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Is it legal to sell game cheats? If so, how?

Portland, OR |

Hypothetically, if someone were to create a program that effects the outcome of a computer video game (Counter Strike: Source) and then tried to sell the program (this program being separate from Counter Strike: Source, running independently), would it be legal? The program would, in effect, allow you to cheat in an online multiplayer game. If it is legal, what sort of processes would allow it to be legal? Thank You.

Attorney Answers 4

Posted

Here is how I analyze this. The software that runs the game is automatically copyright protected. The owner of a copyright is entitled by law to derived materials. I think your cheat sheet is a derivative.

To sell your sheet you must refer to the original by a name that is at least common law protected. And maybe more.

So your only way is work a deal with the owner to sell a product to help one learn the game, and split the money with the owner. After all, without the owner 's efforts you would have nothing to add to.

Others may see it differently but that is how i see it.

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Bruce E. Burdick

Bruce E. Burdick

Posted

Marcus, I think you misread the question. It is software not a sheet being proposed. So, what we have possibly is an independent program residing in a separate section of RAM once loaded, but which has calls from the game and feeds going to the game (inputs from the game and outputs going to the game) all for the purpose of cheating the game. I recall using something like that years ago in online Scrabble - the independent program analyzed the tray letters and the board and came up with the highest scoring word to play so you could win an online multiplayer Scrabble game. It was fun for about 2 days and then got boring because I always won so there was no challenge and thus not excitement. Plus other players knew I had to be cheating to get the best word every time in just a few seconds. I am not sure a separate program is a derivative. Also, I am not so sure the use of the primary program name is not nominative use or descriptive use if done right. For example:Use the MAXIPLAY program to get maximum scores in Scrabble-type crossword games.[Note: MAXIPLAY is not the real name of the program, as I no longer remember it.] So, if logos and other indicia are avoided I doubt permission is needed, especially if a typical trademark disclaimer legend is used.

Philip Leon Marcus

Philip Leon Marcus

Posted

I was trying to simplify things. I analogize such a cheat program, assuming it is built without actually reverse engineering the game’s code, to for example a teacher’s guide to a textbook, but one not written by the same or an affiliated author. The teacher’s guide has no existence outside the textbook and I am confident I could quickly find case-law that says it is derivative. But more instructive would be Galoob v Nintendo, in the very 9th circuit in which the asker is situated (Portland). I think it is distinguished in part. That is, probably the fair use doctrine is gone, because the important prong of not cannibalizing sales is gone. The game is competitive—hat is primarily why it is on the Web. How much competition is it if one player has a ‘corked bat?’ So it comes back to whether there is infringement in the first place, analyzed under Galoob. I think that depends on the internals of the proposed software package—does it make copies of any displays or sounds in its portion of RAM? Surely the Asker should not discuss that on this forum. As for trademark, I understand fair use in the TM domain but, again, I think using this cheating software will cannibalize use of the underlying game and, moreover, there is no journalistic or similar informative use of the trademark. It is not among a list, say, of trademark-registered names, nor is the TM taken in the context of any type of criticism. So I disagree—I think there needs to be a somewhat disguised way of referring to the game for cheating software is proposed, like referring to ‘the game whose name must not be spoken.’

Posted

You would need to look at the EULA for each individual game. Most have clauses where you agree not to cheat, and most probably have clauses where you agree not to enable others to cheat. Without having seen the EULA for your specific games, I couldn't tell you.

As to whether the publishers would have a copyright claim against you, a lawyer in your state can help you interpret the case of Galoob v. Nintendo (the Game Genie case) and any other relevant precedent.

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Posted

I agree with both of my colleagues, this presents both copyright and contract problems if your program would circumvents the rules of the game. I'm less sure about whether your program would infringe the original game software, but I'm fairly certain that you'd get your account for this game, if you've got one, closed, and would get anyone who buys your product kicked off this game for violating the terms of use any user agrees to adhere to when they open an account to participate in the game. I also think it's possible that you could be sued for unfair competition and conspiracy to unfairly compete.

I don't think it's possible to do this legally. But I do think it's possible to create a literary work that offers advice on how to play the game, strategies, critiques of its design, etc.

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Posted

If I understand you correctly, you have an independent program XYZ residing in a separate section of RAM from game ABC once loaded, but which has calls from game ABC and feeds going to ABC (inputs from the game and outputs going to the game) all for the purpose of cheating game ABC. Deja vu' -- I recall using something like that years ago in online Scrabble - the independent program analyzed the tray letters and the board and came up with the highest scoring word to play so you could win an online multiplayer Scrabble game. It was fun for about 2 days and then got boring because I always won so there was no challenge and thus little further excitement. Plus other players knew I had to be cheating to get the best word every time in just a few seconds. I doubt separate program XYZ is a derivative just because XYZ interfaces with an program ABC, although the statutory definition in 17 USC 101 of a "derivative work" is extremely broad:

"A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. "

I think "interfacing with" is different that "based upon", although I would need to research the issue to be more certain.

Also, I am not so sure the use of the primary program name is not nominative use or descriptive use if done right. For example:Use the MAXIPLAY program to get maximum scores in Scrabble-type crossword games.[Note: MAXIPLAY is not the real name of the program, as I no longer remember it.] So, if logos and other indicia are avoided I doubt permission is needed, especially if a typical trademark disclaimer legend is used.

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