No. NSD1751 of 2018
Federal Court of Australia
District Registry: New South Wales
Take-Two Interactive Software, Inc. and another
Affidavit of: Christopher Anderson
Occupation: Not presently employed
Date: on 10 May 2021
||Affidavit of Christopher Anderson affirmed on 10 May 2021, in support of Respondent’s Statement of Defence.
||Exhibit CA-3 being a USB containing a bundle of documents.
I Christopher Anderson, of XXXXXXXXXXXXXXXXXXXXX affirm:
- I am the Respondent.
- I make this affidavit based on my knowledge and belief, except as noted.
- In 2020 I completed my Associate Degree in Information Technology with an elective in Intellectual Property Law from Royal Melbourne Institute of Technology, having previously completed 1 year of a Bachelor in Science (Computer Science) in 1994.
- From 1995 to 2008 I worked in a number of information technology roles in technical capacities, including for the Colonial State Bank, State Bank of NSW, Telstra Research Laboratories, Cadbury, Heinz-Watties, Kenworth, and ANL Container Lines.
- In 2017 I became involved with a group of individuals intending to re-release a product known as Infamous.
- Unless otherwise specified, statements regarding the Infamous Mod (“Infamous”) in this document refer to the 3 most recent versions of Infamous, which are the last 3 of 5 cited versions in paragraph 57 of the affidavit of David Andrews as having been downloaded and investigated by the applicants, there being some apparent confusion apropos the identical modification dates of the first two versions cited.
- Infamous Mod version 18.104.22.168.4, modified date 20 August 2017;
- Infamous Mod version 22.214.171.124.3.1, modified date 20 August 2017;
- Infamous Mod version 126.96.36.199, modified date 27 February 2018;
- Infamous Mod version 188.8.131.52, modified date 1 March 2018; and
- Infamous Mod version 184.108.40.206, modified date 28 March 2018.
- Although it difficult for me to recall what capabilities were present in the two earliest versions referred to in the above paragraph, I do not believe there are any substantive differences of relevance to matters put forth in this affidavit.
- Entry into the EULA and the Terms of Service
- The version of the EULA and Terms of Service shown before downloading and installing the latest GTA V installer consist of a single undated document, viewable in a small window or optionally printable, and does not represent the current versions of either the EULA or the Terms of Service. those documents and are undated. This screenshot was taken from an online installer, cryptographically signed by the applicant on 30 July 2018 at 10:22:10 pm (AEST), and available upon request.
- The complete contents of the document were copied after clicking the button marked “PRINT” and can be found in Exhibit CA-3 as Document 19 — GTAV_Setup_Tool.exe License. The contents appear to be derived from license documents consistent with similar documents dated on or around October 2013, rather than the more recent versions updated on 22 January 2018 which came into force approximately 5 months before the applicants signed and released this installer.
- The same outdated and undated documents are included in later releases, including releases made after the operative license agreements were again updated on 18 September 2018, which is the same date that this matter was filed, are therefore not mentioned in the applicant’s claim.
- Entry into the EULA and the Terms of Service (GTA V’s Online Mode)
- The version of the EULA and Terms of Service shown before a user first enters GTA V’s Online Mode – as distinct from the previously mentioned document which is shown during installation of GTA V itself – are also not the current versions of those documents, are undated, and cannot be saved to disk, printed, or viewed in any fashion outside the limited game interface provided.
- Copies of these documents were obtained on or around 15 January 2019, by taking more than 100 screenshots, identifying, and separating each paragraph, inverting the colours, then pasting each paragraph into a Microsoft Word document. The resultant documents and unaltered screenshots establishing their provenance can be found in Exhibit CA-3 as:
- Document 20 — GTA Online click-wrap index, being an unaltered screenshot showing the index of documents the user must view and agree to.
- Document 21 — GTA Online click-wrap EULA top, being an unaltered screenshot showing the start of the EULA the user must view and agree to.
- Document 22 — GTA Online click-wrap EULA complete, comprising the complete contents of that EULA, produced by the means described in paragraph 9.1 above.
- Document 23 — GTA Online click-wrap TOS top, being an unaltered screenshot showing the start of the Terms of Service the user must view and agree to.
- Document 24 — GTA Online click-wrap TOS contents, comprising the complete contents of that same document, produced by the means described in paragraph 9.1 above.
- Alternative EULA and Terms of Service documents
- I am informed and believe that there have been at least six versions of Rockstar’s “End User License Agreement” (“EULA”) and the Rockstar’s “Terms of Service” (“TOS”) have been operative since GTA V was first released on 17 September 2013 and when I became aware of the applicant’s claim.
