Epic Sues 14 Year Old It Accuses Of Cheating In Videogames After He Counternotices a DMCA On His YouTube Video

from the what-a-time-to-be-alive dept

Fri, Dec 1st 2017 3:43pm — Timothy Geigner

We called it. When Blizzard decided several years ago to try to twist copyright law into one hell of a pretzel in the name of going after video game cheaters, we said it was going to open the the door to other developers and publishers abusing the law in the same way. Blizzard's theory is that using a cheat in its games, particularly in its multiplayer games, was a violation of the EULA and created a copyright violation when the cheater continued to play the game he or she only "licensed." A deep dive into the actual substance of the copyright claims reveals them to be laughable, except Blizzard is rarely joined in court by its defendants, so no challenge to its pretzel-theory of copyright is ever put forward. Shortly after all of this, Riot Games joined in on this fun, deciding to apply the well-salted pretzel copyright logic to groups making cheats for League of Legends.

And, since it's not a real party until you have a third, now Epic Games is getting in on the action. And Epic went big for its first go around, deciding to actually sue a fourteen year old child who didn't make a cheat for Epic's Fortnite, but simply used a cheat. The fourteen year old was swept up in lawsuits filed against several cheaters for copyright infringement and, by all accounts, this fourteen year old was something of a pain in the ass for Epic.

One of the accused is a young man, who was banned at least 14 times since he started playing. Every time Epic took action, he simply created new accounts under false names and continued to play and cheat at Fortnite. What Epic Games probably didn’t know is that the cheater in question is a minor. The company likely obtained his name via YouTube or elsewhere, without knowing his real age.

This is the danger of suing end users using illicit cheats rather than going after the groups and sites that make those cheats available: kids play games. Kids also, apparently, agree to the very EULA that Epic is asserting triggers copyright infringement through the use of the cheat. Kids also occasionally have awesome moms, who angrily inform the court of all the reasons that this copyright suit is bullshit. The whole letter from the fourteen year old's mother is worth a read, but here are the most relevant portions.

Please note parental consent was not issued to [my son] to play this free game produced by Epic Games, INC,” the mother writes in her letter.

Epic claims that cheaters cause the company to lose money, but the mother doesn’t buy this since it’s a free game. Instead, she believes that the company is trying to blame her son for its failure to curb cheaters.

“It is my belief that due to their lack of ability to curve cheat codes and others from modifying their game, they are using a 14-year-old child as a scape goat to make an example of him.”

On top of all of this, a lawsuit against a fourteen year old simply for using a cheat for a video game is a public relations nightmare. On the other hand, Epic is in a horrible position. It would look odd to simply drop the suit against the fourteen year old because he's fourteen and still pursue the suits against the non-minor parties. Either what was done was either copyright infringement or it wasn't (it wasn't, but that's besides the point). The whole thing just looks... petty.

Meanwhile, as pointed out first by Torrentfreak, Epic has responded to the Mom's letter, which you can read here. The key argument that Epic makes is that it did not violate the law against naming a minor because it didn't know the kid was only 14 -- but then says that the mother's letter waived the teen's privacy anyway -- and thus asks the court for guidance on whether to ask the court to seal the information (which is already widely distributed) or not.

We did not violate Rule 5.2(a) or Local Civil Rule 17.2 because we did not know when we filed the papers that Defendant was a minor. Although there is an argument that by submitting the Letter to the Court containing Defendant's name and address, Defendant's mother waived this protection.... we plan to include only Defendant's initials or redact his name entirely in all future filings with the Court, including this letter.

This letter is to request the Court's guidance on whether the Court would like us to file a motion to seal the papers currently on the docekt that include Defendant's full name, re-file versions of those papers with Defendant's name redacted, or take any other remedial action.

Of course, another option would be not to abuse copyright law this way. Then Epic wouldn't have this problem.

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Filed Under: cheats, copyright, free to play, streaming, teenagers, video games, videos
Companies: epic

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Anonymous Coward, 1 Dec 2017 @ 3:55pm

Oh, but he's 14! -- SO?
You're just cynically using the age -- which the company didn't know, and you're certain to be against any real check -- to attack a company you weren't fond of for its attempt to gain money and make the game fair.
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- Anonymous Coward, 1 Dec 2017 @ 4:10pm
  
  Re: Oh, but he's 14! -- SO?
  If only there was some way of finding things out.
  [ link to this | view in chronology ]
  - ralph_the_bus_driver (profile), 21 Dec 2017 @ 9:05am
    
    Re: Re: Oh, but he's 14! -- SO?
    If he is a minor, then the parents become responsible and should be named.
    
    The suit should hinge on Epic's claim of damages. I think their showing that cheats cost them money will be an uphill fight. Without showing a loss on a free game then they have no claim.
    [ link to this | view in chronology ]
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Anonymous Coward, 1 Dec 2017 @ 3:56pm

Now you're for cheaters, besides pirates.
In the follow-up, that you apparently didn't catch, the company has already got an "agreement" with one cheater that'll cost him $5000 if cheats again, and that's probably way this will settle.
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- Anonymous Coward, 1 Dec 2017 @ 5:18pm
  
  Re: Now you're for cheaters, besides pirates.
  Well, I don't know about TD, but I'm certainly all for cheaters and pirates.
  
