In October, Polygon learned that Epic Games had filed suit against two individuals for making and using software that allows players to cheat in the game Fortnite. Since then, the publisher and developer has filed suit against at least nine more individuals, both in the United States and overseas.
Unsurprisingly, at least one of them is a minor. We know this because a new and unusual document has been entered into the court record: A sternly worded, and legally savvy, note from his mom.
On Oct. 10, Epic Games issued two lawsuits, one each against Brandon Broom and Charles Vraspir, both said to be associated with the same subscription-based cheating service. Epic’s line of reasoning was that, under the Digital Millennium Copyright Act, both Broom and Vraspir were in the wrong to create cheats that leveraged Epic’s own intellectual property. Court records indicate that both lawsuits are proceeding through the U.S. district courts and could result in fines of up to $150,000 per incident, per case.
Epic Games has since issued four more civil lawsuits on similar grounds.
In late October, Epic Games filed suit (through its subsidiary in Luxembourg) against two groups of individuals including Philip Josefsson and Artem Yakovenko, as well as James Mendes, Konstantin Vladimirovich Rak and Oleksey Olekseevich Stegailo. Epic claims these two groups each “created, developed, and/or wrote a software cheat” for Fortnite’s Battle Royale game mode. Both feature similar arguments and similar potential fines as the initial lawsuits against Broom and Vraspir.
But Epic Games went a step further, filing lawsuits against two of the cheaters themselves. Polygon has uncovered records related to two such lawsuits. One was filed on Oct. 23 against Caleb “Sky Orbit” Rogers and the second on Nov. 2 against Mason Foret.
So far, only Rogers (who is 14 years old) has taken the initiative to use his YouTube channel to speak out against Epic for what he considers to be unfair treatment. In a remarkable seven-minute video published on Oct. 29, Rogers first admits that he broke Fortnite’s rules and then blames Epic Games for holding him accountable.
“I was basically cheating in the game Fortnite,” Rogers said, after which he proceeds to plug the website where he downloaded the cheat multiple times. His ad hoc defense is that the cheats are freely available and “fucking everywhere.” Therefore, Rogers said, his actions should be excused.
“I’m not in any way trying to ruin the community for fun,” Rogers said. “I’m just trying to do everything for fun. I cheat for fun. I don’t cheat to cheat, to win, to get good at the game. I just cheat for fun.”
Reached for comment, Epic Games said that the lawsuit stems not from Rogers using the cheat but for publishing what amounts to a how-to guide promoting it on his YouTube channel. When Epic Games issued a DMCA takedown notice, Rogers chose to contest it. That puts Epic in the position of having to push back to protect its own rights.
“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.
“Epic is not okay with ongoing cheating or copyright infringement from anyone at any age. As stated previously, we take cheating seriously, and we’ll pursue all available options to make sure our games are fun, fair, and competitive for players.”
Throughout their lawsuit, Epic repeatedly points out how cheating breaks a legal agreement, called the end user license agreement or EULA, which Rogers agreed to in order to gain access to the game. By Epic’s reasoning, that puts him at odds with the DMCA and makes him eligible for a similar fine of up to $150,000 per incident.
So, in a daring legal maneuver, Rogers had his mother write him a note.
“This company is in the process of attempting to sue a 14-year old child,” Lauren Rogers said. “They are claiming he prepared derivative works based upon a copyrighted work and publicly performed and displayed this as such. They are also claiming he ‘modified their game’ to use a cheat and live streamed it. This would, of course, fall under the Copyright Act if he did in-fact modify their game.”
She goes on to mirror her son’s claim that these kinds of cheats are freely available, and Epic may be stepping out of bounds by punishing those who use them.
But she doesn’t stop there.
“Epic Games Inc failed to legally bind underage users with their EULA agreement,” Lauren Rogers said, “which is a contract between the licensor and purchaser, establishing the purchasers right to use the software. This being said, the game itself was in-fact free. No purchase of said game occurred.”
Since she herself did not issue parental consent, and since the Battle Royale mode of the Fortnite game is free-to-play, Lauren Rogers asks that the court consider dismissal of the case against her son.
This is an interesting legal edge case, with implications for many other free-to-play titles in the same space. The case of Epic Games versus Caleb Rogers is one that we’ll be following through the courts closely. You can too, by accessing all of these documents online.