On June 22, ten well-known Twitch streamers had their Twitch accounts suspended after they received DMCA violations for playing copyrighted music during their streams. This is not the first time streamers have had their accounts suspended or terminated for this type of violation, and unfortunately, it likely won’t be the last. Streamers often play music during their stream without a license to so do. While the streamer may be unaware that this amounts to copyright infringement, service providers must take action against the perpetrator once they are alerted of this unlawful activity. Accordingly, streamers should be aware that incorporating music into their streams needs to be done so appropriately, in order to avoid potential account suspensions or legal repercussions. .
What is the DMCA?
The Digital Millennium Copyright Act (“DMCA”) is a United States copyright law enacted in 1998 to protect the interests of both copyright holders and online services providers, like Twitch and YouTube. The Act aims to provide copyright holders with an easier way to protect their work from being used in an unauthorized way online, while also affording service providers with protection from liability that may arise as a result of their users’ unlawful actions. Under the DMCA’s “Safe Harbor” provision, service providers are protected from copyright infringement liability as long as they comply with certain requirements. As long as these requirements are met, the Safe Harbor protection shields service providers from being held directly liable for any copyright infringement committed by their users.
How does it work?
The DMCA’s Safe Harbor provision states that a service provider cannot be held liable for copyright infringement if it:
This means that service providers will not be liable for copyright claims on content that users upload unless they know about the infringing activity and fail to take action by either disabling or removing the content. Since it would be difficult for service providers to constantly monitor potentially infringing content uploaded by their millions of users, service providers usually state the procedure for DMCA Takedown claim on their sites. Copyright holders must include the following information in their DMCA Takedown claim to service providers in order to correctly file a claim in accordance with the law:
Once this claim is received, the service provider must immediately disable or takedown the content with the infringing activity. If the service provider does not immediately disable or remove the content after receiving the DMCA Takedown Notice, it may lose its Safe Harbor protection and be liable for ALL infringing content on the site.
Why is the DMCA important to streamers?
DMCA takedowns are important to streamers because streams usually incorporate a number of elements that are subject to copyright law (ex. gameplay, music, commentary, etc.). Fortunately, most developers allow their games to be streamed by providing a license to do so. However, playing music during a stream is a particularly sticky issue. If a streamer were to play music on their stream without a license to use that music, the streamer is infringing on the artist’s copyright. Streamers must be aware that playing most music without the proper license can have lasting consequences.
What are the consequences of DMCA Takedown Notices?
Most of the time, service providers are responsible for doling out punishments to users who receive DMCA Takedown Notices. Each service provider has a set of terms that apply to their users when dealing with these notices, but oftentimes, services providers will provide users with warnings or strikes against their account for each notice they receive. If a user receives multiple DMCA notices, a service provider will typically suspended, or even terminate, the user’s account. This is a steep consequence for users who have worked long and hard to obtain their following. DMCA violators can also be subject to severe civil and criminal penalties.
How can I prevent this from happening to me?
In order to avoid any DMCA Takedown Notices, content creators should be aware of any copyrighted material that they may be incorporating into their stream. Streamers that want to play music during their stream should utilize a royalty free music service or otherwise obtain a license for any song they’d like to play. There are a number of inexpensive services available that provide users with licenses for a library of songs.
Streamers need to be aware that DMCA violations are serious and can have a lasting effect on their business and brand. In order to avoid any problems, streamers should be conscious of their potential exposure to copyright infringement in their stream, especially in relation to the music they choose to play during their stream. Without the proper license to play the music, streamers are subject to DMCA Takedown Notices, which can result in the termination of their account, and potentially subject them to more serious penalties. If you are streamer or influencer and you have any questions regarding this topic, please feel free to contact us.
(Photo used under creative commons by David Wees)
(This post was contributed by Alan Conklin. Alan is an intern for Roger Quiles, Esq. and a recent graduate of the Villanova School of Law)
On October 10, Epic Games filed complaints against Charles Vraspir and Brandon Broom (the “Players”) alleging the Players made and used software that allowed users to cheat in Fortnite, a co-op survival action video game developed by Epic Games.
