The Russian Connection: Cheating Like a Thief in Law

Introduction and Definition

Cheating, in essence, is when a player gains an unfair advantage. From legal and technical viewpoints, cheats are specific software codes crafted to modify a game’s standard rules and mechanics, thus providing players with an unfair edge. Initially, developers introduced cheat codes for game testing or as hidden features (Easter eggs such as the Konami Code – ↑↑↓↓←→←→BA). Depending on their nature, cheats can range from benign to severely detrimental, threatening the integrity of the interactive entertainment sector. This variance in impact is leading an increasing number of countries to recognize cheating not just as unethical, but also as illegal.

In Russia, however, the issue of copyright infringement remains deeply rooted. Although there have been gradual improvements in intellectual property protection laws, Russia still harbors a significant market for illegal resources, adversely affecting legitimate media consumption, and gaming. Its pervasive piracy environment has led to Russia’s consistent presence on notorious market lists, including being placed on the priority watch list in the US Government’s latest Special 301 Report,¹ highlighting a significant shortfall in robust copyright enforcement. It shall also be noted that Russian esports teams are prone to match-fixing as revealed by Morf.

Seeking Legal Remedies in the Battle Against Online Copyright Infringement

The landscape is alarming: a substantial chunk of illegal torrent sites distributing pirated video games, hacking tools, unauthorized modifications, and digital items predominantly operate from Russia or utilize Russian reverse proxies. This was highlighted in the 2022 Notorious Market List, where at least 7 out of 39 identified online resources were reportedly Russian-hosted.

Video game rightsholders are increasingly taking action against these rogue sites. Major search engines, under pressure from these rightsholders through the Anti-Piracy Delisting Memorandum, are beginning to eliminate links to pirated content, primarily affecting the film industry at present. However, the deeper issue – identifying and prosecuting the actual individuals behind these piracy platforms – remains largely unexplored. Those running well-known torrent sites, developing cheat codes (see our article on AimJunkies), and the companies providing affiliate and offshore hosting services that promote piracy have yet to face significant legal repercussions in Russia. This contributes to a widespread and ongoing global copyright challenge, as users worldwide continue to access major pirating resources based in Russia.

Given the limited effectiveness of standard takedown notices, questions arise about the efficacy of Russian copyright laws against cheat code developers. How developed is the legal framework surrounding cheating software? Do Russian courts still overlook the importance of enforcing video game rights? Is there a need for amendments in the current copyright laws to address this issue more effectively, or should rightsholders instead focus on establishing more legal precedents?

These questions guide our exploration into the legal strategies that could be employed under Russian law to combat the issue of software cheating, highlighting the need for a more robust international legal approach.

The Evolution of Game Modifications and Cheating: From Game Genie to Modern Bots

In the gaming world, cheats include but are not limited to Aimbots, Wallhacks, Burstfire, and Maphacks. Those are the main cheats in FPS. These cheats, particularly in multiplayer environments, can disrupt game mechanics, especially when real money is involved in acquiring digital goods.

The introduction of software hacks has posed significant challenges to the video game industry. These hacks enable the loading of pirated games on popular consoles, breaking through technical barriers. Devices designed for hacking can compromise game protections, facilitating the unauthorized use of pirated content.

A notable example from the 1990s involved the Game Genie, a “game enhancer” developed by Codemasters in the UK and distributed by Galoob Toys in the US. This device allowed players to tweak classic Nintendo games by enabling features like “god mode,” unlimited ammo, or level skipping without permanently altering the game’s code. In a landmark legal case, Nintendo accused Game Genie of copyright infringement, claiming it created derivative works. However, the court ruled that the changes made by Game Genie were temporary and constituted fair use, negating claims of financial harm to Nintendo.² Over time, with advancements in laws like the DMCA, courts began to view cheats and hacks as illegal.

Bots represent another facet of gaming cheats. These automated programs can accumulate virtual money and experience on behalf of players, often bypassing anti-piracy and anti-cheating measures. Initially designed for convenience, many bots now focus on monetization, negatively impacting the gaming industry. The World of Warcraft case involving the Glider bot exemplifies this. Glider, designed to automate low-level tasks in the game, did not modify WoW’s source code and was independent of the game, leading to a legal debate over its status.³

In a contemporary twist reminiscent of past gaming controversies, the case of Sony and Action Replay PSP has reignited debates on the boundaries of copyright in the gaming world. “Action Replay PSP,” a software designed to alter the gaming experience on Sony’s PlayStation Portable, enabled players to manipulate “Motorstorm Arctic Edge” by introducing cheats such as unlimited “Turbo Booster” or early access to additional drivers. These changes, achieved by connecting the PSP to a PC, transferring the cheat code to the console’s memory, and then activating the cheats via an “Action Replay” menu, did not permanently modify the game’s original code.

