A consent order handed down in the Federal Circuit Court on 14 September 2018 is a handy reminder of the Copyright Act’s provisions regarding technological protection measures.
Grand Theft Auto V (‘GTAV’) is one of the most successful and popular console games is owned by Take-Two Interactive Software, Inc. The game features a story mode in which players can switch between three different characters who can roam and complete missions around a virtual city called Los Santos based on the real city of Los Angeles. The game’s popularity stems not only from its resemblance to real life and freedom to wreak havoc, but also its online mode which allows people to interact and play against each other on the same map.
The Respondent, Jeremy Taylor, is a hacker and a GTAV fan. Under the alias “Chr0m3 x MoDz”, he created various GTAV “mods” (modified versions of the GTAV game) that gave GTAV players greater character customisation, ability to spawn vehicles, changing the map in the game as well as many other features. These mods were released online and were popular in the gaming community. The creation of such mods involved copyright infringement and the circumvention of technological protection measures (‘TPM’) used by Take-Two Interactive Software to prevent copying and modifications of their software. It was also a violation of the End User Licence Agreement (‘EULA’) and Terms of Service (‘ToS’) that players must accept before installing and running the game.
Rather than fight the legal claim filed by Take-Two, Mr Taylor chose to enter into discussions with Take-Two, and the two parties proposed consent orders to the Federal Circuit Court. The consent order was granted by Justice Baird, who declared that:
Taylor infringed, or alternatively authorised the infringement of, copyright in the GTA V software;
Taylor circumvented the GTA V technological protection measures;
Taylor breached the Take-Two End User Licence Agreement, the Take-Two Terms of Service, and the deed.
By consent, the Court ordered that a permanent injunction be made against Taylor to permanently restrain him from:
possessing, distributing, or using the GTA V Software, or any other Take-Two software, other than by owning and playing the unaltered game itself on a console;
infringing copyright in the GTA V software, and any other Take-Two software, including by reproduction, adaptation, and communication;
creating, possessing, or distributing any alterations used in connection of the GTA V software, and any other Take-Two software, including giving assistance to others to create mods such as by publishing information about alterations or running any website designed to assist the development of game mods.
In short, the consent orders made by the Court are aimed at ensuring that Mr Taylor only uses with the GTA V software as he was meant to do: by installing the game on his console and playing it for entertainment.
‘Modding’ – Copyright and Contractual Implications
While hacking into computer game software and creating mods is popular in the gaming community, the practice of doing so is almost always an infringement of copyright and the end-user licence agreement. Furthermore, since the software is usually encoded with technological protection measures (TPMs), the act of gaining access to the gaming source code in order to create a mod will also be contrary to Section 116AN of the Copyright Act.
Under Part V, Division 2A of the Copyright Act 1968 (Cth), a copyright owner can take legal action against a person or persons who circumvent a TPM, or manufactures a TPM circumvention device, in order to access TPM-protected copyright material. While there are exceptions where a TPM can be circumvented (eg, law enforcement and national security, computer security testing), these will not apply to the creation of gaming mods. The court order granted over Taylor/Chr0m3 x MoDz GTA V mods serves a good reminder that where computer software is used in way that is not authorised by the copyright owner, the copyright owner has more options to protect their copyright material than just infringement.