Episode 9: Pokemon Sun and Moon Leaks
This week Online Editor Anthony Zangrillo, Staff Member Borja Eroglu and Special Guest Ken Rashbaum, partner at Barton LLP discuss the gaming leaks involving the new releases Pokemon Sun and Moon. Often, the gaming industry utilizes demos as a channel that promotes brand exposure and harnesses fan excitement with the end goal of encouraging demo-players to purchase the game. Unfortunately, the Pokémon Sun/Moon demo became available to both fans and game-hackers alike. Within the first 24 hours of the demo’s release, hackers “datamined” the demo and leaked all sorts of information to online forums not yet publically shared.
The issue is whether hackers who leak any unauthorized and unowned data of a game (1) can be held liable under the Computer Fraud and Abuse Act (“CFAA”) and; (2) whether the game’s rightful owner is entitled to recovery if she can prove that such hackers’ leaks deter fans from purchasing her game. A hacker is, by definition, a person who “illegally gains access to and sometimes tampers with information in a computer system.” Hacking constitutes an illegal act per the CFAA (18 U.S.C. Section 1030(4) as long as the plaintiff can show that the defendant (1) intentionally (2) accessed information from a protected computer involved in interstate or foreign commerce that (3) caused substantial damage. We explore whether gaming consoles are also protected by this Act when intentional actors leak a game’s confidential information to the public. The court in U.S. v. Mitra stated that the term “computer system” cannot be narrowly interpreted to mean only computers; the court further stated that modern technology forces legislatures to write broadly-worded statutes that the courts must then apply to the facts of a case unless expressly excluded in Section (e)(1) of CFAA. Today’s gaming consoles, like the 3DS, are closer to computers than the listed devices in the CFAA’s exception clause because of these consoles’ ability to connect with the Internet. It is clear that at least in some aspects, the Pokémon publishers maintain a cause of action so long as modern gaming consoles legally constitute computers as defined in the CFAA.
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