EPIC Bravely Defeats 14 Year Old's Mom In Court To Continue Lawsuit Against Her Son For Cheating In Fortnite

from the punching-down dept

Wed, Jul 18th 2018 7:41pm — Timothy Geigner

Earlier this year, we wrote about EPIC, makers of the popular Fortnite game, picking up the baton from Blizzard to pretzel copyright law such that it believes it can sue those that cheat in its game for copyright infringement. This belief centers on the claim that these cheaters break the EULA, despite the fact that no actual copying occurs when breaking a EULA. To make PR matters worse for EPIC, the company managed to sweep up a fourteen year old in its lawsuit-blitz. Despite the teenager supposedly being quite brazen in his use of cheats, and in his communications to others about how to cheat in Fortnite, I had assumed that EPIC would find a way to quietly back away from this particular suit, given how shitty the optics would be. It did the opposite, pursuing the case and seeking a summary judgement after the teenager failed to respond. The court refused, however, citing a letter to the court from the teen's mother, who argued that the suit against her son was overkill and, critically, that the argument over the EULA was null because her minor son couldn't legally enter into such an agreement without her input.

Rather than again trying to salvage some PR positivity from any of this, EPIC then decided instead to take on the mother's letter as a legal matter, with its lawyers countering it as a legal argument. EPIC argued that caselaw is clear that such contracts aren't void, even if one party is a minor, so long as that minor enjoyed the benefits of the contract. Unfortunately, the judge in the case has decided that he will not dismiss and will allow this lawsuit to move forward.

“As detailed in plaintiff’s response memorandum, defendant has not shown that the complaint fails to allege sufficient facts to state a claim for relief that is plausible on its face,”

“[T]herefore, in the light most favorable to the plaintiff, plaintiff has stated a plausible claim, and the motion to dismiss must be denied.”

Now, in fairness to the judge, the court is required to adjudicate motions to dismiss with an eye towards favoring the plaintiff. Frankly, it was somewhat of a commitment to fairness that the court even allowed the mother's letter to serve as a motion to dismiss in the first place. On the other hand, it's useful to frame this ruling as one that comes from a judge steeped in the law, favoring a large company with a legal team likewise steeped in legal knowledge, and against the mother of a fourteen year old who cheated in an online game. When seen in that light, this whole thing is plainly ridiculous.

And dangerous, too, particularly as part of a trend in gaming companies misusing copyright law in this way to go after cheaters in online games. Yes, those cheaters are annoying. Yes, this teenager appeared to be a fairly bad actor. And, yes, EPIC has gone out of its way to suggest it wouldn't be trying to bankrupt this family and mostly just wants the cheating to cease. All of that can be true while it also being true that abusing copyright law in this way is both bad and opening a litigious door that we should want to remain shut.

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Filed Under: cheating, copyright, fortnite, parents, teenager
Companies: epic

58 Comments

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Anonymous Coward, 18 Jul 2018 @ 7:56pm

You cannot enter into a contract with a child.
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Paul Brinker, 18 Jul 2018 @ 8:02pm

Re:
The court rightly said that you can. The contract can be annulled at any time, but the child is still responsible for his actions under the contract.

Case law is very clear that children can agree to contracts, but can later walk away from them
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Anonymous Coward, 18 Jul 2018 @ 8:45pm

Re: Re:
>Case law is very clear that children can agree to contracts, but can later walk away from them

Fine then, the kid should just return the game and walk away.
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Anonymous Coward, 18 Jul 2018 @ 9:05pm

Re: Re:
What is the point of that distinction?
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Paul Brinker, 18 Jul 2018 @ 9:13pm

Re: Re: Re:
The child can be held responsible for the time the contract was in place. You cant hold the child responsible for future actions under the contract.

