Judgement – Serious doubts about viability of AC TPM claims

46 On the evidence before me there is nothing to indicate whether the anti-cheat tools the respondent admits he interfered with (or circumvented) are access control technological protection measures as defined in s 10 of the Copyright Act. In order for the anti-cheat tools to come within that definition, it would be necessary that they, in the normal course of their operation, control access to copyright works. Based on Mr Anderson’s description of the anti-cheat tools, they do not control access to the work. I therefore accept that the respondent has, at least on the evidence before me, an arguable defence to the claims made against him under ss 116AN and 116AO of the Copyright Act.

69 My present view is that it would not be appropriate to grant the applicants any relief for contravention of either s 116AN or s 116AO of the Copyright Act. On the very limited evidence before me, I am not persuaded that the applicants have shown that they are entitled to any relief for contravention of either of those sections. I am not disposed to grant the applicants the declaratory or injunctive relief they seek in the absence of further evidence which it will be open to them to call at a trial of the proceeding confined to the issues arising under s 116AN and s 116AO of the Copyright Act and the quantification of the applicants’ claims for pecuniary relief.

Full judgement available at


Rockstar’s Secret Technological Protection Measures: Real Time Memory Analysis and Telemetrics

“GTA V Core includes two cheat detection and anti-cheat computer programs named “Real Time Memory Analysis” (RTMA) and “Telemetry”, which operate with Rockstar’s computer servers.”

‘Statement of Claim’, Submission in Take-Two Interactive Software Inc v Anderson, NSD1751/2018, 26 September 2018, [14].

Circumvention of Technological Protection Measures
(an extract from the affidavit of Christopher Anderson).
  1. 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.
  2. The taxonomy of technological protection measures is somewhat malleable, and it is 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.
  3. 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.

    72.1. GTA V – Piracy prevention—AC TPM
    (a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.

72.2. GTA V – Strengthening piracy prevention—TPM
(a) 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:
i. automatically injecting the software with self-protective mechanisms (“guards”) that make it difficult to tamper with the software and to maliciously modify it; and
ii. keep portions of the software encrypted when not being actively used; and
iii. obfuscate portions of the software to make them difficult to understand (analogous to what contract lawyers do to the English language).
(b) 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.
(c) 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.

72.3. GTA V’s Online Mode
(a) 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.

72.4. GTA V’s Online Mode – AC TPM
(a) 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.
(b) In terms of technical implementation, the AC TPM described herein could be considered:
i. a part of; or
ii. to share many parts with; or
iii. to be another facet of; or
iv. to be another mode of operation of
the AC TPM described in paragraph 72.1(a) above.
(c) 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.
(d) 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.
(e) Infamous did not interfere or circumvent any of the measures described in paragraphs 72.4(b) – (d) above.
(f) Infamous did not encourage or allow users to access GTA V’s Online Mode if such access had been rescinded by Rockstar.
(g) Infamous did not circumvent any access control mechanism comprising an AC TPM, or any other access control mechanism.

72.5. GTA V’s Online Mode – Anti Cheat
(a) A user who is caught cheating faces the possibility of temporary or permanent loss of access to GTA V’s Online Mode.
(b) 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.

72.6. GTA V’s Online Mode – Anti Cheat (Telemetry)
(a) 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.

(b) There are presently more than 400 different types of telemetric information collected by GTA V’s Online Mode.
(c) 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.
(d) 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.

72.7. GTA V’s Online Mode – Anti Cheat (Real Time Memory Analysis)
(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

Take-Two Interactive Software Inc v Christopher Anderson


Dale Cendali vs Evolve

RELATED: Take-Two is suing over a Grand Theft Auto cheating mod — again

Written by Dale Cendali, P.C.

To Call Writer Directly: (212) 446-4846

March 18, 2019

Hon. Edgardo Ramos
United States District Judge
Southern District of New York 40 Foley Square
New York, NY 10007

Re: Take-Two Interactive Software, Inc. v. Does 1-10, No. 1:19 Civ. 02371 (ER)(SN) Dear Judge Ramos:

We represent Plaintiff Take-Two Interactive Software, Inc. (“Take-Two”) in the above­ referenced litigation. We write to request leave to serve the enclosed third party subpoenas prior to a Rule 26(f) conference to learn the identities of Doe Defendants 1-10 named in this action.