  And I'm against any company that thinks it's necessary to sue 14-year-olds in order to do business.
  [ link to this | view in chronology ]
  - MyNameHere (profile), 1 Dec 2017 @ 7:08pm
    
    Re: Re: Now you're for cheaters, besides pirates.
    The question is "are you against it because he's 14, or are you against it because he's a cheater?"
    
    I think that regardless of age, if the activity isn't acceptable, then it isn't acceptable.
    
    If the guy was PewDiePie instead, would you feel the same way? Or is he old enough that he would deserve it?
    
    For that matter, let's reverse it. Why can a 14 year old upload to YouTube? Can he in fact enter into the contract without his parents permission? If the parents have to give permission, would they be liable?
    
    It goes both ways.
    
    Think carefully about your answer!
    [ link to this | view in chronology ]
    - Anonymous Coward, 1 Dec 2017 @ 10:50pm
      
      Re: Re: Re: Now you're for cheaters, besides pirates.
      I know you yearn for the days when suing kids was the norm, and you could masquerade as a child's grandmother to force confessions about her mother, but get over yourself.
      [ link to this | view in chronology ]
      - Anonymous Coward, 2 Dec 2017 @ 11:04am
        
        Re: Re: Re: Re: Now you're for cheaters, besides pirates.
        Some say the child labor laws should be repealed, others say the same thing about the 13th, 14th & 19th amendment. They are all clearly crazy and should not be in positions of authority much less be relied upon to make decisions for the country.
        [ link to this | view in chronology ]
    - PaulT (profile), 2 Dec 2017 @ 2:41am
      
      Re: Re: Re: Now you're for cheaters, besides pirates.
      As ever, if you weren't in a rush to show much of a reactionary idiot you are, you'd be able to answer your own questions by thinking.
      
      "I think that regardless of age, if the activity isn't acceptable, then it isn't acceptable. "
      
      There's "I don't think you should do that" unacceptable, and there's "subject of a lawsuit" unacceptable. There's also unintended consequences of going the lawsuit route at a drop of a hat. The author simply believes that it's not lawsuit-worth and that they deserve those consequences.
      
      "If the guy was PewDiePie instead, would you feel the same way?"
      
      If you utilised the underpowered melon on top of your shoulders, it would be obvious. There are several views stated in the article, one of which is that it's dumb and counter-productive to be suing random people. Another is that while cheating is not a good thing, lawsuits are not the tool to use to stop it. Another is that even if lawsuits were necessary, they should be used against the people *making* the cheats, not the ones *using* them.
      
      So, yes, they would feel the same way. Only instead of the folly of suing a 14-year old, there would in that case be the folly of suing a lucrative free marketing outlet.
      
      Strange how all your questions are easily answered by not being a moron, huh?
      [ link to this | view in chronology ]
- That Anonymous Coward (profile), 1 Dec 2017 @ 5:20pm
  
  Re: Now you're for cheaters, besides pirates.
  In the follow-up that you didn't actually read, they settled with someone else. They believe he wrote the cheats & was making them available. Nothing but a $5,000K fine if he ever does anything naughty with one of their copyrights.
  
  One does have to wonder how cheats are copyright infringement & how much damage they are actually causing to the free game.
  [ link to this | view in chronology ]
  - PaulT (profile), 2 Dec 2017 @ 2:51am
    
    Re: Re: Now you're for cheaters, besides pirates.
    "One does have to wonder how cheats are copyright infringement & how much damage they are actually causing to the free game."
    
    The copyright infringement thing is very shaky, while the lost money thing is presumably based on the same "logic" that's used to calculate piracy losses. Basically, if people cheat, they don't have to buy things through microtransactions (assuming that the game is based on a play to win model). Cheats being available means that people don't buy lootboxes or whatever, therefore represent lost money. Of course, that assumes that the type of person cheating would be the sort of person buying things with real money, which I'd personally state is unlikely.
    [ link to this | view in chronology ]
    - Bruce C., 3 Dec 2017 @ 11:11am
      
      Ugly problem
      I don't think it's productive to make a blanket statement that if you violate the EULA and distribute derivative works like videos, it isn't a copyright violation. Once you violate the EULA, you can no longer do things that are only permitted to the copyright holder without a EULA - basically anything that involves redistribution of the game or derivative works - barring a valid fair-use argument.
      
      Take a look at the GPL. The FSF has consistently argued that if you violate the GPL, you have to stop distributing derivatives of the GPL'ed item because it's copyright infringement. Simple use of GPL'ed code isn't a violation as it's a right granted in the license pretty much without restrictions. The main restrictions are on redistribution and creating derivative works.
      
      However, there are a broad range of activities that don't involve distribution of copyrighted works or derivatives that may be violations of the EULA, but these would be subject to contract lawsuits not copyright lawsuits.
      For Example:
      - Simply playing the game with a cheat is a EULA violation, but calling it a copyright violation gets back to the old "is copying a game into RAM subject to copyright" debate.
      - Distributing a cheat can only come under copyright if the cheat contains items under copyright from the game publisher.
      [ link to this | view in chronology ]
      - Thad, 4 Dec 2017 @ 9:06am
        
        Re: Ugly problem
        
        I don't think it's productive to make a blanket statement that if you violate the EULA and distribute derivative works like videos, it isn't a copyright violation.
        