Assuming the child annulled the contract he's still:
-Responsible to pay for the services consumed
-Responsible for any actions he had taken while under the contract
He is not responsible for:
-Any payments post Annulment
-Any changes in the contract after the fact (for example they change it to require arbitration)
-Any ongoing requirements (including NDAs, subscription terms etc.)

A lawsuit is fine for a minor who was with in the contract terms when the event happened. To say otherwise would mean child actors could do stupid stuff like get paid, then back out of a movie deal.
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Erik, 18 Jul 2018 @ 10:40pm

Wouldn’t it have just been easier to lock the kid’s account and ban him from the game? Oh, and tell on him to his mother.
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Anonymous Coward, 18 Jul 2018 @ 10:52pm

Re:
I believe they did. Fairly easy to get around a ban on a free to play game.
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That Anonymous Coward (profile), 18 Jul 2018 @ 11:01pm

"caselaw is clear that such contracts aren't void, even if one party is a minor, so long as that minor enjoyed the benefits of the contract."

Just because Hansel & Gretel couldn't be bound by the terms of the EULA hidden in the gingerbread house's garden doesn't mean the Witch wasn't fully with-in her rights to force Gretel into servitude as a maid & demand that Hansel forfeit his life for having enjoyed the benefits of the gingerbread house keeping them from dying when their parents attempted to murder them by leaving them in the forest.

It is so ordered that Gretel will serve as the Witches maid for as long as she shall live & Hansel will eat everything the Witch provides and stop trying to pretend she hasn't sufficiently fattened him for slaughter, the minor children are reminded that the EULA also has prohibitions against shoving the Witch into an oven to murder her thus freeing said minor children to live happily ever after.
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spodula, 19 Jul 2018 @ 12:34am

Ban?
14 times so far according to the lawsuit.

He also not only used cheats which f*ks over other players, he openly bragged about it on a Youtube channel which has 8000 subscribers.

When they tried to get the video taken down, the annoying little sh*t filed a counter-notice. The only option then is to sue or shut up.
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spodula, 19 Jul 2018 @ 12:38am

Contract?
Thats irrelevent anyway.
There suing under copyright law, and kids dont get protection from that.

The fact that only a valid contract gives you permission to use it, means that the fact he COULDNT enter into a contract screws him utterly under coipyright law.
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Anonymous Coward, 19 Jul 2018 @ 12:41am

Frankly, if it was the case that he had been caught the once, and sued i would have more sympathy.

The 14th time? well to h@ll eith the sociopathic little dck.
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wereisjessicahyde (profile), 19 Jul 2018 @ 1:22am

Re: Re: Re:
How do the return a digital downloaded game?
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wereisjessicahyde (profile), 19 Jul 2018 @ 1:25am

Re: Contract?
I believe the argument is, that the cheat used involved modified code from the game. Game code that is copyrightable.
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cpt kangarooski, 19 Jul 2018 @ 3:56am

Re: Contract?
No, a EULA is not necessary to use software. Copyright law has an exception at 17 USC 117 permitting the owner of a copy to use software, to modify it for the purpose of running it, and to back it up, as a matter of law.

Lots of software is used in this manner, particularly FOSS, since the GPL is not a EULA that purports to allow the use of GPL’ed software. In fact, EULAs are largely pointless other than to radically tilt the playing field in favor of publishers. They basically never do anything beneficial for users at all.

The tricks will be 1) whether the kid owned the copy in the absence of the EULA, and 2) use of the online features and servers etc without a EULA.
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Zgaidin (profile), 19 Jul 2018 @ 4:17am

Re: Re: Re: Re:
IANAL (broke family trend), but I have taken law courses. I'm familiar with stare decisis, and am generally in favor of it as legal doctrine, but how on earth did this become case law? My understanding was that it was impossible to annul such a contract because it was null and void at inception - the contract never actually existed because the minor fails to meet the competency requirement to create a contract.