The Players were alleged associates of the website Addicted Cheats, where users pay a monthly subscription of $5 to $15 for botting services that aim and kill enemies in PvP games. In order to create the cheats used to enable this service, the Players allegedly reverse-engineered and modified the game’s source code.
Cheating in video games is an important issue for game developers, as cheating typically makes games more difficult for other users to play and alters how the gameplay experience from what the developers intended., often causing those users to play the games less. For games that have only been around for a short period of time, this user exodus can be devastating.
Fortnite: Battle Royal, which was released to the public on September 26, 2017, has impressively passed the seven million-player mark in the short amount of time, but the game’s developer took swift action in response to the discovery of the cheating service. In a statement made to Polygon last week, Epic stated,
“When cheaters use aimbots or other cheat technologies to gain an unfair advantage, they ruin games for people who are playing fairly. We take cheating seriously, and we’ll pursue all available options to make sure our games are fun, fair, and competitive for players."
One of the available options was apparently taking legal action against Vraspir and Broom, who had already been banned from Fortnite at least nine times.
In two separate complaints, Epic makes four similar arguments against each individual:
First, Epic argues that the Players violated the Copyright Act by creating an unauthorized derivative work of Epic’s copyrighted Fortnite code. Epic alleges the Players used computer software to inject code into Fortnite’s code, which materially modified and changed the code. This created work was never authorized by Epic. Accordingly, Epic believes the Players infringed on Epic’s copyrights and are liable for direct and willful infringement.
For this violation, Epic seeks: (1) an injunction prohibiting the Players from using the service; (2) actual damages, including lost sales and profits as a result of the Players’ contributory infringement; (3) any additional profits made by the Players; (4) alternatively, statutory damages up to $150,000 for the Players’ willful infringement; and (5) attorneys’ fees and costs.
Contributory Copyright Infringement
In the second claim, Epic alleges the Players contributed to the direct and willful infringement of Epic’s copyrights while working in their capacity for Addicted Cheats. Epic states the Players touted the cheats to other users in online forums, actively encouraging the other users to purchase the cheats. Additionally, Epic believes the Players helped users in their use of the cheats by “providing help and support to cheaters and would-be cheaters who ask for support using the cheats.”
As a result of this violation, Epic seeks: (1) an injunction prohibiting the Players from using the service; (2) actual damages, including lost sales and profits as a result of the Players’ contributory infringement; (3) any additional profits made by the Players; (4) alternatively, statutory damages up to $150,000 for the Players’ willful infringement; and (5) attorneys’ fees and costs.
Breach of Contract (North Carolina law)
The third claim against the Players is a breach of contract claim asserting that the Players violated Epic’s Terms of Service and Fortnite’s End User License Agreement (the “EULA”).
In order to create an account with Epic, use its services, and download Fortnite, all users, including the Players, must agree to both the Terms of Services and the EULA.
Epic’s Terms of Service expressly prohibit users from ““copy[ing], modify[ing], creat[ing] derivative works of, publicly display[ing], publicly perform[ing], republish[ing] or transmit[ting] any of the material obtained through [Epic’s] services.”
Fortnite’s EULA prohibits players from ““reverse engineer[ing], deriv[ing] source code from, modify[ing], adapt[ing], translat[ing], decompil[ing,] or disassembl[ing Fortnite] or mak[ing] derivative works based on [Fortnite]” and “creat[ing], develop[ing], distribut[ing], or us[ing] any unauthorized software programs to gain advantage in any online or other game modes.”
By reversing engineering Fortnite’s source code and materially altering it to make a cheating service, the Players created an unauthorized derivate work, thus violating their agreements with Epic and Fortnite.
For this violation, the Epic seeks: (1) an injunction prohibiting the players from continuing to the use the work; (2) compensatory damages; and (3) attorneys’ fees and other costs.
