Epic Decides To Double Down On Copyright For Cheating Lawsuit Against 14 Year Old By Taking On Mom
from the great-PR-you-have-there dept
When Blizzard decided to pretzel copyright law such that cheating in its online games constituted copyright infringement in a novel way that makes no sense, we warned that other game studios would join this insanity party and create a true judicial problem for the courts. Unfortunately for the world, we were right about that, and several other studios began claiming that such cheats broke EULAs and that this somehow resulted in copyright infringement, despite no actual copying occurring. Among those other studios was Epic, makers of the popular Fortnite game, but unique in that it managed to sweep up a 14 year old using a cheat in its lawsuits. The prospect of suing high school freshmen was likely not what EPIC had in mind with its lawsuits and, after the teen's mother responded to the court chastising the company for the lawsuit and also arguing that her son could not have agreed to the EULA as a minor, we noted what a massive PR nightmare this had become for Epic.
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.
My assumption was honestly that Epic would run away from this lawsuit, given how horrible it would look taking on a teenager and his mom. Somewhat astonishingly, Epic did the exact opposite, served the teenager with a new version of its suit that redacted his name to his initials, and showed up in court. Neither the teen or his mother joined them and Epic asked for a default judgment. The court, however, refused to do so and instead decided to take the teen's mother's letter to the court as a request to have the case dismissed.
However, US District Court Malcolm Howard wouldn’t allow Epic to cruise to a win that easily. Instead, he ruled that the mother’s letter should be seen as a motion to dismiss the case.
“While it is true that defendant has not responded since proper service was effectuated, the letter from defendant’s mother detailing why this matter should be dismissed cannot be ignored,” Judge Howard wrote earlier this month.
Because of that, Epic again was faced with a choice. It could stop this insanity of suing a teenager for copyright infringement when no such infringement was committed, or it could respond in court to the angry, anguished plea of a teenager's mother. It chose again, unbelievably, to play the villain in this drama, and tripled down on its lawsuit. Its response mostly argues that the mom failed to make a legal claim in her letter, which, duh. It then goes on to claim that the teenager can't claim his status as a minor prevents him from signing the EULA because of all the benefits he got from signing it.
“This ‘infancy defense’ is not available to C.R,” Epic writes, pointing to jurisprudence where another court ruled that a minor can’t use the infancy defense to void contractual obligations while keeping the benefits of the same contract.
“C.R. affirmatively agreed to abide by Epic’s Terms and EULA, and ‘retained the benefits’ of the contracts he entered into with Epic. Accordingly, C.R. should not be able to ‘use the infancy defense to void [his] contractual obligations by retaining the benefits of the contract[s]’.”
I cannot stress enough how crazy this is on multiple fronts. The breaking of a EULA in this way is not copyright infringement. The claim in Epic's response is that the court should consider a teenager capable of entering a binding EULA, one which Epic theorizes cements copyright requirements, just because he played the game for which the EULA is written. And, ever present is the simple fact that Epic is going to all of these lengths to sue a fourteen year old that used a cheat in a video game. That's nearly insane enough to read like fiction, except that all of this has been done in a public court.
How any of this could possibly be worth the PR hit Epic is taking is beyond me.
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Filed Under: cheating, copyright, fortnite, parents, teenagers
Companies: epic
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Copyright
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Re: Copyright - DMCA Logic
I am a little bit surprised, however, that these articles seem to be trying to diminish what the boy did by saying "For just using a cheat in a video game." On reading the court documents, they are saying he did a lot more than that. That he kept promoting the link to the cheat and telling everyone to use it. That they kept cancelling his account and he kept creating new ones under fake names. So this isn't like he didn't know they objected to what he was doing and it's not like he wasn't promoting the cheat. I agree that suing him is a PR nightmare, but if we are going to talk about a court case we should at least be open about what was being done and not dismiss the actions.