Factual Background

As background, Take-Two is the developer and publisher of best-selling video games, including Grand Theft Auto V (“GTAV”) and its multiplayer feature Grand Theft Auto Online (“GTAO”). GTAV and GTAO are protected by Take-Two’s copyrights, all of which are solely owned by Take-Two. Over the past few years, individuals have begun creating and selling for profit illegal and infringing programs called “mod menus,” which are cheating and “griefing” tools that allow users to perform unauthorized actions in GTAV’s multiplayer feature GTAO. In particular, these mod menus allow users to cheat while playing Take-Two’s games, both to (a) create benefits for themselves within the game that they have not purchased or earned, or (b) to alter the games of other players in the same multiplayer gaming session without authorization.

For example, some of the unauthorized features and abilities offered by these mod menus include without limitation (i) causing players to teleport, (ii) creating game objects such as vehicles and cash bags, (iii) creating game “powers,” such as causing the player to be invincible, (iv) the creation of virtual currency, (v) granting access to weapons and ammunition, and (vi) granting reputation points. These actions can be used to change the game for the user of the mod menu and other players who do not have the mod menu installed.

As a result, these mod menus disrupt the user experience that was designed by Take-Two, resulting in harm to Take-Two and its users. In particular, for legitimate players who play by GTAO’s rules, the gameplay experience is frustrated by those who exploit the cheating and griefing features of the mod menus against those legitimate players who do not use a mod menu to cheat. Thus, Take-Two has been forced to bring several lawsuits in the United States and around the world to stop these infringers from selling a commercial product that interferes with the carefully orchestrated and balanced gameplay that Take-Two created for its players and to stop these infringers from free riding on Take-Two’s intellectual property.

See, e.g., Take-Two Interactive Software, Inc. v. Zipperer, No. 18 Civ. 2608 (S.D.N.Y.); Take-Two Interactive Software, Inc. v. Cameron, No. 18 Civ. 02981 (S.D.N.Y.); Take-Two Interactive Software, Inc. v. Perez, No. 18 Civ. 07658 (S.D.N.Y.); Take-Two Interactive Software, Inc. v. James, Claim No. IL-2018-000094, High Court, Chancery Division; Take-Two Interactive Software, Inc. v. Anderson (Federal Court of Australia, No. NSD l751/2018); Take-Two Interactive Software, Inc. v. Daldal, Landgericht Hamburg (District Court Hamburg), 312 0 198/18.

Moreover, such conduct has been found to warrant the issuance of a preliminary injunction. See Take-Two Interactive Software, Inc. v. Zipperer, No. 18 Civ. 2608, 2018 WL 4347796, at *11 (S.D.N.Y. Aug. 16, 2018) (granting Take-Two’s motion for a preliminary injunction finding that “legitimate users of GTAV are harmed by [mod menus] that permit their users to disadvantage players who do not use the cheat programs”).

The latest of these copycat mod menus is named “Evolve” (the “Infringing Program”). Like prior mod menus, the Infringing Program allows users to cheat and harm other players in GTAO. The Defendants in this action created, distributed, and/or maintained the Infringing Program. After Take-Two conducted investigations into these individuals, Take-Two identified the website Defendants are operating at and Defendants’ aliases and e-mail addresses. Take-Two, however, has not yet been able to identify the Defendants’ full legal names or physical addresses. See Compl. ,-i 8 (Dkt. No. 1). Take-Two believes that information obtained in discovery from Cloudflare (the operator of the Infringing Program’s website at, Selly and PayPal (which processed purchases and transactions related to the Infringing Program), and Google (which operates e-mail services for the defendants) will lead to the identification of each Defendant.

Good Cause Exists for the Court to Grant Leave to Serve Third Party Subpoenas

A party may seek expedited discovery before the Rule 26(f) conference when authorized by court order. Fed. R. Civ. P. 26(d)(l). In this District, courts apply “a flexible standard of reasonableness and good cause” when considering whether to grant such an order. See e.g., Malibu Media LLC v. Doe, No. 18 Civ. 3228, 2018 WL 5818099, at *1 (S.D.N.Y. Sept. 20, 2018). Courts routinely find good cause exists to issue a subpoena to discover a Doe defendant’s identity where: (1) plaintiff makes a prima facie showing of copyright infringement, (2) the plaintiffs discovery request is specific, (3) there is an “absence of alternative means to obtain the subpoenaed information,” (4) there is a “need for the subpoenaed information to advance the claim,” and (5) defendants have a minimal expectation of privacy. See Arista Records, LLC v. Doe 3,604 F.3d 110, 119 (2d Cir. 2010); see also Malibu Media, LLC v. John Does 1-11, No. 12 Civ. 3810, 2013 WL 3732839, at *5 (S.D.N.Y. July 16, 2013) (Ramos, J.); see also Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556, 565 (S.D.N.Y. 2004); John Wiley & Sons, Inc. v. Doe Nos. 1-30, 284 F.R.D. 185, 191 (S.D.N.Y. 2012). For the reasons explained below, each of these factors weigh in favor of granting Take-Two’s request.