        I don't see anybody doing that.
        
        Once you violate the EULA, you can no longer do things that are only permitted to the copyright holder without a EULA - basically anything that involves redistribution of the game or derivative works - barring a valid fair-use argument.
        
        Not to put words in PaulT's mouth, but that appears to be exactly what he's saying: that this is fair use.
        
        Take a look at the GPL. The FSF has consistently argued that if you violate the GPL, you have to stop distributing derivatives of the GPL'ed item because it's copyright infringement. Simple use of GPL'ed code isn't a violation as it's a right granted in the license pretty much without restrictions. The main restrictions are on redistribution and creating derivative works.
        
        That's because the GPL is a license agreement, whereby the licensor agrees not to enforce its copyright provided the licensee meets the terms of the agreement.
        
        I don't see anybody suggesting that's what's happened here.
        
        Simply playing the game with a cheat is a EULA violation, but calling it a copyright violation gets back to the old "is copying a game into RAM subject to copyright" debate.
        
        No. Next?
        
        Distributing a cheat can only come under copyright if the cheat contains items under copyright from the game publisher.
        
        Yes, exactly. If his cheat contains copyrighted material, then it's probably infringing.
        
        But that doesn't appear to be what they're arguing here. This was a DMCA takedown. Which means they were claiming his videos violated their copyright.
        [ link to this | view in chronology ]
        
        PaulT (profile), 4 Dec 2017 @ 9:27am
        
        Re: Re: Ugly problem
        "Not to put words in PaulT's mouth, but that appears to be exactly what he's saying: that this is fair use."
        
        Yes, in terms of the video, it at least should be. The cheat itself might be more problematic, but as they're apparently only going after a user's videos rather than people who produced the cheat code, anything involving the software itself is moot in this case.
        [ link to this | view in chronology ]
        
        ralph_the_bus_driver (profile), 21 Dec 2017 @ 9:20am
        
        Re: Re: Ugly problem
        - If his cheat contains copyrighted material, then it's probably infringing.
        
        Any use of the code outside of the game or alteration of the code would be copyright infringement. So, the question is "is use of a tool to make use of the code without altering it copyright infringement?". To that I would say no.
        
        I would think using a cheat is no different from using plug-ins for Adobe Photoshop. You are not changing the code but adding to it.
        [ link to this | view in chronology ]
      - PaulT (profile), 4 Dec 2017 @ 9:23am
        
        Re: Ugly problem
        "I don't think it's productive to make a blanket statement that if you violate the EULA and distribute derivative works like videos, it isn't a copyright violation."
        
        Erm, good thing I said nothing of the sort, then?
        
        "basically anything that involves redistribution of the game or derivative works"
        
        Which is part of the reason that it's so problematic that the person they're going after here is just the user to the cheat, not the creator or distributor. He's showing the cheat being used, from what I understand, which if it doesn't come under fair use sure as hell should.
        
        "The FSF has consistently argued that if you violate the GPL, you have to stop distributing derivatives of the GPL'ed item because it's copyright infringement"
        
        Yes, because in that case it is. The GPL essentially waives some of the default copyright rules, on condition that the rules of the replacement licence are followed. They say, basically, "the legal author retains copyright but chooses to waive the rules regarding redistribution so long as proper credit and source is also distributed". If they don't, then they can declare that default copyright rules apply since their licence was followed and thus revoked, and at that point derivatives are not being copied with permission so they violate standard copyright.
        
        IANAL, but that's the way I understand things, anyway. That's very different to this issue at hand here, even if the kid in question was involved with the creation and distribution of the cheat code.
        [ link to this | view in chronology ]
      - Rekrul, 4 Dec 2017 @ 3:52pm
        
        Re: Ugly problem
        
        However, there are a broad range of activities that don't involve distribution of copyrighted works or derivatives that may be violations of the EULA, but these would be subject to contract lawsuits not copyright lawsuits.
        
        Is anything in EULAs even enforceable if it doesn't constitute a crime? I mean if they put a clause in an EULA that says users are only allowed to play the game if they dress up as Little Bo Peep and send a photo of themselves in costume to the company, can they then sue people who don't send a silly photo of themselves?
        
        Can they put a clause in the EULA that says the company is allowed to randomly charge players $20?
        
        Can they put in a clause that says that if you cheat in the game, they're allowed to take your car?
        
        What exactly are the limitations of an EULA?
        [ link to this | view in chronology ]
        
        ralph_the_bus_driver (profile), 21 Dec 2017 @ 9:26am
        
        Re: Re: Ugly problem
        One simple answer. Yes.
        
        If you agree to it then they may force and enforce any silly, incomprehensible, unequal, or whatever punishment on the end user. Remember, you did agree to it.
        
