Rockstar Joins Other Publishers In Misusing Copyright Law To Go After Cheat Developers For GTA5

from the attack-the-hack dept

For some time now, we've noted a troubling trend in the video games industry. That trend would be publishers trying to twist copyright law into a pretzel that allows them sue makers of cheat software for copyright infringement. This novel application of copyright law has been piloted by Blizzard and Epic Games in the past. Both company's theory of the case for copyright infringement revolves around their games being licensed instead of sold, with the EULA being broken by utilizing cheat software. If the EULA is broken and the cheat-maker still makes use of the game, they do so without a license. Therefore, copyright infringement.

This, of course, is not how copyright law is supposed to work. Instead, the point of the law is to prevent unauthorized copying of the product, which is absolutely not the practical result of what these cheat-makers are doing. And, yet, the trend continues, with Rockstar Games winning a summary judgement in the UK against two individuals who developed cheats for Grand Theft Auto 5.

At the Intellectual Property and Enterprise Court, Rockstar and its parent company Take-Two Interactive filed a complaint against several people connected to the now-defunct “Epsilon” cheat. Epsilon was a so-called ‘mod menu’ which offered players significant advantages. The game companies reportedly shut down the cheat in 2018 and identified five men connected to it. They were accused of copyright infringement by creating and distributing the software.

Three of the five settled with Rockstar out of court. The other two, however, defended themselves by both noting that they included a disclaimer of liability to those making use of their software and that the tools they used to make their cheats are widely and publicly available on the internet. The court didn't buy either argument and found for Rockstar in summary judgement. The court did likewise on breach of contract (the EULA) and inducement to breach that contract, except on the former for one defendent, who is a minor.

All in all, the court ruled in favor of Rockstar and Take-Two, granting summary judgment for copyright infringement against the two men. This means that the case won’t go to trial.

Both defendants were also accused of (inducement of) breach of contract and breach of contract. The court sided with the game companies here as well, except for the breach of contract claim against one of the two, who was a minor at the time of the offense.

Left unexamined appears to be why any of this is actually copyright infringement to begin with. And, if the court truly thinks it is, why the entire modding ecosystem isn't suddenly one big cesspool of copyright infringement. The law doesn't care whether a game is online or not. Either mods are appropriate fodder for copyright law or they are not.

One wonders if companies like Rockstar understand the potential harm they are doing to their industry by going down this road.

Filed Under: cheats, copyright, eula, grand theft auto 5
Companies: rockstar games, take two interactive

Target And Kmart Pretending To Be Prudes In Australia Over A Vocal Anti-GTA5 Minority

from the windsocks dept

Update: We've just noticed that we originally named Walmart in this story when it should be Kmart. We've removed the instances of Walmart and deeply regret the error. Also, it should be noted that Kmart Australia and Target Australia are divisions of Wesfarmers Limited and not related to the US corporations with similar names.

As you may have heard if you follow gaming news, the next-gen console version of Grand Theft Auto 5 release in Australia hit a bit of snag this past week. Now, let's start this off by noting that it was only recently that the government of Australia finally agreed to treat its citizens like adults and allow the kind of video games we enjoy in the States to even be sold in the land down under. It came along with a strict ratings system, of course, but at least these games were finally available for purchase. It was a victory for speech and art.

And now, stupidly and cynically, retailers are pretending to be prudish, in the face of a petition by a vocal minority making almost purely emotional arguments, and have agreed to remove Grand Theft Auto 5 from their shelves. The focal impetus of this response by both Target and Kmart in Australia appears to be this Change.org petition, which is about as Change.org-petition-y as it gets.

It's a game that encourages players to murder women for entertainment. The incentive is to commit sexual violence against women, then abuse or kill them to proceed or get 'health' points.

As anyone who has played the game, as I have, can tell you, this is only half true. Or, actually, perhaps less than half, because all the same violence, sexual misanthropy, and cruelty applies at least to the men in the game as well, and I'm pretty sure I remember smacking around some wildlife during my foray into the game as well. The point of GTA5 isn't to demean women; it's to demean everyone and everything. The whole thing is a farce for violence and cruelty. That's its very point. But, to understand the plea of the petition, you have to understand who is issuing it.

