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INTRODUCTION
The gaming industry has evolved into one of the most competitive and profitable entertainment markets in the world. As games become more advanced, developers invest heavily in anti-cheat technology to protect their platforms from unauthorized code and unfair gameplay. At the same time, players and independent programmers often claim that cheat software, modding, or streaming game content represents creative expression protected under the First Amendment.
Recent cases involving major publishers such as Epic Games, Bungie, and Blizzard show how courts apply the Digital Millennium Copyright Act (DMCA) to this growing area. This blog provides an overview of how 17 U.S.C. §1201 works, what “circumvention” means under the law, and how courts balance copyright enforcement with free speech and fair use principles.
THE LAW UNDER 17 U.S.C. §1201
Section 1201 of the DMCA prohibits bypassing digital security or technological measures that control access to copyrighted works.
“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”
In video games, these technological measures include anti-cheat detection systems, server authentication processes, and code encryption. When a cheat program or bot disables or avoids these systems, it qualifies as “circumvention.” Even if the program does not copy or distribute the game itself, it can still violate §1201 by interfering with these protections.
The law aims to protect not just literal copying of a work, but also unauthorized manipulation of the software's structure or operation.
FAIR USE AND CREATIVE EXPRESSION
Supporters of cheat tools or modding communities often argue that their work qualifies as fair use under 17 U.S.C. §107. Courts, however, apply the traditional four-part test that considers the purpose of the use, the nature of the copyrighted work, the amount and substantiality of what was used, and the market effect on the original work.
While fair use protects transformative works that add new expression or meaning, cheat tools rarely meet that standard. They generally alter the core experience of a game rather than comment on or critique it. Courts have found that cheat developers are not adding new creativity but rather exploiting the game's existing mechanics for commercial or competitive advantage.
For instance, a player posting educational videos about game design or performance analysis may qualify for fair use, but promoting or distributing a cheat program through a video or link crosses into infringement territory. Similarly, uploading gameplay footage accompanied by commentary or parody may fall under transformative use, but showcasing cheat software or bypassing restrictions does not.
Courts have repeatedly emphasized that fair use does not protect conduct that causes market harm or undermines the licensing structure of a copyrighted product. In the gaming context, unauthorized mods or cheats that interfere with online environments can damage player trust, game balance, and legitimate market demand.
CONTRACTUAL RESTRICTIONS AND USER AGREEMENTS
Most games today require users to acceptEnd-User License Agreements (EULAs) and Terms of Service before playing. These contracts typically forbid any attempt to alter or reverse-engineer the game code, use external programs to gain advantages, or bypass anti-cheat detection systems.
When users agree to these terms and later violate them, developers can bring breach of contract claims in addition to copyright or DMCA claims. In practice, game companies rarely sue individual players due to cost and public relations concerns, but they aggressively pursue cheat developers and distributors whose programs harm game balance or encourage others to break the rules.
LANDMARK CASES UNDER THE DMCA
One of the foundational cases in this area is MDY Industries, LLC v. Blizzard Entertainment, Inc. (2010). Blizzard sued the developer of “Glider,” a bot that automated gameplay in World of Warcraft. The Ninth Circuit held that Glider violated §1201 of the DMCA because it circumvented Blizzard's anti-cheat technology, known as “Warden.” The court determined that these systems constituted “technological protection measures,” and that Glider's anti-detection features enabled unlawful access to Blizzard's servers.
However, the court noted an important distinction. Cheat tools that do not attempt to bypass anti-cheat systems may not automatically fall under the DMCA's anti-circumvention provisions. This left open a narrow path for non-detectable modifications or local alterations that do not interfere with protected server environments.
In Bungie, Inc. v. AimJunkies.com (2024), Bungie filed suit against developers of cheat software for its Destiny 2 game. The court found that the defendants' software intentionally disabled Bungie's anti-cheat protections and extracted proprietary player data. The conduct was found to violate both the DMCA and Bungie's contractual agreements, leading to injunctions and damages.
