Written by Genki Hase
Introduction
The video game industry is a rapidly growing industry as more and more people play games and thousands of game companies publish games annually. According to senior market analyst Tom Wijman (2020), the global game market will generate revenues of $159.3 billion in 2020 and surpass $200 billion by 2023. However, along with the market expansion, cheats in gaming are becoming prevalent and infringing on the gaming experience of players, especially in online games. One of the most popular online games in 2019-2020 was a multiplayer shooting game called Apex Legends (Maxwell, 2020). This game is enjoyed by more than 70 million players because of its fast-paced experience with an emphasis on team competition (Apex Legends, 2019). Despite its popularity, similar to many other online games, Apex Legends is also struggling to deal with cheaters and cheat distributors. The cheats in Apex Legends include seeing enemy location and automatically targeting an enemy’s head. Generally, players who are competing with those cheaters in the same match have no way to win against them. According to the anti-cheat developer-update published on May 2, 2019, by the Apex Legends developing team, they are taking measures such as banning players from accessing the game and implementing a cheat-reporting system to prevent the rampant cheating in the game (McCoy, 2019). Although game companies like Electronic Arts, the gaming company which operates Apex Legends, are spending a lot of money on anti-cheats measures to protect the gaming experience of the players, cheats will always be there along with the video game industry when there are people who are interested in using cheats.
Along with technological measurements such as anti-cheats programs and in-game monitoring systems to exclude cheaters from the game, game companies such as Riot Games, Epic Games, and notably Blizzard Entertainment have pursued litigation as a means to counter cheats. This essay will explore a court case between a game company and a cheat distributor, Blizzard Entertainment v. Bossland GmbH, and introduce early cases in the field of anti-cheat litigation. Furthermore, I will examine what counts as evidence in these litigations and suggest what stance could game companies take in order to minimize the impact of cheats in games. I argue that evidence that shows actual harm based on a legal standard such as statutory damages per violation of copyright was preferred in the court, and the use of mere evidence to argue market interference had weak persuasion in the court. I suggest that game companies should utilize both statutory damages and tortious interference in anti-cheat litigation to pressure cheat developers, distributors, users as well as people who are seeking to use cheats in game. Moreover, I suggest that the creation of an environment that defines cheats as an illegitimate means through player education and communication with players may enable game companies to minimize the impact of cheats and improve the maintenance of the gaming community.
Early Litigations between Blizzard Entertainment and bot developers in the U.S.
A game company Blizzard Entertainment, known as a developer and a publisher of World of Warcraft, Hearthstone, and Overwatch, has long fought against cheats and various unauthorized third-party interference. One of the earliest cases is the litigation between Blizzard and MDY Industries in 2010 in the Arizona District Court and its continuation in the Court of Appeals for the Ninth Circuit. In this case, Blizzard entertainment started the litigation against MDY Industries, claiming that MDY is an automation bot developer that violates the end-user license agreement (EULA) (McSherry, 2010). In the district court, Blizzard won because their claim (which says purchasing the game, World of Warcraft, does not mean the players “own” the game but gain a “license” to play the game) was acknowledged in the court (McSherry, 2010). However, in the Court of Appeals for the Ninth Circuit, the court reversed the ruling in district court stating that:
“We vacate the district court’s decision because we determine that MDY is not liable for secondary copyright infringement and is liable under the [Digital Millennium Copyright Act] only for violation of § 1201(a)(2) with respect to WoW’s dynamic non-literal elements” (Court Listener, 2010).In contrast, in the litigation of Blizzard Entertainment v. Ceiling Fan Software LLC in 2013, the California District Court approved Blizzard summary judgement on the tortious interference claim (Zhang, 2019). These two cases show that the result of litigation based on tortious interference with contractual relations diverges according to the state laws. However, it is possible to say that the situation of “game developers are suing a third party (cheats developers) rather than the breaching party (players)” (Zhang, 2019, p. 250) allowed the cheats developing and distributing companies to bring them in the board of anti-cheats litigation through arguing third-party interference to the EULA and Terms of Use. Despite the result of litigation between Blizzard and Ceiling Fan Software favoring Blizzard, the divergent results and the different legal standards proves tortious interference demonstrates the difficulty of bringing evidence in the anti-cheats litigation.
Anti-cheats: Litigation and beyond
Despite recent success in anti-cheats litigation that Blizzard Entertainment has presented, litigation is no more effective than taking technological anti-cheats measures since litigation takes more time than developing anti-cheats programs. In present days, it is more common to see cheats distributors selling their cheats using voice chat applications like Discord so that it is becoming difficult for game companies to identify whom to sue (Umise, 2019). Here is my suggestion: (1) alongside the litigation that allows game companies to pressure the use, development, and distribution of cheats, and (2) technological anti-cheats measures to circumvent the function of cheats, (3) “player education,” as Zhang (2019) also suggested, and communication with players utilizing social media and or media such as video online news report may be necessary to counter cheats in the game industry.
Conclusion
This paper presented an early case in the field of anti-cheat litigation and highlighted the court case, Blizzard Entertainment v. Bossland GmbH, a case between a game company and a cheat distribution company. This paper examined what counts as evidence in these litigations and suggested what stance gaming companies could take in order to minimize the impact of cheating in games. As an answer of evidence, I have argued that the discourse of alleged market interference is less persuasive in courts, since it is difficult to present the actual harm based on legal standards, so that statutory damages per copyright infringement takes precedence in the courts. As a conclusion to this paper, I have suggested that the game companies should use both statutory damages and tortious interference in anti-cheat litigation to put pressure on cheat developers, distributors, users, and those who seek to use cheats in their games. As a concluding section of litigation as a means of anti-cheats, this article suggested that creating an environment that defines cheating as an illegal tool through player education and communication with players by utilizing social media may help game companies to minimize the impact of cheating and maintenance of the gaming community.
The article was originally submitted as the final assignment for Science and Law, Spring 2020
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The Polyphony 