Intentional Interference with Contractual Relations (North Carolina law)
The last claim against both Players also involves the Terms of Services and EULA. In this claim, Epic argues that the Players intentionally interfered with contractual relations by encouraging and inducing Fortnite users to purchase and use the Players’ cheats, despite having knowledge of the Terms and EULA between Epic and its registered users, which prohibit the use of cheats in Fortnite.
For this violation, Epic seeks: (1) an injunction to restrain and enjoin the players from continuing to use the service; (2) damages for loss of goodwill among users of Epic’s services, decreased profits, and lost profits from users whose accounts were terminated for violations of the Terms and the Fortnite EULA; and (3) the proceeds the Players received from the sales of the cheats (unjust enrichment).
Circumvention of Technological Measures in Violation of the Digital Millennium Copyright Act (Broom only)
In addition to those claims, Epic asserted another claim Broom individually. This claim alleges that Broom violated the DMCA, by using a cheat that was primarily designed for the purpose of circumnavigating Epic’s security measures used to prevent unauthorized access to Fortnite’s copyrighted work. In continuance of this claim, Epic argues that Broom, as a moderator and support person for AddictedCheats.net, materially contributed to the sale, distribution, and use of the Fortnite cheats while actively assisting other cheaters in their pursuit to circumnavigate Epic’s technological security measures.
For Broom’s suspected actions, Epic seeks injunctive relief, actual damages and Broom’s profits attributable to this violation, maximum statutory damages and attorneys’ fees and costs.
Copyright infringement suits have become one of the most common remedies for game developers in the fight against cheating services like Addicted Cheats. In March 2017, Blizzard Entertainment successfully sued the German company Bossland GmbH, famous for creating bots known as “Honorbuddy” and “Hearthbuddy”. In that suit, Blizzard was awarded $8.6 million in damages for approximately 43,000 instances of copyright infringement.
While there is no doubt game developers will continue to use legal remedies against cheating services, it is important for cheaters to recognize that in this case, Epic took action against the Players individually. Instead of suing Addicted Cheats, the service that used the Fortnite cheats, Epic decided to come after Vraspir and Broom, in hopes of holding them individually liable for any damages it may receive.
Although this may not become a trend going forward, since individuals usually do not have as much money as the companies providing the cheating services, game developers may still use this strategy as another way to deter future cheaters and maintain the integrity of their games.
A copy of Epic’s complaints can be read below:
(This post was contributed by Kaylee Sauvey, a rising 3L at the Fowler School of Law and intern for Roger Quiles, Esq.)
Enforcement of copyright law is a very dense and subjective process, as seen in the Blizzard/Valve v. Lilith/uCool case, which is rooted in ownership of rights to the mod of Warcraft III called “Defense of the Ancients,” (“DotA”). In brief, teenage developer Eul created this mod and may have released his ownership of it on an online forum. He later sold his rights to Valve. DotA appeared to have been the basis several other popular mods, the rights of which were also sold to Valve and Blizzard by their “owners,” and eventually, two unlicensed smartphone apps were released by Lilith and uCool. One of the main issues in this case is whether the rights acquired by Valve and Blizzard are valid if the release of ownership was also valid.
Relevant Copyright Law
A copyright is created at the moment someone fixes something creative in tangible form. The second you take that picture or write down those song lyrics, you have a valid copyright. For example, as soon as you take a photo, you have an exclusive right to Photoshop, publish, sell copies of it, etc. Let’s say you Photoshop it and then save a copy. You have just created a derivative work. Someone sees your original and decides to Photoshop it and then publishes it as their own. While this is also a derivative work, it may be an infringement on your copyright because you hold the exclusive right to use your original. If, however, you no longer wanted to own the rights to your photo, you could abandon the copyright and anyone could use it without asking your permission; this requires “some overt act indicating an intention to abandon.”
Now let’s take a look at the Blizzard case.