- EULA & TOS revised 17 September 2013 (“Original EULA”, “Original TOS”)
- EULA & TOS revised 1 October 2013 (“EULA 2013”, “TOS 2013”)
- EULA 2013 appears to be the Original EULA with two additional clauses added:
- APPLE APP STORE ADDITIONAL LICENSE TERMS
- BEATERATOR ADDITIONAL LICENSE TERMS
- EULA & TOS revised 22 January 2018 (“EULA 2018”, “TOS 2018”)
- The sections of these documents of relevance are reproduced in:
- Document 16 — EULA 2018 – Clause 2; and
- Document 17 — TOS 2018 – Clause 4; and
- Document 18 — TOS 2018 – Clause 5
- The differences between EULA 2013 and TOS 2013 and these versions are detailed in Document 29 — Comparison of EULA 2013 & EULA 2018 and Document 30 — Comparison of TOS 2013 & TOS 2018 in CA-3 (pages 100 and 116, respectively).
- EULA & TOS revised 18 September 2018 (“Current EULA”, “Current TOS”)
- Differences between license agreements, and in-game warnings
- After a user has fully read and understand the outdated legal documents presented to them upon installation, and later agreed to those same documents before first entering GTA V’s Online Mode, those documents are never again presented to the user.
- During further usage of GTA V or GTA V’s Online Mode, many different messages are presented to the user at various times and with varying frequency.
- Legal warnings shown when GTA V is launched
- These consist of 2 pages, shown automatically for approximately 5-10 seconds each.
- The first page contains the text (emphasis added):
“Violation of EULA Code of Conduct or other policies may result in restriction or termination of access to game or online account.”
- Legal warnings shown while playing GTA V’s Online Mode
- A full-screen message appears after agreeing to the legal documents presented on first entering GTA V’s Online Mode, or after updating GTA V.
- This warning includes the text:
“Don’t cheat or your account will be suspended and your character’s progress may be reset.”
- This warning also includes the URL rsg.ms/989c019 which may be accessed for more detailed information. That URL contains the following information:
GTA Online suspensions are triggered by a number of factors, including modding in GTA Online, exploiting or abusing game mechanics, manipulating protected game data and code, or interfering with other players’ gameplay experience.
Suspensions from GTA Online due to these reasons may be temporary suspensions or permanent bans depending on the severity of the infraction.
If you receive a temporary suspension from GTA Online, the next infraction will result in a permanent ban. If you are temporarily suspended from GTA Online, you will not be able to access GTA Online from the moment you are suspended. Your suspension expiration date is shown on the splash screen after being returned to Story Mode following an attempt to play GTA Online.
In addition, your GTA Online character(s) will be reset. All GTA Online progress, property and inventory will be reset.
- Messages shown when a user is caught cheating
- For a first offence, the message identical to the that shown (except for the date) is shown to the user:
- For a second offence, a similar message is shown:
You have been banned from Grand Theft Auto Online permanently.
Return to Grand Theft Auto V.
- Upon subsequently launching GTA V, a suspended or banned user is shown the message:
This account is currently banned from connecting to the Social Club service until 02 09, 2019 at 13:38. You will not be able to sync your GTAV Story Mode saves until this ban has elapsed and may experience data conflicts when you are able to connect again.
- All the in-game messages are consistent concerning the penalties attached to cheating, and whether such behaviour might result in the automatic termination of the license agreement between the end-user and Rockstar as claimed by the applicants.
What happens to players who cheat
Players who cheat do not have their license to Grand Theft Auto V terminated.
During my considerable involvement in the GTA V player community, I have never heard of anyone having their permission to play GTA V denied, or by extension, having their license revoked.
In addition to previously mentioned examples confirming this policy, there are numerous additional official messages published by Rockstar confirming this, such as this message on Rockstar’s Support website:
“…accounts found to be hacking or modding … will be subject to further action … such as time in the Cheater Pool or Bad Sport Pool. Repeat offenders may also have their accounts reset, experience bans, or have all their GTA$ removed (other than unspent Shark Card funds).”
- “The Respondent’s Conduct”
- Infamous (during the time I was involved with it) was initially a co-operative effort, though I cannot speak to its previous nature (I believe it appeared in July or August of 2015), and all statements in the following paragraphs relate only to the period between around March of 2017 to its closure in March 2018. I was the final member of the team to be recruited and was not acquainted with any of the other members save the person who recruited me.
- If I had believed that the applicants would be of a mind to take legal action, I would not have become involved with Infamous.
- Rockstar was aware of modding (mod menus) and cheaters from at least January 2014, as demonstrated by this article from the Rockstar Support website (emphasis added):
- Original Q&A Section Posted January 2014
- Question: I heard GTA Online cheaters were causing large amounts of modded GTA$ to transfer to innocent players over the past few weeks. Is Rockstar Games aware of this, and what is being done?
