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In response to a lawsuit filed by Take-Two Interactive, four men behind popular re3 and reVC fan projects Grand Theft Auto claim their work is protected by fair use. Among other things, they fixed bugs, something the plaintiff stopped doing years ago. They also improved the games which, if anything, improved the market for the original games, which are necessary for the mods to run.
Earlier this year, a group of Grand Theft Auto programmers and enthusiasts released 're3' and 'reVC', a pair of reverse-engineered mods for GTA 3 and Vice City.
The projects allowed fans to enjoy these outdated games with significant improvements and were a hit with fans.
However, Take-Two and Rockstar Games made an exception and answered with a DMCA removal featured on Github to remove the repositories. The team fought back using the DMCA counter notification system and 're3' and 'reVC' they were restored.
In early September, Take-Two filed a lawsuit against the team, arguing that the goal of the projects was to create and distribute pirated versions of GTA 3 and Vice City. The company demanded damages under copyright law claiming that the team "intentionally and maliciously" copied, adapted and distributed its source code and other content without permission.
Take-Two also demanded damages for alleged misrepresentations in the defendants' DMCA counter-notifications.
The team behind 're3' and 'reVC' strikes back
Through their lawyers, Angelo Papenhoff (aap), Theo Morra, Eray Orรงunus and Adrian Graber have now responded to the complaint. They address each of the plaintiff's allegations, largely denying them, but in some cases stating insufficient knowledge to form an answer.
In general, however, they insist that they did not commit any kind of copyright infringement, something they expand on a short list of affirmative defenses, that is, defenses based on facts other than those that support the plaintiff's claim.
Affirmative defense: fair use
From the beginning, the defendants claim that everything they did in connection with their GTA 3 and Vice City projects were actions protected by fair use under the Copyright Act. If any copy of copyrighted material was made, it was made to allow interoperability of the software and to correct errors in the original titles.
As a result, any alleged "reverse engineering" of the original code represents a transformative use of that content, that is, it added something new, with an additional purpose or a different character, and did not replace the original use of the work.
To the extent that copyrighted material was copied, where applicable, this was necessary to enable interoperability of the software and was kept to the minimum amount required.
The response further notes that the original games were released more than 15 years ago and the plaintiff stopped releasing patches and bug fixes several years before any of the alleged actions of the defendants occurred.
Another important fact highlighted in the response to the complaint is that the defendants' modifications are useless in their own right. In fact, anyone who wanted to make use of 're3' and 'reVC' could not do so without already owning copies of GTA 3 and Vice City, games that Take-Two stopped offering for sale in its online stores.
This leads to the question whether the alleged conduct of the defendants affected the market for those games and, if so, in what way. Based on the answer, the mods didn't affect the market, but to the extent that they did, any changes would have been positive as people needed to buy the games to use the mods.
โAny copyrighted material complaint that occurred, if any, was not made for profit or commercial purposes. The doctrine of legitimate use prohibits the reparation requested by the plaintiff โ, adds the answer.
Game mods really encouraged by the plaintiff
Despite now aggressively suing the creators of 're3' and 'reVC', Take-Two has previously allowed third parties to develop modifications to its software (including for GTA 3 and Vice City) without any adverse action in response. That is in accordance with the answer stating that Take-Two (or its "subsidiary or predecessor interests") have "exhibited" modifications and even released parts of their software to the public. Multiple Automatic Theft (MTA) project mod.
โThese 'mod' supported, encouraged or permitted projects, based on information and belief, required reverse engineering of the software as the Defendants are alleged to have undertaken. Based on information and belief, Defendants had an implied license to take any alleged action or Plaintiff abandoned copyright, โthe response reads.
Extraterritorial application of US law
Take-Two's complaint alleges that Angelo Papenhoff is a resident of Germany and the answer admits it. However, the claim that Theo Morra is a New Zealand based individual is denied. Similarly, it is denied that Eray Orรงunus is located in Turkey and Adrian Graber is located in Germany.
While these factors are not expressly cited in the defendants' third affirmative defense (the extraterritorial application of US law), the lawsuit alleges that the copying of copyrighted material was made outside of the United States. As such, US copyright law lacks scope, the defendants say.
โThe Copyright Law of the United States should not apply outside the United States and its territories. To the extent that the Claimant seeks to extend the application of the United States Copyright Law to cover activities outside the United States, its claims should be excluded, โthe response concludes.
The "improvements and bug fixes" come at a bad time for Take-Two
For months it has been speculated that the real reason behind Take-Two's legal action against the developers of 're3' and 'reVC' is that they were planning to officially release improved versions of their old games. The latter component was confirmed with the release of Grand Theft Auto: The Trilogy, which includes remastered versions of GTA III, GTA Vice City, and GTA San Andreas.
Unfortunately, that has been a disaster. What reported by Eurogamer, Definitive Edition could not be played due to software issues and is now only available for purchase again after three days of inactivity. Refund requests have come quickly and quickly and the title has been bombed out review up to a total score of 0.5 on Metacritic.
The answer to Take-Two's complaint can be found here (pdf)
