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Altering game code: a new
era for copyright infringement

Altering game code: a new era for copyright infringement

Published: 25th October 2019
Area: Corporate & Commercial
Author: Kerry Russell

A recent case involving Epic Games, the maker of battle royale game ‘Fortnite’, and a 14-year-old boy has brought the issue of coding and copyright into the spotlight.

The boy, referenced as “CBV”, used his coding knowledge to dig into Fortnite’s game code to create a series of cheats – or ‘hacks’ which were advertised via his YouTube channel and sold on his website. Epic claimed that the cheats, which were coded, changed its copyrighted work by creating a new form of the game.

Although the content was for entertainment purposes, the fact that CBV benefitted financially from the cheats increased the severity of the copyright infringement considerably.

Kerry Russell, one of our intellectual property specialists, explains the complexities of copyright law and computer programming:

“An already complicated area of law, copyright becomes increasingly complex when coding is involved. Technology has developed at a rapid pace and the law has yet to settle on what exactly classes as infringing copyright. However, where there is direct reproduction of underlying source code, there is almost certainly a clear-cut case of infringement.

“The reproduction in this case was most likely, what is known as, non-literal copying. This may involve someone taking the original code and then modifying it with their own “new” code. CBV may have copied and then altered the Fortnite code, but only to an extent that the output, i.e the game, remained the same (apart from the cheats). Therefore, this suggests that a substantial part of the skill and labour of the Fortnite creators had been exploited, which is a basic element of copyright infringement.

“CBV’s YouTube videos effectively encouraged others to copy his actions, with the sale of the cheats taking the infringement a step further. Although a child, CBV would have been aware that his use of the copyrighted work was wrong, (even if his intentions were not malicious) – and this, in the UK at least, usually attracts an uplift in damages, as the Court may decide that this was a “flagrant” infringement.

“Many people (especially children) see video games as a world without rules, meaning cases such as this will only become more common unless action is taken. It may be time to add warnings at the start of games which clearly state that the game is protected by copyright, and unauthorised use of the code will result in legal action.”

Find out more about our intellectual property team.

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