- Answer: We have received complaints over the past few weeks about cheaters gifting large amounts of GTA$ to others, setting bounty rewards outside game limits, or otherwise attempting to tamper with the GTA Online economy. We have deployed several hotfixes to prevent this type of activity, and will be adding further cheat protection in future Title Updates as well. Players who willingly cheated to create this illegitimate influx of in-game currency will be separated out from the rest of the population. If you were the unwilling recipient of an impossibly large amount of GTA$, you do not need to worry about disciplinary action against your account. However, please be aware that we will be making community-wide automatic adjustments to players’ account balances to remove the modded money.
- In the 3 ½ years between the applicant’s awareness that such cheating took place and my becoming involved with Infamous, there existed several mod menus that operated openly for several years, with not even the threat of legal action.
- A substantial number of users who employed such mod menus were suspended temporarily or permanently from playing GTA V’s Online Mode and had to purchase new copies of GTA V to continue to play online.
- When the applicants commenced legal proceedings against four mod menus in June 2017, the retail price of GTA V had dropped to around $35 USD if purchased online.
- If Infamous had ceased operation at that time it likely would never have become a target for litigation, however, at that time it was not within my power to cause Infamous to cease. Though I could certainly have withdrawn any personal involvement with Infamous, it would have continued without me, and I did not believe the applicants would pursue me with any less effort.
- This belief was later justified when the applicants launched legal actions against Christopher Pei (who had no involvement with the development of Infamous) and Corey Daldal (of “The German Proceedings”), Corey having ceased to have any involvement with Infamous at around that time.
- At the time of my initial involvement Infamous was primarily focused on maximising immediate profit, and like most (if not all) other mod menus, was concerned only with maximising immediate sales without concern for grief caused to – and consequent reduction of – people playing GTA V’s Online Mode.
- I was vociferous in my objections that this was a highly unsound and unethical business model, and after buying out Corey Daldal I was able to direct the focus of Infamous, and gradually remove what are termed “griefing” features (addition functionality added to GTA V game designed only to annoy or cause grief to other players). This was made considerably easier, as only myself and my like-minded assistant developer (Nathan James) were then solely responsible for developing Infamous and could therefore exercise complete control over what was released.
- Justifying the removal of some of these features to our userbase was greatly assisted by the previously mentioned unprecedented lawsuits against several GTA V mod menus in 2017, which allowed us to justify the absence of these features as placatory measures to avoid lawsuits – and was a measure I successfully got other mod menus to agree during discussions with others and the formation of a self-regulatory body (see next paragraph).
- Infamous had formed an informal discussion group with the makers of other mod menus to establish some sort of self-regulatory body (or as close an approximation as is possible when half its members are 16 years old), which met on a service called “Discord.” I believe that the applicants were aware of its existence, if not necessarily in agreement as to its nature.
- Unfortunately, the other members of this group eventually returned to providing griefing features, leaving Infamous as the only menu not to provide any “griefing” features.
- Attempts to contact the applicants
- I first attempted to engage the applicants in a dialogue by posting an open letter on the Infamous web site, on 24 February 2018. This letter has been partially reproduced as part of the applicant’s claim, though no I received no response. The key content of that letter still represents my opinions and beliefs, stating:
We believe that mods will always be a part of the GTA Online community, though we can also see that mods are simultaneously ruining GTA Online.
Infamous is dedicated to improving the online gaming experience for everybody. We could have had twice the users we do now, if we compromised our ethics, and provided the griefing features that other menus are increasingly providing.
The people that still choose Infamous as their mod menu are simply looking for protection from griefers, something which Take Two Interactive and Rockstar have consistently failed to provide, leaving us with the job of detecting and attempting to defend against major menus with more fiscal resources that ourselves, whilst simultaneously avoiding the anti-cheat measures that Rockstar have put in our way.
For every session in which an infamous user can be found, there are usually about 3 modders using free modding software which we easily identify using Rockstar’s own anti-cheat mechanisms, and another 3 modders using one of the major menus that we have to detect using heuristic analysis, but which Rockstar could detect with a single line of code. And we’re tired of it.
So to the Rockstar employee who is going to download this update for analysis, I have a suggestion. Instead of wasting your time, try actually talking to us…. talking to me. If we could all stop comparing dick sizes, it might actually be possible to salvage GTA:Online, and do something that actually benefits the community.
- I contacted the senior individuals responsible for game security on April 4 2018 anonymously, with evidence of a technical nature demonstrating an understanding of their anti-cheat mechanisms that remains unrivalled to this day, along with a sincere offer to assist them in identifying the multitude of mod menus extant at that time. This email is included as Document 14 — Letter 1 to Applicants.
- I contacted Gena Feist directly on May 3 2018, using my real and regular email address. A copy of that email is included as Document 15 — Letter 2 to Applicants.
- Failure of the applicants to contact me
- I was never contacted by the applicants and did not receive the initial cease and desist letter which was sent on or around 22 February 2018, despite my email address being shown to anyone who purchased a copy of Infamous. I have since obtained a copy of this letter as sent to Christopher Pei, which is included as Document 13 — Letter: Applicants to Pei.
