Curious about what the legal ramifications might be of game hacking and modding in the US I spoke with Nick Rekieta and asked him some general questions.
Read on below for the interview.
Hi Nick thanks for agreeing to do this interview. Before we get started is there any legalese you need to add prior to answering some questions?
I’m a lawyer in Minnesota, I am not giving you or anyone else legal advice, if you take general statements in an article as legal advice, you may need psychiatric help; also I’m not a psychiatrist and that is not a diagnosis.
Can you tell us a little bit about your legal background, what types of cases you usually practice and what encouraged you become active on social media?
Sure! I practice in a small town, so I have a buffet-approach where I do what’s available and what needs doing. Typically, this is some mix of criminal law, and business/contract disputes. I try to stay away from Family Law, because divorcing parents are temporarily worse people than murderers.
As for Social Media, it started when a guy named Maddox sued Dick Masterson for millions of dollars and hired what is perhaps the worst attorney in New York to take the case. I downed some whiskey and read through the complaint with some commentary, people responded positively, so I kept going on other subjects.
What does the law specifically say about Game Hacking / Reverse Engineering in the US? Is it a criminal act?
To my knowledge, in the US, Hacking and Reverse Engineering video games is presumptively non-criminal. I’m hesitant to say its legal, because a violation of the EULA is still not legal even if it isn’t a criminal offense.
That being said, there are ways in which it could be more illegal, or even criminal. For example, if you reverse engineer the code of a game, and use that to make a mod outside of the terms of a modding license (Microsoft has a general modding license, for example) then you are violating the Intellectual Property rights of the developer, which is a civil violation. If you insert code into a game like an MMO and it interferes with other users, or takes private data from users or the developer, you are wading into criminal territory.
Is developing, creating or distributing Game Hacks illegal in the US?
If you are using all your own code, it may be a civil violation of the EULA or other agreements. If you are distributing a hack or mod that contains code that belongs to the developer, it could be a criminal piracy issue, even if the majority of the code is your original creation.
There’s always been a bit of “push and shove” between Video Game companies and Game Hackers. Hackers generally believe they have the right to freely modify anything they own, however companies have fought hard to completely silence them using the law or use obtuse sounding terms of service. What does the law say about it?
EULAs and Terms of Service are presumptively legal and binding, so if you are violating them, the Developers can shut you down and potentially sue you if there are damages. Typically, this is going to be limited to preventing you from either distributing the software, or accessing online services using the software (e.g. an MMO or always online game like Diablo 3).
If there’s no online access in question, and you’re not distributing anything, You’re probably not going on any radars; however, the way software works now, almost everything is connecting to some sort of online service, so there’s a bit of risk.
Starting from June 21 South Korea has made creating and distributing video game hacks illegal. Are there any protections in place to protect Hackers and Reverse Engineers under US law? Perhaps freedom of speech?
The main protection in the US is the absence of any explicit laws criminalizing these acts, but yes, free speech and expression would limit the applicability of these types of laws. Even though developers have various copyrights, there are “fair use” exceptions that allow people to significantly transform existing art in the pursuit of their own expression. Modding and hacking could certainly fall into this category, depending on the final results.
Under the law are companies actually allowed to ban players from their servers for cheating? If you’re paying for a service are you not entitled to it to use as you wish?
Yes, so long as it’s covered in the EULA or ToS. They can’t keep charging you after a ban, and may need to refund part of any fee you paid (for example, X-box gold is a 12 month subscription, if you only use 2 months, they may need to refund 10 months). But EULA and ToS are binding contracts, if you are in breach, they have no obligation to allow you to keep using the service.
Is there any legal recourse for people wanting to modify or hack games?
Not much, really. If it’s a violation of the ToS or EULA, and those contracts aren’t unconscionable, then the company has a right to control their intellectual property as they see fit.
Personally, I would like to see the law start attacking ToS and EULA for unconscionable provisions because they are extremely long, and almost entirely ignored. Until that happens, we pretty much have to abide by the fine print, and of course, by not distributing any mods or using them to access data from the developer in an online service.
Do you have anything you want to plug?
You can check out my youtube channel/excuse to drink whiskey on www.youtube.com/RekietaLaw.
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