Can someone please explain?
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Anonymous Coward, 19 Jul 2018 @ 4:21am

Epic really doesn't know how to do shit right anymore, do they?
I remember when Epic used to develop their games on Linux workstations. This was back during the late '90s and early 2000s. Their games ran phenomenally, UT2K4 even included a shell script that let you install a native Linux binary and this was before Steam and GOG were even a thing on Linux.

The boxed versions of UT99 through UT2K4 unfortunately all had DRM that was forced onto Epic by their publishers, however, Epic kindly provided a removal for in future patches for those games, because they recognized that DRM is stupid and wrong, and that it hurts the consumers.

But this isn't the same Epic we used to have.

Now they develop Windows-only games, they embrace DRM entirely and their overzealous automated anti-cheat middleware blocks legitimate Wine users from enjoying Fortnite on other operating systems. When that middleware doesn't work, they abuse copyright law to take down cheaters.

Don't get me wrong, I believe cheaters should be hung, drawn and quartered in a public square, but suing them accomplishes nothing. It is important that we apply the correct type of justice to whatever the situation warrants.
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Michael, 19 Jul 2018 @ 4:33am

Re: Re: Re: Re:
by ripping the bits from his cold, dead hard-drive
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Anonymous Coward, 19 Jul 2018 @ 4:55am

Re: Re:
Rightly? No.
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Anonymous Coward, 19 Jul 2018 @ 4:57am

Re: Re: Contract?
There is noting in copyright law that says I can modify a work after I've purchased it, or tell others how to modify theirs.
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Anonymous Coward, 19 Jul 2018 @ 4:57am

Re: Re: Re: Contract?
CAN'T. Sorry.
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JoeCool (profile), 19 Jul 2018 @ 4:58am

Re: Ban?
No, there are plenty of other options. One simple one is when someone is found cheating, they automatically get moved to a "cheaters" server where they only play other cheaters. Let them cheat each other and see how much "fun" it is.
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Anonymous Coward, 19 Jul 2018 @ 4:58am

Re: Ban?
I didn't realize bragging was against copyright law.
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JoeCool (profile), 19 Jul 2018 @ 4:59am

Re: Re: Re: Re: Contract?
Yeah, we still need that edit button!
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JoeCool (profile), 19 Jul 2018 @ 5:01am

Re: Re: Re: Re: Re: Contract?
In fact, selling devices that let you cheat along with tons of cheat codes is a time-honored tradition in video games. I've got a number of "Game Shark" and similar devices for a number of consoles.
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Anonymous Coward, 19 Jul 2018 @ 5:24am

Re: Re: Re: Re: Re:
The explanation is simple.

In location A "something" is legal (illegal).
A court decision is rendered in location A verifying this.

Someone in location B where the "something" is illegal (legal) uses the court decision from location A to verify and set a presents in location B in opposite to the law in location B.

Then in location C it the "something" is asserted to be both legal and illegal at the same time based on court decision in both location A and location C. At this point a royal cluster fuck or in diplomatic terms a major whoopee exist.

The basic issue here is the failure in law to account for ownership of digital computer programs which are infinite copiable. The solution by software writers to not selling the original program which would have transferred all ownership rights was a typical Hollywood (from Hollywood movie accounting). An end user licensing agreement. You do not own the programs in your computer you just rent them. This gives the software owners the right to inspect their property at any time and also the rights of ownership to any work produced and stored on your computer. you own the hardware which is useless with out the operating system.

If we assume A, B, and C are different countries it is easy to understand how absurd of your producing a paper or report in say Germany which you think is yours as you are the author because of local law and it being owned by Microsoft on Washington State and also owned by Google in California as that is their terms of service in their EULG.
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Anonymous Coward, 19 Jul 2018 @ 5:30am

well done EPIC! you'll go down in the annuls of history for this 'epic' behavior!!
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Anon E Mouse, 19 Jul 2018 @ 5:51am

Re: Re: Ban?
Bragging alone, probably not (IANAL).