- The absence of any recipient address in the “To:” field accurately reflects the original email(s), which were all sent unaddressed.
- I am now aware that Nathan James, upon receiving such a letter (email) on or around 22 February 2018, informed Rockstar that they would need to contact me (and provided them with my email address) to shut down the website. Such contact was never made. This information was obtained from the affidavit of Phil Sherrell on 4 February 2019 in the matter of NSD 1033/2018, the page in question is included as Document 12 — Letter: James to Applicants.
- I was also not contacted by the applicant’s lawyers in mid-March, though I am aware that 2 Americans and 1 British person were contacted on that same day which I recall to be around 16 March 2018, which contained similar instructions to that of the first letter, but was properly addressed, included the legal basis for its request (as relevant to the recipients country of residence), and was presented as a scanned PDF document on the official stationery of the law firm, and signed.
- Instructions contained within both the February and March letters contained clauses stating that their contents be revealed to no one, thus the recipients could not notify me without breaking the included conditions yet could also not satisfy all the requirements on their own.
- My subsequent actions
- Having received no communication from the applicants, I could have continued to keep Infamous operational until the applicants finally “contacted” me 6 months later while executing their search and seizure order.
- Had I continued to operate Infamous and accept payments, I could have made an impressive amount of money that could have later been invested in mounting an aggressive legal defence.
- I had however viewed Nathan James’ copy of the 2nd letter with its associated legal arguments under U.K. law – which I knew to be reasonably similar to Australian law – and while their arguments and assertions were “somewhat adventurous” there appeared to be enough underlying substantive argument to justify legal action, and that while the outcome of such action was by no means certain, anyone attempting to defend themselves would be at both a legal disadvantage – in so far as lawyers require money – and an ethical disadvantage as admitted “cheaters”.
- Though I was not the recipient of such a letter myself, I chose to disable the Infamous web site and stop accepting payments before the deadline specified in the letter for the following reasons:
- as a good faith (if that is the correct phrase) gesture to the applicants; and
- in the hope that this would make matters easier for the people who had received these demands; and
- because I could now see that what we were doing was of dubious legality, and to knowingly continue such activity did not seem to be “correct thinking.”
- Though I disabled the Infamous web site, I kept the mechanism by which Infamous provided automatic updates (such as those provided by Windows, GTA V and most software products) in operation, to ensure as many users as possible updated their copies of Infamous to a version which allowed me to control over the Infamous access control technical protection measures. This gave me the power to terminate existing customers of Infamous from continuing to use the product, which would otherwise not have been possible, as I will now explain.
- The capability of software to automatically update itself is extremely common and is indeed employed by GTA V, Microsoft Windows, and Microsoft Office, and bears no relationship to Kazar as intimated by the applicant’s barristers during a private in-chambers meeting.
- Infamous already possessed the capability to operate in cases where it was not possible to contact the Infamous server. This capability had been part of Infamous for about a year, though never disclosed. To disclose it, would have made it obvious to any of our monthly users (we accepted some users on a $4.95 USD per month basis) to render their computers incapable of accessing the Infamous server and thereby use Infamous for free.
- To strengthen any future negotiating position with Take-Two, I embarked on an exercise in brinkmanship. I made a few alterations to the functionality and publicly announced its existence and its effect, which was to ensure that any instant shutting down of all aspects of Infamous would make it impossible to disable the Infamous software.
- I announced this publicly on the Infamous website so that Take-Two would become aware of this, and hopefully pursue a more nuanced approach than they were otherwise known for.
- Had contact then been made by the applicant, and an agreement been reached, it would have been possible to de-activate the extant copies of Infamous. Such contact was not forthcoming, even after I directly emailed Gena Feist (General Counsel for Rockstar).
- Ultimately, those copies of Infamous still extant became inoperative when the next DLC (version) of GTA V was released some 2-3 months later.
- The self-updating capabilities of Infamous were never used to make any updates after March 2018, and indeed would not have been capable of making the updates required to work with a new version of GTA V, neither would I have received any financial remuneration even if such a thing had been possible.
- Attempted negotiations
- I attended a teleconference in late 2018 in the physical presence of a solicitor from Two Birds who was present to ensure that I did not record the conversation, and the telephonic presence of the solicitor heading this matter in Sydney, in which a representative from the applicant’s American law firm attempted to convince me to enter into a similar voluntary discussion while Gena Feist (Senior in-house counsel for the applicants) and David Andrews (security analyst for same) silently listened.
- During this discussion, I repeatedly attempted to convey that I was worth much as a technical consultant, offered to advise them on how they could easily protect GTA V against all mod menus. I offered them a guarantee that if I could not achieve such an outcome within 6 months, they were welcome to resume proceedings against me.
- Though an agreement in principle appeared to be reached, the written settlement offer that I subsequently received consisted of an agreement for met to pay a settlement amount so large that I would be 67 years old after payment was completed, with the provision that I might earn $10,000 credit against that amount rendered meaningless when combined with the clause that I was not permitted to even play GTA V on a PC.
