The tension between content creators and game publishers: FaZe Jarvis’s Fortnite ban for aimbot use

Published 13 November 2019 By: Daniel Kozelko

Gamer

Epic Games, the creator of the blockbuster battle royale game Fortnite, has recently banned a leading content creator for cheating. Jarvis Kaye, also known as FaZe Jarvis, streamed a video1 to Youtube showing his use of an aimbot in the popular free game. Aimbots are programs used to automatically aim at opponents, allowing the player to kill others with superhuman accuracy. Jarvis did not use the aimbot in competition play, nor, he says, did he know that the consequences of his use would be a permanent ban. In a statement to the Independent a spokesman for Epic Games said:

We have a zero tolerance policy for the usage of cheat software. When people use aimbots or other cheat technologies to gain an unfair advantage, they ruin games for people who are fairly playing.2

Cheating in online multiplayer games is nothing new. Developers of MMORPGs and MOBAs have been addressing macros and bots for years. However, the explosion of the eSports industry and streaming communities has brought cheating and fairness in competitive video games into the limelight. Indeed, responding to the growing threat, in October 2018 Epic Games acquired the Finnish game security company Kamu to step up the fight against cheats.

Licenses and the Epic Games End User License Agreement (EULA)

Prior to the advent of digital distribution service platforms, video games would be purchased by a player in the form of physical media. As the developer or publisher would lose much of the control over how that media was used, ownership by the player would appear to be much more tangible. Today, most players download and play video games under license from the developer or publisher. The Fortnite EULA makes this clear, stating that any person downloading and playing the game does so under a license. That person is granted no title or ownership in the software (clause 1).

The rules that Jarvis is said to have broken are contained in Fortnite’s EULA. Clause 2 explains:

You may not do or attempt to do any of the following with respect to the Software or any of its parts: […] (f) create, develop, distribute, or use any unauthorised software programs to gain advantage in any online or other game modes; […] (i) behave in a manner which is detrimental to the enjoyment of the Software by other users as intended by Epic, in Epic’s sole judgment, including but not limited to the following – […] running or using methods which are not authorized by Epic and which interfere with the outcome and/or the course of the Software (including Cheats, bots, scripts, or mods not expressly authorized by Epic) by giving you and/or another user an advantage over other players who do not use such methods…3

The prohibition is clear. An aimbot is unauthorised software, and it provides an advantage to the using player. Either under clause 2(f) or clause 2(i) Jarvis has breached the terms of his license. The result of such a breach is equally clear, the license is terminated (clause 10). Further, (except in limited circumstances) the only remedy is mandatory arbitration of the dispute (clause 12) under the license governed by the law of the State of North Carolina (clause 11). Also, it is also worth noting in passing that Jarvis’ entitlement to create content based on Fortnite arises under the fan content policy incorporated into the now terminated license.

What Happens Now?

In permanently banning Jarvis, Epic Games has revoked his license and made clear it will not grant him another. As he has no property in the game, and no contract with Epic Games for the use of the software, he has no way to compel it to offer him a new license. Jarvis could arbitrate under the arbitration clause, but it is unclear how this would assist. Jarvis admits his breach, and the termination was provided for by the terms of the agreement. While the EULA does not specify that no future licenses will be offered to persons breaking its terms, the position was tolerably clear. The license was terminated, and Epic Games is entitled to refuse to offer further licenses as a matter of freedom of contract.

This issue is one step prior to the typical sports law issue of regulation and access to competitions. This is not simply Epic Games refusing Jarvis access to compete, which would be comparable to a regulator in traditional sports refusing to readmit to a competition an athlete previously found to have doped. Epic Games is refusing Jarvis access to its property. It is unclear whether the industry is anywhere near ready to begin regulating access to software. Emergent eSports regulators are typically focused on regulating competitions, and are yet to indicate how far into the management of the consumer relationship they are willing to go. It is similarly unclear how far developers and publishers are willing to go in giving up proprietary and copyright control of their games for the good of regulation.

Of course, in the world of content creators and professional eSports players, resolution may come in the form of pressure from the fans. This occurred recently with Ng Wai “blitzchung” Chung, who was initially refused prize money and banned for a year from professional play of Hearthstone for voicing his views on the febrile political situation in Hong. It now appears that pressure from fans on Blizzard, the developer of Hearthstone, has led to a reduction in the punishment (he will be paid and receive a ban for six months4). It may be that similar pressure from fans on Epic Games will resolve the Jarvis issue. Other content creators (Ninja being a high-profile example) have already voiced their concerns.

The Fundamental Issue

However, this case raises a fundamental issue for the gaming and content creator community. Individuals such as Jarvis build their popularity and empire on the shifting sands of a license that can be easily revoked by a developer or publisher. Lacking clear regulation, or a move towards more substantial contractual relationships, it seems disputes of this kind will become a regular occurrence.

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Author

Dan Kozelko

Daniel Kozelko

Daniel practises from 39 Essex Chambers and has a particular interest in eSports issues.

He has significant experience in commercial and civil disputes. This includes assisting in multi-million pound contract and construction claims in the High Court, in arbitral proceedings, and appearing in the High Court on civil and regulatory disputes.

Daniel also has an interest in disciplinary proceedings, having worked on a number of matters for a variety of regulators. Daniel is an avid gamer, with a particular interest in MMORPGs, grand strategy, and FPSs. He looks forward to bringing his gaming knowledge to eSports and video game disputes.

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