Judge dismisses God of War copyright lawsuit against Sony

A US judge has rejected a lawsuit claiming that Sony’s God of War infringed copyright in a series of film scripts written by two Californian screenwriters.

The screenwriters, Jonathan Bissoon-Dath and Jennifer Dath, claimed they had written two treatments and two screenplays concerning a Spartan attack on Athens and other events in ancient Greece, which they claimed were copied by Sony in making the God of War game (source: THR).

God of War is of course an PS2 action game set in ancient Greece in which the hero Kratos, a Spartan, kicks various classical ass on the way to replacing Ares as the eponymous god of war.

The case

The writers commenced legal action against Sony and one of its developers, David Jaffe, in February 2008, but subsequent attempts to settle the lawsuit failed.  Sony clearly felt that they had a strong case, because they then applied for summary judgment.  In other words, they argued that the court should rule in their favour and dimiss the lawsuit because the writers had no legal case to stand on (in the words of the judge, there were “no genuine issues of material fact” and the applicant is “entitled to judgment as a matter of law“).

The trial before Judge Marilyn Hall Patel focused on the writers’ copyright infringement claim, for which the judge said that they had to show:

(1) that they had created and owned valid copyright works; and

(2) protected elements of those works had been copied by Sony.

The writers had to prove this by: (i) presenting direct evidence of copying by Sony, or (ii) by showing that Sony had access to their works and that there is a substantial similarity between the writers’ works and God of War.

In order to establish these arguments, both parties took Judge Patel through their respective works, meaning  presumably she had the opportunity to play God of War all the way if she so chose, though actually it seems that she just relied upon the lawyers’ legal submissions rather than cracking through the game herself.  Shame.  (Actually, it seemed reasonably clear that Judge Patel was not familiar with games when she initially described God of War as a “multi-hour video game“.  A what?)

Having gone through the evidence, the judge found in favour of Sony.  She said that:

An examination of articulable similarities between the plot, themes, dialogue, mood, settings,

pace, characters and sequence of events of God of War and plaintiffs’ works reveals far less
similarity than would be required to overcome summary judgment, even if plaintiffs had proven access [to the scripts]”.

She acknowledged that “there is some degree of similarity between the plots at an extremely generalized level” – the main similarity being that both were set in Ancient Greece and dealt with a battle between men and the Greek Gods.  However, citing previous caselaw she said “No one can own the basic idea for a story. General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.”  (This is of course an appliation of the basic principle that copyright law protects the expression of ideas, not the ideas themselves.)

As a result, she held that “No reasonable trier of fact could conclude that God of War is substantially similar to any of plaintiffs’ works” and therefore dismissed the lawsuit against Sony.

No doubt this will come as a great relief to Sony, which of course is about to release God of War III.

Legal thoughts

Reading the judgment, it seems that this was an ambitious claim by the writers from the outset.  They had written film scripts about events taking place in Ancient Greece and sought to argue that Sony had copied those scripts when it developed God of War even though the judge went on to find that:

  • There was no evidence of direct copying by Sony
  • There was no evidence that Sony had even access to the scripts
  • The writers sought to bring the claim based on “general plot ideas” and “stock elements that have been used in literary and artistic works for years, if not millennia“, none of which are capable of being protected by copyright law
  • In fact, there was little similarity in the “plot, themes, dialogue, mood, settings, pace, characters and sequence of events” in the scripts and God of War.

Perhaps the writers thought the lawsuit would settle early on, but as it turned out it fought all the way to trial (which is admittedly fairly rare, certainly in the UK anyway).  The judgment does not disclose what the writers actually wanted from Sony, but I would imagine that it included substantial financial damages as well as (potentially) a temporary or permanent injunction against future sales of God of War. Well, no chance of that now (unless they appeal, of course). 