- An additional clause requiring me to allow the use of all material from NSD 1033 in the prosecution of other cases (obviating the need to be excused from the Harman undertaking), was more than enough reason to reject their offer.
- My counsel has since responded to the applicants with a revised version of that offer but has received no response.
- Attempts to provide remedy
- During discussions with the applicants, I provided great amounts of technical information regarding how various mod menus exploited deficiencies in GTA V’s online mode.
- On Thursday, 11 October 2018, I emailed the applicants with information relating to an extremely serious technical issue in their GTA V software regarding a “remote code execution” exploit, which is just a big geeky term used by security researchers and hackers meaning: “We can make your computer do anything we want.”
- Had someone later exploited this vulnerability, the damage to the reputation and stock price of the applicants would have been inestimable. A copy of this email is included as Document 35 — Emails Assisting Applicants 1.
- During December 2018, I provided large amounts of additional technical information regarding how other mod menus were exploiting the GTA V software and suggestions as to how they might counter this. A copy of these emails is included as Document 34 — Emails Assisting Applicants 2.
- Misleading or Deceptive Contact
- Neither Infamous nor any activities carried out by myself in relation to Infamous involved the use of telegraphic or telephonic services.
- Primary infringement by users of the Infamous Mod
- No copy of the GTA V Executable (or any part of the GTA V Works) was created in the memory of the user’s computer just because they were running Infamous. Infamous interoperated with an existing instance of GTA V that was launched by Rockstar’s GTA Launcher “%PROGRAMFILES\%Rockstar Games\Grand Theft Auto V\GTAVLauncher.exe”, “%PROGRAMFILES%\Rockstar Games\Grand Theft Auto V\PlayGTAV.exe”.
- No portion of the GTA V works was copied by Infamous.
- In cases where Infamous caused copies of existing objects in the virtual world comprising GTA V’s Online Mode, no actual copying of any part of the GTA V works takes place.
- The above statement may appear counter-intuitive but is easily explained. It is a fundamental concept of software development that objects of a similar nature are “instantiated” from a singular instance. This is analogous to how daily court lists are created, which may contain repeated references to the same court room or members of the judiciary. There is no need to copy the architectural plans of the court room or supply pictures of the judiciary, it is sufficient merely to reference the number of the room or name identifying that which already exists.
- In the case of computer software, not even the names of things are copied. The operating system allocates memory for each object, and this memory location is added to a list (stored at another location, also determined by the operating system). These memory locations are random and are not something written by Rockstar.
- Infamous also inserts what are known as “hooks” into GTA V. Doing so requires making a copy of the first 5 bytes of the “function” that is being hooked, but those bytes (known as “function prologues”) are generated automatically by the “compiler” and are not written by Rockstar.
- In the case that some information from the GTA V works was copied by Infamous, the total amount of information involved would be no greater than that copied from Infamous by Rockstar employees to create the unique phrases used by their RTMA anti-cheat system to identify Infamous and be de minimus (if I may use that term without implying it’s legal meaning).
- The creation of VC and VG
- The applicants allege Infamous allowed the arbitrary creation of Virtual Cash (“VC”) and Virtual Goods “(VG)” for both the user of Infamous, and for other players.
- They have however failed to describe what Virtual Goods are. So, for the same reasons I have been forced to describe TPM and AC TPM within this document, I must also provide that explanation myself.
- Fortunately, this will be a far simpler matter than TPM, and need only consist of a small number of simple and logical statements.
- Virtual Currency is simple. In the time-honoured tradition of Casinos everywhere, a player can redeem real-world money (a maximum of $129 AUD) for meaningless tokens ($8,000,000 in the $129 AUD case) only usable within the game. This is standard practice in businesses orientated around “micro-transactions” and serves to cause a mental disassociation between virtual and real word expenditure.
- Unlike a casino, Virtual Currency cannot be turned back into real-world currency.
- Virtual Currency can also be earned by playing the game, though at a rate so slow that it is commonly referred to as “grinding.”
- Virtual Currency once earned (or bought) cannot be lost or stolen, only spent. Though if caught cheating, your Virtual Currency will be confiscated, regardless of how it was obtained.
- We can therefore make some logical assertions about what might comprise “Virtual Goods”.
- Virtual Goods can be bought with Virtual Currency.
- Virtual Goods cannot be lost or stolen, only expended. If you had Virtual Goods when you stopped playing on Wednesday, they’ll still be there when you start playing Friday.
- Some Virtual Goods (such as vehicles) can be destroyed by other players during regular game play, which is remedied by “virtual car insurance” along with its concomitant virtual excess payments when making a claim.
