“Defendant is a cheater,” said Epic Games in its October 2017 lawsuit against a 14-year-old boy. “Nobody likes a cheater. And nobody likes playing with cheaters.”
Epic isn’t the first games studio that’s sued over cheating. There was a lawsuit over a PlayStation “game enhancer” — a console hardware hack — as early as 1999. In 2008, Blizzard sued over World of Warcraft bots. There have been lawsuits over cheating in RuneScape, MapleStory, and most recently, Overwatch. For its part, Epic Games — the maker of popular video game Fortnite — launched a slew of lawsuits in October against cheat makers and hosts of forums and channels where cheats are distributed.
Epic Games v. Rogers is a little different from the rest of the cases that were filed alongside it. In fact, it’s different from every other video game cheating lawsuit before it, partly because it dives into a legal gray area that usually passes as normal, allowable conduct (when you’re not being a flagrant jerk about it, anyway).
Epic Games doesn’t claim that defendant C.R. has ever written a cheat, sold a cheat, or even run a forum that distributes cheats. C.R. is being sued for live-streaming himself using a cheat he found online and then linking out to it in the YouTube description box.
None of the other cases have gone after mere cheaters themselves, according to Kendra Albert, a clinical instructor at Harvard Law School who’s an expert on the law around video games. Albert does note that Jagex v. Does (otherwise known as the Runescape case) went after John Does who were using bots. But in that case, the company appeared to be using a lawsuit to identify bot-using players through their PayPal accounts. Once it had that contact information, it dropped the lawsuit, banned players, sent out settlement letters.
Unlike that case, Epic v. Rogers identifies an actual individual, targeting him directly.
C.R.’s full name has been widely reported in previous media coverage, but it has been redacted in legal proceedings ever since it was discovered he was a minor. (Other defendants have since been identified as minors and also have had their names redacted in filings.)
The lawsuit gives a few examples of what Fortnite cheats can do. “A cheat might enable the cheater to see through solid objects, teleport, impersonate another player by ‘spoofing’ that player’s user name, or make moves other players cannot, such as a spin followed by an instant headshot to another player.” It’s not clear what kind of cheat C.R. was using, but whatever it was, it was giving him a huge leg up in Fortnite’s Battle Royale mode, which pits up to 100 players against each other on a map.
C.R. has a YouTube channel with over 8,000 subscribers. One day, he was live-streaming a demo of a Fortnite cheat when Epic issued a takedown. When YouTube took his video down, C.R. belligerently posted a second video in protest.
The second video didn’t get taken down immediately, but for some reason, C.R. decided to make a new YouTube account to live stream the cheat again. The third video — keep in mind this is all happening on the same day, October 14th — got taken down.
“Defendant has been banned at least 14 times of for violating the Terms and the EULA,” says the lawsuit, referring to the end user license agreement.
A few days later, C.R. sent a DMCA counter-notification over the first video.
“i did noting rong this strike is all wrong i was modding in a video game that isnt against youtubes TOS Why was i striked!!!!”
It was probably this counter-notice that kicked off the unlikely lawsuit to begin with. The way that DMCA counter-notices work is that YouTube will keep the content offline for 10 days, but if the copyright claimant — in this case, Epic Games — files a legal action, YouTube has to continue to keep it offline. And that’s exactly what Epic Games did, before even realizing they were going after a 14-year-old.
That fact only came to their attention when C.R.’s mother, Lauren Rogers, sent a letter to the court, pointing out that C.R. was a minor and minors are not capable of consenting to contracts. She had never authorized him to play Fortnite, which meant that the EULA was not binding on her son.
Lauren Rogers isn’t wrong, per se. It’s true that, in general, minors do not have the capacity to make contracts. (It’s why standard EULAs like Fortnite’s ask minors to only use the service with the supervision of their parent or guardian, who must themselves agree to the EULA.)
By playing Fortnite without his mother’s permission, technically speaking, C.R. is outside of the EULA. But also technically speaking, playing Fortnite without being covered under the EULA might be a digital trespass, or worse, computer fraud and abuse. That might sound wild and ridiculous in a world where minors are almost certainly clicking through EULAs without their parents’ permission, but the whole underage internet exists on the precarious legal fiction that all these teens are being supervised by their parents, who are bound by these contracts that no one is actually reading.
But all this is a little beside the point. Being a minor can’t stop you from getting sued for copyright infringement.
C.R. isn’t distributing a modified copy of the game. He didn’t write a cheat for the game either, which would potentially be a Section 1201 violation (similar to how bypassing DRM on software can be a copyright violation under Section 1201). He posted a link to the cheat, but linking out to something isn’t strictly illegal.
The copyright infringement that Epic Games is claiming is twofold.
First, when C.R. clicked and ran the cheat file, the cheat injected code into his local Fortnite files, modifying them into something different from the copyrighted work. The moment he clicked, he created a “derivative work,” thus infringing copyright. (You could argue that it’s fair use, and, in fact, it’s not a total loser of an argument, regardless of the fact that Fortnite’s EULA forbids the creation of derivative works.)
Second, when C.R. live-streamed the game, Epic argues that he infringed copyright by “publicly displaying and/or publicly performing the unauthorized derivative works.”