Lessons from the lawsuit

The lawsuit reinforces some important lessons about copyright law and how far it goes to protect any copryight work, including games:

  • Firstly, copyright law exists to protect the expression of an idea, which you have created through your own skill and labour.  It does not give you any ownership of the idea itself.  So, writing a script based on an ancient Greek story gives you copyright over that script but does not give you copyruight over the underlying ancient Greek story.
  • Secondly, even if you do have a copyright work and you think it has been copied, you have to prove to a judge that there has been “substantial copying” of your copyright work. 
  • Thirdly, copyright lawsuits are exercises in detail and precision.  The claim for copyright infringement needs to be established in very precise, concrete terms by reference to specific elements of your work.  Just generic references to similarities (in this case, to plot, themes, dialogue, mood, settings, pace, characters and sequence of events) generally won’t cut it.
  • Fourthly, copyright lawsuits can be much more complex even than this case.  For example, although this lawsuit didn’t get that far, there are entirely separate issues regarding defences to copyright infringement and how to assess loss.

And there’s also some lessons about lawsuits generally here:

  • If you think you have a lawsuit against someone, or might be defending one from someone else, then consider your options seriously and get legal advice early on.
  • Your lawyers will then be able to advise you on your legal prospects of success and what steps you can take to protect your position.  In this case, Sony’s lawyers advised them to apply for summary judgement to get the case disposed, and it seems that was the right route to take.

We’ve written more about games lawsuits and what you can do about them here.

The views expressed in this post are the author’s own personal views and not his employer’s!

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Games developer fails in court claim over copying himself

You’d think the last thing a games developer should be worried about is copying his own work, right?  Wrong.  Last week, the High Court published its judgment of a claim brought by a games developer against his employer over a games concept which the developer had created when he was freelance but which later he copied and effectively pitched to his employer as a new company project.  The developer later sued for breach of copyright and confidence, in which we now know he was unsuccessful.  Read on for more details…

The story in a nutshell
The case went like this: a freelance developer created a games concept, later joined a games development company and copied his earlier work in order to prepare a highly similar games concept for the company, without telling anyone about the copying (so everyone else thought this was a brand new idea).  The development company took on the ‘new’ concept but ultimately it went nowhere and another company took over.  Subsequently, the developer sued for copyright infringement for the copying of his original concept.  The court held: no copyright infringement because no one had known the developer had already come up with the games concept when he was freelance so they had not ‘copied’ anything. The court also rejected a breach of confidence claim.

The case is one of the few recent times that a UK developer has been involved in a court battle.  In fact, several of the UK games establishment were name-checked: the case involved evidence from Adrian Smith (former boss of Core Design, developer of Tomb Raider, and who was also a defendant in the case) and Sir Ian Livingstone OBE (founder of Eidos plc, which gave the development company some advice regading the development of the games concept) and also involved UK developers CiRCLE Studios and Crush Digital Media (both of which subsequently went into administration – see here and here).

Need to know points

You can read a summary of the case below, but here are some upfront thoughts on the need to know/best practice points for developers which came out of this case:

  • When a freelance games developer joins a new employer, discussing his/her existing games concepts at the outset and how they will be treated going forward should help to avoid any confusion as to who owns the IP later on.
  • If a freelance developer creates a game concept before he joins a development company, DOESN’T tell the company about this and subsequently pitches the concept to them as a company idea then, if the game concept is taken forward, there is a risk that the developer may lose any IP rights he may have in the concept.
  • The judge said game concepts discussed by a game developer with his employer are unlikely to be confidential as between the two of them, so a developer could not generally prevent his employer from for example pitching the concept to publishers (unless there is some express agreement to the contrary).
  • Review carefully the provisions of your employment agreements which deal with ownership of IP rights, because they could be important if there is subsequently a dispute between the developer and the development company over who owns the IP rights in a game concept.
  • Pick your legal battles carefully.  Litigation is costly, lengthy and risky, as this case demonstrates.   A little advice early on from experienced litigation lawyers about your prospects of success and the legal cost/benefit analysis can save a lot of time, money and stress down the line.
So what happened?