This scenario has stirred up a legal maelstrom, with two distinct interpretations of copyright law at its center. On one side, the argument is that any form of game manipulation, even those limited to temporary memory changes, breaches copyright protection, aiming to safeguard the original creative work of the developers. Contrasting this view is the opinion that only significant alterations to a game’s source code should be regarded as copyright violations. Echoing the dilemmas of the Game Genie era, the German Federal Court of Justice has escalated the issue to the Court of Justice of the European Union (CJEU) for a critical ruling. The outcome of this case is eagerly anticipated, promising to set a new benchmark in the legal narrative of cheat software in video games, with potential widespread implications for the gaming industry in Germany and across the European Union.

These developments in the realm of unauthorized game modifications, bots, cheat codes, and hacks raise critical questions about the adequacy and agility of current Russian laws in addressing these evolving challenges in online video gaming.

Russian Copyright Law and Video Games

Under the legal framework of the Civil Code of Russia, copyright protection encompasses a broad spectrum of works. This includes both published and non-published original works, irrespective of their nature, fixed in any tangible medium. The law extends its protective arm over derivative and complex works, bestowing upon copyright owners a slew of exclusive rights. These rights, enumerated in Article 1270 of the Civil Code, range from reproduction and public dissemination to the creation of derivative works, distribution, sale, exhibition, importation, translation, and modification. The scope of protection is comprehensive, covering areas such as audiovisual works, software, databases, music, literature, and design.

Video Games: A Unique Intellectual Property

Notably, Russian copyright law does not carve out a distinct regime for video games. Instead, the judiciary has often categorized them under the umbrella of computer software, applying the relevant copyright rules laid down in the Civil Code. Specifically, Article 1261 endorses copyright protection for all computer software varieties, encompassing operating systems, program systems, and other forms presented in various languages, forms, or codes, including source codes.

However, the academic realm posits a different stance, advocating for video games to be treated under a “complex work” regime as per Article 1240 of the Civil Code. This approach acknowledges video games as an amalgamation of multiple IP-protected works, such as audiovisual content, multimedia products, databases, software, etc., and emphasizes the ownership rights of those who orchestrate the creation of such works, subject to permissions from all contributing authors. This perspective has found some resonance in court rulings in particular in 2020, with several judgments classifying video games under the multimedia object regime, albeit without extensive reasoning.⁴

The Multifaceted Nature of Video Games

Beyond mere code, video games are a tapestry of music, scripts, sceneries, interactive elements, characters, plots, maps, and entire alternate universes. Patents and trademarks also constitute an integral part of video game intellectual property. For instance, Wargaming holds an exclusive patent for a display screen with a graphical user interface and dynamic battle session matchmaking in multiplayer games. This intricate structure of video games underscores their standing as complex creations warranting nuanced legal consideration.

Video Games: A Software/Code Perspective

Primarily, Russian courts tend to consider video game copyright infringement from the angle of software or code protection under Article 1262 of the Civil Code. This perspective is in line with the unique form of expression that video games embody. However, there is a legal ambiguity as some Russian courts categorize video games under gambling regulation, as per Article 1062 of the Civil Code, thereby potentially excluding them from legal protection. This leads to the critical question: can cheat codes, hacks, mods, and bots be adequately protected under current Russian copyright laws, and is this protection sufficient?

Combatting Cheating in Video Games

For video game right holders, the first line of defense against computer bots and cheat codes is often the End User License Agreement (EULA). Breaches of these agreements can be actioned against cheating players. Furthermore, many video game developers integrate anti-cheating technologies into their games, like Valve’s Anti-Cheat system, which detects and blocks cheaters. Account and server blocking are also common practices, exemplified by technologies like Microsoft’s TruePlay system, designed to combat common cheating methods and monitor player behavior. Most right holders include provisions in their EULAs against cheating, bots, and unauthorized modifications, especially for commercial purposes. Under Russian law, such agreements are enforceable, and any breach may be legally pursued.

Russian Case Law and Legal Precedents

There have been several Russian legal disputes related to EULA breaches, often initiated by gamers against video game right publishers for account blocking under Consumer Law.⁵ In these cases, the courts upheld the breach of contract liability for gamers’ cheating and account hacking actions in online Free-to-play and MMORPG games, affirming the violation of EULAs between publishers and gamers.

Criminal Proceedings Against Cheaters

Beyond civil cases, Russia has seen precedential criminal cases against video game cheaters. For instance, in 2014, an individual was sentenced to probation for hacking an online game and selling virtual items to other players. More recently, in September 2021, a police investigation was launched against the creators of cheat codes and bots for the game “Worlds of Warships” and “World of Tanks.”⁶ These cases underscore the evolving legal landscape surrounding video game rights and the enforcement of intellectual property law in the digital gaming domain.