- Infamous could not generate Virtual Goods for either the user or for other players. Though it is capable of making (for example) any type of vehicle appear “out of thin air”, this is not a Virtual Good as it cannot be kept by either the user or other players for later use, so is no different to the hundreds of cars that any player can steal or car jack from the street (or from other players). This being the implied basis of the game, “Grand Theft Auto.”
- Neither could Infamous generate Virtual Goods in less obvious forms such as weapons or ammunition. Though it could certainly give the user temporary use of any weapon, and a limitless supply of ammunition, both are strictly ephemeral, and cannot be retained as could the identical item if purchased from a virtual gun store with virtual currency.
- Infamous could not alter the Reputation Points (“RP”) of other players.
- Infamous could not remove, reduce, or in any way negatively affect Virtual Currency belonging to either the Infamous user or to other players.
- Infamous could not generate Virtual Currency for other players. Though this feature once existed, it was disabled in June 2017.
- Infamous could generate Virtual Currency for the user of Infamous. This means that the applicants are unlikely to receive further revenue from a user of Infamous but does not cause any loss of revenue from other players (as is the case with all other mod menus sold, who do offer such capabilities).
- The reason that Infamous did not generate Virtual Currency for other players is both that it irritates Rockstar and giving away money to other players in no way inclines them to becoming a future customer.
- The total amount of active Infamous users recorded during a monthly period was 6,000. Though I can offer no evidence to confirm this, it is a simple matter for the applicants to employ some Excel calculations on the data they obtained from PayPal to reach similar figures.
- 6,000 users per month are almost immeasurable what was estimated to be around 400,000 daily users in June 2017, though I would welcome actual usage figures from the applicants so that a more accurate estimation of damages may be calculated.
- Usage of Infamous in Australia
- Infamous users were limited to generating around 500 – 600 million virtual dollars. That is to say, the “Deposit 100 million dollars” method by which an Infamous user could quickly give themselves Virtual Cash, was disabled after that user’s total worth reached 500 million.
- The two examples of Australia Infamous users presented in the affidavit of David Andrews both had more than 1 billion virtual dollars, meaning they were using mod menus or cheats other than Infamous.
- Retailing of GTA V in Australia
- GTA V is sold in Australia by:
- Take-Two Interactive
Jones Bay Wharf Upper Deck
26-32 Pirrama Road
Pyrmont Point, NSW, 2009.
- Images of the Australian retail package which varies slightly from the American retail package introduced in DA-1 are included in CA-3 as Document 25 — Back of GTA Packaging (Australian) and Document 26 — Australian Manual (License), along with the ASIC registration certificate for Take-Two’s Australian retail entity,
Document 1 — Current Foreign Company Extract (ASIC) 32
Document 2 — Legal Warnings on Game Start 1 37
Document 3 — Legal Warnings on Game Start 2 38
Document 4 — Social Club TOS 2018-10-10 39
Document 5 — GTA Online Welcome Message 40
Document 6 — GTA Online Banned Message 41
Document 7 — GTA Online Suspension Message 42
Document 8 — Rockstar Support – GTA Online Suspension & Ban Policy 43
Document 9 — Rockstar Support – 3rd Party Programs 45
Document 10 — Rockstar Support – Update on GTA Online Cheaters and Modded RP 46
Document 11 — GTA V – Warning Shown Before Game Start to a Banned Player 49
Document 12 — Letter: James to Applicants 50
Document 13 — Letter: Applicants to Pei 51
Document 14 — Letter 1 to Applicants 52
Document 15 — Letter 2 to Applicants 57
Document 16 — EULA 2018 – Clause 2 58
Document 17 — TOS 2018 – Clause 4 60
Document 18 — TOS 2018 – Clause 5 61
Document 19 — GTAV_Setup_Tool.exe License 62
Document 20 — GTA Online click-wrap index 74
Document 21 — GTA Online click-wrap EULA top 75
Document 22 — GTA Online click-wrap EULA complete 76
Document 23 — GTA Online click-wrap TOS top 85
Document 24 — GTA Online click-wrap TOS contents 86
Document 25 — Back of GTA Packaging (Australian) 92
Document 26 — Australian Manual (License) 95
Document 27 — The “0x95FE5A4F” Bug (b1365) 98
Document 28 — Jordan’s Menu RTMA Matches 99
Document 29 — Comparison of EULA 2013 & EULA 2018 100
Document 30 — Comparison of TOS 2013 & TOS 2018 116
Document 31 — Telemetry Types 125
Document 32 — Http Task Types 134
Document 33 — Forum Announcement 135
Document 34 — Emails Assisting Applicants 2 136
Document 35 — Emails Assisting Applicants 1 144
- Document 1 — Current Foreign Company Extract (ASIC).
- Circumvention of Technological Protection Measures
- The (AC) TPMs used by the applicant in the GTA V software are not novel, and in the absence of an authoritative description by the applicants and given paragraph 42 – 43 of their claim regarding what I “ought reasonably to have known”, it does not seem unreasonable for me to outline my understanding of their general operation and the interaction (if any) that Infamous had with each.
