Leaks in the video game industry are as old as the industry itself. Developers usually try to closely control the flow of information to have control over the publishing plan, but disloyal employees or determined hackers have repeatedly stood in the way. In recent years, there have been leaks with such large productions as Grand Theft Auto 6, Fallout 4 or The Last of Us 2. In the latter case, this forced Sony to change the marketing campaign and accelerate the launch of the game. Sony admitted that it suffered losses as a result.
However, the recently concluded trade secret infringement case in the United States shows that creators can effectively defend themselves against the disclosure or use of confidential information, and employees and contractors responsible for leaks do not go unpunished.
The case of Epic Games v. Hayden Cohen
The case of Epic Games, Inc. against Hayden Cohen is a model example of the practical use of trade secret protection regulations by a producer from the GameDev industry.
Defendant Hayden Cohen was an associate producer and because of his performed duties had access to confidential information regarding planned Fortnite collaborations. A key element of the Fortnite business model are regularly organized collaborations with recognizable brands and creators. For Epic Games, the content of such projects and the properly planned moment of their disclosure are of great importance. The premieres of new skins, characters or events are accompanied by partner marketing campaigns. The confidentiality of this information directly translated into its economic value.
In a lawsuit filed in March 2026, the company alleged that Hayden Cohen, operating on social media under the pseudonyms "AdiraFN" and "AdiraFNInfo", published information about Fortnite's unannounced collaboration with brands such as South Park or Minecraft. The disclosed data included, among others, specific characters, the premiere schedule, and the status of work on projects. This information came only from internal communication channels that the defendant had access to.
When Epic Games determined the source of the leaks, it immediately cut off Cohen's access to communication and shortly afterwards filed a lawsuit, citing, among others, violation of the federal Defend Trade Secrets Act and violation of the confidentiality agreement. In July 2026, the parties settled the case. According to its terms, Cohen was to be subject to a court ban on the possession, access, use, and disclosure of studio secrets.
From the perspective of American law, the case well shows the prerequisites for protecting trade secrets:
- the information must have independent economic value resulting from the fact that it is not widely known or easily available to people who could gain an economic advantage from the disclosure or use of the information,
- the information holder must apply reasonable measures (technical and legal) to maintain its confidentiality,
- there must be unlawful use or disclosure of information by a person obliged to maintain secrecy.
Epic Games indicated that the data on unannounced collaborations, their scope, deadlines, and partners met all these criteria. Access to confidential information was granted only to persons who needed it to perform their duties in accordance with the "need to know" policy. Access to repositories and folders was restricted at the user account level, and login required multi-factor authentication. Employees and independent associates had to undergo information security training and sign confidentiality agreements.
The Epic Games case shows the effects of leaks in the GameDev industry. The biggest sting is the loss of trust of business partners entrusting information about their own brands, products, and marketing plans. Leaks can hinder the acquisition of further collaborations and even induce current partners to withdraw. Premature disclosure of content also limits the marketing effect of the announcement, reduces player involvement, and may translate into a decrease in the game's sales.
Protection of trade secrets in Poland
The obvious question that arises is whether in similar circumstances, taking Polish regulations into account, a game manufacturer could count on legal protection in Poland.
The answer to this question is affirmative. The provisions of the Unfair Competition Suppression Act provide that an act of unfair competition is, among others, the disclosure of someone else's information constituting a trade secret. The trade secrets constitute information which is:
- confidential, and thus inaccessible even to competitors from a given industry;
- of economic value;
- subject to appropriate legal and technical measures to maintain confidentiality.
Therefore, not only technical solutions, such as an idea for a game, may be protected, but also organizational information, such as the way the studio team is organized or its marketing plans. The only condition is that they represent commercial value, which justifies their secrecy.
The key to granting protection is to take appropriate technical and legal protection measures. This requirement is interpreted considering the circumstances regarding the nature of the trade secret, the size of the studio or the circle of people who have access to it. The Triple-A studios are treated differently than indie developers, although in both cases it is a matter of the entrepreneur exercising actual control over access to information.
Therefore, the entrepreneur should not only take care to inform employees and co-workers about what information should be treated as confidential, but also adopt the aforementioned protection measures.
The most commonly used technical measures are: marking confidential information carriers with appropriate warnings; controlling access to information by placing it in a closed repository; and keeping a register of people viewing the information, and limiting the possibility of downloading or copying it to an external medium.
However, legal protection measures are equally important. While in the case of employees, the obligation to keep information confidential during the employment relationship results directly from the Labor Code, the issue of further confidentiality and regarding third parties (e.g., external graphic designers) remains open. In the case of such persons, the contractual obligations necessary to meet the prerequisite for taking reasonable action are crucial.
The means to do so is a non-disclosure agreement.
Practice in the GameDev industry. The NDA
A non-disclosure agreement (NDA) has been adopted in the practice of trading, which protects secrets transferred in the course of cooperation. Signing such contracts in the IT and GameDev industries is a standard procedure, even among "smaller" entrepreneurs. Entities interested in establishing cooperation, hiring new employees, releasing test versions of games, or discussing new projects – confidentiality agreements should apply to all of the above.
The idea of the NDA is to determine that the information provided will be treated as confidential, intended for a specific purpose or made available for a specific period. Disclosure of this information without consent is usually subject to a penalty in the form of a contractual penalty and the possibility of terminating the main contract in connection with which the NDA is concluded.
From the perspective of the courts, such agreements are treated as a basic condition for meeting the premises of subjecting confidential information to appropriate legal actions in order to maintain confidentiality. However, the NDA must not be too general and broad. In the decision of the District Court in Warsaw of October 10, 2024, in the case of XXII GWo 338/24 (Lex No. 3821309), the Court noted that the clause stipulating that all information the contractor became acquainted with in the course of performing the contract is a trade secret, is underspecified. It is not possible to construe from it what is considered a trade secret and what is not.
Hence, the NDA concluded for the production of a video game should specify what is considered a trade secret. Most often these are:
- information on the legal and economic standing of the company (e.g., collaborations with Internet creators, customer bases, etc.);
- information closely related to a specific project, in particular not yet disclosed products of intellectual property (e.g., promotional materials such as a trailer or presentations prepared for a pitch for investors).
Deposit of know-how. A new tool for GameDev?
The draft of the new Act – Industrial Property Law (UC81) published on June 30 this year offers a new solution in the form of an electronic deposit kept by the Patent Office of the Republic of Poland, in which it will be possible to place information constituting a trade secret.
Importantly, the Patent Office will not examine the deposit and determine whether it actually constitutes a trade secret and who is entitled to the information submitted. Therefore, it will not solve the basic procedural problems related to the need to demonstrate the premises.
For this reason, the value of a deposit for many entrepreneurs can be illusory. However, in the case of the GameDev industry, where the work is based on many frequently changing versions of the game, the deposit will serve as a proof tool and will allow to determine what version of the game existed at the specified time of its submission.
And in the event of a dispute similar to that of Epic Games, the deposit will allow one to confirm that the materials regarding a specific collaboration, covered by confidentiality, placed in a specific repository, have been made available to a coworker. Their juxtaposition with Internet search results for the same date will easily show that the content was not publicly known.
The Epic Games case demonstrates that in the American model of protecting trade secrets, it is crucial to demonstrate the economic value of confidential information and the actual implementation of organizational, technical, and contractual protection measures. Only the combination of these elements allows for effective claims against employees or contractors responsible for leaks. Structurally, therefore, Polish solutions do not differ significantly from the model of protection across the Atlantic and are based on the same pillars. Polish developers can successfully combat confidentiality breaches if they are able to demonstrate that appropriate precautions had been taken.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