2002: Blizzard releases “Warcraft III: Reign of Chaos,” which included the development program called “World Editor” for creating settings and other content to modify the game, but restricted use to non-commercial uses in its End User License Agreement (“EULA”). The EULA did not ensure that the rights to all intellectual property created using the World Editor would be retained by Blizzard. Eul developed DotA using the World Editor and then locked the mod to retain creative control.
2003: DotA: Allstars is created by a third party and the mod is not locked. Guinsoo builds off of Allstars and locks the mod.
2004: On September 23, Eul posts the following message on a gaming community forum:
“from this point forward, DotA is now open source. Whoever wishes to release a version of DotA may without my consent, I just ask for a nod in the credits to your map.”
2005: Guinsoo quits and Icefrog is enlisted to work on DotA.
2006: Icefrog is hired by S2 Games as a designer for “Heroes of Newerth.” Initially, Icefrog retains his intellectual property rights to his contributions to Heroes, but S2 later changes his contract to retain all rights.
2010: Icefrog and Eul sell their rights in DotA and Allstars to Valve. Guinsoo sells his rights in DotA and Allstars to Riot Games, which then sells them to Blizzard in 2011.
2013: Valve releases Dota 2.
2014: Lilith releases “DotA Legends” an app based on DotA. Six months later, uCool releases “Heroes Charge” – a similar app.
2015: Blizzard and Valve sue uCool and Lilith for copyright infringement.
Commercial Use? Open Source? Who Owns the Rights?
The second issue is whether Eul’s forum post was an actual abandonment of any rights to DotA or if the addition of his request to credit him would be considered a retention of some rights. If DotA is actually open source material, the case is strongly in favor of Lilith and uCool. If, however, Eul did retain some rights, the case is stronger for Eul that he had some rights to sell to Valve and Valve may actually own the rights to DotA.
What This Means for Game Developers
This problem could have been solved in favor of Blizzard at the outset if they had included a provision in their EULA for the World Editor in which they retained the intellectual property rights to any content created using the World Editor. In the aftermath of this lawsuit, programs like the World Editor, which may produce similar user-generated content, will likely include a provision retaining these rights for the developing company. This would make any content created by any user the automatic intellectual property of the development company and eliminate any legitimate, subsequent claims of authorship by other parties.
If the jury finds that Eul’s “open source” statement is actually an effective abandonment of his rights, despite his request for credit, then independent developers such as Eul would be encouraged to keep their mods locked and actively maintain them to strengthen their claim of ownership. Any permission given openly for use or distribution would also be deemed an abandonment of ownership. This may result in more mods being sold to other users for a price instead of encouraging free use and distribution.
(Photo used under creative commons by David Wees)
(This post was contributed by Alan Conklin, a third year law student at the Villanova University School of Law and intern for Roger Quiles, Esq.)
On March 14, 2017, Blizzard Entertainment (“Blizzard”), popular developer of games such as Overwatch and World of Warcraft, decided to move forward with its lawsuit against Bossland GmbH (“Bossland”), a company known for creating cheat engines for games, filing a motion for entry of default judgment.
Last July, Blizzard filed a complaint in the Central District of California, accusing Bossland of contributory copyright infringement, unfair competition, and a number of other claims including a violation of an anti-circumvention provision in the Digital Millennium Copyright Act (“DMCA”) and a violation of its End User Licensing Agreement. For these claims, Blizzard sought to recover $8.5 million in damages. After the Court denied Bossland’s motion to dismiss for lack of jurisdiction, Bossland “elected to voluntarily default rather than defend [the] case on the merits.” The Court’s clerk entered the default on February 16, 2017, and Blizzard subsequently filed its motion.
Bossland is a German-based company known for making several game cheat engines, including Watchover Tyrant, Honorbuddy, and Demonbuddy. Blizzard believes that these cheat engines are detrimental to its business because they are used by “cheaters, hackers, or others who seek to manipulate the game experience (either for their own personal gain or simply to disrupt and annoy others).” In turn, Blizzard thinks these manipulations have ruined the games for many legitimate players, causing millions of dollars in lost sales.
