The High Court has granted summary judgment in Take-Two Interactive Software Inc and another v James and others [2020] EWHC 179 (Pat). The case arose in the context of a claim for infringement of copyright relating to the Grand Theft Auto game.
The claimants were the publisher and developer of the computer game Grand Theft Auto V. The defendants were involved in the development, distribution and sale of “cheat” software designed to enable players to gain illegitimate advantages when playing the game.
The cheat software was of a kind known as a “mod menu”. Mod menus alter the operation of a game while it is being played. This enables players to gain various advantages in gameplay, such as “spawning” copies of weapons, vehicles or ammunition, generating “spoofed” virtual currency for use in the game, and interfering with other players’ gameplay experience.
The claimants said that if one or more players had the benefit of the cheat software, it seriously harmed the gameplay experience for other players. They also said that it allowed cheating players to generate virtual goods and currency which they would otherwise either have to buy using real money or “earn” during the course of (legitimate) play.
The court ruled that the defendants had induced a breach of contract by the users of their software as well as breaching the contract themselves. The user licence for the game contained clear terms which banned cheating and helping anyone else to cheat. It also contained the usual rules on no reverse engineering etc. The judge considered in the circumstances that the defendants must have been aware not only of the existence of the contract but that what was being done was unauthorised and was a breach, and the judge also said that the necessary element of intention was established.
Section 16 of the Copyright, Designs and Patents Act 1988 provides that copyright is infringed if, without a licence from the copyright owner to do so, a person either does or authorises another to do various acts, which included copying. Transient copies are included, so the way the cheat software worked was covered. The judge accepted that in providing cheat software to consumers, the defendants had authorised copying of game or substantial parts of it.
The cheat software took information from the claimant’s game to enable it to reproduce an image of an object (eg a weapon) for use in the game. That clearly involved copying. The defendant had supplied the means of this copying and had had control over the features of the cheat software and its functionality. Infringement was inevitable when the software was used as intended as it involved at least some element of copying of the software and so-called in-game assets.
The court ruled that the public availability of the means to infringe copyright is no defence to copyright infringement. An argued decompilation defence was also rejected as it is only available to incidental copying in the course of decompilation (the process of converting a computer program expressed in low level language into a version expressed in higher level language.).
The judge did not rule on whether the claimant’s final argument that the defendants had contravened section 296 of the CDPA relating to circumvention of technical copyright protection devices built into the game. It was not necessary for the copyright infringement claim to succeed. Furthermore, the judge noted that the defendants’ evidence was of real potential support to their case. Nothing they had done, or that the cheating software did, was designed to get around anti-cheating software included in the game.
Therefore, the court granted summary judgment for breach of contract and copyright infringement to the claimants.
