copied their various dance moves. Each case is seeking damages from Epic Games for the sale of the digitally recreated dance moves that Epic subsequently sold to the Fortnite player base.  Do these Plaintiffs have an actual case, or is this an attempt to force the courts to reinterpret the Copyright Act of 1976?

To answer the question we first must determine if a dance move can be copyrighted? For a work to qualify for copyright it must (1) be an original work of authorship or artistic expression, (2) fixed in a tangible medium of expression.  (17 U.S.C.A. §101) Copyrightable subject matter includes literary works, musical works, dramatic works, pantomimes, and choreographic works, and several other forms of artistic expression.  We are only going to focus on one, choreographic works.  The United States Copyright Office defines choreographic works as “the composition and arrangement of dance movements and patterns and is usually intended to be accompanied by music. (Compendium of Copyright Office Practices, Compendium II § 450.01 (1984)). Most importantly.

This leads up to the most important question, Can a single dance move or a simple routine of dance moves qualify for protection as a choreographic work? Does copyright protection expands to 2 Milly, Carlton, and the Orange Shirt Kid, and if so do they have the right to sue Epic for damages for subsequently “copying” these dance moves, and selling them via the Fortnite in-game store?

One of the important cases in examining these questions is Horgan v. MacMillan, a case concerning the alleged infringement of the copyright in George Balanchine’s choreographic works for the Nutcracker ballet. The Second Circuit when examining the Copyright Act and the legislative reports held social dance steps and simple routines are not copyrightable. H.R.Rep. No. 1476, 94th Cong., 2d Sess. 53–54, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5666–67. The Compendium of Copyright Office Practices, Compendium II (1984) The Court detailed that Section 450.03(a) explains:

“the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable. However, this is not a restriction against the incorporation of social dance steps and simple routines, as such, in an otherwise registrable choreographic work. Social dance steps, folk dance steps, and individual ballet steps alike may be utilized as the choreographer’s basic material in much the same way that words are the writer’s basic material.”

                The Court in Horgan indicates that the definition of what is a choreographic work and what is a simple dance move has to do with the “the flow of the steps.”  

                Now let’s apply the Horgan standard to the current cases against Epic. Do these cases, looking from purely a copyright infringement stand-point hold up? The answer has to be no. The Carlton, the Milly, the Orange Justice all of these moves are just that, a simple dance move. This is no different from the waltz, the hustle, etc. Yes, people do associate the move with a person or character, but is that alone enough for copyright protections? The answer still is no. While other claims could exist like a right of publicity, and likeness, that’s not what we are examining in this post. So what are these individuals doing going after Epic if the current legal standards don’t support their case? Clearly, they’re upset that someone is profiting off their dance move. Was it right for Epic to not compensate the creators? I can’t answer that, it’s something we call in legal industry as a “business decision.”  Was it illegal, does it entitle these individuals to damages, based on what we examined above, the answer is no.

                Do you have any questions about your game, its copyrights or other intellectual property? Send us an E-mail and let up a free consultation with one of our attorneys!

What happens when E-Sports Team and an Apparel Company battle over trademark rights?

Last week’s blog post detailed the importance of Trademarks, and why every brand owner needs to file an application to register their Trademarks to protect their brand. This week we are going to explore what happens when a brand owner and a famous ESports team collide in court over the use of the brand owner’s trademark, and what type of damages the brand owner can seek from the ESports team if infringement is found. As always nothing in this blog spot should be treated as providing legal advice, and reading the Press Start Legal blog posts does not create an attorney-client relationship.

The Backstory.

FaZe Clan Inc. a California company and E-Sports team is one of the most well know E-Sports organization based on the company’s social media followings. FaZe Clan regularly competes in live events and tournaments for popular games like Call of Duty, Fortnite, Overwatch, and Counterstrike. Faze Apparel is a clothing and accessories brand founded in 2007 in San Francisco California. Faze Apparel uses its Faze brand to create a number of clothing options such as shirts, hats, and other accessories including phone cases. Since 2007, Gaze Apparel prominently featured their registered trademark FAZE and F.A.Z.E as their dominant design element and a source identifier.

The Start of a Battle.