        If you get into a poker game, you agree to the rules. If the random cards end up against you then tough sheet, you lose. You agreed to the end user agreement in order to join the game.
        [ link to this | view in chronology ]
    - Toom1275 (profile), 3 Dec 2017 @ 11:51am
      
      Re: Re: Re: Now you're for cheaters, besides pirates.
      Maybe they're trying the Oracle route and saying that making cheat code based off of (but not including) the game's code is still infringing, much like merely using an API is (to Oracle) also infringing.
      [ link to this | view in chronology ]
    - Anonymous Coward, 5 Dec 2017 @ 6:18am
      
      Re: Re: Re: Now you're for cheaters, besides pirates.
      I doubt companies really worry too much about the lost revenue from cheaters. What probably does worry them is the players that get frustrated with the cheaters and leave the game because they realize they can not compete with the cheaters.
      [ link to this | view in chronology ]
    - Pcdec, 11 Dec 2017 @ 2:53pm
      
      Re: Re: Re: Now you're for cheaters, besides pirates.
      It`s not that at all. Cheaters ruin a games reputation so less people buy it. Nothing like those imaginary piracy loss numbers.
      [ link to this | view in chronology ]
      - PaulT (profile), 12 Dec 2017 @ 2:00am
        
        Re: Re: Re: Re: Now you're for cheaters, besides pirates.
        Do you have figures for how many sales are lost through cheating, along with verifiable methodology? If not, it's *exactly* like the imaginary piracy numbers.
        [ link to this | view in chronology ]
        
        ralph_the_bus_driver (profile), 21 Dec 2017 @ 9:31am
        
        Re: Re: Re: Re: Re: Now you're for cheaters, besides pirates.
        Epic can use records of use from before the cheats became available and the use after. That may even be compared to other properties that don't have known cheats.
        
        That wouldn't be a question as much as what is Epic's losses from a free game.
        [ link to this | view in chronology ]
  - Anonymous Coward, 4 Dec 2017 @ 3:28am
    
    Re: Re: Now you're for cheaters, besides pirates.
    quote:
    Nothing but a $5,000K fine if he ever does anything naughty
    /quote
    
    so, a 5 million dollars fine is "nothing but"?
    
    K=1000 (by definition)
    thus
    $5000K = $5 000 000
    
    either that or the Verizon Math is contagious.
    https://xkcd.com/verizon/
    [ link to this | view in chronology ]
- PaulT (profile), 2 Dec 2017 @ 2:36am
  
  Re: Now you're for cheaters, besides pirates.
  "Now you're for cheaters, besides pirates."
  
  Wow, 2 bare-faced lies in one subject line!
  
  There does seem to be a lot of AC whining about mentioning the kid's age. I wonder if our regular idiots share that trait with the kid. That would make some sense.
  [ link to this | view in chronology ]
- ECA (profile), 2 Dec 2017 @ 11:01am
  
  Re: Now you're for cheaters, besides pirates.
  Solutions..There are a few..
  Ramifications??
  
  What is/would be a good reason for cheaters??
  Find 1 good reason..
  
  The Ability to FIND HOLES IN PROGRAMMING.. mosT CHEATS ARE SIMPLE. The easier to cheat the DUMBER the programming..
  
  This is the same thing with your LOCKS on your front door..WHO has the better ones?? Do yo think a corp whould use the SAME ones as a HOUSEHOLD??
  WHY NOT??
  Think a Corp would do very well, with Hollow doors?? Like at your home??
  
  Or Should be Sue companies because they make Hollow doors that people can break into our homes..
  
  Do you install better windows so they cant be broken?
  Protection on windows, doors, and soforth?? Or do you Arrest a person Because you didnt protect your property??
  
  Leave your car door unlocked in a BAD location, See what happens..
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Dec 2017 @ 8:46am
    
    Re: Re: Now you're for cheaters, besides pirates.
    If you're dumb enough to put a hollow door as an access point to your house, you're just dumb. They are made for Interior doors, not exterior doors. Unless it's a steel door. That'll be hollow but a whole lot stronger than wood.
    
    Trying o compare a real product to software is just plain dumb. Instead of sloppy, lazy coding to make a quick buck on your freemium game. Then SUE when your game is easily cheated, maybe should actually fix the game and worry about paying lawyers and suing kids or anyone else.
    [ link to this | view in chronology ]
  - Rekrul, 4 Dec 2017 @ 3:54pm
    
    Re: Re: Now you're for cheaters, besides pirates.
    
    Do you install better windows so they cant be broken? Protection on windows, doors, and soforth?? Or do you Arrest a person Because you didnt protect your property??
    
    Leave your car door unlocked in a BAD location, See what happens..
    
    VICTIM BLAMING!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
    [ link to this | view in chronology ]
- Uriel-238 (profile), 2 Dec 2017 @ 1:55pm
  
  cheaters and pirates.
  Game companies are renowned for condemning as cheaters and punishing any player that fails to play the game as intended. So I wouldn't trust such an agreement, since the company now has incentive to redefine what is or isn't cheating without forewarning.
  
  In my case, I just avoid MMOs and MMO-lites since inevitably they turn into either nasty slogs or games that only cater to the elite veteran players. Regarding 100% of such games, I've either experienced this trend myself, or found multiple anecdotes for each.
  
  It's a bad way to market games, and it actually depends on the audience base being inexperienced with authoritarian companies. Id est, young.
  
