Epic Games, Inc. ("Epic"), the company behind popular video game "Fortnite," has refused to stand down in its copyright infringement and breach of contract suit against a 14-year-old gamer. Fortnite has seen booming success as a free, online game in which players must simply consent to the Terms of Service to create an account.
The suit alleged that the defendant, C.R., infringed on Epic's copyright and breached the Terms of Service by injecting "cheat codes" into the Fortnite computer code, thereby creating a derivative version of the game. Pursuant to the Terms of Service, players are forbidden from copying or modifying proprietary rights owned by Epic. By agreeing to the Terms of Service and creating an account, Epic asserted that C.R. bound himself to the contract. Both the copyright infringement and breach of contract claim extended to C.R.'s posting of YouTube videos (since removed) in which he promoted and distributed the cheat codes.
C.R.'s mother, in a letter construed as a motion to dismiss, argued that C.R. was not legally bound by the Terms of Use given his status as a minor. The letter further charged that Epic was unable to prove that C.R. modified and created a derivative work of Fortnite because the cheat codes were obtained from a public website.
On April 23, 2018, Epic responded that C.R. had been banned from Fortnite at least 14 times for cheating, meaning that he created new accounts and affirmatively acknowledged the Terms of Service at least 14 times. Such action should not permit use of the infancy defense when the minor retained the benefits of the contract. Moreover, Epic emphasized that a complaint need only allege facts sufficient to state elements of a claim, not prove them. As Epic's complaint properly alleged facts sufficient to support copyright infringement and breach of contract claims, the case should not be dismissed.
Takeaway: With today's generation of tech-savvy teens, digital proprietary rights require increased protection. Gaming companies should secure their IP with well-drafted terms of use that explicitly prohibit code modification. To avoid challenges from the infancy defense, companies may wish to consider requiring age disclosure and parental consent (if required) when contracting with players.
This article is presented for informational purposes only and is not intended to constitute legal advice.
