By: Quinn Weber

Although something as seemingly innocuous as cheating in a game might seem outside the purview of federal courts, the legal system has long shown an interest in preserving fairness between players in a variety of contests. In Nevada, N.R.S. 465.085 makes the act of cheating at “any gambling game” in a casino a crime, punishable by a prison sentence. Similarly, 18 U.S.C. § 224 makes it a federal crime to seek to influence the outcome of any “sporting contest” by means of bribery. Now, courts are seeking to extend the law’s interest in competitive integrity into the digital realm by supporting video game companies in their lawsuits against businesses that create and sell cheating software.

Background

Cheating in video games has been going on for decades. But how does one cheat at a video game, and why do companies care enough to get the courts involved? Though cheating can take many forms, often players of popular online video games such as Fortnite or Call of Duty download and install third-party software. Once installed, this software modifies the code of the game allowing players to access different abilities from what the game developer intended. So what? Well if that player decides to play that game competitively against other players via an online multiplayer mode using cheating software they can utilize that software to gain an unfair advantage. Different programs provide different advantages. Such programs include so-called “aimbots”: programs that fully or partially automate the process of aiming and shooting in shooter games such as Call of Duty. Other programs such as “ESP hacks” allow players to see obscured/hidden information about their competitors.

Though some players may enjoy using these cheats, it is certainly not all fun and games for the developers who create and maintain online multiplayer games. Developers worry that cheaters will damage the experience of common players, driving them to play less or stop altogether. This could be costly for game developers who often generate money based on players continually making purchases within a game as much as purchasing the game itself. Developers have long maintained a policy of banning individual players who they detect cheating, but in recent years they have gone a step further.

The Lawsuits

Over the last few years several major video game developers such as Bungie, the creator of the popular video game franchises Halo and Destiny, Ubisoft (Assassin’s Creed) and Epic Games (Fortnite) have done more than just ban players. They have also aggressively pursued litigation against the creators of cheat software, seeking to put them out of business. These lawsuits have, by and large, been remarkably successful. Between 2021 and 2023, Bungie, which has been particularly aggressive about suing cheat makers, recently triumphed in two separate lawsuits against cheat makers who created cheating software for the popular video game Destiny. Bungie received damages totaling over sixteen million dollars, and the court enjoined the groups from distributing any more cheating programs. Back in February 2023, Call of Duty developer Activision won a similar suit against a cheat developer in California District Court resulting in a judgment of a million dollars and an injunction. 

These victories are the result of aggressive litigation tactics that utilize several causes of action. One of Bungie’s recent lawsuits against cheat maker Elite Boss Tech Incorporated included eight distinct claims ranging from copyright infringement and tortious interference in contractual relations to civil conspiracy. This is typical of these types of lawsuits, as there is no statutory framework explicitly aimed at preventing and punishing video game cheating. As a result, companies and their legal departments pursue a variety of tactics hoping that some stick. Although Bungie’s suits have succeeded overall, courts have often not been persuaded by all of their claims. In their suit against Elite Boss Tech, the Western District of Washington dismissed their claim that the defendant had violated the Washington Consumer Protection Act. Similarly, Bungie failed in another anti-cheating lawsuit in its claim of common law copyright infringement. The most potent and reliable legal tool video game developers have available to them is the Digital Millennium Copyright Act (“DMCA”). The DMCA, a sweeping federal law governing intellectual property, criminalizes the act of circumventing technological measures to access a copyrighted work. This prohibition has been extremely useful for game developers trying to prevent cheating, as cheat makers must design their software to circumvent the security protocols that developers implement to maintain fairness. 

Looking Ahead

Although developers such as Bungie have won some recent high profile victories in court, their battle to keep cheating out of their games will continue to be difficult. These cheating softwares are typically sold and distributed over the internet. Accordingly, jurisdiction can be an obstacle for game developers looking to bring cheat makers into court. In fact, in the case Bungie, Inc. v. Thorpe, Bungie recently had a motion for early discovery denied for lack of personal jurisdiction, as the defendants were not residents of the forum state, and the court found that their activities were not aimed at any forum in particular. It can be difficult for potential plaintiffs to even identify cheat makers as cheating programs can be created by small teams of skilled software engineers who can operate their illicit online businesses using pseudonyms. Ultimately, the global gaming industry is currently worth over 200 billion dollars and is projected to continue to grow in coming years. With so many people worldwide consuming video games the market for cheats will continue to exist, and the battle to eliminate them won’t end anytime soon.