  So it's totally not surprising that minors would fall into litigious nets they cast. Epic Games set up its own legal department.
  [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 1 Dec 2017 @ 3:59pm

mr geigier i am so disapproved of u
this time is u reminds of joke (sad
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That Anonymous Coward (profile), 1 Dec 2017 @ 4:00pm

Oh good they doubled down...

It's gonna be funny as hell to watch this mom mop the floor with BigLaw....
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radix (profile), 1 Dec 2017 @ 4:03pm

This must have been sitting in the queue for too long. They've already settled:

https://torrentfreak.com/epic-games-settles-first-copyright-case-against-fortnite-cheater-1 71201/
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- Anonymous Coward, 1 Dec 2017 @ 4:18pm
  
  Re:
  No, they haven't - not in this case. Skip to the last paragraph of the article.
  [ link to this | view in chronology ]
fish food, 1 Dec 2017 @ 4:21pm

Christ, what assholes.

I almost wish I still played games, so I could boycott them.

Instead, I suppose I'll have to make do with "Child-suing petty shitheads Epic Games..." to talk about them in the future.
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Anonymous Coward, 1 Dec 2017 @ 4:34pm

Epic has money, employs people, and pays taxes.

They WILL be getting by with this, even if they lose the suit.

At worse a minor hiccup in the road. I don't think gamers will give enough of a fuck to damage them in any meaningful way. They don't just make games, they make gaming engines too, and they are partially owned by China with more than enough financial muscle to weather the storm.
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Mononymous Tim (profile), 1 Dec 2017 @ 4:42pm

Just one question...
What's a docekt?
[ link to this | view in chronology ]
- Anonymous Coward, 1 Dec 2017 @ 4:59pm
  
  Re: Just one question...
  The great god Typo having fun.
  [ link to this | view in chronology ]
Gamey McGameface, 1 Dec 2017 @ 4:43pm

EPIC FAIL
If a game gamer feels game outgaming game gamer gamers is it fair game? Discuss on game_game_gamer_gamers@GAIM.
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Aerie (profile), 1 Dec 2017 @ 5:16pm

Now, let me get this straight:

We did not violate Rule 5.2(a) or Local Civil Rule 17.2 because we did not know when we filed the papers that Defendant was a minor.

Uh, isn't it your job, EPIC, to get your facts straight before you filed the lawsuit or do you just randomly file lawsuits against people you never looked into or investigate?

ROTFL
[ link to this | view in chronology ]
- Anonymous Coward, 1 Dec 2017 @ 6:04pm
  
  Re:
  In other words they did violate Rule 5.2(a) or Local Civil Rule 17.2 because they failed to verify that the person they were suing was a legal adult subject to any agreements they ever "agreed" to. In the US, Anyone under the age of 18 can honor or ignore anything in any contract they sign. Epic needs to apologize and pay off the mom in order to escape this without further major loss of reputation.
  [ link to this | view in chronology ]
- TheOldHippie (profile), 1 Dec 2017 @ 6:06pm
  
  Re:
  The first thing that popped into my head was "Ignorance of the law is no excuse".
  
  Just because you didn't know should not be a valid argument.
  [ link to this | view in chronology ]
  - Digitari, 1 Dec 2017 @ 6:27pm
    
    Re: Re:
    "Just because you didn't know should not be a valid argument." (Unless you are a police Officer or the Government)
    [ link to this | view in chronology ]
    - Anonymous Coward, 2 Dec 2017 @ 6:16am
      
      Re: Re: Re:
      
      "Just because you didn't know should not be a valid argument." (Unless you are a police Officer or the Government)
      
      Or a big company picking on a little kid. Then it totally is.
      [ link to this | view in chronology ]
- alternatives(), 3 Dec 2017 @ 3:27am
  
  Re: rule violations
  So who's gonna bar grieve them for this violation?
  [ link to this | view in chronology ]
Anonymous Coward, 1 Dec 2017 @ 6:21pm

IANAL so idk ... can you sue a minor?

Can you sue a minor for breach of contract?
I thought minors were not allowed to enter into a contract.

Is a EULA actually a contract? Looks to be just an agreement, it is in the title of the damn thing.
[ link to this | view in chronology ]
- Bergman (profile), 2 Dec 2017 @ 9:55am
  
  Re:
  You can't because they aren't able to. For that matter, you can't settle the lawsuit against a minor with the minor, because they aren't able to sign a binding agreement.
  
  You can sue their parents, but if the parents didn't sign the contract on the minor's behalf, well, we're back to minors can't sign contracts. Same goes for settlements -- if a minor violates a settlement deal their parents signed, then that sucks for the parents but the minor can't be bound to settlement agreements.
  [ link to this | view in chronology ]
  - Anonymous Coward, 2 Dec 2017 @ 11:08am
    
    Re: Re:
    I guess if Epic pursues the case it will be tossed. Wonder if Epic will then attempt to write off their imaginary loss.
    [ link to this | view in chronology ]
Wintermuteau (profile), 1 Dec 2017 @ 9:25pm

He counterclaimed DMCA, so....
From a smart commecnter here ( https://www.kotaku.com.au/2017/11/14-year-old-video-game-cheater-sued-mom-defends-him/#comment-38700 07 ) :

Some finer points about this lawsuit:

