Intellectual Property Law

Pirated Games Played on the XBOX System

By Martha L. Arias

The XBOX system is currently one of the most popular video game systems in the market. Its popularity may be that it (1) contains excellent vivid graphics, (2) can be played by adults, and (3) allows games to be played live through the Internet so people all over the world can connect to play the same game.  Thus, when a video game becomes popular, some computer talented people find their way to modify them so the game can be played on the XBOX system. Is this a copyright violation of video games and can courts grant Ex Parte temporary restriction orders?

 The XBOX system is designed to detect pirated games.  If a player tries to use a pirated game, the system will not allow connection. Yet, some video game ?experts? openly advertise undetected pirated games on the Internet.  For instance, the following Ad was found on the Internet:

MODDIFYING YOUR GAMING SYSTEM

AT OUR MOD SHOP WE MODIFY YOUR XBOX 360, Wii, PSP, XBOX TO ALLOW THEM TO PLAY DOWNLOADED, COPIED/BURNT GAMES. THIS WILL SAVE YOU TONS OF $$$. WHY PAY $ 50-$ 70 FOR A GAME WHEN YOU CAN GET IT FREE OR AT A VERY LOW PRICE.

This Ad is related to the U.S. case of Epic Games, Inc. v. Altmeyer, 2008 U.S. Dist. LEXIS 89758.  Epic is a designer and developer of video games.  One of its most successful games is Gears of War. Epic hold all rights, title, and interest on this game?s copyright registration.  The first version of this game sold over 5 million copies.  In November 2008, Epic released Gears of War 2.  The retail price for this game was US$ 75.  Epic filed a copyright infringement lawsuit against Altmeyer because, Epic alleged, Altmeyer obtained a copy of Gears of War 2 and sold pirated copies of the game, playable on the XBOX system.  The above Ad was posted by Altmeyer and, Epic alleged, other Ads were posted by Altmeyer in craiglist.org, which offered advance copies of Gear of War 2 for sale.  Epic provided evidence that the Ads included phone numbers and a business name in Illinois.

In its lawsuit, Epic sought a temporary restraining order (TRO) to stop distribution of pirated copies of Gears of War 2 and any other video games owned by Epic.  Also, Epic sought impoundment of all pirated copies and seizure of any device used to circumvent copyright protections, including computer hard drives and XBOX consoles.  Most of these copyright violations are performed through the use of computers and then downloaded in the XBOX console. 

Federal Rule of Civil Procedure 65(b) authorizes the issuance of TROs and Rule 65(f) specifically authorizes them in copyright proceedings. To obtain this TRO, Epic showed violation of copyright laws, the Digital Millennium Copyright Act (DMCA), and conversion laws.  The court granted TRO in regards to the Gears of War 2 game but not for other Epic?s games because there was not sufficient evidence of piracy on other Epic?s games.  Regarding violation of the DMCA, Epic alleged that Altmeyer violated 17 U.S.C. § 1201(a)(2), which prohibits circumvention of technological means for purposes of copyright violations.  Epic requested the court to prohibit Altmeyer from "performing, advertising, marketing, distributing and selling game console modification services," because these acts violate the above-cited DMCA rule.  This argument was sufficient for the court to grant the TRO Epic requested. This TRO was granted Ex Parte, that means, without notification to Altmeyer, because such notification would diminish its effect.

Thus, Ex Parte temporary restriction orders and seizure of pirated video games modified to be played in the XBOX system are viable under copyright laws, the Federal Rules of Civil Procedure, and the Digital Millennium Act.  These orders may include confiscation of the equipment ?computer hard drives and XBOX consoles- used to accomplish these modifications.

Full post as published by IBLS Internet Law Blog on August 02, 2009 (boomark / email).