By Jerome Hanley

Video games continue to gain momentum as they steamroll into the mainstream/public eye. Professional teams for games like Overwatch and League of Legends are popping up across the world (including several throughout the U.S.). Several colleges and universities are even starting to offer scholarships for individuals who can play video games at an elevated level. However, as the industry expands, so do the legal issues and challenges that come with it.

This year, at the Fenwick & West and Berkeley Center for Law & Technology 2018 Gaming Summit in San Francisco, California, several of the major issues plaguing the industry were discussed by some of the heaviest hitting in-house and outside counsel that work in the field. One issue, in particular, seemed to be a primary concern for a majority of panelists: “Cloners”. Cloners are games that mimic other successful games, such as the aforementioned League of Legends as well as Player Unknown’s: Battle Grounds and Fortnite. These clone games are particularly dangerous due to the fact that they essentially offer the same content (with minor changes to character/map appearance etc.), but don’t charge the customer. Rather, they earn their money from advertisements, which in the end, earn the cloners more money than the original games earn from their patrons who pay to play. With more money, comes more sophistication, which complicates things exponentially for smaller companies, which may not have the money to challenge these issues in court.

Litigation concerning these clone games is extremely expensive, considering it requires the attorneys challenging the legitimacy of the clones to bring thousands and thousands of pages of documentation into court in order to demonstrate the games are substantially similar. It is also difficult for the attorneys to demonstrate that the gameplay (the most important aspect of the game) is similar in court. “If you have a case with cloning, the best thing you can do is not only get the game but whatever platform it’s on in front of the judge … as quickly as possible so they can see it side by side” said one panelist, Chrissie Scelsi, the U.S. General Counsel for Aargaming (USA), Inc. One attorney has even gone so far as to have a judge play the two games in question in order to make a comparison.

With no end to the cloning issue of clone games in sight, one cannot help but wonder how the major competitors can continue to hang in the industry while continually being outpaced, and out earned, by the main issue that plagues them.

Student Bio: Jerry Hanley is a third-year law student at Suffolk University Law School, and a Lead Article Manager of The Journal of High Technology Law.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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