Targeting Cheat Code Developers: A Global Effort

Video game right holders worldwide are intensifying their efforts against cheat code developers. A notable instance occurred in 2019 when Niantic, the developer of “Pokemon Go,” initiated a copyright infringement lawsuit against Global++. This lawsuit resulted in Global++ being mandated to pay USD 5 million in damages and being barred from developing, selling, or distributing their cheat software.⁷

Similarly, in January 2021, Riot Games and Bungie filed lawsuits against GatorCheats for creating cheats for “Valorant” and “Destiny 2.”⁸ The plaintiffs cited copyright infringement and violations of the DMCA’s anti-circumvention provisions. The defendant, in this case, acquiesced to a USD 2 million damages payment and accepted a permanent injunction against creating, selling, or distributing cheating software.⁹

EU and US Jurisdictions: Pursuing Cheat Code Creators

In the EU and US, legal actions are increasingly being directed at individuals and companies creating cheat codes. For instance, Epic Games successfully obtained injunctions against individuals for developing and using cheating software in “Fortnite.”¹⁰ Blizzard Entertainment also triumphed in a copyright lawsuit against a German creator of software bots and cheats used in “World of Warcraft” and “Overwatch.” The court ruled that the development and promotion of Bossland’s cheat codes not only violated the EULA with Blizzard but also induced players to breach their license terms with the company.¹¹

Administrative and Criminal Measures in Asia

Asian countries are also taking serious measures. In 2017, South Korea implemented a law that criminalizes the development of cheat software, with penalties including prison sentences of up to 5 years or fines up to USD 49,000. Esports Legal News reported that Chinese authorities dismantled a major VALORANT cheat operation.

Russian Law on Cheating Programs

In Russia, the legality of cheat codes, bots, and mods is more ambiguous. Russian law, particularly Article 1270 of the Civil Code, requires software modifications to be authorized by the right holder. The courts broadly interpret what constitutes a modification, with the right holder needing to demonstrate actual software modification. However, under Article 1280, certain exceptions allow for lawful utilization, reproduction, or testing of the program for non-commercial purposes.

Russian Doctrines and Case Law

Several doctrines, like the “idea-expression dichotomy” and the “merger doctrine,” are applied by Russian courts, distinguishing between protectable expressions and non-protectable ideas. For instance, game mechanics, such as the battle royale concept used in “Fortnite” and “PUBG,” are not copyright-protected. Russian case law also reflects these doctrines.¹² Under Russian law, cheat codes affecting the source code through methods like reverse engineering can be considered infringing manipulations.

Russian Site Blocking Law and Its Implications

Russia’s site blocking law allows for the enforcement of content-removal injunctions against non-compliant resources. This law enables right holders to seek preliminary injunctions from the Moscow City Court, leading to administrative actions like website blocking and app removals from stores. The law applies to various online platforms and has been expanded to include mobile apps since 2020.

The Challenge for Russian Case Law Against Cheaters

Despite the existing legal mechanisms, there is a need for more robust and specific legal measures in Russia to address the issue of cheating in video games. The current regulations, encompassing anti-piracy laws, rules against illegal modifications and adaptations, contractual law provisions, and even criminal prosecution, require more consistent and comprehensive application. By fortifying the legal framework and its enforcement, right holders can more effectively tackle the challenges posed by cheat codes and other forms of unauthorized game manipulation, thereby safeguarding the integrity and financial viability of the video game industry.

Image source: Dall-E3

1. 2022 Special 301 Report, https://ustr.gov/sites/default/files/IssueAreas/IP/2022%20Special%20301%20Report.pdf. ↩︎
2. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., United States Court of Appeals for the Ninth Circuit. 964 F. 2d 965 (9th Cir. 1992). ↩︎
3. MDY Industries, LLC v. Blizzard Entertainment, Inc and Vivendi Games, Inc., 629 F.3d 928 (9th Cir. 2010). ↩︎
4. Judgement of the IP Court dated 2 November 2020, Case No. 32-56176/2019; Judgement of the 17th Arbitrazh Court of Appeal dated 22 September 2020, Case No. 17AP-8930/2020-GKu; Judgement of the 15th Arbitrazh Court of Appeal dated 26 June 2020, Case No. A32-56176/2019. ↩︎
5. Judgement of the Lefortovo district court of Moscow dated 9 June 2015, Case No. 2-1619/2015;
   Judgement of the Leninskiy Appeal Court of Kemerovo city dated 26 April 2013, Case No. 11-59/2013; and Judgement of the Basmanny district court of Moscow dated 1 June 2011, Case No. 11-43/11. ↩︎
6. Baza: МВД расследует дела против сайтов-продавцов чит-программ для игр, https://habr.com/ru/news/576970/ ↩︎
7. ‘Pokémon GO’ developer wins settlement from hack creators, https://www.nme.com/news/gaming-news/pokemon-go-developer-wins-settlement-hack-creators-2856707. ↩︎
8. Riot Games and Bungie file joint lawsuit against cheatmakers, https://www.gamesindustry.biz/riot-games-and-bungie-file-joint-lawsuit-against-cheatmakers. ↩︎
9. Valorant & Destiny 2 Cheat Maker Agrees To Pay $2m Copyright Settlement, https://torrentfreak.com/valorant-destiny-2-cheat-maker-agrees-to-pay-2m-copyright-settlement-210401/. ↩︎
10. Epic Games, Inc. v. Charles Vraspir, 5:17-cv-00512. ↩︎
11. Blizzard Entertainment, Inc. v. Bossland GmbH et al., Case No. 8:16-cv-01236. ↩︎
12. Resolution of the IP Court of Russia dated March 28, 2017, Case No. A56-73596/2015; Resolution of the 9th Court of Appeal dated June 24, 2019, Case No. A40-60319/2018. ↩︎