As early as 2008, Faze Apparel filed for a design mark for F.A.Z.E (U.S. Reg. No.: 3680738), and in 2013 Faze Apparel filed for a word mark for FAZE (U.S. Reg. No.: 4550118). Both marks registered by Faze Apparel are in International Class 25, includes most types of clothing, footwear, and headgear.  At the same time in 2013, as FaZe Clan’s popularity started growing, and the California E-Sports team looked to file FAZE and Faze Clan Sniping with trademarks in International Class 25. Both applications were rejected by a USPTO examiner citing the that FaZe Clan marks were confusingly similar to Faze Apparel’s registered Faze Marks already in Class 25.  In July of 2013, FaZe Clan again applied to register the FAZE CLAN mark in both Class 41 (Video Games) and Class 25 (Clothing).  Faze Apparel filed Opposition with the Trademark Trial and Appeal Board which in 2016 entered judgment in favor of FAZE Apparel, that the FAZE CLAN mark is confusingly similar to Faze Apparel’s registered Faze mark in Class 25.

Between 2014 to Present FaZe Clan and Faze Apparel have been embodied in a battle over the rights to use “faze” with clothing. According to a recent lawsuit filed by Faze Apparel, FaZe Clan repeatedly used the Faze mark in a number of clothing items sold on its online store, and through a  third party, Electronic Gamers’ League. Now brand owner, Faze Apparel had enough and filed an infringement suit alleging FaZe Clan engaged in Trademark Infringement and Counterfeiting, Unfair Competition and False Designation of Origin.

Trademark Infringement, the Weapon of War.

This case is a textbook example of why it’s so important for brand owners to registered your marks, and protect your brand. An infringement case such as the one discussed above is no joke and can involve serious penalties and statutory damages. What are statutory damages, and why are they so important in trademark cases? Statutory damages are a special situation where a plaintiff in a lawsuit does not have to prove actual damages, but can instead look to a statute or in this case the Lanham Act, for damages.

Section 35 of the Lanham Act, sets forth monetary remedies for trademark infringement, unfair competition, use of a counterfeit mark, and willful trademark dilution. (15 U.S.C. § 1117) While §1117 (a) and (b) focuses on a plaintiff’s actual damages, a plaintiff can elect to seek statutory damages. (15 U.S.C. § 1117(c)) Congress’ reasoning behind §1117(c) reflects situations where infringers and/or counterfeits records of sales are more often nonexistent and makes proving actual damages extremely difficult if not impossible in most cases.

The Fruits of War

Let’s jump forward in time, and let’s assume that Faze Apparel proved FaZe Clan engaged in trademark infringement and counterfeiting as defined by section 15 U.S.C. § 1116(d)(1)(B)(i). What can Faze Apparel recover if they elected for statutory damages under the Lanham Act?  Under 15 U.S.C. § 1117(c) statutory damages for counterfeiting are to amount to not less than $1,000 or more than $200,000 per counterfeit mark, per type of goods or services sold, offered for sale, or distributed.  Additionally, if the Court finds that the use of the infringing/counterfeit mark was willful, meaning FaZe Clan used Faze Apparel’s registered marks knowing that they did not have the authority to do so, then the damages ceiling is raised to $2,000,000 per counterfeit. That’s a lot of money for each type of good sold in International Class 25 that infringed on Faze Apparels marks.

Now, this is all hypothetical, as this case is still ongoing and we will not know the outcome until the Court makes a ruling. It’s hard to look at the numbers in willful infringement cases, and wrap your head around why a company would take a risk and infringement on someone’s registered marks. This is why brand owners must seek registration on their brands, as just these numbers alone are a deterrent for anyone seeking to infringe on your registered marks.

Press Start Legal’s team of trained attorneys can help assist in every aspect of the registration processes. From the initial search to filing your application you can trust our team to get the job done right. If you have any questions about Trademarks or you’re seeking to register a new mark feel free to contact us at Info@PressStartLegal.com

5 Things Every Brand Owner Needs to Know About Trademarks.

Whether you are starting a new brand or have an existing one, getting a Registered Trademark is one of the most important steps you can take to protect your brands! A Trademark identifies a single source of origin for your goods or services and gives you a mechanism for distinguishing your goods and services from those of others. Most importantly, it provides you with the right to prevent others from adopting a similar name and/or logo likely to cause confusion among the marketplace.

  1. Types of Trademarks

In the United States, a Trademark can be a word, name, symbol or a device, and in some circumstances, it can be a color, a sound, or a scent. For example, among John Deer has a Trademark on their signature color green or the popular jewelry store Tiffany & Co. has a trademark for their famous “Tiffany Blue.” Other famous Trademarks include the Nike Swoosh, Apple’s gray apple, the MacDonald’s golden arches, and the NFL shield.

For brand owners getting a registered trademark for your business name, your brands, and your logos are steps you need to take to protect your reputation and intellectual property.