For years, Blizzard has been engaged in a battle against cheat software developers. Since July 2013, Bossland has sold approximately 118,939 units to consumers in the United States alone. Blizzard projects that 36% of these products were cheats for its games. As a result, Blizzard alleges that Bossland is guilty of 42,818 infringements and seeks to receive the minimum statutory copyright damages of $200 per infringement.
Blizzard’s main accusation is based on its belief that Bossland’s programs have been used solely for the purpose of circumventing Blizzard’s anti-cheat measures that it had put in place to effectively control access to its copyrighted work. Under copyright law, “[n]o person shall circumvent a technological measure that effectively controls access to a [protected work].”
Blizzard’s anti-cheat measure, a program named Warden, “prevents unauthorized access to the Blizzard Games, restricts users from loading unauthorized copies of the Blizzard Games, and otherwise monitors the game client and environment for malicious or unauthorized software processes.” The program is also used to detect any third-party programs that facilitate cheating or the modification of gameplay unauthorized by Blizzard. In this case, Blizzard alleges that Bossland has violated the law by creating a program that was designed to evade Warden’s detection capabilities and violates its intellectual property rights.
Will Blizzard Benefit?
Although Blizzard appears to make a solid argument, a judgment in the company’s favor may not actually benefit Blizzard much because the Central District of California may not be able to enforce the judgment over the German-based company. Bossland has stated many times that it has no ties to the United States because it does not have any offices or employees in the United States, and it does not advertise or do any business on the country’s soil. It also does not use any United States based companies for its transactions. These factors will make it hard for the court to actually enforce any action placed against Bossland, a company that holds most of its assets abroad. To enforce its judgment, Blizzard would need to attempt to have the judgment localized in Germany, which would be difficult.
Nonetheless, a positive ruling can still have an impact on the on-going battle between cheat software programmers and game developers. Blizzard believes a ruling against Bossland will deter other third-party software developers by showing them that it will do whatever it takes to in order to protect its brand and the integrity of its games.
Legislative Protections for Game Developers
Given the substantial size of the gaming industry, countries are now starting to enact legislation to protect game developers from similar harms. South Korea, one of the most progressive countries in the esports industry, passed a bill last November that protects game developers from cheating programs similar to those created by Bossland. The bill prohibits the manufacturing and distribution of programs not permitted or provided by the game developer. Violators are subject to a fine of $43,000 USD (50 million KRW) and/or up to a maximum sentence of 5 years in prison.
Currently the United States does not have any laws that specifically regulate cheating software issues similar to issues in Blizzard’s case; however, with the growth of esports, game developers, including Blizzard, may see more laws with similar protections being passed in the United States in order to maintain the integrity of their games.
Protecting one's intellectual property online can seem like an onerous task. This is especially the case with copyrighted content. However, content creators can help protect their copyrights by taking several actions.
Keep in mind that according to the U.S. Copyright Office, a copyright is a "form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works." Notably, copyrights protect the expression of ideas, and not the ideas themselves. Additionally, copyrights attach immediately when the work is fixed in some form of tangible medium of expression (like a book, recording, painting, blog post, etc.) Although it is not necessary to register a copyright for protections to attach, a registered copyright has additional benefits should someone infringe. For more information on what a copyright is, see my earlier post here.
So what steps can you take to protect your creative, copyrighted works?
Place a copyright notice on your work. In the context of protecting copyrights online, you can place a copyright notice alongside your work. This need not be complicated, and can simply state "Copyright 2014. All Rights Reserved." Although this isn't necessary, it informs potential infringers that you are aware of your rights with respect to the work, potentially discouraging them from infringing. For photos, this can be effectively accomplished by watermarking your images.
Define others' rights in utilizing your work. Create a policy (and place a link to it on your site) that tightly defines how people may use your content with and without your permission. Effectively, this creates a route for potential infringers to utilize your work in a manner that respects your copyrights by offering them a limited license under terms you decide. Even better, these terms establish how other people can freely advertise your work.