In around 1998 a then-freelance developer, Stuart Burrows, developed the concept for a game which came to be known as “Tracktrix”, described in Court papers as follows: “Traktrix’s gameplay is very simple: get the ball from one side of an environment to another and enter the “Finish Area” within a time limit. The player achieves this by laying a track in front of the ball as it progresses“.  Burrows himself desribed it as “ ‘Marble Madness meets Tetris/Wetrix and a Scalectric track’ and ‘Super Monkey ball meets Tetris’ “.

Traktrix and Train Trax

Burrows later joined CiRCLE Studios as a senior games developer, but did not did not disclose to CiRCLE that he had already come up with the Tracktrix concept.  He copied parts of his original work on Tracktrix in order to pitch a CiRCLE projet which was similar to Tracktrix, again without explaining that he had come up with Tracktrix before joining CiRCLE.  CiRCLE then took the concept to publishers and, following the advice of Sir Ian Livingstone of Eidos, further developed it into a game concept known as “Train Trax”.

But ultimately no one was willing to pick up Train Trax.  CiRCLE later went into administration in 2007.  However, CiRCLE boss Adrian Smith and industry veteran Martin Carr formed another games development company, Crush Digital Media, which bought up some of the now-bust CiRCLE’s IP – including Train Trax.  Crush then hired Burrows to work on Train Trax further and tried again to get publishers interested in, again without success unfortunately.

It seems that Burrows later began to argue that CiRCLE and Crush had infringed his copyright in Traktrix, and had breached confidence, by seeking to develop and market Train Trax.   Lawyers were involved and the case went all the way to trial in 2009, despite Crush going the way of CiRCLE and entering administration in early 2009.

The High Court judgment

In a judgment published last week, Mr Justice Norris ruled that CiRCLE and its boss Adrian Smith had not copied Burrows’ copyright works in developing Train Trax because they had not known there was anything to copy.  As far as they knew, Burrows had invented the Traktrix concept (which became Train Trax) for the first time when he was a CiRCLE employee.  The judge found that Burrows had created Traktrix before he had joined CiRCLE, had then copied his own work to create a similar concept for the company and this then became Train Trax.  So it was Burrows himself, not anyone else, who had done the copying.  That was the end of the copyright claim.

As for the breach of confidence claim, the judge decided that a developer pitching a game idea to his employer ordinarily was not confidential as between the two of them.  He said: “Mr Burrows was employed as a senior games designer by Circle. It was his job to come up with ideas. If he came up with an idea and shared it with his employer he was doing what he was paid to do: the disclosure would not be in circumstances importing any duty of confidence owed by the employer to the employee.”


The judge was pretty clear the case should never have got to trial (he referred to “the regrettable fact that the action reached trial at all“).  That said, the legal issues in the case were fairly clear cut and he did not have difficulty in ruling in Smith and Crush’s favour.

Still, to my mind there were no real winners here.   Yes, the case established that effectively Crush still had the rights to Train Trax but no one wanted to buy it anyway, the game was never actually developed and Crush went into administration in early 2009 anyway.  As for Burrows, he was left emptyhanded and probably in fact received a substantial legal costs order against him (though it is always possible he may try to appeal).  Not a great result.

(Case name: Burrows v Smith & Another [2010] EWHC 22 (Ch))

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[Image credit: Mike Reeve http://en.wikipedia.org/wiki/File:Royal-courts-of-justice.jpg]

Are modchips illegal?

[This article was first posted on Gamaustra here]

This article is about modchips: is their sale/use illegal or not?  We look at three recent cases in England, Spain and France – which show an interesting divergence of European opinion as to the legality of modchips: not every country thinks that modchips are a bad thing.  More below…

What is a modchip anyway? 
Wikipedia has a succinct definition:

A modchip (short for modification chip) is a small electronic device used to modify or disable built-in restrictions and limitations of many popular videogame consoles. It introduces various modifications to its host system’s function, including the circumvention of region coding, digital rights management, and copy protection (homebrew) software checks for the purpose of running software intended for other markets, copied game media, or unlicensed third-party.” 

