Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024

Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024

The respondent gave no satisfactory explanation for his failure to comply with the self-executing order, and his affidavit did not disclose an arguable defence to most of the applicants' claims. His arguments on copyright authorisation did not answer the pleaded case that users lost their licence and then copied GTA V works in RAM; his asserted lack of knowledge of the EULA and ToS was not established; and his own evidence showed significant marketing and sales activity inconsistent with an arguable defence that he was not acting in trade or commerce. Although the evidence disclosed an arguable defence to the claims under ss 116AN and 116AO of the Copyright Act 1968 (Cth), the interests...

Jurisdiction
Australia
Judgment Date
27 August 2021
Procedural Posture
Interlocutory Application in Intellectual Property Proceeding / Application to Vary or Set Aside Self Executing Order After Respondent Failed to File Evidence
Outcome
The respondent's interlocutory application dated 7 May 2021 was otherwise dismissed; declarations, injunctions, an account of profits and costs orders were made against the respondent, with remaining technological protection measure issues and any unresolved quantum of profits and interest to proceed to trial.
Legal Topics
['self Executing Orders' 'setting Aside Interlocutory Judgment' 'copyright Infringement' 'technological Protection Measures' 'misleading or Deceptive Conduct' 'inducing Breach of Contract' 'account of Profits']
['practice and Procedure' 'intellectual Property' 'copyright' 'australian Consumer Law' 'contract'] ['self Executing Orders' 'setting Aside Interlocutory Judgment' 'copyright Infringement' 'technological Protection Measures' 'misleading or Deceptive Conduct' 'inducing Breach of Contract' 'account of Profits']

Case Brief

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Procedural Posture

Interlocutory Application in Intellectual Property Proceeding / Application to Vary or Set Aside Self Executing Order After Respondent Failed to File Evidence

Legal Issues

  1. 1 ['Whether the self-executing order made on 16 April 2021 should be varied nunc pro tunc or set aside after the respondent failed to file evidence or notify the Court that no evidence would be filed by 23 April 2021.' 'Whether the respondent provided a satisfactory explanation for his failure to comply with the self-executing order.' "Whether the respondent demonstrated an arguable defence to the applicants' pleaded claims." 'Whether prejudice and the interests of justice supported relieving the respondent from the consequences of his default.' 'Whether the respondent should be permitted to defend claims under ss 116AN and 116AO of the Copyright Act 1968 (Cth).']

Ratio Decidendi

The respondent gave no satisfactory explanation for his failure to comply with the self-executing order, and his affidavit did not disclose an arguable defence to most of the applicants' claims. His arguments on copyright authorisation did not answer the pleaded case that users lost their licence and then copied GTA V works in RAM; his asserted lack of knowledge of the EULA and ToS was not established; and his own evidence showed significant marketing and sales activity inconsistent with an arguable defence that he was not acting in trade or commerce. Although the evidence disclosed an arguable defence to the claims under ss 116AN and 116AO of the Copyright Act 1968 (Cth), the interests...

Court Disposition

The respondent's interlocutory application dated 7 May 2021 was otherwise dismissed; declarations, injunctions, an account of profits and costs orders were made against the respondent, with remaining technological protection measure issues and any unresolved quantum of profits and interest to proceed to trial.

Orders

  • ["The Court declared that the respondent infringed the first applicant's copyright by reproducing or making a copy of the whole or a substantial part of one or more GTA V Works in material form in Australia, other than in accordance with a current licence, and by authorising Infamous Mod users to do so." 'The Court...