Major video game publishers are targeting the open source memory scanner, hex editor and debugger Cheat Engine with copyright infringement notices. The notices sent by the Entertainment Software Association claim the tool infringes on their members' copyright.

The open source software has been around for nearly two decades and is used by many to analyze the memory space used by other pieces of software running on the same machine.

The piece of software is especially popular in the video games industry where it is used by modders, cheaters and other enthusiasts to search for information that can be used to create independent pieces of software that can change the functionality of games.

The copyright infringement notices sent by the Entertainment Software Association (ESA) claim that the tool evades anti-cheat technologies, injects malicious code "like a virus", allows unauthorized access to copyrighted content and allows users to create "unauthorized derivative copies".

It is questionable whether the software actually does any of those things, but that hasn't stopped the ESA from requesting Cheat Engine creator DarkByte to "disable or remove access".

What does Cheat Engine actually do?

When software runs on any type of hardware it makes use of the available memory space of the machine, also known as RAM. In this memory space it can store information or states of certain operations, such as the value of a player's health or the progress of a certain objective.

With Cheat Engine, or with the independent pieces of software created with the help of Cheat Engine, users are able to manipulate in real time the functionality of the software they run on their machine.

Cheat Engine can be used on any type of software, but by far the most popular use case is found in the video games industry. Technically speaking, both singleplayer and multiplayer games are supported because the software is unable to tell the difference, but on its official website it is specifically mentioned that the tool should not be used on multiplayer games.

On the software's official forum users actively share the information they gather by saving the location of certain parts of memory in a tiny file called Cheat Tables. Stored in these tables are rows that contain specific locations of memory along with other related details such as a description, its initial value and sometimes even small pieces of LUA scripts or custom assembly code.

The community

Since having receiving the notices late February, Cheat Engine creator DarkByte has removed an archive of user submitted Cheat Tables that contained locations of noteworthy blocks of memory and disabled access to a part of the website's official forum where users were able to discuss them.

In a forum post on the software's official forum, DarkByte states that he will continue to work on improving the tool, despite the copyright notices requesting that access to the software be removed or disabled.

Whether the steps taken are enough to shield the software's community from further legal threats is unknown, but DarkByte notes that the ESA was "pleased with the voluntary steps taken".

The actual Cheat Engine community was, however, less happy with the steps taken. Prominent members have now moved to a new community website called Fearless Revolution with which founder STN hopes to give enthusiasts a place to discuss the things that they can no longer discuss on the software's official forum.

In the last two weeks the new community website has become increasingly popular and now boasts over 1200 registered users, 1800 total posts and even reached 150 concurrent users on March 12th 2017.

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If you go after the passionate fans that are building communities around games it's going to make you, as a game publisher, less popular and it will probably backfire in the long run.

A legal grey area

When asked to comment on the copyright infringement notices, Mitch Stoltz, Senior Staff Attorney at the Electronic Frontier Foundation (EFF), says that he finds the situation unfortunate and troubling.

"Video game companies have been quite successful at bullying and filing lawsuits, basically using legal tactics to scare those who don't have a lot of money." Stoltz says, noting that it isn't the first time companies are going after video game tinkerers.

"If you go after the passionate fans that are building communities around games it's going to make you, as a game publisher, less popular and it will probably backfire in the long run. People who tinker with video games tend to become game developers later on so, essentially, they are also attacking their talent pipeline."

According to Stoltz, the situation can be described as a legal grey area because the current legislation lags behind technological innovations, as is often the case.

"Cheat Tables can be a grey area because on one hand the information embedded in them is not copyrightable information because locations of memory blocks cannot be considered creative works. On the other hand, gamers usually have to agree to fine print when they install games. That fine print may include wording that states that the user agrees not to disassemble or modify their copy of the game."

"When you look at the situation from that point of view, encouraging or facilitating people to break the agreement can be considered tortious interference with contract."

Tortious interference with contract occurs when one person intentionally damages someone else's contractual or business relationships with a third party causing economic harm.

However, that type of violation doesn't seem to be enough to justify the copyright infringement notices sent out by the ESA.

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These types of actions are consistent with rights afforded to content creators under the Digital Millennium Copyright Act.

Questionable notices

When asked to comment on the situation, ESA Vice President of Media Relations Dan Hewitt said the organization did not want to comment on specific details.

The ESA represents some of the largest brands in the video games industry, including Bethesda, EA Games, Activision, Epic Games, Konami, Gearbox, Ubisoft, Take-Two Interactive, Square Enix, Nexon, Nvidia, Nintendo and Microsoft.

According to Hewitt, the notices sent by the organization are "in line with rights afforded to content creators" under the Digital Millennium Copyright Act (DMCA).

Whether DMCA legislation is actually applicable is questionable, because there has to be a clear indication that creative works are being used in illegitimate ways and since Cheat Tables do not include any creative works it seems unlikely to be the case.

Combined with the curious claims listed in the copyright infringement notices, it seems like the organization's main objective is to try to scare the Cheat Engine community instead of properly researching what legal grounds it has to make such claims.

The effect

Thus far the ESA didn't get what they were after, namely to stop the distribution of the software entirely. The only thing the copyright infringement notices seem to have caused is the relocation of the software's community, indicating that their members seems to care little about the legal scare tactics utilized by the video game publishers.

EFF Senior Staff Attorney Mitch Stoltz does have sound advice for those who are being targeted by video game publishers, especially if it relates to these types of situations.

"The best advice I can give people is talk to a lawyer. The EFF runs a lawyer referral program with which it attempt to connect people to lawyers that can help them with their problems, especially when it is related to coding."

Until the ESA ramps up their legal offensive, it seems that Cheat Engine will continue to be available along with its many competitors.