What Do You Do When a Fan Infringes on Your Copyright?

Photo by Abi Schreider on Unsplash

Take-Two Interactive has sued several programmers and enthusiasts said to be behind the popular re3 and reVC Grand Theft Auto fan projects.

The lawsuit says that after the company filed a DMCA takedown notice to remove the projects from Github, the defendants filed a bad faith counter notice to have the content reinstated, thus triggering this copyright infringement lawsuit.

Earlier this year a group of programmers and Grand Theft Auto enthusiasts released ‘re3’ and ‘reVC’, a pair of reverse engineered releases of GTA 3 and Vice City.

The code meant that these old but well-loved games could be enjoyed with significant improvements but the fun wasn’t to last for long.

In response to the projects, Take-Two and Rockstar Games filed a DMCA notice at Github where the code was stored, requesting the removal of the ‘re3’ and ‘reVC’ repositories.

Initially, project leader “aap” questioned the authenticity of the takedown. “It’s not impossible it’s just a troll. Hard to tell. But better to assume it’s real,” he told Eurogamer.

As per legal requirements, Github complied with the takedown demand but, as TF noted at the time, the team behind the projects had the option of filing a DMCA counter-notice if it was confident that its work is permitted under copyright law.

After assessing its options, that’s exactly what the team did, leaving Take-Two just a couple of weeks to file a lawsuit to prevent the content reappearing on Github. When that time expired, the coding platform restored ‘re3’ and ‘reVC’, as per the law.

“We claim that our project falls under fair use: our goal is clearly not piracy or anything as you still need the original game. Rather we want to care for the game by fixing and improving it and bringing it to new platforms,” project leader ‘aap’ informed TF at the time.

“This has caused many people to buy or re-buy the game from Take-Two, so it’s not like they’re losing money, quite the opposite.”

While Take-Two didn’t act quickly enough to prevent the restoration of ‘re3’ and ‘reVC’ to Github, the company has now followed up with a full-blown lawsuit targeting their developers.

Copyright Infringement Complaint

Filed in a California court a few hours ago, Take-Two’s lawsuit lists Angelo Papenhoff (aap), Theo Morra, Eray Orçunus, and Adrian Graber as named defendants, plus Doe 1 ‘Ash R / Ash/735’ and nine other unnamed Does.

“Defendants’ source code projects, known as re3 and reVC, purport to have created a set of software files (which Defendants claim they ‘reverse engineered’ from the original Game software) that allow members of the public to play the Games on various hardware devices, but with so-called ‘enhancements’ and ‘modifications’ added by Defendants,” the complaint reads.

“Perhaps most notably, Defendants claim that their derivative GTA source code enables players to install and run the Games on multiple game platforms, including those on which the Games never have been released, such as the PlayStation Vita and Nintendo Switch.”

According to Take-Two, the defendants’ conduct is willful and deliberate since they are well aware that they do not have the necessary rights to copy, adapt or distribute derivative GTA source code or the audiovisual elements of the games. The gaming giant adds that Papenhoff publicly expressed concern that Take-Two would find out about the ‘re3’ and ‘reVC’ projects.

Defendants Created Repositories on Github

According to the complaint, the defendants uploaded their projects to Github and, over time, refined and updated these repositories until a “full set” of derivative files for the games GTA 3 and Vice City had been created.

“These source code files not only contain the derivative software code that enables the Games to run on a player’s computer, but also contain Take-Two’s original digital content such as text, character dialog, and certain game assets. Additionally, the re3 GitHub Repositories include links to locations where members of the public can download a complete, installable build of the re3 and reVC software,” Take-Two adds.

The company says the derivative versions of the games are “virtually identical” to the originals in function, appearance and gameplay (except for the modifications added by the defendants) and allow players to experience the “exact same sights, sounds, story, setting, dialog, and other creative content” present in the originals.

Defendants Intended to Create and Distribute Pirated Games

Take-Two’s lawsuit claims that the defendants have made public statements that show their intent to create and distribute pirated Grand Theft Auto games by using Twitter and Discord to solicit help with the projects.

The gaming company also insists that the defendants have admitted that the source code is not original but intended to be copies of the originals.

“[D]efendants slavishly recreated the original code to play the Games by ‘decompiling’ the Games’ object (or ‘machine’) code and then working with that material to create a game experience that is identical to the original Games,” its lawsuit adds.

Addressing DMCA Notices Sent to Github

As previously noted, Take-Two submitted a DMCA takedown notice to Github in February requesting the disabling and/or removal of the allegedly infringing repositories. The company says that the counter notices sent by the defendants in response were not legitimate.

“In at least three separate instances between April and June of 2021, Defendants Orçunus, Morra, and Graber submitted sworn counter notifications to GitHub claiming the takedown of the repositories was mistaken or otherwise not legitimate,” the lawsuit reads.

“Take-Two is informed and believes, and on that basis alleges, that these counter notifications were made in bad faith, and knowingly and deliberately misrepresented to GitHub the contents of the re3 GitHub Repositories.”

Furthermore, it’s alleged that the reverse-engineering team expected a Take-Two response, noting on Discord it was a matter of “WHEN and not IF” the company would “strike back”.

Copyright Infringement Claims

Take-Two says that by willfully and maliciously copying, adapting and distributing its source code and other content, all of the defendants have infringed its exclusive rights under copyright law.

As a result, the company is entitled to damages in amounts to be determined at trial or, alternatively, a maximum statutory damages award of $150,000 for each infringed work.

Additionally, the gaming company says that by submitting bad faith DMCA counternotices to have the projects restored to Github, three of the defendants made misrepresentations under U.S.C. § 512(f).

“Accordingly, Defendant Orçunus, Morra, and Graber are liable for damages, including costs and attorneys’ fees, incurred by Take-Two,” the complaint adds.

Finally, Take-Two is seeking temporary, preliminary, and permanent injunctive relief to restrain the defendants from continuing their allegedly infringing activities. The company wants all infringing source code and games removed from the Internet and wants the defendants to hand over all materials that infringe its rights.

Take-Two also wants a full accounting of “any and all sales or downloads of products or services” that infringe its rights.

Take-Two’s copyright infringement complaint can be found here (pdf)

First publishedhere.