Copyright and Cheating in Video Games

Last week, video game developer Bungie scored a major victory against cheat developer AimJunkies. In that case, a jury found AimJunkies and parties connected with it liable for direct, contributory and vicarious copyright infringement, finding in favor of Bungie on all counts. The jury awarded Bungine $63,210 in damages.

This isn’t the first time video game developers have won a major victory against cheat developers. In the same case, Bungie had already won a $4 million judgment in arbitration on separate issues, an amount the judge had already upheld. In 2022, Bungie settled with another group of cheaters for $13.5 million.

So, it isn’t the victory itself or the damage amount that makes this latest victory newsworthy. Instead, it’s two things. First, AimJunkies was held liable for copyright infringement. Second, the case was a jury verdict, the first of its kind in this space.

While the victory is significant, it’s also just the latest in a long-running war between developers and cheat makers. This war can potentially reshape copyright and deeply impact other types of work.

With that in mind, let’s take a moment to understand this conflict and the arguments made by both sides.

A Brief History of Video Game Cheating

Cheating has been a part of video games for almost as long as there have been video games. However, for much of that history, developers intentionally put cheats into video games. Developers would create cheats to speed up the development and testing of the games and then leave them in for savvy gamers to find.

However, third-party cheats started in 1990 with the release of the Game Genie for the Nintendo Entertainment System (NES). The system worked sitting between the NES and the cartridge, altering the data exchanged between them to give users new features such as infinite lives or invincibility.

That same year, Nintendo sued Galoob, the US distributor of the Game Genie. However, since the game did not copy any game code and did not alter the game permanently, the courts sided with Galoob.

However, after that ruling, things changed both for copyright law and the video game industry. First, the Digital Millennium Copyright Act (DMCA) was passed in 1998. Part of the DMCA makes it unlawful to circumvent copyright protection systems. Though this wouldn’t have likely impacted the Game Genie case since the elements it edited were not encrypted or protected, future systems would use such protections to prevent altering.

The second major shift was the rise of online multiplayer gaming. Video games were becoming more competitive, and some gamers, particularly PC gamers, sought to gain an outside advantage. This led to the rise of third-party cheat makers, like AimJunkies, who provided cheats that altered game files to enable a wide variety of hacks, such as aimbots, the ability to see through walls, speed boosts and more.

Game developers, counting on longer-term players to recoup development costs, worried that such cheating could discourage legitimate players and harm the community. They began to seek legal recourse against cheat makers using a variety of legal theories.

This, in turn, leads to our current environment in which game developers routinely sue cheat makers, often settling cases out of court. How they get those settlements comes down to a few theories.

The Legal Theories

Though game developers have targeted cheat makers with various legal theories, four are the most common.

1. Anti-Circumvention: The most common claim is that the cheat software circumvents some protection the developers use. This can include decrypting files, circumventing file integrity tools and more. This is the most common argument and routinely the most successful.
2. Copyright Infringement: Second, companies often argue that cheat makers directly infringe the game’s copyright. This can include using the game’s code in the cheat itself or altering the game to create a derivative work.
3. Intentional Interference with Contractual Relations: Developers argue that game players sign an agreement with which the cheat maker interferes. They claim the cheat maker knows the use of their cheat is against the terms of use but encourages its installation regardless.
4. Trademark: Cheat makers often promote their cheats using game/company names, logos and other elements. Developers sometimes argue that such use amounts to trademark infringement and creates confusion about the relationship between the cheat maker and the developer.

Though other arguments have been made, these have been the most prevalent. However, since cheats are developed, implemented, promoted and distributed differently, each case and its arguments are unique.

But the goals are almost always the same. Though large judgments can send a message and serve as a deterrent, closing the cheat maker business is more important. Whether through an injunction or a settlement, the primary goal is to shut the business down.

Video game developers know there is little chance they will collect on the large damage awards. Between many cheat makers being based overseas and most having limited income, a windfall is unlikely.

That, in turn, is what makes this recent jury award such a major deal.

Going the Distance

The lawsuits between game developers and cheat makers are inherently one-sided. Video game developers are mammoth companies with massive legal budgets and a slew of potential legal actions, any one of which can generate massive damages.

Coupling that with the fact that the plaintiffs want the business closed, there’s a major push to settle. In the cases that don’t settle, it’s usually because the defendant didn’t bother to show up. In those cases, courts enter default judgments that favor the plaintiff, often with large damage awards and strong injunctions.

The AimJunkie case is unique because the defendant participated and didn’t settle, and the case went before a jury. Also, the jury ruled in favor of Bungie on one of the more controversial arguments: The cheat itself was a copyright infringement.

It’s a pair of major wins for Bunugie and other video game developers. They will likely use this decision to push for more favorable settlements in future cases.

However, it’s not a complete victory. The damages, $63,210 split between four parties, are significant but not likely to deter others. Fortunately for Bungie, they won a $4.3 million arbitration award against AimJunkies over DMCA anti-circumvention claims. The judge in the case has upheld that award.

AimJunkies has said they plan to appeal both decisions, but the message may already have been sent.

Bungie has proven they can win if the case goes the distance, giving them yet another advantage when dealing with cheat makers.

Bottom Line

In the end, this likely won’t have much impact on the cheating landscape. For game developers, the larger challenges of finding, tracking, collecting evidence and shuttering cheat makers remain.

However, the calculus changes the next time a game company files a lawsuit. The defendants will know that the last company to fight back lost before a jury. That gives them yet another reason to settle quickly.

Simply put, cheat makers are on the ropes. Though they had hoped to distinguish themselves from pirate site creators, they are legally in a similar boat. They simply don’t have many legal arguments in their favor.

As such, their best hope to avoid repercussions is simply not to get caught. The legal systems, at least in the United States, don’t seem to offer them much hope if they are.