PUBG Corp., the Korean Subsidiary of Bluehole Studios (the developer of PlayerUnknown's Battlegrounds), has dropped its lawsuit against Fortnite developer Epic Games Inc. PUBG had filed a copyright infringement claim against Epic in South Korea back in January. According to reports, PUBG alleged that Epic had copied PlayerUnknown's assets and user interface. You can read our coverage here. However, on Monday, PUBG sent a letter of withdrawal to Epic's lawyers and the South Korean case was closed. Neither side has stated a reason for the withdrawal. PUBG's lawsuit against Netease Inc. is still ongoing, and we will continue to provide updates when available.

It is worth noting that Tencent Holdings Ltd., a Chinese social media/gaming company, is a part-owner in both Bluehole Studios and Epic - each to the tune of hundreds of millions of dollars - and might not want its investments suing each other. Also, PlayerUnknown's currently runs on Epic's Unreal Engine 4, which could also play a part in the settlement. We may never known the exact reason PUBG withdrew, but the cross-over between the two sides could have been a significant factor. As of right now, this appears to be the end of the legal conflict between PUBG and Epic.

We recently reported on Epic Games suing individuals for cheating in Fortnite. You can read about those cases here, here, here, here, here, here, and here. Recently the Northern District of California declined to grant a motion for default judgment against one of the defendants, Konstantin Vladimirovich Rak. In its complaint, Epic claimed that a YouTube video Mr. Rak had posted violated its exclusive right of public performance. Epic filed for a default judgment after Mr. Rak failed to respond to any court motions. The Court denied the motion for default judgment on several grounds, one of which was the public performance claim was insufficient. The District Court's denial was noteworthy because, in its opinion, the Court questioned whether posting gameplay footage to YouTube constituted a public performance.

Epic contends that Mr. Rak publicly performed Fortnite when he posted to YouTube a video about how to hack the game. Under 17 USC 101, to publicly perform means to transmit or communicate a performance of a work to a substantial number of people. The same statute defines a performance of an audiovisual work as showing its images in any sequence. Even though video games are classified as audiovisual works, there are not many cases explaining what constitutes a public performance of a video game. Epic cites Valve Corp. v. Sierra Entertainment, Inc., F. Supp. 2d 1091 (W.D. Wash. 2004) to support its claim of public performance. The NDCA did not find this citation helpful because the Valve case was primarily a contract dispute, which briefly discussed what constitutes a public performance of a video game.

The District Court also discussed Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996), a case briefly discussed in Valve. Allen involved people playing board games in a tournament. The Ninth Circuit held that "playing" is different than "performing," therefore there was no public performance. However, Allen involved board games, not video games. In Red Baron-Franklin Park, Inc. v. Taito Corp., 888 F.2d 275 (4th Cir. 1989), the Fourth Circuit held a video game arcade publicly performed Double Dragon because the game images were being reproduced. For many, this would seem to indicate that playing a game would be a performance because playing requires the reproduction of game images. Neither Epic nor the NDCA mentioned the Red Baron-Franklin Park case. It could be possible the NDCA agrees with this thinking, but it did reiterate the Allen Court's hesitation on granting copyright owners the power to "control when and where purchasers of games may play the game." Ultimately, the NDCA declined to decide the issue because the motion was only for a default judgment and neither side fully briefed the issue. The Court also warned Epic that the sole citation of Valve was not enough to establish a public performance.

The primary focus of Epic's lawsuits is to prevent hackers from cheating in Fortnite. Epic asked the Court for a default judgment because Mr. Rak did not respond. The goal of the public performance claim was to remove a video by Mr. Rak showing others how to hack Fortnite. The Northern District of California felt that Epic had not done enough to establish a public performance claim, but in the Court's analysis, it questioned what it means to preform a video game. The denial order does not change any current laws, but it does indicate the Court's willingness to address the issue of gamers posting videos on YouTube. The Court's interest in the topic may be the result of how popular "Let's Play" videos and streams have become. It will probably be awhile before there is an actual ruling, but Epic has a chance to amend its complaint, so it will be interesting to see Epic's response to the Court's public performance analysis. We will continue to follow this case and provide updates when available.