- The kid streamed videos of himself playing and cheating on fortnite, while promoting and demonstrating the cheat, and provided a link to donate and get the cheat program.
- The 14 year old kid was warned numerous times by Epic Games, and had videos and channels removed, and his fortnite account banned.
- This didn't take, and the kid created numerous fake accounts to circumvent the ban, and also created new youtube channels to keep streaming, and kept providing links for the cheat and donations.
- The kid even went to the extent as to taunt and insult Epic in his videos and social media, and even doxxed the personal details of one of Epic’s legal team.
- In the US, a 14 year old child can enter into a contract and be responsible for the rights and damages within that contract (might vary state to state), so this might show that the EULA is binding.
- When suing someone in court, they must declare who they're suing (although this probably protects minors)
- Plenty of precedence in the 80's/90's where a person who broke the EULA has been brought to court and successfully sued.
- This case might set a new precedent regarding underaged persons being bound by EULAs even when it comes into F2P games
- It's not about how it affects other people playing the game, but also the employees of the developers who rely on their jobs to provide for themselves and their families.
- A letter from mom wouldn't undo the repeated offences of the child, considering Epic did take numerous steps in order to control the situation, but were pushed to further action due to the child's idiocy.

In a nutshell, because the child filed a counterclaim, Epic either had to accept and withdraw the DMCA action, or escalate the suit to court. These were the only two options they had according to law.

So he really forced the issue.
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- Andrew D. Todd, 1 Dec 2017 @ 11:44pm
  
  No Contract With a Minor.
  The short answer is that minors can only make contracts for necessities (which admittedly includes lucrative employment), and they can only do so subject to judicial supervision. If a contract is made in the absence of a judge, the judge can tear up the contract if it seems unfair to him. The usual procedure for making a contract with a child, say, in the case of a child movie star, is to go into Orphan's Court, and obtain the judge's sanction beforehand.
  
  For non-necessaries, the seller under contract has no recourse, even if the child has wasted or destroyed the goods tendered. The seller is expected to realize that a child is not a safe custodian. You sell a car on installment payments to a fourteen-year-old, and he drives off and immediately gets into a smash, totaling the car, that's just your tough luck. If it isn't worse, of course.
  
  By no stretch of the imagination can a video-game be considered a necessity. Nor was there any kind of "valuable consideration" that a judge would accept as wages or salary. The "income" would have to be something that the recipient could use to buy food and shelter. In-game "coin" would not qualify, or else the game producer would be obliged to bankrupt itself reimbursing _all_ its customers, apart from being convicted of federal racketeering charges involving illegal gambling. Like it or not, the game producer has to stick to it's stipulated insistence that "coin" is not money. Given that the kid probably spent hundreds of hours messing around with the game, minimum-wage law would oblige the company to pay him thousands of dollars. If you attempt to enter into a contract with a child, you do so at your own risk.
  
  The internet practically did not exist in the 1980's, or, at least, so few people had access that it was unimportant. There was nothing like TouTube. In 1985-86, I actually had a modem, a "Volksmodem." It was only capable of 300 bits/sec, and it didn't have a phone dialer. Establishing a connection involved doing a series of things in rapid sequence: dialing the telephone, listening for the modem tone, throwing a switch on the modem, and hitting the return key on the computer (with the terminal software already up and running). Practically speaking, I must be a member of fairly small club. Anyone who talks about EULA's in the 1980's as if they were relevant to present conditions is profoundly ill-informed. A 1980's software-pirating case tended to involve a big corporation which bought one copy of, say, Lotus 1-2-3, the early spreadsheet, installed it on a hundred unconnected computers, and got turned in by a "disgruntled employee." By its nature, such a case did not involve fourteen-year-old kids. The big software companies used to put ads in the newspaper, "fink out your boss!"
  
  At that date, an EULA would have been a shrink-wrap license, in which one supposedly consented by the act of opening the package. These were always legally suspect. It was pointed out at the time that a shrink-wrap license constituted conditions presented after purchase, and was therefore fraudulent per se. This was long before downloading software became common. It was also before installer programs became common. You read the instructions, and copied over the individual files.
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  - Anonymous Coward, 2 Dec 2017 @ 7:01am
    
    Re: No Contract With a Minor.
    I was wondering about much of that - thx
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  - JoeCool (profile), 2 Dec 2017 @ 7:22am
    
    Re: No Contract With a Minor.
    I looked at the Volksmodem back in the day, but went with the JCat in the end. I wrote my own terminal emulator to use it to connect to the university mainframe. Even if you only got 300 baud, it was still better than waiting for a terminal at the uni. :)
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    - Andrew D. Todd, 2 Dec 2017 @ 4:12pm
      
      Re: Re: No Contract With a Minor.
      Uh,huh... my University's computer center was in a dimly-lighted basement of an old building. At three in the morning, it had a strong look of Count Dracula about it. Or, rather, that was the Input/Output center, with the terminals, and the keypunches, and the printers, and so on. The big computers themselves, an IBM 370, and an Amdahl, were in a separate and spiffier building across campus. I think they eventually installed a a VAX, with a bunch of its own hard-wired terminals, to support students in elementary programming courses, but by that time, I was busy finding out what compilers I could get for my own computer. There was something called Utah/Nevada Pascal, and then there was MIX C. There was a local user group, it met at night in the cafeteria of a funeral directors college (more vampires!), and you could get shareware disks.
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Aerie (profile), 2 Dec 2017 @ 5:29am

EPIC's excuse doesn't hold water. The reason, and this is routinely backed up by rules of evidence. Let's just say that a police officer was able to obtain evidence provided by an informant or another police officer and that the evidence was obtained illegally, judges routinely throw out evidence because the police officers failed to do their due diligence in investigating how that evidence came to be in their possession.