Trading donations for guides on how to cheat the same way as he did, like this kid did, ought to break some law. Probably not copyright though, as it's really not made for this kind of stuff.
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Pixelation, 19 Jul 2018 @ 6:22am

Re:
"well done EPIC! you'll go down in the annuls of history for this 'epic' behavior!!"

I think you meant anus of history.
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Ninja (profile), 19 Jul 2018 @ 6:24am

Well, Epic has made its way into my "never buy/use/approach list" from my "this seems interesting, may try at some point list". PR win I guess?
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Anonymous Coward, 19 Jul 2018 @ 6:33am

Re: Re: Ban?
It's not, but neither is cheating. And yet, here we are - a world where literally everything is punishable by copyright law because judges give the most leeway and ask the least uncomfortable questions.
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Glenn, 19 Jul 2018 @ 6:34am

Congrats to EPIC!
You've turned this whole process into a bad game that no one would especially want to play. Better be careful, though... this whole "not wanting to play" thing might spread to your actual games. Now, wouldn't that be a kicker. (There are way better things to be doing.)
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Anonymous Coward, 19 Jul 2018 @ 6:47am

Stupid kid has a lifetime ban
The stupid kid has a lifetime ban with Epic software due to his violations of the terms of service so they have the right to deny him use of their program. He lies each time he signs up for a free account by saying he is over the age of consent and will follow the rules of play. He then uses cheat programs to alter the game so that he now can see the location of all people and all loot. His mom insists that he can continue to do whatever he wants, including posting youtube videos advocating the cheat program he prefers and showing modified versions of the game in action. The mom herself should be sued at this point for creating an environment where this behavior is acceptable. She is promoting the behavior of her asshole son and needs to learn that she is responsible for his actions until he turns 18 or she learns to stop raising an asshole.
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Anonymous Coward, 19 Jul 2018 @ 7:08am

Keep this in mind about EPIC
In 2015, EPIC handed over their entire email subscriber list to the spammers at Mailchimp. Mailchimp has subsequently been sending out EPIC's newsletters with embedded spyware (tracking links) thus enabling it to conduct surveillance and data acquisition on EPIC's subscribers.

No organization that actually cared about the privacy and security of its supporters would do such a thing.
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Anonymous Coward, 19 Jul 2018 @ 7:29am

Re: Stupid kid has a lifetime ban
I would argue that what he is doing is not *copyright infringement*. It could be breach of contract, but that's not the same thing. (If your rent is late, you may be in violation of your lease, but that doesn't mean you're trespassing.)

It is likely that the TOS was not presented to him until after the download. In any case, when the copy was initially downloaded, he had not yet cheated with that copy and thus was not yet in violation of the TOS. You can't retroactively be infringing, just like you can't retroactively be trespassing. One could also argue that if he downloaded a copy of the software from the Epic servers, it is Epic who actually made the copy, not him. Even if he somehow tricked them into sending him a copy, they are still the ones who sent it.

Also, according to 17 USC 101, "'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed..."

If something is in computer memory, is it really "fixed"? It will disappear if the power goes out, and the variables change from moment to moment. I would argue that anything in computer memory (as opposed to a hard drive) is transitory.
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Anonymous Coward, 19 Jul 2018 @ 8:12am

"Epic", not "EPIC"
That's a confusing headline. The story is about Epic Games, not the Electronic Privacy Information Center (EPIC).
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Anonymous Coward, 19 Jul 2018 @ 8:21am

Re: Re: Re: Re: Re: Re:
Looks like a lot of words just to justify unconscionable actions.
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Anonymous Coward, 19 Jul 2018 @ 8:24am

Re: Re: Re: Re: Contract?
>There is noting in copyright law that says I **can't** modify a work after I've purchased it.