  1. Trademark Requirements

Just having a brand is not enough to qualify for a Trademark. Your brand must be both distinctive, and it must be used in “interstate commerce.”  Distinctiveness is the ability of your brand to identify you as the single source of goods or services. Interstate Commerce achieved when your brand is used to sell your product or services among multiple states. This is important because if you’re a local shop, you may not qualify for Federal Trademark if you only offer your goods and services within your State. That said it may still be possible for you to get State-level protection.

  1. Eligibility for Registration with the United States Patent and Trademark Office.

Not all words, symbols and logos can be registered as a trademark. The USPTO, regulations have certain subject matters that may not be registered under ant circumstances including: marks likely to cause confusion with a previously used or registered mark, deceptive matter, function matters, matter that falsely suggests a connection with a person or institution, government insignia, or names/portraits and signatures identifying living individuals without their written consent. Additionally, certain brands may only be registered after a showing of acquired distinctiveness such as merely descriptive goods or services, primarily geographically descriptive, and primarily a surname.

  1. Advantages of having a registered trademark.

Registering your brand as a federal trademark with the USPTO comes with a multitude of advantages when it comes to enforcing your rights. A registered trademark carries with it evidence that your trademark is valid and you or your company have ownership of that mark. Additional registration advantages include nationwide use of the mark, statutory removers for infringement claims such as treble damages and recovery of attorney’s fees and costs, the right to use ®, and after 5 years your mark can become incontestable. For brand owners of goods, after registration, you may file your mark(s) with US Customs to stop the importation of infringing/counterfeit goods.

  1. Avoid Online Trademark Services

Every day I notice Facebook ads and google ads postings stating they will file your trademark for $69.99, and so many people are tagging their friends, and sharing the posts because they think they are getting such a great deal.  It’s time to stop and read the fine print on the ads. These online services are not law firms, nor do they have attorneys looking at your filings and offering you a legal option. In fact, one of these services state on the FAQ section of their website “is not a law firm and none of the information on this website constitutes or is intended to convey legal advice.”

So what do you get for $69.99 service (plus filing fees), they do a direct hit search, and that’s it.  In fact, as you move up the services offered, the basic, standard and deluxe packages are all the same, it’s a direct hit search. What does this mean exactly? They type in your mark into USPTO trademark search engine and see what comes up if nothing they file your mark. However, just doing a direct search is not doing you justice! This is why hiring a law firm is the correct way to go! Press Start Legal doesn’t just do a direct search, we do a full knock out in your class of goods for all marks that may be similar to yours. Why does this matter? While a direct search may show it’s clear, our type of search will uncover any mark that is similar. A similar mark can cause confusion in the marketplace and may prevent you from filing your mark, or worse may subject you to infringement actions down the road.

Another issue with these online trademark services, is if for any reason the USPTO examiner issues an office action regarding your applied mark for any reason, the trademark services company will say so sorry, get a lawyer to handle this! Don’t be fooled by cheap deals, and hire Press Start Legal to handle all of your trademark needs!

The Westworld Fallout. A Discussion on Work-for-hire.

In today’s post, I am going to discuss a recent lawsuit filed by Bethesda Softworks versus Behaviour Interactive regarding the new Westworld mobile game and Bethesda popular Fallout Shelter title. We are going to take a look at Work-for-hire agreements, the necessary verbiage required, and why they are both dangerous and helpful to Studios and Publishers. I will not discuss alleged claims Bethesda has against Warner Bros. Entertainment, as it does pertain to the Work-for-hire topic. As always this is my option, and should not be treated as legal advice.

  1. The Setup

In 2014, Bethesda engaged Behaviour to assist in developing the Fallout Shelter mobile game. The parties agreed to a Software Development and Services Agreement that set forth among many things several work-for-hire provisions, assignment of rights, and a multitude of confidentiality and trade secret provisions.  Under the agreement, Bethesda provided the conception, design, and overall direction of the game’s mechanics, and the resulting look and feel of the title. Behavior would provide the implementation of Bethesda concepts and artwork to create what we know now as Fallout Shelter.  Additionally, the Agreement expressly states, “all work product and any other materials created by Behaviour related to Fallout Shelter, including its source doe, content, assets, and associated intellectual property rights, were created as works made for hire for Bethesda.