Claiming ignorance that they did not know the evidence was illegal is no excuse and the court was forced to not allow that evidence at trial.

EPIC claiming that they did not know that the videogamer wasn't 14 years old is not a valid excuse. EPIC has a responsibility to ensure that their games cannot use 'game cheats' and these are game functions where their developers allow such of their games to be used with cheats.

The thing, this is EPIC's own fault. First, they released a game that is free to download, free to install and free to play. Second, they didn't do anything to curb cheating. Many MMO games have employees that look for cheaters in their online games and they ban players accordingly. Third, EPIC decided they didn't want to keep playing 'whac-a-mole' with online cheaters so they file a copyright violation lawsuit against their players and don't even do their due diligence and figure out if 'the person they are suing is the same person who is cheating' and 'if the person is a minor or an adult'.

What EPIC did was find out the name of 'gamer', they printed his or her name on the lawsuit, and let it get filed. I don't see any judge allowing EPIC to get around what they obviously should have never been allowed to do in the first place.
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Dan (profile), 2 Dec 2017 @ 8:22am

Why isn't this considered a derivative work?
I can see the case of violating the EULA, but not copyright. Patching [any] code should classify the modified code as a derivative work, thus not a copyright violation. Not saying that the new code would then be eligible for a new copyright, for the one doing the patching. That would be a bit of a mess.
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- Bergman (profile), 2 Dec 2017 @ 10:01am
  
  Re: Why isn't this considered a derivative work?
  Why not? In some countries (EU, for example) taking a photograph of a public domain painting creates a new life +70 copyright on photos of the painting.
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- JoeCool (profile), 2 Dec 2017 @ 10:08am
  
  Re: Why isn't this considered a derivative work?
  In the US, the preparation of derivatives is reserved to the holder of the copyright. So even if it's a derivative, it still violating copyright... but may be covered by fair use.
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- Leigh Beadon (profile), 2 Dec 2017 @ 12:02pm
  
  Re: Why isn't this considered a derivative work?
  As noted, derivatives are the exclusive right of the copyright holder. If you meant "transformative", it is unlikely lightly modified code would pass that test in a fair use analysis.
  
  But there's another layer too: DRM can be used to close the "loophole" (in their eyes) of fair use. As long as they place a protection measure of some kind on the code to prevent modification, then bypassing that becomes copyright infringement regardless of purpose. Which, yes, is absurd and unjust and a fairly blatant way of depriving people of their basic right to modify what they own.
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ECA (profile), 2 Dec 2017 @ 12:23pm

WHO has the rights..
To misconstrue, Obfuscate, re-interpret, Contest, Deny... The laws of this nation??

1. Corps
2. Government
3. police officers..
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Uriel-238 (profile), 2 Dec 2017 @ 2:01pm

True cheating should be regarded as a security problem.
And I suspect that the causes behind online games suffering from cheaters are similar to the causes behind IoT devices suffering from hacking epidemics.

(Our government's problems with hackers probably follow the same paradigm.)

I would put the responsibility on the companies to manage cheaters not from a legal standpoint, but from a security one: provide bounties for finding and reporting exploits and then close them. Heck, bounties can likely be payed in in-game awards, and aesthetic ones (such as character skins) at that.
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- ECA (profile), 2 Dec 2017 @ 2:36pm
  
  Re: True cheating should be regarded as a security problem.
  Love the reporting...
  But the game is missing something...
  A BUTTON..to report and RECORD the episode..
  
  AFTER:
  DONT BAN..LOCK the game they can play to ALL CHEATERS..
  Gun cheats
  Life cheats
  Wall cheats, can see everyone on the map, at range..and thru walls..
  GOD cheat..
  
  LET them cheat..
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  - Uriel-238 (profile), 3 Dec 2017 @ 12:25pm
    
    Most cheats are really minor and happen outside the game.
    ...let alone outside the command console.
    
    A common example is a spamfire button, often a switch featured on a controller, that will rapidly tap the fire key rather than holding it on or off. That way, a game that expects the player to hammer on the trigger to rapidly shoot (in some cases wearing out the controller) can get the same effect just by squeezing it.
    
    Most of my cheats are things like using AHK to rekey the keyboard so that I can play a game left-handed. And yes, some companies would regard that as a cheat.
    
    Does a certain game effect react poorly with your graphics card, making the game unplayable? Some cheats turn those effects off. They're still cheats
    
    The list goes on and on and on. Using Mumble rather than the in-game voice-over-internet? That's a-cheatin'. Making the grap-object command spamfire because objects are too small or too slippery or too multitudinous? That's a-cheatin'.
    
    A run of notable examples have appeared in The Division in which players have, using the established rules of the game, figured out how to farm high-quality weapons. In some cases, it was exploiting a bug, but in others, it was taking advantage of the rules as it was laid out to harvest loot.
    