It’s likely that both C.R. and his mother were thrown off by the language of the complaint. Most people, after all, are deeply unfamiliar with how weird copyright is and how bizarrely broad it can be in the digital context. When Epic’s complaint starts talking about “using computer software that injects code into Fortnite’s code which then materially modifies and changes Fortnite’s code” and “thereby creating an unauthorized derivative work of Epic’s copyrighted Fortnite code,” it sounds terribly officious. But that long-drawn-out sentence is referring to the moment that C.R. clicked and ran a cheat.
“They are also claiming he ‘modified their game’ to use a cheat and live streamed it. This would, of course, fall under the Copyright Act if he did in-fact modify their game,” wrote Lauren Rogers in her letter. “Epic Games has no capability of proving any form of modification.” Since, in the next breath, she adds that her son “obtained existing cheats from a website with public view, not affiliated with Epic Games, Inc,” it seems likely that she doesn’t understand that the complaint’s reference to a “modification” has nothing to do with whether or not C.R. wrote the cheat.
“I may add a multitude of other individuals have and currently are doing this as this letter is being typed.” Her primary contention, it seems, is that everyone does it. So why is her son being singled out?
In a probably unwise video posted on October 29th, C.R. echoed those sentiments, freely admitting to the exact thing that Epic Games accuses him of. “I was cheating. You know. The normal.”
But he was adamant in denying that he had anything to do with creating the cheat. “I never made the cheat, I never coded the cheat, I never sold the cheat.” He added, “It’s a free hack, you can get it from anywhere.”
Although C.R. appears to have a touch-and-go understanding of the law, he’s right about one thing. When he says “i was modding in a video game that isnt against youtubes TOS Why was I striked!!!” he’s not off-base. What he was doing wasn’t substantially different from modding, the user-created modification of video games that might aesthetically change the game or even add new functions.
All mods, not just the cheating one, create derivative works — from the Skyrim mod that replaces dragons with Thomas the Tank Engine to the Doom mod that inserts Sonic the Hedgehog right into the game.
Mods are widely tolerated, even celebrated, on YouTube. Consider, for instance, Polygon’s popular series, “Touch the Skyrim,” in which one host installs a bunch of weird mods on Skyrim and the other host plays through haplessly while trying to figure out what the mods do. (In one episode, giant, uncanny hands sprout up from the ground, replacing, I think, trees? For some reason?)
An unconscientious 14-year-old might see a Fortnite cheat as analogous to modding. If famous YouTube personalities can do it, why can’t he?
The problem with the Fortnite cheat is that it’s a modification being deployed in player-versus-player mode, which ruins the game for other people. It’s hard to imagine anyone getting upset if it were just a derivative work sitting in isolation on your computer, even if it were being streamed on YouTube on a regular basis.
But here’s the thing: it’s not entirely clear that any modding is legal. Consider, for example, Micro Star v. FormGen, the 1998 copyright decision that found that user-created Duke Nukem 3D levels were derivative works.
Micro Star doesn’t have anything to say about whether those levels are a permissible fair use. A pretty persuasive case for fair use can be made, but the case law is pretty thin, and in the absence of a court decision, YouTube’s community of modders and video game playthroughs exists in an uncanny valley created by the tolerance of game studios and an overall reluctance to sue.
The Fortnite cheaters are on weaker ground because what they do arguably harms the game studio’s bottom line. But the really obvious distinction — one that every gamer knows instinctively — isn’t recognized by the law: PvE is different from PvP.
PvE (player versus environment) throws walls up around your experience of the game. If the game isn’t multiplayer, the whole experience is downright solipsistic. PvP (player versus player) is largely shaped around the other people who are playing. Are they fascinatingly creative? Are they boringly worse than you? Are they cheating in a way that makes it impossible to play the game?
No one cares about Thomas the Tank Engine dropping out of the sky to breathe flames on you so long as it’s not ending up in their own version of Skyrim without their consent. Even the Fortnite cheaters that Epic is suing seem to draw the distinction between PvE and PvP.
Charles Vraspir, a cheat-writer who settled with Epic Games late last year, is quoted in the lawsuit as saying that he “was sticking to PVE but [Epic] decided to unleash the beast by banning [him] and making their PVP F2P [free to play].” Cheating in PvP, Vraspir seems to know, is way worse.
The Fortnite cheaters are kind of jerks. Nearly everyone Epic is suing has been banned from Fortnite multiple times. “Now method is exposed / Epic Eat my ass,” a different underage defendant allegedly wrote when posting a cheat in a discussion channel. (B.B. and his mother never responded to the summons, resulting in a default judgment against them.)
In C.R.’s case, it’s possible that none of this would be happening if he hadn’t fought the DMCA notice for his first video on October 14th. Everyone else that Epic has gone after appears to be a cheat creator or affiliated with a cheat website. (In one case, a different underage defendant’s YouTube channel was dedicated to cheat tutorials and he even ran a Discord channel dedicated to cheats.)
But it seems C.R. was just stoked to show off his cheating, and was very mad when he got a takedown. He posted the Epic’s in-house lawyer’s contact info in one video, he posted the hashtag #FUCKUPEPICGAMES in another.
As far as we can tell, C.R. and his mother still haven’t gotten a lawyer.