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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.
Footnotes
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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