For as long as humans have played games against each other, some have done anything to win: cork-filled bats; greased baseballs; deflated footballs; performance-enhancing drugs; the list goes on and on. Cheating seems to be an intrinsic part of sports. E-sports and video games are no different.

The professional and recreational video game industry is already a massive multibillion-dollar industry, and it continues to grow each year. Like any industry, participants in the video game industry face a myriad of legal issues, some unique to the industry and some seen elsewhere. The industry’s rapid growth has left some parties scrambling to catch up to legal issues, which are quickly rising to the forefront. Like sports and other competitive pastimes, video games continue to grapple with the issue of cheating.

What is cheating in video games?

Cheating in video games (sometimes called “e-doping”) goes far beyond classic cheat codes. In both professional and casual play, players can cheat by manipulating a game’s outcome in violation of fair play regulation or the game or platform’s terms of services to increase a player’s chance of success. In competitive e-sports any small advantage could mean the difference between losing and winning millions of dollars.

One major type of cheating in e-sports is where players use software or hardware to give themselves an unfair advantage over their opponents. Some examples include:

1. Software cheats: The use of unauthorized software to improve the player’s performance in the game. In first-person shooter games, some examples of software cheats include the use of wallhacks (which allow players to see through walls), aim-bots (which give players aim assistance or where the computer perfectly aims for players), and speed hacks (which allow players to move at increased speed).

• For example, in Counterstrike Go, the use of aim-bots and wallhacks allowed players to instantly kill other players through walls, at distances, and from angles that would not be possible without the cheats. This allows players who use these cheats to dramatically increase their performance in game, which increases their ranking, granting them higher status and rewards.

2. Hardware cheats: E-sports organizers usually restrict the type of hardware that players can bring to a tournament, including any equipment that allows players to program macro commands (which allow short sequences of keystrokes and mouse actions to occur with greater speed).

• In the early years of console gaming, players used cheat cartridges to inject cheat codes into games to gain otherwise unobtainable items or advantages. For example, Gameboy cheat cartridges were used for Pokémon games to allow players to catch Pokémon, which were unobtainable in the unmodified version of the game.
• In modern times, special gaming mice and keyboards have programmable macro buttons that allow players to input commands at a rate not otherwise obtainable by human skill.

3. Bug exploitation: Most games have at least some bugs or quirks. The developer may not be aware of those bugs or may be aware of the bugs and in the (often slow) process of squashing them. Most games, e-sports leagues, and platforms prohibit players from using a bug (or even “manipulating game mechanics”) to gain an unfair or unintended advantage. While unintentional use of a bug may be permitted, once discovered, players are typically not allowed to use those bugs.

4. Online attacks: Many games contain online components (and some “solo” games still require a stable internet connection to play), and, of course, many e-sports events are held online on an official game server. Online attacks may tamper with the internet traffic of a game (or a company’s suite of games) or even an individual player’s internet connection. For example, a distributed denial of service (DDoS) attack directs large amounts of internet traffic towards the target, causing them “lag” and often rendering the game unplayable. Online attacks are almost always prohibited and may even run afoul of a country’s electronic security laws (that subject is outside the scope of this article).

When a player buys a game (or downloads a game, or signs up for a service), they typically must agree to an end-user licence agreement, terms of service, and/or online code of conduct (often all three) before being able to play. These agreements generally contain terms and conditions about how the game is to be played and often prohibit players from cheating or altering the game’s mechanics in a way that provides an unfair advantage over other players.

Depending on the game or platform, cheating often goes unnoticed (professional leagues may lack a governing body, for example). When it is detected, cheating is subject to often unique control measures, with each game or platform relying on its individual terms of service and private contracts. All too often, parties struggle to control cheating entirely (or effectively), leaving players and fans feeling that the issue has been ignored. Until very recently, parties have seldom looked to courts for assistance.

Recent case law on cheating in e-sports and video games

Bungie v Elite Boss

Earlier this year, the United States District Court released its decision in Bungie, Inc v Elite Boss Tech Incorporated ¹ Bungie alleged that the defendant designed software that injected unauthorized code (the Cheats) into Bungie’s Destiny 2 copyrighted game code. The defendant’s Cheats were downloaded 6,765 times.

