By Laura Harper and Elizabeth Maloney

High Court grants summary judgement to claimants for breach of contract and copyright infringement in a recent claim relating to cheat software designed to give players of Grand Theft Auto V an unlawful advantage.

Background

Grand Theft Auto is the best-selling video game of all time, having sold over 85 million copies worldwide.

Take-Two Interactive Software Inc (the publisher of Grand Theft Auto V ("GTAV")) and Rockstar Games Inc (the developer and licensee of GTAV) issued proceedings against five individuals who were involved in the development, distribution and sale of cheat software. The claims against the first, second and third defendants were settled by way of consent orders. 

The outstanding claims against the fourth and fifth defendants related to cheat software called Epsilon. Both defendants admitted they were involved in developing Epsilon, but denied liability.

The Epsilon cheat software is a kind known as a “mod menu”.  Mod menus are software programs which alter the operation of a game while it is being played to enable players to gain advantages, 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.

GTAV can be played by a single player or online by up to 30 players at one time. The claimants argued that if one or more players have the benefit of the Epsilon software, the gameplay experience for other players was seriously harmed.  It also 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.

Claims:

The claims related to: 

(a) Breach of Contract

The claimants claimed that the fourth and fifth defendants: 

1. Breached various terms of the end user licence agreement (EULA), as well as the terms of service and online code of conduct to which all players of GTAV must agree in order to install and play the game; and
2. Knowingly induced breaches of contract by the users of the Epsilon mod menu by encouraging Epsilon users to breach their own contracts with the claimants (strictly with Rockstar Games Inc who was the contracting party).

(b) Copyright Infringement

Under the Copyright, Designs and Patents Act 1988 (“CDPA”): 

1. The owner of the copyright in a work has the exclusive right to copy the work (s16(1)(a) CDPA) and make adaptations (s16(1)(e) CDPA). 
2. Copyright is infringed if, without a licence from the copyright owner to do so, a person does, or authorises another to do, any of the acts restricted by the copyright which includes copying or making adaptations (s16(2) CDPA).
3. S21(1) CDPA restricts making an adaptation of a literary work (a computer program is specifically protected as a literary work).

The claimants’ copyright infringement claim fell into three broad categories:

1. That at least during the development of the Epsilon mod menu, the fourth and fifth defendants copied substantial parts of the GTAV computer program comprising the executable file (which contained instructions to run the game on the player's computer) and libraries (which provided the graphics, sound and other artistic material used in the game) that form part of GTAV.
   
   They argued that such copying was contrary to s16(1)(a) CDPA and also claimed the fourth and fifth defendants made adaptations, contrary to s16(1)(e) and 21 CDPA;
2. The fourth and fifth defendants authorised infringements of copyright (in the form of copying and adaptations) committed by users of the Epsilon mod menu, contrary to s16(2) CDPA; and  
3. They claimed under s296 CDPA on the basis that Epsilon incorporated a circumvention of technical devices built into the game, which normally protected its operation against unauthorised tampering and hacking.

In response, the fourth defendant raised a s50B CDPA defence that copying the computer program was allowed for limited purposes in the course of creating an independent program which may be operated with the GTAV program decompiled, or with another programme.

The fourth and fifth defendants purported to disclaim liability by arguing that they produced Epsilon by downloading information from freely available sources on third party websites.

Decision:

Breach of contract claim:

The GTAV EULA conditions contained a clear prohibition on cheating and on providing guidance or instruction to any individual or entity on how to cheat. What Epsilon does and is intended to do, is to enable cheating, and therefore it was held that the fourth and fifth defendants were in clear breach of contract themselves.

The Judge also held that the elements of the test for inducing a breach of contract by the users of the software (namely, knowledge they were inducing a breach; intention to procure a breach; and damage suffered by the claimants) were established – the defendants must have been aware not only of the existence of the contract but that what was being done was unauthorised.

The Judge however was not prepared to grant summary judgement against the fifth defendant for the claim for breach of contract on the basis that he was a minor at the date he first used GTAV (therefore not bound by the contractual terms) and may consequently have a real prospect of successfully defending the claim for breach of contract.

Copyright infringement claim:

The Judge was satisfied that by providing Epsilon to consumers, the fourth and fifth defendants had authorised copying of the GTAV program or substantial parts of it and concluded as follows: 

• Whilst use of Epsilon did not involve any copying of a lasting nature, or indeed any permanent or lasting change to anything on a player's hard drive, s17(6) CDPA expressly provides that copying includes the making of copies which are “transient”. By way of example, users of Epsilon would gain access to weapons or other objects which would not be available to a player in the same position if they were playing without cheating. Epsilon took information from the GTAV libraries in respect of the relevant object (e.g. a weapon) and reproduced the image for use by the cheater in gameplay – this clearly involved copying. The way the cheat works, involved a clear breach of copyright by making transient copies.
• She was not convinced to summary judgment standard that the transient changes made to the program amounted to making adaptations under s21 CDPA.
• The fourth and fifth defendants authorised infringement under s16(2) CDPA. They had a high degree of control over Epsilon’s functionality and features and when Epsilon was used as intended, infringement of copyright was inevitable because Epsilon involved at least some element of copying of the software and in-game assets. 
• The fourth defendant’s s50B CDPA defence was rejected as decompilation is the process of converting a computer program expressed in low level language into a version expressed in higher level language. This did not fit with the description given in evidence of how the Epsilon product was produced. Neither was it a defence that Epsilon was produced by downloading information publically available on third party websites.
• She did not rule on the claimants s296 CDPA claim.

As a result, there was no other compelling reason to proceed to trial and summary judgement was granted in favour of the claimants.

Expert Opinion

"It is thought that over a third of gamers use cheats to improve their chances when playing games online.

"Whilst online game cheating may be tolerated or seem harmless, cheating can lower game traffic, lead to shrinking revenues and discourage non-cheating individuals from playing by ruining the overall gaming experience for players causing potential reputational damage to the publisher and/or developer of the game.

"This case highlights the readiness of publishers and developers as rights holders to prevent unauthorised use of their software.

"Educating gamers that cheating has adverse consequences is not an easy task, particularly because the result for the gamer is an improved chance of winning. Some gamers also argue that when they have bought a physical copy of the game they should be able to do as they wish with it when playing, including the use of cheats, and that to prevent them is a misuse of copyright laws.

"This case constitutes a clear victory for developers, publishers and ultimately, the global fight against cheating in games. However, copyright and contract law should perhaps be used in conjunction with technical measures to make it harder for cheaters to incorporate cheating tools into games. In addition, studios or publishers may wish to try and protect their investment in the development and marketing of a game by taking steps to combat cheating tool websites."
Laura Harper - Partner