Correct, which is why they don't actually sell it to you and instead issue a license which has terms and conditions.
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Anonymous Coward, 19 Jul 2018 @ 8:52am

Re: Re: Contract?
The original code may be copyrighted but the bytecode is not. Even if it was, writing independent code that takes advantage of what can be seen in the bytecode doesn't copy any portion of that bytecode. Instead, it alters the data that flows between portions of the bytecode. There is no copyright violation in this arrangement but the courts don't know enough about software to understand this so the kid is screwed.
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Anonymous Coward, 19 Jul 2018 @ 8:52am

Re:
I'm sure the massive piles of money from their flash-in-the-pan will miss your lost potential addition.
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Anonymous Coward, 19 Jul 2018 @ 9:07am

I don't consider this bad optics whatsoever. I'm usually very against many of the lawsuits that come out of the internet sphere. Not so much with cheaters in online games. They hurt everyone elses experience every time they play. Fuck em, take every one of them to the cleaners.
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Anonymous Coward, 19 Jul 2018 @ 9:10am

Re:
If you want to pass laws against cheating, do it explicitly. Then we can have a proper debate about how these laws should work. We shouldn't try to twist existing unrelated laws to suit this purpose.
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Anonymous Coward, 19 Jul 2018 @ 10:04am

Re: Re: Re: Contract?

There is noting in copyright law that says I can modify a work after I've purchased it, or tell others how to modify theirs.

This is where the DMCA comes in. If by modifying a work after purchase you have to bypass a digital restriction, you have violated the DMCA. Fair Use doesn't come into play, only the list of DMCA exemptions.
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NeghVar (profile), 19 Jul 2018 @ 10:34am

if I was a judge
If I was a judge in such a case where copyright law is being used in this way, I would tell the plaintiff, "I will allow this case to go forward if you also file suit against everyone else who plays this game. Since they are all committing the same crime base on your claim."
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Thad, 19 Jul 2018 @ 10:49am

Re: if I was a judge
It's a good thing you're not a judge.
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NeghVar (profile), 19 Jul 2018 @ 10:56am

Re: Re: if I was a judge
I believe enforcing it on everyone or no one. It should not be a pick and choose who to sue.
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Anonymous Coward, 19 Jul 2018 @ 10:57am

Re: if I was a judge
If you can get anything done such as an 'explicit' law in this current government, I applaud you. In the meantime, I applaud Epic trying to use the only means they have to stop idiots like this. I stopped playing other games specifically because of cheaters, e.g. Call of Duty. Cheaters directly impact the enjoyment I was getting from a game I paid for. While I don't play Fortnite, just because its free doesn't mean my time is. Screw the cheaters.
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wereisjessicahyde (profile), 19 Jul 2018 @ 11:38am

Re: Re: Re: Re: Re: Re: Contract?
Cheating in online multi-player games makes you an asshole.
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Anonymous Coward, 19 Jul 2018 @ 1:02pm

Re: Epic really doesn't know how to do shit right anymore, do they?

Don't get me wrong, I believe cheaters should be hung, drawn and quartered in a public square, but suing them accomplishes nothing. It is important that we apply the correct type of justice to whatever the situation warrants.

You believe game cheaters should be "hung, drawn and quartered in a public square"? What kind of a sociopathic fuck are you anyway?
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Thad, 19 Jul 2018 @ 1:27pm

Re: Re: Re: if I was a judge
And that's why it's a good thing you're not a judge. Because not only do you lack a basic understanding of how the law works, you haven't even spent thirty seconds thinking your argument through to its logical conclusion.

One: You are advocating that a judge should say "You have to sue everyone who is guilty of infringing." How does that work? How does the judge make a list of all parties who are infringing? How does the judge know somebody is guilty before they are taken to court?

Two: You think corporations should be obligated to sue every single person they think might be infringing copyright? Yeah, great idea; that won't result in even more constant and frivolous copyright litigation.

