Cheat software: Can publishers level the playing field?

In every walk of life, there have always been people who will take shortcuts to get ahead. The world of online games is no exception to this rule.

In recent years, releases such as Fortnite and PlayerUnknown's Battlegrounds have proved immensely popular, and brought online gaming even further into the mainstream. These games pit thousands -- sometimes millions -- of players against each other, or allow them to cooperate to overcome obstacles and progress. They fundamentally rely on a level playing field to ensure a challenging, equitable and enjoyable experience for the entire audience.

However, the popularity and intense competition of some games has attracted another type of player: ultra-competitive, willing to win by any means necessary, including cheating. At first, these players exploited glitches or create and control multiple accounts, giving themselves an unfair advantage. More recently, though, they have used powerful tools to manipulate the playing field -- cheat software, which gives them an edge over their fellow gamers.

"In an era of streaming and purchasable premium functions, cheat software can have a direct impact on revenue"

A victimless crime?

Most gamers will have experienced the sheer frustration of playing with or against someone who is clearly cheating; it is one thing to be outclassed by a superior opponent, but it is another entirely to be eclipsed due to unfair manipulation of the rules or the environment. Yet some still labour under the false impression that the use of cheat software, while irritating to other players, is otherwise relatively innocuous.

However, the use of cheat software can have a serious effect on the popularity of an online game, by causing active players to leave in frustration. In an era of game streaming and purchasable premium functions, this can have a direct impact on revenues earned by the publisher. The declining popularity of a game also has an impact on its network effects, thereby preventing future purchases from potential new players. This, in turn, can affect the game's community as a whole, as the publisher may be forced to invest significant sums into fighting cheat software instead of the gaming experience.

If left unchecked, the business models of developers and publishers can be significantly undermined by the use of cheat software.

Leveling the playing field

Publishers of popular games clearly have a vested interest in preventing the use of cheat software, but are they powerless to do anything about it?

Action against individual players -- such as temporary suspensions or permanent bans -- is one avenue. Game publishers must include clear provisions in their Terms of Service prohibiting the use of cheat software. Breaches of those provisions allow publishers to terminate the agreement with the player for cause. However, attempting to control the use of cheat software in this way may feel a little like playing Whack-A-Mole, with another cheater springing up in the place of every banned player. It also requires constant monitoring of game servers, which is a costly exercise.

For a more sustainable solution, the publisher may want to target the cheat software at its source: the developer, publisher or distributor of the cheat software. Fortunately for publishers, there are many options that to allow them to assert claims and prevent the problem spreading.

Basic protection is offered by trademark law, where the name of the cheat software makes reference to trademarks held by game publisher, as this will frequently constitute a breach of their rights. Under copyright law, however, the publisher enjoys a variety of different protections.

"There are a multitude of legal tools with which publishers can defend their products from the use of cheat software"

The developer or publisher of cheat software will typically exceed the rights of use granted to them in the Terms of Service, as these tend to prohibit the use of game software for commercial purposes. In the process of developing or distributing cheat software, the proprietors regularly reproduce the game software for commercial purposes (e.g. for the production, testing, or promotion of their cheat software). The hybrid nature of computer games -- containing both copyrighted code and other copyrighted works such as audio and visuals -- means that cheat software developers are also unable to rely on exceptions provided for the reverse-engineering of computer programmes by article 5(3) of the Computer Programmes Directive.

Additionally, the distribution of the software may amount to aiding and abetting copyright infringement by players -- or 'contributory copyright infringement.' Players using cheat software usually breach the Terms of Service of the game and therefore lose the usage rights granted to them, meaning that they commit a copyright infringement. As the cheat software publisher is generally aware of this illegality (and even intends it), they may be liable for providing a crucial criminal instrument, through the use of which the offence will be committed.

Competition law may offer an additional basis for a claim by the game publisher, as distributing cheat software could amount to an unfair deliberate obstruction of competitors -- prohibited in Germany by section 4 Nr. 4 of the German Act Against Unfair Competition. Provided that the Terms of Service effectively prohibit the use of the cheat software, these could give rise to a successful claim under competition law.

Finally, the circumvention of technological protective measures may give rise to a claim under copyright law. Game publishers often use technology to detect and prevent the use of cheat software. Where the cheat software then contains components which are intended to prevent its detection by the anti-cheat software, legal action may be pursued on these grounds.

Nothing more than a paper tiger?

There are a multitude of legal tools with which publishers can defend their products from the use of cheat software. With the relative anonymity of the internet, the hardest part of deploying these legal tools is often the identification of the creator of the software in question. Games publishers and their lawyers have to be creative in identifying the culprits. In most cases, the publishers of bot software can be tracked, and might even see their servers seized. In other cases, blocking injunctions against domains hosting the distribution of the software might be the best way forward.