One of the current challenges faced by the interactive software industry is that of the development and subsequent use of software code that alters the regular rules and the functioning of video games in such a way that leads the user of such code to unfairly prevail (“cheats”). This article briefly explores legal aspects in Brazil, Mexico and Argentina in order to assess whether such behaviour infringes the copyright statute and other statutes in such jurisdictions.
Interest in this assessment derives from the fact that the use of cheats causes regular players to feel unfairly treated and to lose motivation to play, considering that winnership, in an environment where cheats are applied, ceases to depend on the skills and dedication of the player and becomes related to the application of technological tools that tilts the balance towards the unfair player. Pervasiveness of such behavior can, therefore, affect general interest in the game.
1 – Cheats and their effect on the original code, on the game as a an audiovisual work and on the reputation of the game producer
As previously defined, cheats are sets of code that alter the regular rules and the functioning of video games in such a way that makes the user of such code to unfairly prevail.
From a legal ontology perspective, video-games may be seen both as (i) software, considering that they are made up of an organized group of written instructions in natural or codified language that cause computers to function in a certain way, and as (ii) audiovisual works, considering they fulfill certain statutory definitions of those works in many statutes.
Being sets of code that are injected into the original software in order to bend the rules designed by the manufacturers, the effect of the cheats, from a software perspective, is the altering of the software in a way that results in code as a whole (original plus cheat) being different from that which was originally published or made available by the producer of the game. In other words, by creating an end-product that, in its whole, is no longer the original, the injection of cheats compromises the integrity of the code as originally designed.
From the perspective of the game being an audiovisual work, the fact that cheats cause characters to behave differently from their original conception produces an end-result that is a different audiovisual work than that one created by the producer, therefore also compromising the integrity of the audiovisual work.
It is also important to stress that the game producer’s reputation suffers, as users negatively affected by the cheats consider it to be the producer’s duty to prevent them in their games. Pervasiveness of cheats in a producer’s given game may cause user to see it as unworthy of their time, and such perception may be transferred to the producer’s brand as a game house.
2 – Statutory protection of the integrity of copyrighted works and of software in Brazil, Mexico and Argentina
(a) Berne Convention
Brazil, Mexico and Argentina are parties to the Berne Convention for the Protection of Literary and Artistic Works. Such convention establishes minimum standards related to the protection of the integrity of copyrighted and are applicable to the three jurisdictions.
Article 6 bis (Moral Rights): Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
Article 12 (Right of Adaptation, Arrangement and Other Alteration): Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.
(b) National Statutory Protection
(i) Brazil
From the perspective of the game being an audiovisual work, the protection of work integrity is established in the Brazilian Copyright Statute, as follows.
Federal Law 9.610/98 (Copyright Statute)
Article 24. Authors shall have the following moral rights: IV – ensuring the integrity of the work by opposing any modifications or the the practice of acts that may harm them as authors in their reputation or honor.
Additionally, Brazil’s software statute establishes that, although some moral rights don’t apply to software developers, some do, including the protection of the software’s integrity.
Federal Law 9.609/98 (Software Protection Statute)
Article 2, § 1: The dispositions concerning moral rights do no apply to software, except for the author’s right to, at any time, claim the authorship of the computer program and the right to oppose unauthorized modifications when they cause deformation, mutilation or other changes to the computer program which harm the author’s honor or reputation.
It is important to mention that the reputation harm required to give rise to the copyright violation is present, as previously explained, given that users may consider prevention of such cheats as a duty of the game producer, and its inability to prevent them may divert users from using its games in general.
(ii) Mexico
Mexican Copyright Statute also incorporates the protection of the work’s and the software’s integrity, making equal reference to reputation of the creator.
Copyright Federal Law
Art. 21. The owners of moral rights may, at any time: III – Demand that the work be respected, opposing any deformation, mutilation or other modifications, as well as any action that causes the work any demerits or that harms the author’s reputation.
Art. 106. Commercial rights over a computer program includes the ability to authorize or forbid: II – Translations, adaptations, fixing or any other modification of a computer program as well as the reproduction of the resulting computer program.
(iii) Argentina
Argentina’s Copyright Statute, Federal Law 11.723, does not have a specific session to deal with moral rights. Such rights are, nevertheless, recognized in the statute when dealing with concrete situations, and also by a solid body of court decisions, regulations and the doctrine consensus on intellectual rights.
For example, when regulating publishing contracts, statute states the following:
Article 39. The publisher only has rights related to the printing, diffusion and sales, without being able to alter the text, and will only be able to make printing corrections if the author refuses or cannot do so.
