The High Court has ruled against two developers associated with a former contingent called Epsilon for infringing copyright by selling cheat software that they coded for Grand Theft Auto V (“GTAV”).

BACKGROUND

The claim concerned the development, distribution and sale of cheat software for use by players of the video game GTAV. Having sold in excess of 85 million copies GTAV is the best-selling video game of all time.

The software related to a “mod menu” which allowed users to gain advantages and included the ability to unlock virtual items including currency used in the game that would usually have to pay for.

Originally there were five defendants however claims against three of them have been settled by way of consent orders, which left two defendants to defend the claim.

In January 2020, the claimants who are the publishers and developers of the game, applied to the Court for either for strike-out, (meaning the Court can dismiss without a full hearing of the evidence) for failure to serve evidence as required by an order (CPR 3.4(2)(c)), or alternatively for summary judgment as there was no real prospect of successfully defending the claim and no other compelling reason why the case should be disposed of at trial (CPR 24.2(a)(ii)).

THE CLAIM

The claimants, Take-Two Interactive Software Inc and Rockstar Games Inc, alleged breach of contract in that the two defendants breached terms in (i) the end licence agreement and (ii) the terms of service and online code of conduct which users agree to prior to installing and playing the game. The claimants also claim that the defendants knowingly induced breaches of contract by their own customers – users of the Epsilon mod menu.

The last part of the claim is for copyright infringement, namely that the defendants copied parts of the GTAV computer program contrary to s 16(1)(a) of the Copyright Designs and Patents Act 1988 (“CDPA”). They also state that the defendants made adaptations, contrary to ss 16(1)(e) and 21 CDPA.

The claimants also state that copyright was infringed by the authorisation of infringements of copyright by users of the Epsilon mod menu, contrary to s 16(2) CDPA. They also claimed that under s 296 CDPA Epsilon incorporated a workaround that enabled unauthorised tampering and hacking.  The claimants say that if one or more players have the benefit of the Epsilon software in a group of users playing together, that seriously harms the gameplay experience for other players

DEFENCE

The defendants argued that they had included a disclaimer of liability to people who used their software. However, the Court agreed with the claimants that this was mere “window dressing”

They also argued that they had downloaded the source code to their software from a notorious public site containing cheat codes. This argument was also rejected.

JUDGMENT

Mrs. Justice Falk granted a summary judgment in favour of the claimants, meaning that the case will not go to trial. The test for summary judgment is that the claim or defence has no real prospect of success and that there is no other compelling reason for the matter to proceed to trial.

The Court found that by selling the Epsilon cheat to consumers, the defendants authorised copying of the GTAV program or substantial parts of it. S.16 CDPA states 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 include copying.

Mrs. Justice Falk agreed with the claimants that the use of Epsilon by players results in infringement taking place when they activate the cheat software. The defendants supplied the chat and therefore the means of infringement. The court also found in favour if the claimants with regards to the breach of contract against one defendant, however the charge was dropped against the other as they were a minor when the offense took place.

The decision was concerned with liability only and does not determine quantum. Costs incurred will be decided later, with Mrs. Justice Falk stating that she hoped this could be settled out of Court.