There are already enough corporations that think they have an affirmative obligation to sue everyone who might remotely be infringing their trademarks. You want to do the same for copyright? Seriously?
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Atkray (profile), 19 Jul 2018 @ 3:21pm

Re: Re: Re: Re: Re: Re: Re: Contract?
I'll give you that, but what does it make the company that sues a 14 year old? ¿A dingleberry?
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JoeCool (profile), 19 Jul 2018 @ 5:10pm

Re: Re: Re: Re: Re: Re: Re: Contract?
Very true, but being an asshole USED to not be illegal. There are many things they could have done to him without suing. As I mentioned, I feel a "cheaters" server would be apropos. They could simple just keep banning him. It's no skin off their nose if they ban him every day for five years straight. That's their job, after all. I'd bet that after 100 straight bans, he'd move on to another game.
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Anonymous Coward, 19 Jul 2018 @ 10:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Contract?
It's also a consequence of their business model.
You wanna give away your content for free without any checks or account creation? Well, you're gonna struggle to ban players, it's the trade-off for being easy.
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mik, 20 Jul 2018 @ 1:36am

Re: Re:
The game maker has to appear to be doing something. These story-less derivative games have nothing to offer but short term gratification to bored people who enjoy the concept of making someone else's days slightly worse to make theirs better. This type of player base is not going to accept anything less than the game maker being an asshole because that's the player base itself
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John Smith, 20 Jul 2018 @ 3:12pm

Re:
The most interesting application of this would be SAG-AFTRA, with actors who joined when they were children but who wish to do nonunion work as adults. Can they be punished by the Guild?

David Cassidy's case was landmark in this and I think there are some exceptions for child actors since otherwise a production could be held hostage the way Cassidy did The Partridge Family.
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Anonymous Coward, 20 Jul 2018 @ 4:28pm

Re: Re: Epic really doesn't know how to do shit right anymore, do they?
I think your sarcasm detector needs re calibrating.
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Anonymous Coward, 21 Jul 2018 @ 6:32am

Re: Re: Re: Epic really doesn't know how to do shit right anymore, do they?
Perhaps the supposed "sarcasm" needs "recalibrating".
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Anonymous Coward, 21 Jul 2018 @ 6:40am

Re: Re: Stupid kid has a lifetime ban

If your rent is late, you may be in violation of your lease, but that doesn't mean you're trespassing.

If you move into a vacant house without permission you probably are trespassing, even if you weren't told so until after you moved in.
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Sharur, 25 Jul 2018 @ 4:29pm

Re: Re: Re: Re: Re:
Zgaidin, I think your "null and void at inception" idea is incorrect.

16 year olds are minors (at least where I live). 16 year olds can work in jobs (ibid). Thus, 16 year olds can form contracts. I myself had a formal paper employment contract at 16.

My understanding of what a minor cannot do is enter into a contract that binds their future actions and responsibilities; or more accurately, the minor (or their guardian) can annul their contract at anytime.

If your understanding was correct, no minor could ever buy anything, ever, because a transaction is governed by a contract, even if it is only a verbal contract. Under my understanding, a minor can buy something because once the transaction is completed, there is no future action required (say by handing over cash). What a minor can't (generally) do is buy on credit, because they cannot be held to service that debt, which is why a minor can't, for example, get a loan or a credit card without a guarantor.

As an example of how my understanding works, suppose Alice (a minor) contracts with Bob (Bob's age is irrelevant) for tutoring. Alice agrees to meet with Bob every Monday for 1 hour at specified time for 6 months, and will owe Bob $10 each week, to be collected monthly, and If Alice fails to appear, she still owes Bob the $10. This is a valid contract.

Alice, by virtue of being a minor (or her guardian exercising Alice's rights on her behalf), can annul the contract at any time. Let us say that Alice attends the first session, misses the second, and then that Tuesday annuals the contract. My understanding is that Alice owes Bob the $20 incurred while the contract, but does not incur any additional charges, even though a non-minor (or a minor who did not annul the contract) would owe an additional $10 each week.
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