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Wicked leaks: what legal weaponry is available to fight game launch hacks?

Stevens & Bolton's Grace McNulty-Brown advises devs on how to protect their project's secrets ahead of release - and what to do if leaks do occur

The run-up to a game's release is packed full of excitement and anticipation. Often fans will have waited a long time for the latest instalment to hit the shelves - and in the case of Final Fantasy XV, it has been seven years.

To maintain interest and add to the pre-release hype, details about a game are often drip-fed in the run up to an official release. But what happens when confidential information about the game gets into the wrong hands?

In the case of Final Fantasy XV, director Hajime Tabata was forced to release a statement notifying the public of an unauthorised distribution of the boxed edition of the game. The statement encouraged anyone who had obtained an early copy to be respectful to fans, imploring them not to "spoil the surprises for everyone". However, the plethora of social media sites and spoiler websites currently available made this near-impossible to achieve, and it wasn't long before spoilers were dispersed across the internet.

Grace McNulty-Brown, Stevens & Bolton

How to spoil a launch

Prior to an official launch, the public has very limited access to a game's content, meaning developers can feel assured that confidential code will remain concealed. Individuals may be employed to promote the game, releasing minor gameplay information or hints at plot points, usually contained within official game trailers. Releasing such "controlled spoilers" does not pose a threat to developers and if carefully managed will raise publicity and build interest in a game. However, there is an inevitable element of risk in sharing information with those instructed to assist in creating hype.

Some impatient fans may take it upon themselves to get hold of confidential information about a desired game before the official release date. If successful, this gives rise to an increasingly problematic issue with leaked information being posted on sites such as Reddit.

The obvious by-product of such leaks, or "uncontrolled spoilers", is that fans, along with the wider public, gain access to critical gameplay points, certain chapters of the story or gameplay mechanics ahead of schedule. This not only ruins the fun for those playing by the rules but may also give rise to legal concerns.

The director of Final Fantasy XV asked fans not to spoil the story, but it's almost impossible to prevent when the full game leaks ahead of launch

Prevention is better than cure

Ensure maximum security

A game is not created overnight by one individual. Invariably multiple developers will be tasked with advancing different aspects of source code at any one time. In order to guarantee confidential aspects of a game remain inaccessible, it is prudent to ensure appropriate encryption is applied to the code being developed. Ensuring no one developer has access to all of the code at any one time will seek to limit the information exposed when aspects of a code need to be shared amongst team members, or more widely distributed.

"Restricting the number of people with access to confidential information reduces the risk of leaked information, either intentionally or in error."

Limit the audience

A common, and perhaps obvious, way to avoid information being leaked is to ensure only a limited audience, namely those who absolutely require access to confidential game content, are granted the privilege prior to an official launch. Restricting the number of people who have access to confidential information reduces the risk that a member of the select audience will leak information, either intentionally or in error.

Get it in writing

Developers would be wise to take steps to ensure members of such a controlled group sign tightly drafted non-disclosure agreements. A non-disclosure agreement in essence will, in exchange for disclosure of the information required (which may include technical information relating to a proprietor's ideas and copyright), oblige a party to preserve the confidentiality of the information divulged. There may also be a provision licensing the use of IP rights for a specific purpose, for example to test a game or to write a preview in a blog or press release.

It is also wise to include a prohibition on communicating the information disclosed to third parties, and the agreement may also limit storage of confidential information to business premises only, prohibiting storage on any externally accessible computer.

The effect of signing such an agreement is to seek to bar a party to the agreement sharing the protected information, either altogether or without a developer's consent.

But if you can't prevent it...

Legal measures

If you are unlucky enough to be the victim of a pre-release leak, one option in response may be to bring an action for breach of confidence. If a non-disclosure agreement has been signed, this will essentially amount to a claim for breach of contract but in the absence of a written agreement, a claim may be brought for breach of an implied term of trust and confidence.

The result of a breach of confidence claim may be an injunction preventing further or continued breach and/or a potential payment of damages to compensate for loss of profit as a result of the disclosure, or any other loss incurred. If action needs to be taken urgently to prevent a wrongful act or undo the consequences, an interim injunction may be desirable but is likely to come at a high cost to the applicant.

"If a commercial website posts links to leaked video game content, unless it can show it lacked knowledge that the content had been posted illegally, it risks liability for copyright infringement."

Following the recent European Court of Justice decision in GS Media v Sanoma, in addition to going after those who publish unauthorised content, it is now possible to pursue anyone who has posted a hyperlink to the content, provided it can be shown that either:

(a) the entity who published the hyperlink knew (or ought to have known) that it provided access to a work that had been illegally published; or

(b) a hyperlink was posted for profit (in which case it is assumed that a link was posted with full knowledge of the protected nature of the work)"

The practical effect of this ruling is that if a commercial website posts links to leaked video game content available on other sites, unless it can show it lacked knowledge that the content had been posted illegally (which will inevitably be difficult if there has been a high-profile leak), the website sharing the link risks liability for copyright infringement.

Practical measures

In any event, seeking legal redress for a spoiler is limited in effect; after all, one cannot "unsee" something once it has been revealed to them. In a scenario such as the Final Fantasy XV release, where information was released with only one week to go before the official launch date, it may be more appropriate to pursue practical measures such as seeking a "Take Down Notice". A number of website hosts have a standard set procedure for reporting leaked information. This will generally consist of a notification paired with a request to remove leaked content, the result of which may also see suspension of a channel.

A necessary evil?

In preparing for a successful and spoiler-free launch, a balance needs to be struck between the need to invest in building anticipation and increasing publicity, and the need to avoid inadvertently letting confidential information slip. Though means of redress do exist, time (and money) is better spent investing in security measures at the outset to ensure sensitive information remains protected.

Grace McNulty-Brown joined Stevens & Bolton in 2015 and is currently working with the IP team, who have extensive experience in all aspects and types of IP including patents, trade marks, copyright, designs and trade secrets.

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