Take-Two Interactive Software, Inc v Anderson (No 2) [2024] FCA 1459

Take-Two Interactive Software, Inc v Anderson (No 2) [2024] FCA 1459

The manufacture and distribution by the respondent of the Infamous Mod, or of circumvention code therein, was actionable under s 116AO of the Copyright Act 1968 (Cth) because the device(s) in question were circumvention devices for technological protection measures (RTMA and ACC TPMs) protecting the applicants' works, and the respondent knew or ought reasonably to have known this. However, the respondent was not liable under s 116AN, as that section targets the direct act of circumvention, not simply enabling or supplying means. The statutory scheme distinguishes between the two types of conduct and contemplates separate bases for liability and remedy.

Parties
First Applicant: Take-Two Interactive Software, Inc; Second Applicant: Rockstar Games, Inc; Respondent: Christopher Anderson
Jurisdiction
Australia
Judgment Date
18 December 2024
Procedural Posture
Copyright – Circumvention Devices / Judgment After Trial on Issues Under Ss 116 an and 116 AO of the Copyright Act 1968 (cth), Relief
Outcome
Declaratory and injunctive relief granted to applicants under s 116AO; claim under s 116AN dismissed; confidentiality and procedural orders made; costs reserved subject to further order.
Legal Topics
Technological Protection Measures, Circumvention Devices, Video Game Software Protection, Injunctions, Declaratory Relief
Copyright Law Technological Protection Measures Circumvention Devices Video Game Software Protection Injunctions Declaratory Relief

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Parties

Take-Two Interactive Software, Inc

First Applicant

Rockstar Games, Inc

Second Applicant

Christopher Anderson

Respondent

Procedural Posture

Copyright – Circumvention Devices / Judgment After Trial on Issues Under Ss 116 an and 116 AO of the Copyright Act 1968 (cth), Relief

Legal Issues

  1. 1 Whether the respondent engaged in actionable conduct under s 116AN of the Copyright Act 1968 (Cth)
  2. 2 Whether the respondent engaged in actionable conduct under s 116AO of the Copyright Act 1968 (Cth)
  3. 3 Whether the relevant devices and code were technological protection measures (TPMs) or circumvention devices under the Act

Ratio Decidendi

The manufacture and distribution by the respondent of the Infamous Mod, or of circumvention code therein, was actionable under s 116AO of the Copyright Act 1968 (Cth) because the device(s) in question were circumvention devices for technological protection measures (RTMA and ACC TPMs) protecting the applicants' works, and the respondent knew or ought reasonably to have known this. However, the respondent was not liable under s 116AN, as that section targets the direct act of circumvention, not simply enabling or supplying means. The statutory scheme distinguishes between the two types of conduct and contemplates separate bases for liability and remedy.

Court Disposition

Declaratory and injunctive relief granted to applicants under s 116AO; claim under s 116AN dismissed; confidentiality and procedural orders made; costs reserved subject to further order.

Orders

  • Declaration that the Infamous Mod during the period March 2017 to June 2018 contained circumvention devices within the meaning of s 10(1) of the Copyright Act 1968 (Cth) for the RTMA and ACC TPMs.
  • Declaration that the respondent has engaged in actionable conduct under s 116AO(1) by manufacturing, distributing, offering, providing or communicating the Infamous Mod in circumstances where he knew, or ought reasonably to have known, that it was a circumvention device for the TPMs.