13 February 2020

Up, Up, Down, Down, Left, Right, Left, Right, B, A, Start.

Cheating has come a long way since the Konami Code. Cheat codes were once included in videogames as developer tools or as Easter eggs for dedicated players to track down. But with the massive expansion of esports and online multiplayer games, videogame cheats have turned into a (not so) underground industry and a major headache for game makers.

Enterprising gamers with a proficiency in computer coding can modify the code of a videogame and give themselves an edge over the competition, or sell their cheats to others. Not unlike athletes that use corked bats, deflated footballs or cameras to know what pitch is coming up next, gamers willing to break the rules can improve their accuracy with aimbots or triggerbots, see their enemies behind terrain using wallhacks or eliminate "fog of war" to get advanced knowledge of their opponent's strategy. With the ever-growing money available in esports competitions or through building a following as a streamer, the incentive to cheat is stronger than ever. Game makers are understandably concerned that cheaters will negatively impact the enjoyment of their other players, or even worse, risk undermining their audience's trust in their esports competitions.

Game makers have tried a variety of approaches to combat cheating in their games. Software updates are used to counteract cheats that have been identified by developers. Some resort to anti-cheating systems which scan a gamer's computer to identify unauthorized cheats installed on the system.

Developers have also chosen to protect their products from cheaters using legal means.

In South Korea and China, the largest markets for esports, game developers have successfully lobbied and collaborated with legislators to criminalize certain acts of cheating. Specifically, the creation and distribution of hacks is punishable by significant fines and jail time.

In the United States, developers often rely on end user license agreements ("EULAs") or allegations of copyright infringement.

EULAs, which are often agreed to by gamers when they start playing a game, allow certain uses of the game and prohibit others. Prohibited uses typically include playing the game with cheats or with the assistance of unauthorized modifications. The consequences of cheating can include a variety of restrictions on the gamer's account or even lifetime bans.

Allegations of copyright infringement typically claim that by modifying the code of the game, the user has created an unauthorized derivative work and infringed the copyright held in the original work. Could this approach work in Canada?

The United States Copyright Code explicitly grants copyright holders the exclusive right to prepare derivative works based upon the copyrighted work.[1] Conversely, in Canada's Copyright Act, there is no explicit definition of a derivative work. The Supreme Court of Canada, in Galerie d'art due Petit Champlain inc c Théberge, considered the rights of copyright owners in respect of the creation of derivative works. In that case, a gallery owner transferred authorized reproductions of an artist's work from a paper substrate to a canvas substrate with the intention of reselling the work. The majority of the Supreme Court held that the words "produce or reproduce the work … in any material form whatever" in section 3(1) of the Copyright Act confer on artists and authors the exclusive right to control the preparation of derivative works where it involved a reproduction of the copyright protected work. However, the majority held that these rights did not extend to allow owners of copyright to restrict the creation of derivative works that simply "recast, transformed or adapted" the original work.[2]

This suggests that if a cheat developer only distributes a tool that modifies authorized and previously installed copies of a game, or if a gamer only modifies a copy of the game already on the gamer's computer without creating an unauthorized reproduction of the game, copyright may not be infringed. There is a stronger argument for copyright infringement if a cheat developer creates and distributes modified versions of the game itself.

The Canadian Copyright Act has another set of rights that could come into play where cheaters modify a videogame without authorization. Known as "moral rights", authors of a work have the right to the integrity of the work.[3] Among other things, it is an infringement of an author's moral rights for a person to distort, mutilate, or otherwise modify the author's work, if doing so would prejudice the author's honour or reputation.[4] In the case of videogame cheaters, it could be possible to argue that modifying the source code distorts the integrity of the game and, by negatively impacting the enjoyment of the game by others, damages the reputation of the creators. One difficulty that may arise in trying to enforce moral rights in this way is that they cannot be assigned by the author of the work, only waived.[5] This means that the authors themselves would need to bring the claim of moral rights infringement against the cheaters, not the company that ultimately publishes and operates the game. Furthermore, if the game creators waived their moral rights in favour of the company, something that is common practice, a cheater could potentially rely on this waiver to avoid allegations of infringement since, under s. 14.1(4) of the Copyright Act, a waiver of any moral rights "may be invoked by any person authorized by the owner or licensee to use the work, unless there is an indication to the contrary in the waiver". If game makers want to keep the option of asserting moral rights against cheaters, it would be worth having legal counsel carefully consider the language used in any moral rights waivers.

These complicating factors all go to show the importance of having a strong EULA that clearly sets out the restrictions on gamers' modification of a videogame and enables game makers to take appropriate action when those restrictions are breached. As seen here with respect to the rights granted to copyright owners in respect of derivative works, copyright laws are not uniform and there are some significant differences across countries. It is important that game makers speak to their legal counsel to ensure that their EULA takes into account the nuances of the law in each particular jurisdiction where a videogame will be sold and played.

[1] 17 U.S. Code § 106(2).

[2] Galerie d'art due Petit Champlain inc c Théberge, 2002 SCC 34 at para 73.

[3] Copyright Act, RSC 1985, c C-42, s. 14.1(1).

[4] Copyright Act, RSC 1985, c C-42, s. 28.1, 28.2(1)

[5] Copyright Act, RSC 1985, c C-42, s. 14.1(2).

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