So why sue in South Korea? Likely answer: sue where you think you can win. PUBG is a subsidiary of Bluehole, a South Korean game developer. Choosing South Korea as the forum gives Bluehole and PUBG home-court advantage. Also, the legal standard for copyright infringement might be different in South Korea than in America. The differences in the legal standards might give PUBG an edge depending on the claims asserted.

As of this writing, the specific claims PUBG is asserting against Epic Games are unknown. According to a Korea Times article, Bluehole had previously stated its belief that Epic Games copied core elements and the user interface of PlayerUnknown's. Earlier this year, PUBG filed a similar lawsuit against NetEase for copyright infringement in the US. PUBG filed that lawsuit in the United States District Court for the Northern District of California. In the US claim, PUBG listed a series of elements which individually may or may not be copyrightable, but which together they allege have copyright protection. Essentially, the claim argues that NetEase copied the total look and feel of PlayerUnknown's by including all of the similar elements listed. Check out our previous post for more on the NetEase case. Both lawsuits are in the very early stages of litigation, so there has not been any significant ruling yet.

PlayerUnknown's currently runs on the Unreal Engine 4, which is an Epic Game property. It will be interesting to see if there will be any fallout as a result of PUBG instigating litigation. As it stands now, this case is a big deal, but if this lawsuit grows beyond South Korea's borders, it could get UNREAL! (get it? Unreal, like the game engine? Sorry Canon, had to go there...).

On April 23, 2018, Epic Games, Inc. (“Epic”) filed a response to a Motion to Dismiss filed by Lauren Rogers, the mother of a teenaged Fortnite hacker (“C. R.”) facing a copyright infringement and breach of contract lawsuit filed by Epic last year.


Epic’s complaint argues that C.R. infringed its copyrights by injecting unauthorized computer code (that is, cheats) into Fortnite.  C.R. allegedly recorded himself cheating in Fortnite and uploaded those videos to YouTube.  Epic filed a DMCA request to take down those videos, to which CR apparently replied: “i did noting rong this strike is all wrong I was modding in a video game that isn’t against youtubes TOS Why was i striked ‼!.”  According to Epic, C.R. had been banned from Fortnite at least fourteen times, but continued to dodge bans using fake names.  Neither C.R. nor his mother have legal counsel.

The suit is extremely similar to Epic’s other Fortnite lawsuits (discussed here, here, here, here, here, here, and here). 

Ms. Roger’s Motion to Dismiss, actually a letter filed by Ms. Rogers, allegedly admits that C.R. was a cheater but argues that the case should be dismissed because (1) Epic “has no capability of proving [that C.R. performed] any form of modification,” because (2) Epic “illegally” released C.R.’s name, because (3) Epic cannot prove “profit loss” from the cheating or that C.R. profited from his cheating, and (4) because Epic’s contracts (e.g., its terms of service) are invalid because C.R. is a minor.  Epic responded by not only moving to seal certain portions of the trial record, but also by arguing that it was not required to make certain proofs at the pleading stage, and that, in any event, Ms. Roger’s arguments were legally unfounded.

These developments appear to put Epic in a useful, albeit awkward, position.  On one hand, this suit provides a clear warning that even minors may find themselves sued for cheating in Fortnite.  On the other hand, Epic is now pursuing a copyright suit against an unrepresented teen and his mother – definitely an interesting position from a public relations perspective.

On Mar. 9, 2018, Epic Games, Inc. (“Epic”) sued Joseph Sperry (a/k/a “Spoezy”), yet another alleged distributor of cheats for the popular online game Fortnite.



Similar to previous cases (discussed here, here, here, and here), Epic alleges that Spoezy made, used, and sold cheating tools for Fortnite.  Much unlike previous cases, however, to acquire jurisdiction against Spoezy, Epic merely argues that Spoezy purposefully availed himself to the privileges of conducting activities and doing business in North Carolina, rather than using the YouTube DMCA process.  This may be because Spoezy is a resident of New York, unlike previous, non-American defendants.

As a fun side note, Spoezy’s website formerly listed him as a “Cheater[,] Designer[, and] Editor,” though it now lists him as a “Gamer[,] Designer[, and] Editor.” 

On January 8, 2018, Epic Games, Inc. (“Epic”) continued its legal crusade against alleged Fortnite hackers by suing Yash Gosai, a resident of Auckland, New Zealand, for copyright infringement, breach of contract, and conversion.



