Several GTA V players have been locked in court proceedings against Take-Two and Rockstar over the Epsilon mod menu. Here, we break down this case from a legal perspective, looking at what claims were brought against the players and how they were prosecuted for copyright infringement.
The developers and publishers of the world’s best-selling computer game, Take-Two Interactive and Rockstar Games, have secured summary judgement from the High Court against several individuals that created cheat software for Grand Theft Auto V (GTA V) — the best-selling video game of all time.
Epsilon cheat software
The claim brought against the fourth and fifth defendants (the claims against the first, second and third were settled by consent order) related to the cheat software Epsilon. Epsilon is a ‘mod menu’ capable of altering the operation of a game in-play, enabling players to gain a wealth of unfair advantages such as spawning copies of weapons, vehicles or ammunition; generating spoofed virtual currency; and interfering with other players' gameplay experience (by, for example, blowing them up remotely). The claims relate to GTA Online — the multiplayer mode within GTA V.
The fourth and fifth defendants filed defences to the claims, which had been settled by counsel, but they were unrepresented at the Hearing. They didn’t serve any evidence, as required by the Costs and Case Management Order, so the Claimants sought either a strike-out or, alternatively, summary judgement on the basis that there was no real prospect of defending the claim. Shortly after the filing of this application, the defendants did file evidence. The Claimants dropped the strike-out claim but pursued the claim for summary judgement.
Basis for the claim
The Claimants alleged that the defendants had 1) breached various terms of the end-user licence agreement as well as the terms of service and online code of conduct to which all players of GTA V must agree in order to install and play the game; 2) knowingly induced breaches of contract by the defendants' own customers (the users of the Epsilon mod menu); and 3) infringed the copyright in the GTA V software.
The test for whether a case is suitable for summary judgement is well-established in England and Wales and is intended to remove cases which aren’t fit for trial. It’s accepted that, where the claim or defence has no real prospect of success and there are no other compelling reasons for the matter to proceed to trial, a judge will allow an application for summary judgement. Here, Mrs Justice Falk considered all the evidence and decided that this was a suitable case.
Breach of contract and inducement of others
The GTA V end-user licence agreement provided that the players agreed not to cheat or utilise software to allow cheating. It was clear from the evidence of the defendants that the Epsilon software was designed to enable cheating and therefore Mrs Justice Falk was quick to conclude that the defendants had breached these terms.
As the fifth defendant was a minor at the time of the breach of contract, the judge wasn’t convinced that the Claimants had met the summary judgement standard, since he may have a real prospect of defending the claim for breach of contract. However, the rules governing whether contracts are binding on a minor didn’t apply to other aspects of the claim, and so the Claimants indicated that if the other claims against the fifth defendant were successful, they wouldn’t pursue the breach of contract claim.
As to the tort of inducement, the defendants knew of the existence of the end-user licence agreement and were in contact with a number of players that were being banned from playing GTA Online. The judge was satisfied that the fourth and fifth defendants had intended to induce others to breach the contract, so they were liable on this claim.
The Claimants alleged that the actions of the defendants amounted to copyright infringement under three headings:
- The copying of parts of the GTA V computer program — the executable file and libraries that form part of GTA V.
- Authorising infringement of the copyright (copying and adaptation) by users of the Epsilon cheat software.
- That the Epsilon cheat software incorporated a circumvention of technical devices built into GTA V, which normally protect its operation against unauthorised tampering and hacking.
In broad terms, the executable file contains instructions to run the game on the player's computer and the libraries provide the graphics, sound and other artistic materials used in the game. The Claimants argued that the Defendants copied these, at least during the development of the Epsilon cheat software, in breach of Section 16(1)(a) of the Copyright Designs and Patents Act 1988 (CDPA). They also made adaptations, contrary to Section 16(1)(e) and 21 CDPA.
Mrs Justice Falk was satisfied that the copyright in the GTA V game was owned by the Claimants. Further, based on the evidence of the Defendants, the judge was satisfied that by selling the Epsilon cheat software to consumers, the fourth and fifth Defendants had authorised copying of the GTA V program — or, at least, substantial parts of it. This amounted to infringement under Section 16 CDPA.
The defendants argued that the Epsilon cheat software didn’t involve copying of a lasting nature or a permanent change to the GTA V software. The judge dismissed this defence, as the CDPA expressly provides that copying includes the making of copies which are "transient".
On the issue as to whether the Epsilon cheat software also involved an adaptation of the GTA V computer program, the judge wasn’t able to rule on the merits of this claim. On the third claim of copyright infringement, in oral evidence the fourth defendant stated that the Epsilon cheat software wasn’t designed to get around anti-cheating software included in the GTA V program. Again, the judge didn’t rule on this issue.
Cheats never prosper
This case makes it clear that the development, use and distribution of a piece of software that allows cheating in online games amounts to copyright infringement. Here, the Epsilon cheat software had to copy the whole (or a substantial part) of the code and libraries which make GTA V work. By doing this, and distributing the software others, the defendants are liable for copyright infringement.
This case is perhaps unusual as it was decided following an application for summary judgement. While the fourth and fifth defendants contested this application, it appears that they really had nothing to go on and their defences had no real prospect of success. This has undoubtedly saved the Claimants and Courts a substantial amount of money.
While the Claimants weren’t successful on all their grounds to the standard for summary judgement, they were sufficiently successful for this case to appear to have run its course. It remains to be seen whether the Claimants will seek a trial for a quantum of damages and costs, or whether the individual defendants now try to settle the claims.