    Oh you better believe that's a-cheatin'.
    
    (In most other games, that's called playing the game.)
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- orbitalinsertion (profile), 2 Dec 2017 @ 3:06pm
  
  Re: True cheating should be regarded as a security problem.
  All they would have had to have done was to download a copy of the cheat engine he was offering at any point in his long abuse of the game and youtube-ing. That mayyyyy have given some small indication of what code needs fixing. As if this kid is the only one with a method to cheat...
  
  Certainly, some things are much harder to prevent (or patch) than others, and personally, i think there is a lot of value in games that are easily and/or intentionally mod-able. But if you are a big company, you should definitely have the resources to keep cheats and mods out of the official main game servers. Strange thing is, multiplayer games with mods running on their own fan community servers seem to do OK with kicking off those not abiding by the social contract of that community.
  
  I have sympathy for neither this 14yo wanker nor Epic's stupid behavior. And if one really must sue someone to cease and desist, or for some sort of real damages, there are better avenues to do that than by distorting copyright law beyond recognition and then having that become the new standard when some equally stupid court allows it.
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Anonymous Coward, 3 Dec 2017 @ 7:34am

The most obvious part of the whole thing is that a minor isn't able to enter into contracts as a matter of law, so any signed EULA, which is a contract under the UCC, doesn't apply. Only the minor's parents or legal guardian can enter into a contract on the child's behalf.

I don't condone the kid's actions, but this has gone way too far on the part of these corporations' slash and burn scorched earth policies.
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- spodula, 4 Dec 2017 @ 12:55am
  
  Re:
  Well the other option is under the CFAA in federal court, where the age of criminal responsibilty is 11.
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  - Anonymous Coward, 4 Dec 2017 @ 7:40am
    
    Re: Re:
    Criminal responsibility - are those two terms mutually exclusive?
    
    How are video game cheating and EULA violations by a minor considered a federal crime? Because the signals traverse state lines? Did it involve commerce?
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  - Uriel-238 (profile), 4 Dec 2017 @ 1:50pm
    
    The problem with the CFAA...
    ...is that everyone is guilty of it, and so it's pretty much just used to disappear enemies of officials.
    
    Enemies of officials in this case includes people who own stuff they want.
    
    But mostly whistleblowers who publicize wrong doing by those officials.
    
    Eleven years old, huh?
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Ninja (profile), 4 Dec 2017 @ 2:25am

You could also consider that people will cheat for various reasons (god mode, all weapons and destruction rampage fun on GTA anyone? or maybe just invincibility to enjoy the plot and the scenery?) and deploy means for them to cheat as they wish and do a good job catching cheaters on 'no-cheat' servers instead of abusing the law?
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John E Cressman, 4 Dec 2017 @ 4:51am

Great Defense!
Wow... so their defense... they're inept?! That's great! I want to use that if I go to court.

Your honor, I'm not guilty of violating the law because... I'm lazy and stupid.

And since the kids name was already out there, what the F' is "redacting" it going to change? Sure the mother wrote a letter... AFTER they put her minor child's name into public record ILLEGALLY.
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Historian (profile), 4 Dec 2017 @ 5:42am

Galoob v. Nintendo
First, let me say that I'm no fan of cheating. I've worked the gaming industry and passed out my fair share of bans for people cheating in the games we managed.

I thought the Galoob v. Nintendo ruling pretty much made it [erfectly legal to use cheats. "the altered game content did not constitute the creation of a derivative work". Even the video of him telling everyone where to get the cheat and how to use them is no different than the GameGenie adverts and cheat codes in magazines at the time. Assuming he didn't use in-game video, which they could put a copyright strike on, he shouldn't have received the DCMA strike and was in the right for fighting it. Again, they absolutely have the right to DCMA any content showing their game, but if he didn't they have no legal standing.

This is an internal problem not a legal one.
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yankinwaoz (profile), 4 Dec 2017 @ 9:21am

Can a minor be held to the terms of a EULA? Isn't that a contract? And a minor can't sign a contract.
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michael, 4 Dec 2017 @ 11:21am

It's "beside the point" ...
Timothy Geigner: Once again I'm here to point out that the figure of speech you keep butchering is "beside the point" not "besides the point."

Think about it.
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Rekrul, 4 Dec 2017 @ 4:09pm

Many people cheer the prosecution of cheat makers because most people hate cheaters (unless they are the cheaters), but the part they overlook is that if companies can successfully sue cheat authors for copyright infringement, they can sue the authors of any mod that changes the game code, regardless of whether it's used for cheating or not.

Perhaps a company has an agreement with Microsoft that their games will only work on the very latest version of Windows and someone makes a patch that lets them run on Windows 7. Or they make a mod to allow fan-created maps to be used. Or a mod that allows players to selectively turn off various parts of the HUD. None of these qualify as cheats and virtually all gamers would say that these are beneficial mods, but under the precedent of suing cheaters, all of these could be squashed by a copyright infringement claim.

You may hate cheaters, but to allow companies to sue cheat mod authors for copyright infringement is to give the company the final say over what "legitimate" mods are and aren't allowed to exist.
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