 In previous cases (which we discussed here, here, and here), Epic sued alleged cheaters in Fortnite, generally targeting those distributing methods of cheating in-game. In this suit, Epic alleges that Gosai distributed an exploit which allowed players to obtained “V-bucks” (in-game currency) for free, stating: “[p]layers who use exploits to avoid paying for items in Fortnite are stealing from Epic.”

Like its previous suits, Epic used the YouTube DMCA notification/counter-notification process to acquire jurisdiction over Gosai.

October 27, 2017, Epic Games, Inc. (“Epic”) sued three foreign individuals–James Mendes, Konstantin Vladimirovich Rak, and Oleksey Olekseevich Stegailo–for copyright infringement, trademark infringement, false designation of origin, breach of contract, and, under California law, unfair competition.  Epic alleges that the defendants were distributing and popularizing cheats for the game Fornite.  This suit may sound familiar: Epic filed similar suits against other alleged Fortnite hackers on October 11 and on October 17.

Epic’s strategy in this case is similar to its strategy in its suit against Philip Josefsson and Artem Yakovenko: file a DMCA complaint against a video demonstrating the hacks, wait for the defendant to file a counter-notification, and use the counter-notification as basis for suing the defendant in a U.S. court.  The timing of Epic’s lawsuits appears to be the result of the timing of the defendants’ counter-notification.

On October 17, 2017, Epic Games sued Philip Josefsson and Artem Yakovenko for copyright infringement, trademark infringement, false designation of origin, breach of contract, and, under California law, unfair competition. 



The allegations against Josefsson and Yakovenko are similar to those made against Brandon Broom and Charles Vraspir.  Specifically, Epic alleges that Josefsson and Yakovenko created, marketed, and distributed cheats for Fortnite. 

Interestingly, Epic claims that both defendants, who do not live in the United States, consented to venue in the United States by participating in the YouTube DMCA notification/counter-notification process.  Mr. Josefsson is a resident of Sweden, and Mr. Yakovenko is a resident of Russia.  Both defendants posted YouTube videos displaying their cheats, and Epic filed DMCA notifications against those videos to take them down.  Both Josefsson and Yakovenko filed counter-notifications against Epic’s DMCA notifications.  Because Josefsson and Yakovenko, per the terms of the counter-notification, thereby “consent[ed] to . . . if my address is outside of the United States, the judicial district in which YouTube is located,” Epic argues in its complaint that both parties consented to be sued in the Northern District of California. 

This suit appears to be the latest in a string of suits by Epic to take “every measure to ensure [that] cheaters are removed from Fortnite Battle Royale.”

On October 11, Epic Games, Inc. and Epic Games International (“Epic”) sued individuals Brandon Broom and Charles Vraspir in two separate suits (5:17-CV-0511 and 5:17-CV-0512) for copyright infringement, circumvention of the Digital Millennium Copyright Act (“DMCA”), breach of contract, and intentional interference with contractual relations.  The suits, filed in the Eastern District of North Carolina, relate to Epic's game Fortnite.



Epic alleges that Broom and Vraspir not only cheated in Fortnite, but also assisted others in doing so on the website AddictedCheats.net.  When cheating themselves, Broom and Vraspir allegedly intentionally targeted Fortnite streamers (i.e. “stream sniping”) because, allegedly per Vrapsir, “its [sic] fun to rage and see streamers cry about how loaded they are and then get them stomped anyways.”  Epic’s complaints seem to suggest that Vraspir was particularly aggressive on cheating in Fortnite because he was banned from Fortnite: allegedly per Vraspir, his ban “unleash[ed] the beast” such that “Epic will have to take care or their game will die.”

Fortnite’s popularity in recent weeks has exploded since a recent free mode released which, some allege, provides a game mode duplicative of the massively popular PlayerUnknown’s Battlegrounds.  Some speculated that Bluehole, PlayerUnknown’s Battlegrounds’ developer, might explore a suit against Epic (indeed, Bluehole issued a public press release complaining about the similarities); however, Bluehole’s extensive reliance on Epic’s Unreal Engine 4 and ongoing licensing relationship with Epic makes such a suit seemingly unlikely.