Modchips exist for other devices (e.g. dvd players) but for today’s purposes we’re only talking about modchips which are used in games consoles and which are intended to circumvent games copy-protection: in other words, modchips which fool a console into thinking that the player owns an authentic, licenced copy of a game when it fact he/she does not.  An example of such a modchip is the wiikey, which (funnily enough) mods the Wii.

Why are modchips a problem?
Modchips are seen as a problem by the games industry because: (i) they are said to facilitate games piracy by allowing players to play unauthorised/pirated copies of games; and (ii) they enable a player to tamper with the innards of a games console.  The games industry periodically takes action to stamp out modchipping – for example, Microsoft banned a lot of Xbox Live accounts of owners of chipped consoles last year.
Of course, gamers may (and do) take a rather different approach.  Many argue: (i) it’s my console and I should be able to do what I want with it, including playing pirated games or modifying my console; and (ii) I didn’t ask console manufacturers to install arbitrary mechanisms for controlling what I can do with my console.  And so forth.

Still, the purpose of this post is not to debate the merits of these arguments, but simply to summarise what the legal position is regarding modchip in different jurisdictions.  (Caveat:  the following really is just a summary, so it should not be taken as a authoritative analysis of the law of these jurisdictions!)
Use and sale/distribution of modchips is illegal in England.
Section 296ZB of the Copyright, Designs and Patents Act 1988 (CDPA) makes it a criminal offence to sell or distribute “any device, product or component which is primarily designed, produce, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures” (this provision was introduced as part of the EU-wide anti-DRM laws introduced by the EU Copyright Directive of 2001).
So, under English law the sale or distribution or such devices intended to circumvent “effective technological measures” is a criminal offence.  Does this apply to modchips?  Yes, is the answer.  We know this thanks to recent case-law in the English courts. 
In a case called Gilham v the Queen, the Court held that that selling or hiring modchips will be a criminal offence under s296ZB CDPA if it is established that:
(1) The game is or includes copyright works.
(2) The playing of a counterfeit DVD on a game console involves the copying of a copyright work.
(3) Such copying is of “the whole or a substantial part” of a copyright work.
(4) The game consoles include effective technological measures designed to protect those copyright works.
(5) The offender sold or hired the modchip device in the course of a business.
In Gilham v the Queen, the jury found that modchips met of all of these requirements – and so they convicted Gilham.  He appealed, arguing that using a modchip does not lead to copyright infringement because there is no “substantial” copying of the game – all that happens when you play a chipped game is that a fragment of the game is copied to the console’s RAM at any point, which is insufficient to establish copyright infringement.
 This gave rise to tricky legal issues as to whether copying lots of little pieces of a copyright work (so-called “little but often” copying) could in some way turn into “substantial” copying.  Tough question…which the Court side-stepped by instead holding that the game drawings which appear on the screen, and the audio recordings which are played, are themselves copyright works which are “substantially” copied in playing the game.
So, selling modchips is illegal under English law.  What about just using a modchip in your console but not selling/distributing them?  You’re no better off really, because (following the logic in Gilham) using a modchip in your console would involve copyright infringement – which could have civil (and possibly criminal) legal implication of its own.
Verdict: sale or distribution of modchips in England is a criminal offence.  The use of  modchips in your own console would likely constitute copyright infringement.
Since Spain is also subject to the EU Copyright Directive (which led to the introduction of the law in England that has made modchips illegal -see above), you may expect to see Spanish law also ruling that modchips are  illegal.  Si?
Apparently…no.  Admittedly I’m by no means a Spanish lawyer, but I understand that the Spanish Penal Code does contain measures intended to prevent the circumvention of “effective technical measures“.  However, a Spanish court case in 2009 seems to have gone the opposite direction to the English courts.
The case followed a criminal complaint by Nintendo against Movilquick, a Spanish modchip distributor. The judge decided that flash carts could be used for “both legitimate and illegitimate purposes, but not only illegitimate” purposes.  He held that flash carts could be used for “pirated games” but may also have  “legitimate functions of employment” such as “backing up original games or other various functions such as managing photos, music or performance of [free] software“.  On that basis, he dismissed the criminal complaint.
Why is this interesting?  Well, it is not often that one sees the judiciary coming down on the side of gamers.  The judgement was not set out in great detail, so it is not at all clear why the judge decided to do so.  In particular, it is not clear how this decision can be reconciled with the EU Copyright Directive (or with the Spanish law that implements it). It is also not clear whether this is the only case-law on the subject – it may be that there are other Spanish cases elsewhere that go the other way. Still, I imagine it made Spanish gamers happy…
Verdict: using or selling a modchip/flash cart may be legal, but just wait for Nintendo’s lawyers to get the appeal going…
Ah, La France, home of la loi Hadopi (also known popularly as ‘3 strikes’) and also a subject of the EU Copyright Directive.  Do its judges sympathise with their English or their Spanish colleagues when it comes to modchips?
Answer: Spain, apparently. 
Details so far are sketchy (no sign of the actual judgment yet) but summary as follows: in December 2009, a Paris criminal court ruled that Divineo, a company which makes Nintendo DS flash carts – essentially, a type of modchip – did not break the law (i.e. presumably they do not “circumvent effective technical measures“).
The Court’s logic seems to have been that flash carts in fact extend the utility of the DS and that the user should therefore be free to use them as he or she wishes – a lot closer to the reasoning of the Spanish than the English court.  But, in the absence of more details being made public (especially the Court’s formal judgment), it is not entirely clear on what legal basis the Court made its judgment.
For completeness: Nintendo said it would appeal the decision and pointed out that Divineo has already been banned from selling flash carts by a Hong Kong court and ordered to pay damages to Nintendo.
So, are modchips illegal then?