First, Take-Two has alleged a prima facie case of copyright infringement. “A claim of copyright infringement … requires proof that (1) the plaintiff had a valid copyright in the work allegedly infringed and (2) the defendant infringed the plaintiff’s copyright by violating one of the exclusive rights that 17 U.S.C. § 106 bestows upon the copyright holder.” Island Software & Comput. v. Microsoft, 413 F.3d 257,260 (2d Cir. 2005). Take-Two’s Complaint satisfies both of these prongs. As to the first prong, Take-Two alleged that it “owns the copyright for each of its video games, including GTAV” and that “GTAV has been registered with the Copyright Office.” Compl. ¶¶ 26-27. Moreover, as Take-Two’s registration was issued within five years of GTAV’ s publication, see Compl. Ex. 3, it is “prima facie evidence of both valid ownership of copyright and originality,” raising a presumption of validity. Associated Press v. Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d 537, 549 (S.D.N.Y. 2013); see also 17 U.S.C. § 410(c). As to the second prong, the Complaint alleges that ”Defendants … created … the Infringing Program,” which “alters and creates derivative works based on GTAV.” Compl. ¶¶ 33, 35. Moreover, in Zipperer, mod menus that similarly “created an alternative version of GTAV which is based on Take-Two’s GTAV but with added elements that allow its users to use features not available in the original version of GTAV,” were held to “likely constitute[] a derivative work which Take-Two has the exclusive right to create.” 2018 WL 4347796, at *8. Thus, Take-Two has alleged a prima facie case of copyright infringement.

Second, as shown by the enclosed draft subpoenas, Exs. A- D, Take-Two’ s discovery request is specific because it “seeks concrete and narrow information: [i.e.] the name and address of the subscriber.” John Wiley, 284 F.R.D. at 190; see also Malibu Media, 2013 WL 3732839, at *5 (pre-Rule 26(f) conference discovery request adequately specific where it sought “the name and address of Defendant”).

Third and fourth , there is an absence of alternative means to obtain the subpoenaed information because the Defendants distribute the Infringing Program using aliases. Because of the Defendants’ anonymity, Take-Two “cannot determine the identity and contact information for each of the defendants without obtaining [such] information from the ISPs by subpoena.” John Wiley & Sons, Inc., 284 F.R.D. at 190. Moreover, Take-Two needs this information to advance its claims because “without this information, [Take-Two] will be unable to serve process.” Id.

Finally, this Court has held that “ISP subscribers have a minimal expectation of privacy in the sharing of copyrighted material.” Malibu Media, 2013 WL 3732839, at *6.

Accordingly, as each factor weighs in favor of Take-Two, Take-Two thus respectfully requests that the Court grant Take-Two’ s request to issue subpoenas to Cloudflare, Selly, PayPal, and Google, seeking the names and addresses of Defendants.

Dale Cendali, P.C.


Again with the spelling mistakes Rockstar?

Seriously guys, it’s millennium. Double “l”, double “n”.


The Rockstar EULA — Why Lawyers NEED Better Spellchecking

After reading many legal arguments that insist a user/player/licensee needs to be copacetic to everything written in every contract they agree to, it warms the cochleas of my heart to see that Rockstar / Take-Two have yet again left another typo in their latest EULA (18 September 2018), this time not even managing to make it past the second paragraph.

No, “inclduing” is not a word. Maybe somebody (Hello Ms Feist) needs to disable the option to “Ignore capitalized words” in the Proofing section of their word processor.

But ultimately the irony is that even the lawyers who write these things clearly do not actually read them.


2018-12-05 – Interlocutory order

This is what was filed with the court, and what ultimately resulted in the Applicants’ deciding to agree to a short-order (that’s where both parties agree on a course of action), and the resultant order mentioned in this terribly biased report by zdnet.

By presenting a short-order to the court, the Applicants’ avoided the risk of the court ruling against them, which would have been super embarrassing in the Public Relations department.

P.S. Here’s a fun game to play… when-ever anything about a cheating/modding legal action (whether positive or negative) is published, take a look a Take-Two’s stock price. Maybe I’m biased, but it seems that every time anything to do with cheats appears in an article, the stock price drops. My theory is that it reminds all the prospective investors who are keen to cash in on RDR2 micro-transactions, that they really jumped the shark the last time they tried.