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Re: Re: Copyright - DMCA Logic
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Re: Re: Re: Copyright - DMCA Logic
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Re: Re: Re: Copyright - DMCA Logic
copyright is a civil matter
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Re: Re: Copyright - DMCA Logic
Except people don't need a license to use software—"it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or".... 17 USC §117 (2011)
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Re: Re: Re: Copyright - DMCA Logic
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Re: Re: Re: Re: Copyright - DMCA Logic
I strongly suspect that they never have taken the EULA as a legal argument in court and that there are no court cases in which Microsoft relied on the EULA for a victory or settlement.
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Re: Re: Copyright - DMCA Logic
I agree that suing him is a PR nightmare, but if we are going to talk about a court case we should at least be open about what was being done and not dismiss the actions.
What was and was not being done I'd say. The actions you describe were likely annoying to the devs and other players, and likely violated the EULA, but they aren't going after him for EULA violations, they've going after him for copyright violations, and those are two very different things.
If they want to go after him for violating the EULA then great, sounds like they've have a slam dunk case thanks to his own actions and words. Going after him for violating a copyright by spinning 'EULA violation=copyright violation' on the other hand is another thing entirely, and stands to cause notable harm outside this one case if a court buys it.
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Re: Re: Re: Copyright - DMCA Logic
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Re: Re: Re: Re: Re: Copyright - DMCA Logic
A minor can enter into a contract. The contract is just not legally binding in any way if the other party wants to enforce any terms. Unless, and here's the crux, the consideration is for ESSENTIAL purposes.
Basically what you are looking at is Capacity, and no matter if a contract was signed, accepted, had consideration given or whatever, without capacity there can be no formation.
As for breaking the law, I'm positive that even the USA under its Restatement (Second) of Contracts, a party cannot be criminally charged other than for exigent reasons having to do with undue influence or unconscionability/fraud.
Though does EPIC understand s205 of that same restatement?
tldr: Minors cannot be held to specific performance or breach for non essential contracts. Breaching a contract is NOT a criminal offence. Entering into a contract as a minor is not unlawful. Caveat venditor!
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Re: Copyright
I saw this coming back when the US court system put legal contract weight behind "If you use this you agree to..." all or nothing EULAs. You break the TOS/EULA the contract is revoked which is the only grant of copyright you have via this sort of setup, therefore further use of the software is disallowed.
This is basic contract law under the UCC. It's the same principle that allows the GPL to function.
While these EULAs can certainly be onerous (Oracle's no benchmarks without us giving permission clause comes to mind) , no one is holding a gun to people's heads and saying "You WILL click ok and sign over your arm and leg". It's also not unreasonable to place anti-cheating language in a TOS/EULA to be able to legally ban cheaters. In short, if you don't like it, don't buy it.
Richard Stallman was remarkably prescient in where copyright and corporate greed was headed in the software industry.
So that little part where cheating wasn't copyright infringement thing? I wouldn't lay any wagers. The courts routinely uphold TOS/EULA as contract violations, contracts that are expressly intended to convey a limited copyright grant.
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Re: Re: Copyright
Nope.
I mean, sure, in some instances. But not in the case of all those EULAs people see only AFTER they make a purchase. Or AFTER they open the packaging on software or a print cartridge. (Including the Lexmark agreement that states that you can't resell the cartridge you purchased because by opening it you agree that you don't own it.)
Good luck upholding the EULAs on many web sites. American Airlines once required visitors to their website to click "I accept" on an EULA with 181 paragraphs. Even mentioning this probably violates the agreement, but somehow I don't expect to be sued for a copyright violation.
Sure, the customer would have a hard time fighting say, any privacy violations that the agreement allows. But at the same time the web site owner would have a hard time going after the customer for anything IT didn't like, based on any assumption that the customer read the whole damned EULA. Or had an obligation to.
In the news today here in Canada, a cable customer just won a victory over an EULA. He'd been quoted and agreed to a monthly price by Bell Canada. Then he was emailed an EULA stating that the promised price could be raised by Bell at any time. He wasn't having it, an neither was the court.
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Re: Re: Re: Copyright
As they add more software bullshit to the automobiles we drive, the above will happen. Now, how you react will determine our future. I like older vehicles for many reasons.
