DMCA know-how: How to protect your rights and assets in 2024

This article was written by Futura Digital head of digital Alina Davletshina [left] and associate Valeria Gziryan.

Before we get started… A little background

Every game developer aims to share their creations globally and dreams of them becoming popular. Obviously, this requires significant financial, time, creative, and emotional investment to achieve but the chances of success are greatly enhanced through digital distribution. The speed, volume and ease of game consumption through digital distribution is greatly increased, but the medium brings with it its own problems. 

Digital distribution may be exploited by IP infringers who can quickly, easily and cheaply, and in large quantities, reproduce original games or their components within the digital ecosystem. And, given that in 2023, digital distribution accounted for 95% of total market revenue (with that 5% of boxed games coming via physical hangers-on on consoles) that represents a significant gateway for problems.

For example, IP infringers:

• Create clones directly trying to mimic a game that already exists on the market by replicating the original’s design, features, and functions to make the copies as similar as possible to the original.

• Or create copycats representing a non-original game as a product that could be released under an exploitable brand. For example using names, logos, and other IP associated with a well-known brand.

• Or decompile and rebuild the entire game so that they can distribute it under a false name.

• Or simply distribute a copy of the original game without the permission of the rights holder.

Fortunately most countries have laws to prevent such actions and every day legislators work to fight perpetrators. As time and case studies have shown, despite all its shortcomings, the most effective legal recourse turned out to be the US federal court’s Digital Millennium Copyright Act or DMCA. Although it was first introduced back in 1998, it is still a successful means of combating copyrights infringements for the gaming industry.

Decoding the DMCA’s essence and mechanics

The DMCA is in effect a deal struck between the game’s copyright holder and online intermediaries. i.e. website owners, web hosts and internet service providers. On the one hand, the law allows the game rights holders to remove online copyright infringing content without the need for litigation. On the other hand, the DMCA exempts the online intermediaries from liability for their users' copyright infringements as long as they help remove illegal content quickly when asked by rights holders. 

Summing up, the game rights holder can use the DMCA if someone:

• Makes available copyrighted materials for the distribution which they have no rights to

• Or obtains access to copyrighted materials illegally

Unfortunately, the DMCA only works for copyright infringements rather than trademark infringement. But most online stores have a separate procedure working for trademark infringement.

In order to notify of a copyright breach, the game rights holder must send to an online intermediary a DMCA takedown notice. The rights holder can use the contact information available on the intermediary’s official website or a specially created form. You can find the following DMCA’s templates here:

• Apple

• Google

• Steam

If required the rights holder may compose the takedown notice from scratch, in which case it’s possible to use the templates above as a guide as they meet the DMCA’s requirements.

Registration or deposit of copyrights is not a mandatory step for sending a DMCA takedown notice and obtaining a positive result. However, this will accelerate its resolution and increase the chances of success.

Once notified, the online intermediary must promptly take down infringing content or restrict user access. As practice shows, service providers make concessions and remove what is necessary.

Although the law is not extraterritorial in nature and is applicable to online service providers based in the United States, there are many companies that, while outside the United States, accept DMCA takedown notices without any issues.

DMCA's real-life impact

OK, in theory, the DMCA sounds great, but is there any evidence that it works in practice? In short, yes, it works, and the quantity of DMCA takedown notices continues to increase annually. For example, based on Github data, in 2023 the number of DMCA notices submitted increased by 10.1% compared to 2022, by 78% compared to 2021 and by 84.5% compared to 2020. The DMCA’s use only ever continues to grow.

Moreover, curious cases periodically appear, which can act as valuable lessons for those finding themselves in similar circumstances. Notable examples include:

A non-gaming company protects its game using the DMCA

In 2020, a developer created an online puzzle game called Wordle… By now you probably know all about it but, for the uninitiated, it’s a simple game in which you have to guess a 5-letter word in 6 attempts. Initially, the game was intended for the developer himself and his partner but, after sharing his project to the public, the game rapidly began to gain popularity. The result was that in 2022 the New York Times acquired Wordle and, starting from January 2024, the paper has filed several DMCA notices over Wordle clones created by GitHub coders, citing the similar names and gameplay. These include the 5 x 6 tile layout and gray, yellow, and green color scheme. 

So far so predictable. But this case is interesting for several reasons:

• This is a non-gaming business trying to protect its rights from the game from the gaming industry

• Many people believe that Wordle is like Tetris or a deck of cards, and therefore it is unclear what the encroachment on the New York Times’s IP is

• Some alleged clones were created before the newspaper acquired the rights to Wordle

In any case, the creators of similar games are not ready to resist the giant and prefer to remove their products under the DMCA.

All of which highlights the following facts:

1. DMCA can be an important element of an IP protection strategy. Nintendo is known for its very active use of DMCA. A few months after the complete shutdown of Yuzu, as we wrote earlier (https://www.pocketgamer.biz/feature/83938/are-apple-and-nintendos-delta-blues-a-legal-timebomb-or-just-the-new-normal/), Nintendo is now seeking to stop any attempts to restart the emulator. Therefore, Nintendo filed a DMCA against 8535 repositories on Github that contained the branches of the emulator code. With the help of the DMCA, Nintendo continues to build its PR strategy.

2. DMCA can be used as a means of fighting against a game's publisher. As an example, an indie developer accused his partner of releasing an unfinished version of the game The Outbound Ghost without permission. As a result, players began to complain about bugs and poor performance. Among other things, the developer filed a DMCA takedown notice on his own game on Steam and ensured that The Outbound Ghost was removed from there. The game is now available, by the way.

3. The DMCA system is criticized for being easy to manipulate. In another example, an attacker was able to file false DMCA takedown notices, which caused the soundtracks for the game Dustforce to be removed from Apple Music and Spotify. The composers believe that distributors and streaming services are responding incorrectly to DMCA notices and are disappointed that there are no basic checks or filters for even the most basic fraud attempts.

4. DMCA helps to fight against code leaks, but the question is the speed of response. Example: Warner Bros. provided a DMCA takedown notice to Github after the leak of the source code for Netherrealm's (formerly Midway Games) Mortal Kombat II. Github complied with this and deleted the source code, but not before users could access it.

The DMCA is a useful tool that every game developer should adopt. Of course, unfortunately, the system is imperfect. The DMCA can be abused, used in fraudulent schemes, or does not ensure the prompt removal of illegal content when every day is crucial. 

However, so far, nothing better has been invented, and it is necessary to make the most of the opportunities provided by the DMCA, even if that means using it in a creative way.

                                                                                  Edited by Daniel Griffiths