We have firsthand experience of this kind of sexual violence. It haunts us, and we've been trying to rebuild our lives ever since. Just knowing that women are being portrayed as deserving to be sexually used by men and potentially murdered for sport and pleasure – to see this violence that we lived through turned into a form of entertainments is sickening and causes us great pain and harm.

Let's be clear about two things. The first is that any real life abuse of women, sexual or otherwise, is a horrific thing and should not be tolerated in any fashion anywhere. It's horrible and it breaks my heart knowing that survivors of such abuse must slog through life on a daily basis overcoming the abuse every step of the way. The second thing we must be absolutely clear on is that for anyone that values free speech, be it government or a corporate entity, the fact that these women issuing their petition are abuse survivors doesn't matter even a little bit. Free speech and artistic expression don't simply get to be limited just because some people may be emotionally hurt by it.

The two retailers, Target and Kmart, being private entities, can of course do as they please. But when they say the following in their press release:

"We've been speaking to many customers over recent days about the game, and there is a significant level of concern about the game's content," [Target's GM of Corporate Affairs] Mr Cooper said. "We've also had customer feedback in support of us selling the game, and we respect their perspective on the issue. However, we feel the decision to stop selling GTA5 is in line with the majority view of our customers."

then they must also explain why this decision over a forever-controversial gaming franchise is only coming upon the re-release of the game, which originally came out a year ago, and how they can also take the following stance.

Mr Cooper said Target would continue to sell other R-rated DVDs and games.

"While these products often contain imagery that some customers find offensive, in the vast majority of cases, we believe they are appropriate products for us to sell to adult customers.

Because the first quote from Mr. Cooper obviates his company's need to take such a stance. All he and Target must do, to remain consistent, is constantly follow the demands of whichever group is shouting the loudest. Because, given that we're talking about one of the best-selling videogames in the history of the medium, that line about Target listening to the majority of consumers is a big bucket of bullshit. And, of course, Target and Kmart will happily sell the game elsewhere in the world, and make gobs of money off of it, while the petitioners updated their petition with "Thank you Target/Kmart" posts.

Fails all around, so... well done everyone.

Filed Under: australia, games, grand theft auto 5, video games
Companies: target, walmart

Amended Complaint From Lindsay Lohan Against Take Two: Now With Five Times More Paper!

from the publicity-wrongs dept

When we last left the saga of Lindsay Lohan's 10 page complaint against Take 2 Interactive over a publicly-fornicating, drunk-driving character in Grand Theft Auto 5 that she insisted was her own spitting image, Take 2 was asking for the whole thing to be dismissed because the character is obviously not a reproduction of Lohan at all, but a parody take on celebrity fame. In addition to that, Take 2 also mentioned that the statute of limitations may have expired on the issue, since it had been well over a year since the side-mission featuring the alleged-Lohan-doppelganger had been announced and publicized.

Well, Lohan's legal team has responded with...paper. Lots more of it, actually. Her amended complaint comes in at a whopping sixty-seven pages and it's chock-filled with images of Lohan in what she's insisting proves that Take 2 used her image as a basis for Lacey Jonas.

Lohan's lawyers have now reacted to this gambit by on Wednesday stuffing 45 pages of pictured exhibits into an amended complaint, including a photograph of the game CD, one of which features a blonde, red bikini-clad woman holding up the peace sign. According to the amended complaint, the game publisher "used a look-a-like model to evoke the persona and image" of Lohan by imitating a photograph that was once taken of her in 2007. On some of the game discs, the blonde character that Lohan asserts is her doppelganger is shown in what the lawsuit calls "an arrest pose known as the 'Stop and Frisk.'"

A female celebrity holding up a peace sign? Clearly nobody besides Lindsay Lohan has ever been photographed doing that.

Lindsay looks different these days.