The game “puts you in control of a state-of-the-art underground Vault from Vault-Tec. Build the perfect Vault, keep your Dwellers happy, and protect them from the dangers of the Wasteland.” Fallout Shelter was released on the App Store and Google Play in June 2015 and within a day of the release, became the most-downloaded free mobile app in the United States. On September 11, 2015, Bethesda was granted a Copyright Registration for Fallout Shelter’s underlying code and game assets. (Reg. No.: TX0008074781)

Around March 2018, Warner Bros. announced the Westworld mobile a brand new mobile game set in the Westworld universe developed by Behaviour Interactive. In Westworld mobile you “Build and control the park, create and evolve Artificially Intelligent Hosts, and indulge the many human appetites of your Guests. Prove yourself as an employee, and you’ll gain access to the park in ways only Westworld’s creators could have designed.” Warner Bros. demoed an early build of the game to overwhelmingly positive reviews at GDC and SXSW. Most if not all publications covering both events and saw the Westworld demo noted how the game closely resembles Fallout Shelter’s art style and gameplay concepts.

  1. The Lawsuit

On June 21, 2018, Bethesda filed suit against Behaviour alleging breach of contract, copyright infringement, and misappropriation of trade secrets. The lawsuit details the overwhelming similarities between Westworld Mobile and Fallout Shelter, even going as far as to call Westworld Mobile “blatant rip-off of Fallout Shelter.” However, similarities are not enough to prevail, meaning just having the same gameplay concepts is not enough for Bethesda to succeed in its claims against Behaviour. This is because concepts or ideas are not intellectual property, and cannot be protected by copyright law.

Bethesda is able to show Behaviour allegedly copied the code they created for Fallout Shelter, and they did this by finding a very particular a bug in Westworld Mobile that was in the early builds of Fallout Shelter. The chance of the two separate games having the exact same bug without the same code being used is almost impossible. Additionally, Bethesda detailed how the movement of the characters from walking around the screen in a 2D space, to how the cartoonish NPC’s drink beer is identical in both titles. Furthermore, Bethesda explains how the camera in both titles works and moves exactly the same way by “double tapping” on an event space. Bethesda claims, these events could only be replicated in such a fashion that Behaviour used the exact code from Fallout Shelter to cut development time and costs for Warner Bros.

  • Work-for-hire
  1. The Work-for-hire Doctrine

Before we can address the Work-for-hire issue at the heart of Bethesda, it’s important to examine the Work-for-hire Doctrine, and the relevant case law that’s evolved the concept over the past 40 or so years.

Generally, under the Copyright Act, ownership if a copyright and its exclusive rights vets in the original “author” of the work, unless they are otherwise properly transferred to another. 17 U.S.C. §106. These exclusive rights vested in the author include These include the right to reproduce the copyrighted work in copies or phonorecords, to prepare derivative works based on the copyrighted work, to distribute copies of the work by sale or other transfer of ownership or by lease, to publicly perform and publicly display the work and, in the case of sound recordings, to publicly perform the work by means of a digital audio transmission. 17 U.S.C. §106.

How does this play out in an independent contractor situation where party contracts to have a copyrightable work created for a particular purpose? For example, a Bethesda contracting with Behaviour to create the code for Fallout Shelter. Enter the Work-for-hire doctrine, where an employer or hiring party under appropriate circumstances acquire the status of “authorship” and entitled said employer or hiring party the exclusive rights that otherwise would belong to the actual creator.

In 1966 the Second Circuit heard the case Brattlebroro Publishing Co. v. Windmill Publishing Corp., one of the first Work-for-hire cases that applied the original work-for-hire doctrine to independent contractors. In Brattlebroro, the Second Circuit explained, the work-for-hire doctrine makes the employer the “author” of the work, whenever the employee’s work is produced at the instance and expense of the employer. Brattlebroro Publishing Co. v. Windmill Publishing Corp 369 F.2d 565 (2nd Cir. 1966). When applying the same principles to independent contractors, the Court held, “it could see no reason why the same principles are not applicable when the parties bear the relationship of employer and independent contract.” Brattlebroro Publishing Co 369 F.2d 565 (2nd Cir. 1966).

Congress sought to codify the existing law regarding work-for-hire under the Copyright Act of 1976. Congress crafted definitional provisions of the statute in response to a carefully balanced compromise between the interest of employees and the actual creators of the various copyrightable works. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 121 (1976). Section 101, of the Copyright Act of 1976, Congress set forth a threshold tests stating, “a work qualifies as a work made for hire if its created by an employee within the scope of employment or if its specially commissioned work that falls within one of nine categories and its accompanied by a written agreement signed by the parties that provides that the work is a work-for-hire.” 17 U.S.C. §101. These nine categories include a contribution to a collective work, part of a motion picture or audiovisual work, a translation, supplementary work, compilation, instructional text, a test, answer material for a test, or an atlas.