Take-Two Interactive Software, Inc. v. Zipperer (2018) involved cheat programs for Grand Theft Auto V. The court found that the software altered the game's environment and constituted an unauthorized derivative work. Take-Two succeeded in establishing that such programs infringed both its copyrights and violated the DMCA's anti-circumvention provisions.
EPIC GAMES AND THE NEW FRONTIER OF ENFORCEMENT
Epic Games has become one of the most active companies in enforcing its intellectual property rights under both copyright and contract law. Two of its most widely discussed cases, Epic Games v. Rogers (2021) and Epic Games v. Mendes (2018), illustrate the tension between game enforcement and player expression.
In Epic Games v. Rogers, the defendant was a 14-year-old Fortnite player accused of using and promoting cheat software through his YouTube channels. Epic alleged that by injecting cheat code into the game, Rogers created an unauthorized “derivative work.” The company also claimed that his repeated creation of new accounts after being banned breached the Terms of Service. The case drew attention not only for its subject matter but also for the age of the defendant.
The court required appointment of a guardian ad litem under Rule 17(c) because Rogers was a minor. The parties later reached a confidential settlement, but the case underscored how publishers use copyright claims alongside contract theories to police cheating and promotion of hacks.
In Epic Games v. Mendes, Epic sued a YouTuber who allegedly created and distributed cheats for Fortnite and used his channel to promote them. Epic argued that the act of injecting code amounted to creating derivative works and that showing gameplay using cheats constituted an infringing public performance.
The court denied summary judgment, finding that Epic had not proven Mendes himself created the cheats or that gameplay videos alone amounted to public performances under 17 U.S.C. §106(4). The case revealed how uncertain the law remains when it comes to combining gaming content, online expression, and copyright enforcement.
Epic's lawsuits show a broader strategy by developers to use a mix of copyright, DMCA, and contract claims to deter cheating and online promotion of cheats. However, they also raise unresolved questions about player rights, streaming, and whether displaying altered gameplay qualifies as expressive or infringing conduct.
FREE SPEECH AND COMPUTER CODE
The leading decision on the intersection of free speech and the DMCA remains Universal City Studios, Inc. v. Corley (2001). The case involved “DeCSS,” a program that allowed users to bypass DVD encryption. Corley argued that publishing the program online was protected speech.
The Second Circuit disagreed, finding that although computer code can express ideas, it loses First Amendment protection when it functions as a tool for unlawful conduct. The court reasoned that the DMCA is a content-neutral law focused on preventing unauthorized access, not suppressing ideas. Therefore, distributing circumvention code is conduct subject to regulation, not protected speech.
This reasoning extends to cheat tools and circumvention programs today. While discussing or analyzing software may be protected expression, distributing or linking to code that defeats access controls falls squarely under the DMCA's prohibitions.
CONCLUSION
The intersection of gaming, software, and free expression continues to evolve. Courts recognize the importance of protecting creative innovation, but they also uphold the strong rights of developers to secure their platforms and intellectual property.
Under 17 U.S.C. §1201, even partial attempts to bypass technological protection systems can result in liability, especially when coupled with promotional conduct or link-sharing. At the same time, courts continue to balance these enforcement efforts against legitimate forms of expression and commentary.
As the gaming industry continues to grow, the line between innovation, competition, and infringement will remain under careful judicial scrutiny.
CONTACT A COPYRIGHT AND DMCA ATTORNEY
Since 2004, Vondran Legal® has been a clear leader in copyright and trademark infringement matters in the United States. We have handled over 1,000 copyright infringement matters, including but not limited to fair use opinions, DMCA takedown and counternotices, Federal court lawsuits, and platform disputes involving YouTube, Etsy, TikTok, Shopify, Amazon, and other online platforms. If you are facing a DMCA claim or need help defending or enforcing your software rights, contact Vondran Legal® at (877) 276-5084 for a no-cost confidential consultation.