Consider registering your copyright. Some content, especially if used as a means of generating income, may warrant a Federal Copyright Registration. This is purely optional, although there are benefits to registering a copyright which primarily manifest during litigation. Some of the added benefits of registration include: the ability to sue for attorney's fees; the ability to sue for statutory damages (which is easier to prove than actual damages); a presumption (after 5 years) that the copyright is valid and all facts in its registration are true; the registration itself constitutes notice that said content is copyrighted. Additionally, registration may allow you to transfer copyrights easier.
Find out if your copyrighted material is being infringed upon. Once you are aware that your work is being infringed upon, you can take steps to have the infringing work taken down, or at least attribute credit to you, whichever you deem appropriate. There are many different tools you can use to find out if your works have been infringed upon. Not surprisingly, a Google search is a great place to start as the search engine has both text and image search capabilities. Sound recordings are much more difficult to police as there can be multiple copyrighted elements, in addition to the technical difficulties of searching audio recordings.
Contact the infringer. Generally, there is some manner available to contact someone that improperly posts your content, be it via email, comment, or message. Utilize whatever method you believe to best contact the infringer and request that they remove your content, or point them in the direction of your use policy and request that they abide. If they fail to remove the content or fail to adhere to the policy, locate the website's ISP information. To do so, you can use this site or this site. Once you have the ISP's information, send a Takedown notice (free samples can be easily found through a Google search) to the ISP, which states that one of the sites it is hosting contains infringing material. The Digital Milennium Copyright Act allows for an ISP to be held liable for hosting infringing content. Generally, once the ISP is notified that they are hosting an infringing work, the website will be taken down so the ISP can avoid liability.
When to hire an attorney. If the ISP fails to remove the content, or take down the website, then you may wish to hire an attorney to prosecute your claim of intellectual property infringement. If you have yet to register the copyright of your protected content, then you may have to do so before any litigation may commence.
Following these steps will help you protect your copyrighted content online, allowing you to only worry about creating more content to share with the world.
Earlier this week, the Supreme Court of the United States of America issued an important decision on the case of American Broadcasting Cos. Inc., Et Al. v. Aereo, Inc. The key issue in this case was whether Aereo could broadcast copyrighted content (which it did not own the copyright to) that appeared on TV without obtaining a license to distribute the content. The Supreme Court ruled against Aereo, holding that its broadcasting of copyrighted content without a license from the copyright holder was unlawful.
Although the case hinged on technical, copyright law concepts which are too lengthy for discussion here, the Aereo case serves as a reminder for a very basic copyright law principle:
DON'T USE ANOTHER'S COPYRIGHTED MATERIAL UNLESS YOU FIRST OBTAIN THE LICENSE TO DO SO
But what is a copyright? According to the U.S. Copyright Office, a copyright is a "form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works."
This means that a work must be:
Copyrightable subject matters include, but are not limited to:
Notably, copyright law does not protect:
However, copyright law may protect how facts, ideas, systems and methods of operation are expressed.
Additionally, copyrights do not need to be registered anywhere for protection to exist. However, there are benefits to registering a copyright with the U.S. Copyright office, such as having the facts of the copyright on public record and also granting the copyright holder certain legal remedies such as statutory damages and legal fees in litigation.
It does not take very much for someone to have copyright protection, so people/businesses should be extra careful when using content in any way that they did not create. When it comes to using material this kind of material, err on the side of caution, and don't be like Aereo. Seek a license to use the work, which you will likely have to pay for, but will come far cheaper than any potential copyright infringement lawsuit.
Quiles Law is an esports and sports law firm based in New York City.
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Attorney Advertising. The information presented in this site should not be construed to be formal legal advice nor is it intended to form any attorney/client relationship. Our attorneys, collectively, are licensed to practice law in the States of New York, New Jersey, and Pennsylvania. Copyright Roger R. Quiles, Esq., 2017. All rights reserved.