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Re: Re: Re: Re: Copyright
I expected much of this to show up with the switch to electric cars. With "Electric car!" being the response to people complaining that they never had to put up with it before.
I suspect that Elon Musk has done us a big favor by not going down that path.
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Re: Re: Re: Re: Copyright
Which explains why the Magnuson-Moss Act was passed. It was because these things were being done. The old "Sorry, your motor is not covered under warranty since you did not use the dealer do the oil changes."
Enacted in 1975, the Magnuson-Moss Warranty Act prohibits product manufacturers from conditioning consumer warranties on the use of any original equipment part or service.
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Re: Copyright
All of which makes me wonder why they're going after this family under copyright law in the first place?
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That way, even though you don't initially need permission to use the item, you can't get the item without binding yourself to a requirement to have permission.
If you violate the license, you've thereby violated the contract, and the penalty terms of the contract - which require you to cease using the item, and probably to destroy it - kick in. By the standards of contract law, those penalty terms can be enforced by a court.
No actual copyright violation is involved at that point, although the companies will often pretend (and may sometimes convince a court) that one is; it's purely a question of contract law.
The idea that such licenses can be valid and enforceable contracts is questionable, but if they can't, the companies which use such license agreements have apparently managed to avoid getting that tested in court.
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No one cares about this 14 year old cheater, which is why this isn't a "PR hit".
Today's gamers are stupid beyond words.
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Easy 'not to care' when you don't know about it, which I imagine most don't(I certainly would have never have heard about it if TD hadn't covered the case), it has nothing to do with intelligence or lack thereof.
It's certainly true that a section of 'gamers' don't care about what the company they're buying from do, but the same could be said of movie goers, people who buy music from major labels, buy from large non-game companies... why, it's almost as though it's a 'stupid' people problem rather than a stupid gamers problem, yet while articles like this are all but guaranteed to gather at least one 'stupid gamers' comment, the same response for those other groups tends to be rather sparse if not lacking entirely.
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Really? There's what, millions of people who could be classified as "Today's gamers"? Some of which compete professionally and are considered experts and masters of their respective games they play (by definition not stupid), and you're going to sit there and call them ALL "stupid beyond words"? Not to mention many of these people also are extremely smart in other areas of life as well.
One 14 year old does not an entire people group make.
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There just being tough on crime
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Re: There just being tough on crime
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This kid is a POS
This kid is a giant asshole and his mother enabled him to become this blight on humanity. She tries to ignore the summons and court paperwork not realizing that if her delinquent child is not responsible, she is.
He is actively cheating and streaming himself cheating while linking to the cheat he uses and advocating its use.
He thinks that his age will protect him from consequences and his mother is under the same delusion. I hope they both end up unable to use electronics for years as a result.
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You don't punish one jerk by being a bigger one
So if he's an asshole for cheating in a game, something that in the end of the day isn't going to impact much beyond that, what does calling for the kid and his mother to lose the use of all electronics for a year, something which has much wider impact on personal and professional levels qualify as?
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Re: You don't punish one jerk by being a bigger one
All they need to do is just ban the kids... that is it! No need to go after the Mother, they both sound like the kind of people that will make their own lives miserable without any additional help.
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Re: Re: You don't punish one jerk by being a bigger one
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Re: Re: Re: You don't punish one jerk by being a bigger one
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The fact remains that the kid is a minor and can not legally enter into a contract. Trying to use that as a way to go after him or his mother is stupid and a really bad idea.
Now, I'm not saying that the kid should necessarily get away with what he did but there are already tools in place to deal with this. Like BANNING his user account from the game. The kid didn't technically break any laws, certainly not copyright laws. He just cheated. He should be banned and perhaps his mother should have a long talk with him about honor and good sportsmanship.
Past that, do we really want to go down the road of criminally punishing teens that simply cheated in a game? What counts as cheating? Using third party tools? Or just making use of easter eggs or glitches in the game that haven't been patched yet? Does that mean that all beta testers are now criminals? What about the guy who accidentally discovers the glitch and reports it? Is he criminally liable now too?