Anyway, her legal team is trying to get around New York's publicity rights laws, which are limited to the realm of advertising, by including all kinds of images of the Lacey Jonas character that Take 2 put on t-shirts and coffee mugs. Except, of course, that none of that was in the original complaint and the character in question still isn't a direct reproduction of Lindsay Lohan. It's a composite parody on L.A. female celebrities in general and it's protected speech due to its nature.

As for how the Lohan legal team is attempting to get around the statute of limitations...whoo boy.

Lohan has reacted to this defense by talking about the "republication" of her image upon the release of the actual videogame later that year. According to the amended lawsuit, Take-Two modified her image to fit on the game disk. Lohan now claims that this "modification" should satisfy the exception to the one-year statute of limitation.

It's the same image sized to fit onto a DVD disc...and that somehow excuses her not taking action for over year because why exactly? In the end, hopefully the court will see this legal action for what it is: a misunderstanding of parody and the first amendment coupled with a plea for attention.

Filed Under: grand theft auto 5, gta 5, lindsay lohan, new york, publicity rights
Companies: take 2 interactive

Take 2 Goes On The Offensive Against Lindsay Lohan

from the live-by-the-sword... dept

We've come to know Lindsay Lohan quite a bit here at Techdirt, chiefly around the way she appears to see the American legal system as her own publicity engine. After making a name for herself for filing claims against all kinds of companies she somehow thinks are using her image in the most subtle way possible, she recently decided to file a publicity rights claim against Take Two Interactive, makers of Grand Theft Auto 5. See, Lindsay saw the GTA character Lacey Jonas drive drunk and screw in public in the fifth installment of the series and decided that was totally her.

Take Two Interactive, thankfully, isn't taking the lawsuit lying down. They don't just want the case dismissed; they want Lohan sanctioned by the court as well.

"Lindsay Lohan complains that her image and persona have been wrongfully used by Take-Two in the video game Grand Theft Auto V, but her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes," states the defendant's memorandum to support dismissal.

The idea of placing a monetary sanction on an individual abusing the legal system is tantalizing enough on its own; to have this done to the insipid Lindsay Lohan, attacker of free speech, parody and video games, super-charges the attractiveness of the possibility. It's high-time that the publicity rights trend gets taken down a few notches, if not completely abolished. Any step in that direction would be welcome.

You might wonder how a filing like this, one which might result in payment going the opposite direction, could get past Lohan's legal team. As we've noted before, she isn't the best judge of who to hire as a lawyer, it seems.

In taking on Take-Two, Lohan has dispensed with the lawyers who were caught plagiarizing in the Pitbull case in favor of new legal representation that spelled her first name "Lindsey" in one part of the complaint.

Take Two Interactive is essentially arguing that the claims by Lohan are without merit, something she and her team should have been aware of considering the results of the action against Pitbull, which found that creative works, even if for sale, are protected in the event of parody. I had already figured the company would win this for that reason, but if we can start sanctioning celebrities making spurious claims, all the better.

Filed Under: grand theft auto 5, gta 5, lindsay lohan, publicity rights, sanctions
Companies: take 2 interactive

Lindsay Lohan Moves Forward With Lawsuit Against GTAV

from the dragging-yourself-through-the-muck dept

And we're back with another episode of Lindsay Lohan Sues People For Stuff They Didn't Do. It's been a while, so you may not remember that Lohan, who has been quite lawsuit-happy in the past, was reportedly discussing filing a likeness-rights suit against the makers of Grand Theft Auto 5, claiming that a character in the game is based on her. That was in December of last year and apparently over six months of her lawyers explaining to her what parody is hasn't taken, because reports are now coming out that she has indeed filed in a New York court.

Lindsay Lohan is suing the makers of the "Grand Theft Auto" video games. The actress says the latest installment used her image and created a character based on her without her permission. Lohan's lawsuit says a character named Lacey Jonas is an "unequivocal" reference to the "Mean Girls" and "Freaky Friday" star. The suit says Lohan's image, voice and styles from her clothing line are depicted. It says the game features West Hollywood's Chateau Marmont hotel, where Lohan once lived.