- The taxonomy of technological protection measures is somewhat malleable, and it not my intent to assert the technological protection measures described in paragraphs 72.1 and 72.2 below are necessarily AC TPMs and TPMs (respectively) if the applicant’s opine otherwise.
- My descriptions of the various elements of what the applicants claim as TPM and AC TPM does not constitute an admittance that any elements so described were employed for the purpose of copyright protection and are therefore TPM or AC TPM in the legal sense.
- GTA V – Piracy prevention—AC TPM
- Before playing GTA V in any fashion, the user must supply (either from a document within the physically purchased game, or its electronic equivalent if purchased online) a license key embodying proof of legitimate purchase. This token of purchase is then attached to a “Rockstar Socialclub” (“Socialclub”) account, in a fashion similar in concept to that employed by many online services when linking a mobile phone number to a user’s account.The user is then required to identify and authenticate themselves through this Socialclub account each time they wish to play the game. Identification and authentication are achieved by confirming the email address and password which are associated with said Socialclub account, in a process that is so familiar to anyone of this age that I need not belabour this explanation.
- The process described in the above paragraph is so ubiquitous amongst producers of computer software as to embody the concept of AC TPM to enforce licensing in that industry.
- The efficacy of such an AC TPM as described is almost as low as it is ubiquitous, as GTA V in its single-player mode of operation does not strictly require any ongoing communication or actual information exchange with Rockstar’s electronic services (though such communication does occur), modified versions of the game (“cracked” copies, in the vernacular of underground software piracy) that do not require the user to authenticate themselves to play the game, therefore negating the requirement for purchase.
- The situation described in the paragraph above wherein access control has been circumvented is also of such prevalence in the computer software industry as to be both a textbook description of “software piracy” and “circumvention of an access control technological protection measure.
- Infamous did not circumvent this process. Infamous did not negate the requirement of a user to possess an authentic and valid license key or otherwise enable or encourage software piracy.
- GTA V – Strengthening piracy prevention—TPM
- For the AC TPM described in 72.1(a) above to have any value, it must itself be protected by one or more TPMs. Rockstar relies on “ProtectIT” and “TransformIT” by American company “Arxan Technologies” (known as “Digital Ai” since 2020) who specialise in DRM and TPM technology. These products are extremely effective at protecting software from unauthorised modifications and preventing reverse engineering of key areas of software. From a technical perspective, they use several techniques including:
- automatically injecting the software with self-protective mechanisms (“guards”) that make it difficult to tamper with the software and to maliciously modify it; and
- keep portions of the software encrypted when not being actively used; and
- obfuscate portions of the software to make them difficult to understand (analogous to what contract lawyers do to the English language).
- These products are also used by other big-budget gaming software including “Call of Duty 4” by Activision, and by other software for purposes other than acting as a TPM. However, the above paragraph is a reasonable description of how TPM is commonly implemented by the software industry, though the specific products and techniques may vary.
- Infamous did not interfere or circumvent any measures such as those described in paragraph 72.2(a) above. Infamous did not negate the requirement of a user to possess an authentic and valid license key or otherwise enable or encourage software piracy.
- GTA V’s Online Mode
- In addition to all the technical protections described in paragraph 70 above, playing the Online Mode of GTA V involves – at least conceptually – additional TPMs and AC TPMs (here-in called “The Online AC TMP”), as well as various measures to detect cheating (commonly referred to as “anti-cheat”). The methodology and technology involved with anti-cheat are similar and, in some cases, ostensibly identical to the technologies associated with TPM as described in paragraph 72.2(a) above.
- GTA V’s Online Mode – AC TPM
- The role of The Online AC TMP is to ensure enforcement of decisions made by Rockstar (embodied by programs running on computers controlled by the applicants, and by individual human operators in their employee) as to whether users are permitted access to the service provided by GTA V’s Online Mode.
- In terms of technical implementation, the AC TPM described herein could be considered:
- a part of; or
- to share many parts with; or
- to be another facet of; or
- to be another mode of operation of
- the AC TPM described in paragraph 72.1(a) above.
- In contrast to the mode of operation attributed to the AC TPM described in paragraph 72.1(a) above, The Online AC TMP is closer to what we might consider a standard AC TPM such as would control access to services such as Netflix or other online services with dynamic content.
- The key distinction between this mode of operation, and the AC TPM described in paragraph 72.1(a) above being that GTA V’s Online Mode is an online service being continually provided via the Internet (you cannot play GTA V’s Online Mode without continuous internet access), whereas GTA V’s Story Mode can be played without internet access other than that required to establish and periodically re-authenticate your credentials.
- Infamous did not interfere or circumvent any of the measures described in paragraphs 72.4(b) – (d) above.
- Infamous did not encourage or allow users to access GTA V’s Online Mode if such access had been rescinded by Rockstar.