This is like saying grade school bullies should have criminal rap sheets because they did and said mean things on the playground. Major overreaction to a stupid kid doing stupid things that affect no one outside the game. Grow a thicker skin, ban his account, and move on.
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Re: Re:
Or do you think forcing the kid (and ultimately his mom, because let's admit it, the kid probably doesn't have a job, nor any money) to pay tens if not hundreds of thousands of dollars is not going to drastically change their lives? Not to mention it will set a dangerous precedent that we will all come to regret down the road.
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Re: This kid is a POS
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Re: This kid is a POS
I hope Epic pays you more than you deserve for posting this comment.
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Re: This kid is a POS
"This kid is a giant asshole and his mother enabled him to become this blight on humanity."
He cheated at a video game. Say that repeatedly to yourself until the worldly insignificance sinks in. I love gaming but appreciate how low it ranks in the the list of things humanity is blighted by.
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If only there were some way to remove his ability to gain the benefits of the contract.
Maybe one day someone will discover a way to restrict a user's access to a program.
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Re: Blocking users
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Re: Re: Blocking users
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Re: Re: Re: Blocking users
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Re: Re: Re: Re: Blocking users
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Re: Re: Re: Re: Re: Blocking users
He then said it was the fault of their inadequate systems, to which I am saying that short of instituting onerous data collection and retention requirements, it's not *that* unreasonable to escalate to litigation to keep a habitual and obsessive abuser off their platform. Also with TechDirts commenters ideas about privacy and data collection in mind, a RealID-like approach would be seen as overly intrusive to the non-offending playerbase, especially in the shadow of Facebook's fiasco.
So if we go with the OP's logic, that leaves A) Lawsuit, B) Do nothing and let this kid keep up his garbage ruining matches for thousands of players. If you think B isn't an issue, please refer to the myriad of complaints regarding PUBG's lack of action towards their cheating population.
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Re: Re: Re: Re: Re: Re: Blocking users
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Re: Re: Re: Re: Re: Re: Re: Blocking users
The other way is much maligned (for good reasons or not, depending on your privacy opinions. 'round here it's bad), where they look at things like your active processes or what's accessing memory to see if you're using known cheats. This way is a lot more effective, but is more on the cat-and-mouse game side of things, as if you ban too quickly, the hack makers know what you're looking for and adjust. So typically these go out in banwaves, which is slow as well, but also keeps your cards hidden so as not to tip off what it is you're spotting.
Neither of these are effective at stopping people like this kid. As an aside, I just want to point out that you pretty much said Epic should nerd harder to stop game cheaters. It's not that simple.
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Re: Re: Re: Re: Re: Re: Re: Re: Blocking users
I only 'played' one online 'game', and it wasn't a game so much. There were hundreds of thousands users, worldwide for this game, but politics came into the middle and I lost interest. While I miss the worldwide community that was formed around this 'game', my leaving was their loss, not mine. I could have created another ID and rejoined, but...
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Blocking users
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Re: Re: Re: Re: Re: Re: Re: Re: Blocking users
Well .... Epic is the one who wants the nerd harder end product - not the poster to which you replied.
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Re: Re: Re: Re: Re: Re: Re: Re: Blocking users
If they want their game to stay premium status, they need to hire the best programmers/consultants out there to stay a step ahead of these kids. Again, it is that simple. It's just that expensive (and that's the point).
Epic is doing the right thing in pursuing this kid. His code could spread like wildfire, especially if someone buys it off him and distributes it for free.
Fornite is all the rage right now, and if things progress as expected, it will stay that way for a very long time. On the other hand, if cheating gets out of control, this game could be an afterthought within months. A shift even the slightest in that direction is a loss in hundreds of thousands, and quite easily millions of dollars of future profits.
Make no mistake, their game is at major risk. It's not easy being at the top, it's even harder to stay there.