Once again, lawyers for GTA5 should be able to walk into the courtroom, softly say the word "parody", and then walk right the hell back out victorious. But, as I previously described, Lohan's allegations are way more fun than that. She claims that two separate characters are based off her in the same game, including a character that is described as a drunk driver and who enjoys fornicating in public places. One would think that a person would want to avoid claiming a likeness to such a thing, but that's apparently not the case with old LiLo. Worse yet, while there may be some obvious draws on Lohan's life story to create this parody, there are several aspects of both characters that clearly have nothing to do with her and are simply composites of celebrity culture in order to create a funny homage to the L.A. celebrity lifestyle.

As other commentators note, suing over this kind of thing has little chance of going anywhere.

As a general matter, you will not be held liable for using someone's name or likeness in a creative, entertaining, or artistic work that is transformative, meaning that you add some substantial creative element over and above the mere depiction of the person. In other words, the First Amendment ordinarily protects you if you use someone's name or likeness to create something new that is recognizably your own, rather than something that just evokes and exploits the person's identity.

As I mentioned in the last post, I've played this game, played this mission, and I didn't once even think about Lindsay Lohan. The character is just mocking celebrities that get themselves into trouble and generally behave like entitled miscreants. The only reason I now associate those kind of personality flaws with Lindsay Lohan is because she insisted on it through this lawsuit that will likely fail. So...well done all around, Lindsay!

Filed Under: grand theft auto 5, gta 5, likeness, lindsay lohan, privacy rights, publicity rights
Companies: rockstar games, take two interactive

Rockstar Games Promises To Use Copyright To Delete Spoiler Cutscene Videos

from the spoiler-free dept

Rockstar Games has always struck me as sort of wishy-washy when it comes to how the company protects (or imagines it's protecting) its games. On the one hand, it comes up with fun little strategies to combat cheating, by placing all the cheaters in one place to cheat against other cheaters. On the other hand, the company has embraced DRM in the past, which is the kind of strategy you employ when you want to accomplish exactly nothing beyond pissing off your actual customers. But, hey, nobody's perfect. What's most frustrating when it comes to some of this over-protectionism stuff is when it is done with some truly pure intentions, but isn't thought through. And, the folks behind the newly-released Grand Theft Auto 5 have struck that exact chord with their legal policy on posting game videos.

Posting video showing the ending of the game, pure cutscenes or any other big reveal in the story. It's ok to show cutscenes as part of a larger play-through (or in a narrated ‘Let’s Play’ type video) but isolated videos of the game's cinematics will be removed. If you are unsure if what you want to post is considered a spoiler, please contact copyright@take2games.com and describe exactly what scene you are wondering about and in what context the scene would appear.

On the one hand, it isn't a terribly aggressive policy on posting game videos. There's clearly an embrace of the "Let's Play" style of vids that spread through YouTube and other sites and do so much to help promote the game itself to prospective customers. In a game like GTA, with its open world and insane amount of freedom, watching a video of the game being played by someone else almost certainly causes zero harm to sales, and likely spurs them forward. It's great to see a company embrace that kind of thing, especially when there have been examples of takedowns over those sort of videos.

On the other hand... why is Rockstar designating itself as the spoiler police? Because that's all this really is. The company is designating story-mission cutscene videos that don't do anything else for aggressive takedowns. What's the point of that? As I mentioned above, a game like GTA doesn't live only on its story. In fact, it probably doesn't even live primarily on its story. It's hard to see how many customers will be lost because, oh, now I know the lead character is going to kill some people and probably do some outrageous stuff. Nevermind that watchers could always... you know... just not watch the spoiler videos.

I guess Rockstar can handle its IP however it wants, but this seems both misguided and counter to the purpose of copyright to begin with.

Filed Under: abuse, copyright, cutscenes, dmca, grand theft auto 5, spoilers, video games
Companies: rockstar games