It is pretty clear from the above that there is a divergences of opinion within the EU as to the legality of modchips.  The legislation is there (i.e. the EU Copyright Directive) to make modchips illegal, but that legislation has been interpreted (or possibly simply ignored) in different ways.

As often happens in the EU when different Member States take different approaches to legal issues, the answer may only come when the EU itself takes the opportunity to clarify the position (whether through a case before the European Court of Justice or through further legislation from the Commission)…but those opportunities are relatively few and far between.  Until then, that uncertainty seems set to continue…
What about modchips in other countries?
For those of you who are interested, here is a quick round-up of developments in the treatment of modchips in other jurisdictions:
  • USA: in principle, use of modchips may fall foul of the Digital Millenium Copyright Act (DCMA), which has been used previously to get at sellers of modchips (example here)
  • In Italy, back in 2005 a court ruled that the purpose of modchips was to ‘avoid monopolistic positions and improve the possibilities for use of the PlayStation’. The court said: ‘It’s a little like Fiat marketing its cars while banning them from being driven by non-European citizens or outside towns.’ “

  • In Australia, the Australian High Court ruled in 2005 that modchips for the Playstation 2 were not illegal.  As I understand it the Court’s reasoning was that, since the Playstation 2 technology had only ever sought to stop players playing unauthorised games but had not sought to stop them copying those games, a modchip which assisted players to play but not copy unauthorised games was not an attempt to circumvent “technological protection measures” under Australian law.  (As far as I’m aware, that position has not been contradicted in any subsequent case-law).

    (In England, the Court took a rather simpler approach by holding that the very act of playing a game using a modchip constitutes copying infringement – but there may have been good reasons why this
    argument was not adopted in Australia).