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On the other hand, this is definitely not what copyright is for. I believe Justice Howard is going to make Epic weep.
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Re:
Epic thinks a lot of things, but that doesn't make them true.
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The twinkie defense, the Wookie defense now...
The Letter from Mom defense.
It must happen.
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He's a kid for christ's sake
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Re: He's a kid for christ's sake -- I doubt he's for Christ!
Had you READ and UNDERSTOOD, "nonymous": it's not allowed to at same time get benefits from a contract if ineligible to make contract. The situation has already been met and countered in law.
I predict an Epic win.
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Re: Re: He's a kid for christ's sake -- I doubt he's for Christ!
This kid is a major threat to Epic. And what he's doing is clearly violating the EULA. I don't even care that there's precedence with failed 'infancy defense.' even if there werent precendence, the judge should create it here.
Epic win guaranteed.
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Re: tl;dr
Then why is Epic suing him for copyright infringement?
Obviously. If you cared about precedent, you'd know what it was called.
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Re: Re: He's a kid for christ's sake -- I doubt he's for Christ!
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No mention of the nature of the so called cheat and what if anything the dedigners have done to button their drawers agaìnst such an exploit. Oh wait that takes time money and actual technical competence, the latter surely lacking on the administration side. Spend money on lawyers and not bother fixing the leaky boat.
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Sounded Absurd, then I read the case document...
This is a kid that is not only hacking into Epics SERVERS and modifying the game (and thus ruining the game for everyone he encounters (thousands of players)), he's spreading the hack all over the GLOBE through his youtube channel. This is a HUGE DEAL for Epic.
This case is absolutely legitimate. I've never played the game, but I've seen it being played. I tell you, this is a masterpiece in software form. Thousands of hours of work and hundreds of thousands of dollars worth of software...Millions in potential profit (They are in pseudo-beta phase still)
Many games like it have been shattered by hackers in this same way. The residual effects could ABSOLUTELY be losses reaching millions of dollars. That is absolutely not hyperbole.
That said, they should't lay the hammer down. Give the kid one last warning. No need to do that to his parents. Plus, the message will be loud and clear for all other hackers as well.
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Re: Sounded Absurd, then I read the case document...
Hmmm...if kid-hackers are ruining games all over the place then it sounds like a security problem. Given we're not seeing banks getting crashed by servers left and right maybe it's time to implement better crypto, rather than blaming children.
Oh wait, in the US High-Bandwidth ISP providers have decided to put all their money into buying out the government rather than upgrading their bandwidth...
So maybe its time to start investing into single-player games again, rather than (again) blaming children for corporate failings.
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Re: Re: Sounded Absurd, then I read the case document...
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Re: Re: Re: Sounded Absurd, then I read the case document...
You make valid points - that said, it's no one group's fault. Exploiting gaming software is a reality in any online multiplayer. Just like there will always be criminals who exploit businesses, people, there will be cheaters who exploit the software for personal gain and at the detriment of the game itself.
If anything, this is a result of a lack in technological innovation. Infrastructure is outdated, deadlines need to be met, so we stick with the same development paradigms that have been around since the beginning of the internet.
Banks are a whole 'nother story. They are federally mandated to have a certain level of security. Not to mention, their data is static. It just sits their with the exception of highly secured money transfers, withdrawals.
In games, out systems are receive and sending data in mass. When a player presses a button and performs and action, the other player 1000 miles away needs to register that action immediately. The integrity of the game (the game itself) only exists with seamless integration. Tightened security inevitably bottlenecks the systems and renders the game unplayable.
Always remember, were talking about an international company with 700 employees. It may just be a game, but that's 700-ish families that this game, in large part, is supporting.
Out of control cheating ruins the game and players will simply move onto the next - unless it's under control.
What this kid is doing is not innocent. It's highly malicious - he's SELLING the exploit. Make no mistake, he's a significant threat to the company.
They aren't chasing him with this lawsuit for fun....
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Copyright infringement is now anything the copyright owners decide it is. If they don't like this article, it's copyright infringement.
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