Epic Games makes the wildly successful multiplayer free-to-play game Fortnite, which is the locus of a pitched battle between players and publisher over game-mods, especially cheat-hacks that give unfair advantage to some players.
A 14 year old boy named Caleb “Sky Orbit” Rogers made a video in which he demonstrated the use of one of these hacks. In response, the company sent Youtube a heavy-handed copyright takedown, claiming that capturing incidental footage of gameplay was a copyright violation, and that demonstrating the functionality of one of these aftermarket add-ons is also a copyright violation.
Then Caleb Rogers correctly asserted that there was no copyright infringement here. Videos that capture small snippets of a videogame do not violate that game creator’s copyrights, because they are fair use: they take a small part of the work (not the core of the work), for a critical purpose, without creating a substitute market for the work. No one who watches a 14 year old’s screen capture of a videogame will decide that it’s as much fun as playing the game.
When Caleb Rogers filed a put-back notice with Youtube that reinstated his video, Epic responded by filing a lawsuit against him, repeating the incorrect claim that Rogers’ video was a copyright infringing derivative work, and claiming that Rogers had formed, and then breached, a contract with Epic by playing their game and then talking about how to cheat in it.
In response, Rogers’ mother, Lauren Rogers, has filed an outstanding memo with the court explaining some of the problems with Epic’s suit. She points out that Epic claims that her minor child is incapable of forming a contract, so he can’t have breached a contract by violating the game’s EULA. She adds that Epic published news releases that identified her minor child by name, breaching child protection law. She says that Epic is just wrong when they claim that Caleb was selling the cheat software. Finally, she says that it’s impossible that a cheat program deprived the company of income from its free-to-play game, because the game was free-to-play.
There’s more, though. Epic has claimed that after Caleb Rogers filed his put-back notice on Youtube, they were obliged to sue him, or they’d lose the right to sue other people who did the same thing. This is wrong. There is the concept of “genericization” that’s part of trademark law, under which someone who consistently fails to enforce their trademarks against competitors can eventually lose their mark. But Epic is suing Caleb Rogers for copyright infringement, which has no such doctrine.
Lauren Rogers’ memo also fails to mention the clear fair use nature of Caleb Rogers’ video, and the Lenz decision, which requires rightsholders to consider fair use before sending takedown notices, and can make them liable for fees if they are found to have abused the takedown process by failing to do so.
Caleb Rogers did some obnoxious things: cheating, boasting about cheating, then making a video about his takedown in which he said intemperate things about companies.
But you know what’s more obnoxious that 14 year old cheaters? Corporations staffed by grown-ass humans who file lawsuits against 14 year olds that advance absurd theories about copyright, infringement, fair use, contracts, and EULAs. If Epic wins its suit, the precedent it sets will not be limited to corporations who are upset about obnoxious teens — it will establish that capturing incidental footage of games (the heart of Let’s Play videos and innumerable other forms of online communication, criticism and analysis) is a copyright infringement if you hurt some corporate overlord’s feelings in the process.
“This particular lawsuit arose as a result of the defendant filing a DMCA counterclaim to a takedown notice on a YouTube video that exposed and promoted Fortnite Battle Royale cheats and exploits,” Epic told Polygon. “Under these circumstances, the law requires that we file suit or drop the claim.
Lauren Rogers to the U.S. District Court Eastern District of North Carolina [Scribd]
Epic Games receives scathing legal rebuke from 14-year-old Fortnite cheater’s mom
[Nick Statt/The Verge]