- Infamous did not circumvent any access control mechanism comprising an AC TPM, or any other access control mechanism.
- GTA V’s Online Mode – Anti Cheat
- A user who is caught cheating faces the possibility of temporary or permanent loss of access to GTA V’s Online Mode.
- Various “anti-cheat” mechanisms are utilised by GTA V’s Online Mode to collect information that aid in assessing the probability that a user is cheating. The applicants have cited Telemetry and RTMA as the relevant mechanisms.
- GTA V’s Online Mode – Anti Cheat (Telemetry)
- The usage of the term “telemetry” is comparable to other common forms of telemetry such as may be found in a Formula 1 racing vehicle or modern passenger airline, in that it consists of a constant stream detailing every piece of measurable information.
- There are presently more than 400 different types of telemetric information collected by GTA V’s Online Mode.
- It is my considered technical opinion that it is unlikely that more than around 20 (or 5 percent) of these are actively employed as “anti-cheat” mechanisms, and almost inconceivable that more than 40 (or 10 percent) were so employed.
- Infamous interfered with less than 10 (or 2.5%) of the 400 types of telemetry used by GTA V’s Online Mode. That – in conjunction with the applicants claim they were unable to detect Infamous – is the basis for paragraph 72.6(c) above.
- GTA V’s Online Mode – Anti Cheat (Real Time Memory Analysis)
- Real Time Memory Analysis (“RTMA”) is a method by which the presence or absence of certain distinctive sequences of characters (“phrases”) are present at specific locations. A reasonable non-technological analogy would be the act of determining if a bible were of a particular translation by comparing words 17 to 26 in the 3rd book to see if they matched a certain phrase.
- This technique is used both to check a handful (usually around 4 at any given time) of locations within the GTA V executable currently running from memory, generally to confirm that no tampering has occurred.
- The same technique is also used to check all memory accessible to GTA V – including the contents of programs other than those licensed by the applicants – for phrases known to be associated with specific mod menus such as Infamous. These phrases are obtained by the applicants by reverse engineering and/or copying small sequences (or phrases) sufficient to uniquely identify the mod menu.
- Positive identification of a known mod-menu does not necessarily result in the user running such software having their GTA V Online Service suspended. In the period surrounding and following the legal action taken against other persons associated with Infamous, it was observed that at least 1 other mod menu that did not block the RTMA phrases used to identify it, did not have its users banned despite being easily identifiable by the applicant for several months.
- From 3:40am 22 March 2018 AEDT to 1:29am 31 March 2018 AEDT – 9 days – an error in the applicant’s usage of RTMA caused every legitimate user who played GTA V’s Online Mode during that time to be mistakenly identified as running software which had tampered with a section of memory associated with GTA V commonly modified by cheating users. While this did cause a not unsubstantial number of people to have their access to GTA V’s Online Mode suspended, the number of people affected was small enough that it took 9 days for the applicants to recognise that this was a legitimate error on their part. If RTMA was indeed used to automatically suspend access to GTA V’s Online Mode, then there would simply have been no online players left, a situation which would not have gone unnoticed for 9 days.
- From approximately 1 January 2018, Infamous did interfere with the RTMA process as to do otherwise would have jeopardised the ability of Infamous to function. We did so only to prevent GTA V’s Online Mode from reading the contents of memory created by and containing the intellectual property of, Infamous.
- The profitability of Infamous
- Using the same data and selection methods as Joel Parsons I manipulated the PayPal Transaction Histories provided by the Applicants.
- Rather than using Google to determine the rate of exchange for USD and EUR on 19 September 2018 as did Mr Parsons, I used the historic record of exchange rates from the Reserve Bank of Australia to determine the appropriate rate of exchange on the day the transaction took place.
- I identified costs related to Infamous from aforesaid PayPal Transaction Histories, as well as refunds/chargebacks that resulted in funds being deducted from income.
- I then produced quarterly summaries of all the data, in Australian Dollars:
|| Balance or
- The total balance of $81,526.96 is approximately $35,000 more than was present when the Applicants were successful in having the PayPal account frozen, confirming my belief that the above calculations are valid and that costs are understated.
- Payments for Infamous were received into my personal PayPal account, which had a positive balance of approximately $45,000 at the commencement of these legal proceeding in September of 2018. Slightly under $250,000 passed through said PayPal account from sales of Infamous.
- I did not pay myself a wage but did uses funds obtained from the sale of Infamous for living expenses and occasional small online purchases. The only exceptions I can recollect being the purchase of a new computer ($2,000), and the sending of 3,000 EUR to a friend (the other recipient of a search and seizure order in this case) to repay a debt.
- The $81,526.96 figure I have cited as personal income includes the $45,000 remaining in my PayPal which was intended to partially repay the inevitable tax liability, which will assure that my involvement with Infamous results in substantial tax debt, rather than any personal profit.