The most important case that shaped the modern work-for-hire doctrine was Community for Creative Non-Violence v. Reid 490 U.S. 730 (1989). In Reid, the Supreme Court set the work-for-hire test pertaining to independent contractors. The Court held for a work to be considered work-for-hire, it must fall within the range of the nine categories set forth in 17 U.S.C. §101, and there must be an express writing signed by the parties that consider the work to be one for hire. Reid 490 U.S. 730 (1989)

  1. Work-For-Hire in the Interactive Entertainment Industry, and The Rise of Assignment of Rights

The most important thing that Video Game Developers/Publishers need to take away from the Reid case, and §101 is literary works are not considered works for hire. Generally, computer programing/video games code is considered a literary work for copyright purposes. Therefore, a studio or publisher contracting with another to create code, such as the case with Bethesda, simply having a work-for-hire clause in your agreement does not transfer the authorship of said code to the studio/publisher.

So can you do? As a Studio/Publisher contracting with another to create anything outside of the nine categories, you must have an assignment of rights in your agreement. An assignment of rights is a simple paragraph that transfer ownership of any and all works not considered work-for-hire to the party contracting party. A fantastic example of an assignment of rights is the one Bethesda used in its agreement with Behaviour that stated:

“Bethesda owns all intellectual property and rights related to the development of Fallout Shelter, including all associated versions, derivatives, artwork, game designs, gameplay features, programming, trademarks, trade names, copyrights, know-how, patents, trade secrets and other Intellectual Property Rights.  Any rights resulting from the development of Fallout Shelter not automatically vesting with Bethesda under this contract are irrevocably and unconditionally assigned to Bethesda.”

This section of the agreement between Bethesda and Behaviour clearly transfer the ownership of any and all rights in Fallout Shelter to Bethesda. This effectively takes a work not part of the nine categories in §101 and turns it into a work-for-hire by transferring the rights over. Bethesda takes it one step further in the agreement by contracting that Behaviour appoints Bethesda as attorney-in-fact for Behaviour for the right to execute such instruments in the name of Behaviour on Bethesda’s behalf on a work made for hire basis. The goal here is to ensure there is no possible way the rights in the work Bethesda contracted for would ever stay with Behaviour.

  1. So what happened here, and how can I avoid it in the future?

Without knowing all the facts of this case, and only going off of what Bethesda stated in their complaint, I can only speculate. I don’t want to go out and say Behaviour used to knowledge and access to the Fallout Shelter code to create Westworld, but based on Bethesda’s complaint and evidence it’s hard not to. This is the risk you take as a Developer or Publisher contracting with a third party to work on your project. Yes, you can contract to protect yourself and it gives you the legal remedy to file suit, but is that really going to stop your contractor from ripping you off? In some cases, yes, but this is not an uncommon occurrence. There a multitude of the story’s about Studio filing suit against contractors who stole their game assets or copied their code and created a competing product.

How can you protect yourself? This is a challenging question, on one hand, it’s easy to say we have a contract and both parties are bound by those terms, and those terms will protect me from this happening.  As you can see from this present case, that’s just not entirely true. What I always tell my clients in this position is don’t give away your secret sauce. When entering contracts with third parties to provide work on your games, only give them what they need to complete the agreement, nothing more. Don’t give them access to the source code of the game library if they don’t need it Always have a strong contract with very detailed and specific terms in place, and never sign anything with reviewing it or having your attorney review it.

What about works made prior to the work-for-hire? This question was asked by a Client who performs contract work on the side of large studios to fund his projects. This Client was presented with a predicament, one of this contracting studios wants the Client to create some code to complete a battle system in a game the contracting studio is working on. The Client just happens to have exactly what the contracting studio needs as the Client was working on the code for his own project.  Would signing a contract with the work-for-hire provision and the assignment of rights transfer ownership?

The answer… It depends. If my Client created code for his own works and signed a contract with contract studio, then depending on the terms of the contract, the code modified to work for the contract studio could transfer over to the studio. A way to avoid this is by licensing the rights in the code over while retaining ownership. My golden rule for these types of issues is if you paid to create something, and you signed a contract to do so, chances are is going to be a work-for-hire situation, and your rights in what you create are going to vest in the partying paying you.

Press Start Legal is well versed in creating work-for-hire and assignment of rights agreements. If you have any questions about a contract or need a contract drafted for your next project send us an email at Info@PressStartLegal.com

 

 

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.

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