Or when, upon establishing rules that apply to the sales of the work, the statute determines that integrity rights are retained by the author:
Article 51. Authors or rights-holders may alienate or license their work entirely or partially. Such transactions are only valid for the time established in the statute, and they transfer to acquirer the rights to economically exploit the work, with no authorization to alter the title, format and content.
Article 52. Even if the author alienates his work, he retains the right to demand accuracy of his text and title, in the prints, copies or reproductions, as well as the mention of his name or pseudonym as author.
3. Cheats are not themselves an illegally altered copyrighted work, but their sole purpose is to violate copyright; their sale constitutes an abuse of rights and unjust enrichment.
Having established that the integrity of copyrighted works is protected in the three evaluated jurisdictions, it is important to clarify that, nevertheless, copyright statutes, when applied exclusively and by themselves against cheats, will not prevent the creation and sales of a separate set of code which is inertly sitting apart from the software it is intended to alter, as long as developers do not use or commercialize parts of the protected creation along with the cheat.
When such individuals or companies do commercialize them, however, or make them available for broad use, such acts fall within the definition of abusive use of rights or liberties, as described in the analyzed countries’ statutes, precedents and doctrines, as well within the definition of unjust enrichment, when such described activity is a profitable one.
One very important precedent from Argentinian courts on the matter of infringements perpetrated by The Pirate Bay (TPB) illustrates that analysis. It faces a similar question, which is that of the liabilities applicable to intermediaries who do not commit copyright infringement by their own acts, but rather provide all the means for that infringement and profit from the provision of such means. In other words, civil-law institutes that are homologous to the common-law doctrines of secondary liability, specifically contributory infringement and vicarious liability.
TPB is convicted and blocked because its exercise of the right to offer a P2P platform for profit while knowing that its main purpose is to facilitate illegal file sharing is considered to be an abuse of that right. Money earned through abusive use of a right constitutes unjust enrichment. One part of the decision states the following: “…that illegality stated is not in the mere action contra legem or against the statute, but also in the results of the exercise of a right which exceed the framework to which the legal system has given recognition and protection”.
These interpretations are made possible not only due to judicial precedent, but also to clear statutory dispositions in each of the countries analyzed, as seen below.
(i) Brazil, Civil Code
Article 187. The owner of a right which, in exercising it, clearly exceeds the limits imposed by its economic or social purpose, by good faith or by good customs, also commits an unlawful act.
Article 884. He who, without just cause, is enriched at the expense of another, shall be obliged to repay that which was unduly received […].
(ii) Argentina, Civil Code
Article 1071. The regular exercise of an own right or the compliance with a legal obligation cannot be considered an illicit act. The law does not protect the abusive exercise of rights. It will be considered as such that [the exercise] which contradicts the aims that it [the law] had in view when recognizing them [rights] or that [the exercise] which exceeds the limits imposed by good faith, morals and good manners.
(iii) Mexico, Civil Code
Article 1912. When the exercise of a right causes harm to another, there is an obligation to compensate it if it is shown that the right was only exercised in order to cause the damage, without utility for the right holder.
Article 1882. He who without cause is enriched to the detriment of another, is obliged to compensate the other for his impoverishment in the same measure as he has been enriched
4. Conclusion and summary of the opinion
Based on the statutes, legal reasoning and precedent mentioned above, there is substantial legal grounds for enforcement against cheats in Brazil, Mexico and Argentina.
Considering the relative homogeneity of copyright and civil law statutes throughout the region, and the pervasiveness of the Berne Convention, we anticipate that similar legal constructs are also possible in other Latin America territories, pending further analysis.
The legal rationale explained that leads to this conclusion may be summarized as follows:
When applied, cheats cause the end copyrighted product to be altered in its integrity;
Unauthorized modifications to a copyrighted work’s integrity and to the software’s integrity are forbidden by international treaties and statutes in Brazil, Mexico and Argentina;
Although the mere development of a cheat that does not contain parts of proprietary code falls within certain rights and liberties of the developer, the making available and the sales of such cheats constitute an abuse of such rights and liberties to the extent that its sole intent is to enable massive copyright infringement from the integrity perspective, as well as unjust enrichment, if the activity is profitable.
The opinions expressed in Brands+ Intelectual Property Newsare the sole responsibility of their authors and may not coincide with those of the media.
Ygor Valerio
CEO at Ltahub
Columnista