Closing thoughts
  • Even without having to get into a detailed legal review of the laws of different jurisdictions, it is clear that some countries have adopted a relatively hardline approach to modchips (e.g. the UK or USA).  In particular, the UK has made it clear that the sale of modchips may be a criminal offence.
  • But, maybe surprisingly, other countries appear to have taken a more neutral/favourable approach to modchips, recognising that modchips are not just about playing pirated games.  With games companies apparently remaining keen to shut down modchip sellers (as with the French action above), it will be interesting to see what 2010 brings…

New House of Lords proposal could water down Digital Economy Bill

A new proposal by the House of Lords could weaken the effect of the most contentious aspects of the Digital Economy Bill, being: (i) obligations on ISP to assist in curbing online infringement; and (ii) the Government’s ability to modify the Copyright, Designs and Patents Act 1988 by order. (Thanks to Tom Watson for this tip.)

According to the House of Lords website, the following addition has just been proposed to the Bill by the Lib Dems:

“Compliance with fundamental rights

In drafting or amending any code, laying any statutory instrument, or taking any other action under sections 124A to 124L of the Communications Act 2003 or under section 302A of the Copyright, Designs and Patents Act 1988, the Secretary of State must demonstrate before such action is implemented that he has considered whether such action is—

(a) necessary and proportionate to the goal of protecting and enforcing copyright, and

(b) that it appropriately balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights guaranteed by inter alia the European Convention of Human Rights and the EC Charter of Rights.”

What does this mean?

Any way you look at it, this proposal (if enacted) would restrict the power of the Government to act unilaterally in taking measures intended to curb copyright infringement. 

With the first condition (“necessary and proportionate to the goal of protecting and enforcing copyright“), the hook is of course that the Secretary of State must demonstrate that the proposed action is “necessary and proportionate“.  This kind of wording has been the cause of much litigation over the years, particularly over similar concepts in EU law.

With the second condition (“balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights…“), the Secretary of State would effectively have to certify that the proposed action complies with relevant human rights law – in particular, the European Convention on Human Rights, which enshrines such rights as: the right to fair trial; privacy; and freedom of expression.  (Interesting that the HL proposal does not refer to the Human Rights Act 1998, which imports the ECHR principles directly into English law – I wonder why not?)

A third condition, which is more subtle, is that the Secretary of State must “demonstrate before such action is implemented” that the proposed action complies with the above conditions.  So, the Secretary of State must do something to show he has complied with these conditions.  It is not clear what at present:  perhaps making a declaration or issuing a statement of compliance.

A fourth condition, which is more subtle still, is that the mere existence of this provision in the Digital Economy Act (when it finally becomes law) would mean that, if the Secretary of State wants to take action but fails to comply with the above conditions, then it is theoretically possible that the Government could find itself the subject of a judicial review challenge in court.  Obviously whether or not any such challenges would succeed would depend on the court, but the fact they could happen at all may give the Government pause for thought.

What next?  Is this all a storm in a teacup?

The Bill has recently completed its second reading and is due to go to a HL committee on 20 December 2009. This proposal will need to be discussed by the committee and, even if it is kept in the Bill, there is no guarantee that it may not be struck out in subsequent readings. So it is quite possible that this proposal may not make it into law.  Or it may survive, but perhaps in an amended form. 

But, either way, it reinforces again the point that some of the Lords are working to curb the Government’s ambitions in the Digital Economy Bill.  Watch this space…

The fallback position for human rights campaigners

One very last thought.  As a result of the Human Rights Act 1998 (section 4 if you want to be precise), the Court has the power to declare that an Act of Parliament is incompatible with the fundamental human rights contained in the ECHR, at which point the onus would be on the Government to amend the Act to make it compatible (or risk the public controversy that may follow by the law being declared to breach fundmental Convention rights).

Getting that far would be difficult, since the Court will not easily make a declaration of incompatibility (in fact it has a legal obligation to read legislation in a way compatible with the ECHR so far as possible) – but it is possible.