Bungie sued the Defendants, alleging that each download of the Cheats constituted an independent breach under the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA)², as each player would have to “inject” the Cheats into the copyrighted game code owned by Bungie to enable the intended cheat effect. The Cheats would circumvent technological measures employed by Bungie to limit and control access to its software, designed to prevent cheating. The Cheats had various effects on the user’s game experience (for example, by artificially improving the user’s aim).

The Court agreed with Bungie and found the defendant liable for violating the anti-circumvention provisions of the DMCA. Notably, because the software was downloaded 6,765 times, with each download constituting an independent breach, the Court awarded total damages of US$13,53 millions . The Court also ordered that the software be destroyed.

Bungie et al v Thorpe et al

In another American lawsuit, filed in 2021, Bungie, Inc, Ubisoft Entertainment and Ubisoft, Inc v Andrew Thorpe a/k/a Krypto, et al,³ the plaintiffs, Bungie and Ubisoft, claimed the defendants distributed malicious software designed to enable players to gain an unfair competitive advantage in Destiny 2 and Tom Clancy’s Rainbow Six: Siege, two of the plaintiffs’ most popular games. This software allowed players to gain advantages by automatically aiming weapons, revealing locations of enemy players, and seeing additional information in the game that would not be possible without the software. Additionally, once injected, the cheats included features that allowed the player to avoid detection by the anti-cheat systems employed by the plaintiffs. The plaintiffs noted that they invest an enormous amount of time and resources to ensure that no players have an unfair advantage. As a result, if players gain unfair advantages through cheats, this can have devastating impacts on the games’ communities.

Additionally, the plaintiffs alleged that products such as those developed and distributed by the defendants impair and destroy not only the game experience but also the plaintiffs’ overall business and their reputation among their respective player communities. The success of the plaintiffs’ games depends on the games being enjoyable and fair for all players. Cheaters ruin the experience of playing the games. The plaintiffs argued that their success in the development of a game rests in large part on their ability to offer consistent, compelling player experiences so that players remain invested over a sustained period. Finally, the plaintiffs alleged that the defendants’ software expressly violated the plaintiff’s software licence agreement and end-user licence agreement, amounting to intentional interference with contractual relations. The Court has yet to render a judgment with respect to the plaintiffs’ claim.

Potential litigation in Canada

Following from the cases cited above, the Canadian legal landscape is ripe for lawsuits related to cheating in video games. In Canada, the Copyright Act, RSC 1985, c C-42 contains a virtually identical provision to the one found in the DMCA with corresponding statutory damages. Furthermore, Canadian courts have found that where a party enters into a contract with no intention of living up to its obligations thereunder (e.g., where a user knows that they intend to violate a game’s terms of service or other such agreement by cheating), a finding of fraud may be justified.⁴ Common law contractual claims, independent of intellectual property claims, may very well be available to game developers whose games are rife with cheaters and cheat developers.

Takeaways

Players cheating in video games impacts the integrity of the games and has the consequence of affecting the public’s faith in the game and the developer. Some courts have found the reduced faith may directly affect a corporation’s value.

While video game developers work tirelessly to combat cheating in their games and require all players to agree that cheating is prohibited, it may become increasingly necessary to turn to legal solutions. Recently, courts have considered video game cheating cases under “traditional” contract law and intellectual property frameworks and have awarded sizeable damages awards for breaches.

Authors of the article:

Josh Dial, Partner, Calgary, Canada
Changhai Zhu, Associate, Calgary, Canada
Riley Bender, Associate, Calgary, Canada

More insights together with some numbers and statistics in our Video games industry report.

1. Bungie Inc v Elite Boss Tech Inc, 2:21-cv-01112-TL (W.D. Wash. Jul. 6, 2022).
2. Digital Millennium Copyright Act, 17 USC § 1201.
3. Bungie Inc and Ubisoft Entertainment and Ubisoft Inc v Andrew Thorpe a/k/a Krypto et al, 3:21-cv-05677-EMC (ND. Cali. Jul. 23. 2021).
4. See: Ma v Nutriview Systems Inc, 2014 BCSC 725.