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Why the makers of Fortnite are suing players

The mouse trap

Sometimes the fun of videogames can get out of hand. As Chris Stokel-Walker reports, one of the world’s biggest games developers is going after the cheaters

Sometimes the fun of videogames can get out of hand. As Chris Stokel-Walker reports, one of the world’s biggest games developers is going after the cheaters

Chris Stokel-Walker | January 16th 2019

On October 23rd 2017 a lawsuit was filed in the Eastern District Court of North Carolina. Epic Games sought damages and a cease-and-desist order against Caleb Rogers, accusing him of cheating at Fortnite, a videogame, which Epic developed. As the defendant’s mother noted in her reply, the contest was not a balanced one: “This company is in the process of attempting to sue a 14-year-old child,” wrote Lauren Rogers. The boy himself was phlegmatic. “In all honesty, this is a pretty shitty thing,” he told viewers of his YouTube channel.

Fortnite has established itself as the most popular game on the planet since its release in 2017. More than 125m people have downloaded the game. At peak times, some 8.3m people play it on their phones, tablets and computers. Contestants are dropped into battlegrounds where they compete with 99 other players to remain the last person standing in a run-and-gun free-for-all. Footage of the battles is enormously popular online. One in 20 YouTubers has created at least one video about Fortnite. Professional football players, boxers and celebrities have been filmed hopping backwards on one leg while spinning an invisible lasso, a popular dance move that characters perform on screen. On the back of this success, Epic raised $1.25bn in new investment in late 2018.

With so much money at stake, Epic has been keen to protect its intellectual property. In its complaint, the company alleged that Rogers had downloaded software that he had then implanted into a copy of Fortnite to improve his chance of success. Epic cites many examples of cheating at the game, including the power “to see through solid objects, teleport, impersonate another player by ‘spoofing’ that player’s user name, or make moves other players cannot, such as a spin followed by an instant headshot to another player,” though its complaint did not specify which, if any, of these it was accusing Caleb of doing. Caleb had also uploaded to YouTube videos of himself playing Fortnite with titles such as “Fortnite Hacking COME JOIN ME”, which Epic says encouraged others to subvert the game. In the last year, the company has launched at least ten such suits in American courts, against suspected cheaters from across the world.

Legally it’s rather tricky to sue someone for cheating at a computer game, as there are no statutes that prohibit it. Instead, the developer has pursued defendants for copyright infringement. By inserting additional code into the game, it argues, the cheats are creating a “derivative” work that violates the terms of service that players agree to when they download the game. None of the cases has reached trial yet, but the company has already settled a number of suits out of court.

In some ways, the lawsuits are an aggressive response to a relatively minor problem. “It’d be hard to justify this by counting the number of people quitting after playing against cheaters,” says Kendra Albert, a technology lawyer who teaches cyberlaw at Harvard Law School. But they may be choosing litigation, she says, because “there’s an element of moral outrage against these players they see as harming their game.” They may also hope to deter other potential cheaters from doing so. The strategy is risky, however. Courts have differed over whether the kind of software cheaters insert really results in a new form of the game that amounts to a breach of copyright.

Epic is not the first games developer that has resorted to litigation to deter grifters. For much of the past decade, Blizzard Entertainment, which made Overwatch and World of Warcraft, has pursued people who make programmes to cheat and bots that automatically play the game on behalf of users. In 2017 Blizzard won an $8m lawsuit against a German company that had offered both of these services. Going after individual players is more unusual, however.

Some gamers have become targets because they are well known. Brandon Lucas, who is also being sued by Epic for alleged cheating, regularly posts videos of himself playing “modded” versions of games on YouTube to his 1.8m subscribers under the name “Golden Modz”. Epic does not appear to have filed suits against the manufacturers of rogue code directly. Lauren Rogers, in her defence of her son, argued that executives at Epic are frustrated by the difficulties they face and so have gone after easier targets instead: “It is my belief that due to their lack of ability to curve [sic] cheat codes and others from modifying their game, they are using a 14-year-old child as a scapegoat to make an example of him.” (In response to questions for this story, Epic replied that “we don’t comment on ongoing litigation”.)

Cheating has long been part of computer-game culture. Many developers hid special moves and powers in their games that players could unlock with the right combination of button presses. These gave the games more variety and therefore greater longevity (devising cheats was also a way that programmers entertained themselves as they tested games before release). Caleb says cheating was part of the enjoyment: “It’s not a deliberate attempt to destroy the integrity of the game,” he told his fans on YouTube. “I’m having fun on a livestream.” Other players just enjoyed trolling their opponents: one person Epic has sued wrote on an online discussion board that he cheated because “its [sic] fun to rage and see streamers cry about how loaded they are and then get them stomped anyways.”

Cheating against a computer in the comfort of your own home is a victimless crime. But videogames have migrated online where players compete against pseudonymous opponents from across the globe. In the wake of this development, e-sports has professionalised. Successful gamers now have the opportunity to make hundreds of thousands of dollars. Epic is putting up $100m in prize money for a series of competitive Fortnite matches that will be held in 2019, culminating in a world cup at the end of the year.

According to Joost van Dreunen, chief executive of SuperData, a market research firm that covers the gaming industry, Epic’s lawsuits are not primarily motivated by the possibility of fraud. The company wants to preserve the value of the franchise by making sure that players’ experiences aren’t distorted or corrupted. “It’s about building a unique and predictable experience” for users, he says. “Everything else is secondary.”

But Epic’s uncompromising approach may not be sustainable. The music industry once pursued the same strategy. Record labels and industry bodies spent the early part of this century doggedly pursuing people who pirated music. They hoped that, by making an example of a few in court, they would dissuade others and limit potential losses. They failed, and artists now make far more money from live ticket sales and merchandise than they do by selling albums.

By pursuing teenagers with phalanxes of lawyers, Epic risks alienating wide swathes of their audience. They’re “playing whack-a-mole,” says Albert, “using a hammer that is disproportionately sized.”