SO, even if none of the above proposal makes it into law, then in theory it may still be possible for campaigners to bring a legal challenge against the Digital Economy Act (once it comes into force) on the basis of incompatibility with fundamental human rights.  Again, whether or not that ever happens and, if so, what the Court decides, we’ll have to wait and see…

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Runescape, the Computer Misuse Act and theft

The background:

Details here.  A group of Runescape players mount a phishing scam, obtain other players’ accounts, strip those accounts of gold and loot.  Presumably they make an in-game or real-world profit.  Then the UK Police (specifically the Central Police e-crimes unit) swoop in.  They arrest a caution an individual in Avon and Somerset “on suspicion of a number of computer misuse offences”.

Police pwn players

This appears to have been the first time that a UK games company has gone to the police to protect the integrity of its game.  Not much at all has been said about exactly what offences have been alleged. 

UPDATE: I had initially thought that one way in which the Police could go after the accused would be to prosecute for theft.  However, on a closer look (and thanks to the guys in the comment thread), it seems that a better way may be under the Computer Misuse Act 1990 – with which I must admit I was previously unfamiliar.  Thanks!

What is the Computer Misuse Act 1990? (CMA)

In the late 1980s there was controversy in the UK regarding the legality of hacking, following a UK case called R v Gold and Schifreen – in a nutshell, two guys were able to hack a British Telecom system but, as the law stood at the time, hacking was not expressly illegal and therefore they were acquitted.  This was a factor in the Parliament of the day passing the CMA.

As a very quick summary, the CMA was intended to criminalise three kinds of conduct:

(i) Intentional attempts to cause a computer to perform any function with intent to obtain unauthorised secure access to a computer or data on it (the section 1 offence)

(ii) Same as (i) but with the intent to carry out a further criminal offence (e.g. hacking a PC in order to commit fraud) (the second 2 offence), and

(iii) acting in any way which causes the unauthorised modification of the contents of any computer, with the intent to impair the operation of any computer/programme or to hinder access to data on any computer (the section 3 offence).

Carrying out any of the above renders you liable to a fine and/or imprisonment (between six months and five years depending on how you plead to the offence).

Is the phisher/account-ninja covered?

‘Yes, but the wording isn’t brilliant’, seems to be the general answer.  Certainly phishing could be said to fall under the section 1 offence under the argument that the phisher sets programmes running which find out the account details etc of the innocent person(s).  To the extent that the phisher had intent to use those details to commit further criminal offences then he/she could also fall under section 2 – which carries harsher penalties.  Then there is the somewhat more nebulous section 3: does phishing or ninjaing someone’s account “impair” or “hinder” any other computer or program?  Maybe – perhaps if having your account details “hinders” your ability to use the programme?

But this gets even more interesting

Anyway, what we want to do is focus on section 2.  If the phisher stole Runescape account details with a view to somehow trying to gain access of others’ computers or stealing their bank details, then there would in principle be a case for arguing that they had had intent to commit further criminal offences under section 2.  But what if the phishers only intended to enrich themselves in-game by, for example, turning the stolen accounts’ assets into gold and transferring that gold to themselves or even selling it on the black market (which would be a breach of the EULA etc but not necessarily illegal as such).  Could enriching yourself in-game or in the real-world through a game by unauthorised means be classified as an offence?

That is the really interesting part to this case and, if the Police are interested in pushing for the strongest sentence possible against these phishers, they will need to consider this sometime soon – if they haven’t already.

That’s exciting, isn’t it?  Makes us think about adding a chapter to that book on virtual law which we’ll have to write one day…

In the meantime, the story goes on…

Little more has been announced since the Police announcement earlier this week, but no doubt further details will follow in due course.  It’s also worth bearing in mind that Jagex has stated that this is part of a long-term investigation in both the USA and UK – so there may be further twists in the tale yet…