Take-Two Interactive Software, Inc v Anderson (No 2)

Take-Two Interactive Software, Inc v Anderson (No 2) [2024] FCA 1459 is a Federal Court copyright decision about technological protection measures, often called TPMs, and software said to bypass them. The dispute centred on the “Infamous Mod”, a tool developed for Grand Theft Auto V on PC.

The court held that the respondent's manufacture and distribution conduct was actionable under s 116AO of the Copyright Act 1968 (Cth), but not under s 116AN. It granted declarations and a permanent injunction. The public record also makes clear that the second applicant, Rockstar Games, had no standing on the TPM claim. For businesses, the case is a reminder that anti-circumvention risk can arise from supplying a tool, not just from using it.

Take-Two was the developer, publisher and marketer identified by the court as owning all rights in the Grand Theft Auto series, including Grand Theft Auto V playable on personal computer. The judgment refers to the copyright subsisting in GTA V PC as the “GTA V Works”.

Rockstar Games was a wholly owned subsidiary and the developer and marketer of GTA V PC, but the court records that Rockstar had no standing in relation to the TPM claim because it was neither a copyright owner nor an exclusive licensee of the GTA V works.

The respondent, Christopher Anderson, was described as the developer of the “Infamous Mod”. According to the public part of the judgment, when used by a player of GTA V PC, the mod modified gameplay and allowed the player to execute certain unauthorised actions in the game. The applicants alleged that, through development and distribution of the mod, the respondent had either circumvented or provided a circumvention device for TPMs protecting the GTA V works.

The case did not begin and end with this 2024 judgment. It was part of a larger proceeding that had already produced earlier relief in 2021. The originating application had included claims for copyright infringement, procuring or inducing breaches of contract, and misleading or deceptive conduct. The court noted a background of repeated non-compliance with court orders by the respondent and a self-executing order.

In 2021, the court granted relief on claims other than the TPM claims, leaving the TPM issues to be tried later.

By the time of this judgment, the remaining questions were narrower. The court had to decide whether the respondent had engaged in actionable conduct under s 116AN(1) or s 116AO(1) of the Copyright Act, and if so what remedies should be granted under s 116AQ. The first applicant confined the TPM case to conduct between March 2017 and June 2018.

The extract says the mod ceased to be offered publicly through the Infamous website around March 2018, although the respondent had told the court he continued updating it for a handful of friends after that.

The legal issue was not simply whether the mod was undesirable or whether users might breach game rules. The court had to apply the Copyright Act provisions dealing with technological protection measures and circumvention devices. The catchwords show that this required interpretation of definitions in s 10(1), including “technological protection measure”, “access control technological protection measure” and “circumvention device”.

The catchwords also show the court considered whether the relevant device, product, technology or component controlled access, whether it was used in connection with the exercise of copyright, and whether in the normal course of operation it prevented, inhibited or restricted the doing of an act comprised in copyright. Those are technical statutory questions, and in this case the public material does not reveal the full confidential reasoning on how the identified TPMs worked.

A particularly important issue was how the legislative scheme separates different kinds of conduct. The catchwords expressly refer to whether s 116AN applies to acts of manufacture and distribution of the Infamous Mod, and whether an act of manufacture or distribution is itself an act that results in circumvention of an access control TPM.

They also note that s 116AO is expressly directed to acts of manufacture and distribution of a circumvention device, and raise the question whether s 116AN is directed instead to use of a device rather than manufacture or distribution. That distinction became central to the result.

The court found for the first applicant in part. The orders declare that the Infamous Mod, in the forms it took during the period from March 2017 to June 2018, contained “circumvention devices” within the meaning of s 10(1) of the Copyright Act for the “Real Time Memory Analysis TPMs” and the “Access Control Check TPMs”, as defined in the reasons and more fully described there.

The court also declared that the respondent had engaged in actionable conduct under s 116AO(1) by manufacturing the Infamous Mod with the intention of providing it to other persons, distributing it, offering it to the public, providing it to others and communicating it to others, in circumstances where he knew, or ought reasonably to have known, that the mod contained circumvention devices for those TPMs.

At the same time, the court's held outcome, as stated in the catchwords, was that the respondent's manufacture and distribution of the Infamous Mod was actionable under s 116AO but not s 116AN.

The orders then permanently restrained the respondent from manufacturing with the intention of providing to another person, distributing, offering to the public, providing or communicating the Infamous Mod in any form it took during the relevant period, and from dealing in any circumvention device designed to circumvent or facilitate circumvention of the TPMs. The originating application was otherwise dismissed.

For readers, the key point is that the split result was not accidental. It reflects the court's interpretation of the statutory scheme and the difference between the two provisions pleaded. On the public material, the case is a strong example of the court treating distribution-related conduct as directly actionable under the provision aimed at circumvention devices, while not accepting that the same conduct fell within the separate provision relied on for circumvention itself.

This case is not only about video game mods. It is relevant to any business making software that interacts with another company's digital product. That includes plug-ins, browser extensions, automation tools, reverse-engineering tools, repair tools, compatibility layers and software add-ons. If your product bypasses checks, alters runtime behaviour, neutralises anti-tampering measures or gets around access controls, the legal risk may attach to the tool itself and to the way you supply it.

The decision also shows why businesses should avoid broad assumptions about anti-circumvention law. A common commercial instinct is to say: we only distribute the tool, we do not use it; or users decide what to do with it; or the product is just an enhancement. This case shows that those points may not answer the statutory question. The court focused on the structure of the Copyright Act and on whether the conduct fit the provision dealing with manufacture and distribution of circumvention devices.

Standing is another practical lesson. Businesses often operate through groups of related entities, with one company developing a product, another marketing it, and another holding intellectual property. The judgment records that Rockstar Games had no standing on the TPM claim because it was not the copyright owner or an exclusive licensee. If your business needs to enforce rights, the identity of the claimant entity matters. If your business is defending a claim, standing may also be a real issue.

Because the detailed reasons were confidential for a period, the public material does not let readers inspect the full technical analysis of the TPMs. That means businesses should be careful not to overread the case as a complete public roadmap for every TPM dispute. What is clear, however, is the practical direction of the result: where a tool is found to contain a circumvention device, manufacturing and distributing it can attract declarations and injunctive relief.

If your business develops or distributes software that works with third-party products, review both the code and the commercial context. The public orders in this case refer to manufacturing, distributing, offering to the public, providing and communicating the tool. Those are practical supply-side activities that many software businesses carry out every day through websites, repositories, app stores, customer portals, Discord servers, update channels and support teams.

You should also review how the product is described. Marketing language, FAQs, demos and support material can all affect how a court understands the intended function of the tool. Even where a product is presented as a convenience feature, a court may focus on whether it contains a circumvention device and whether the supplier knew, or ought reasonably to have known, that this was so.

The judgment is dated 18 December 2024. The orders state that the reasons were to be kept confidential until 4.00 pm on 28 January 2025 or further order, with the parties to confer on proposed redactions to protect confidentiality of the TPMs and other technical information. The proceeding was stood over to 28 January 2025 for further orders about redactions and costs.

That procedural detail matters because it explains why the public material available for this page does not contain the full technical reasoning. Readers should treat this as a careful public explainer of the orders, catchwords and available introductory reasons, rather than a complete doctrinal account of the confidential analysis.

Federal Court of Australia, Take-Two Interactive Software, Inc v Anderson (No 2) [2024] FCA 1459, Nicholas J, judgment dated 18 December 2024. The public material confirms the parties, the issues argued, the held outcome, the declarations made, the injunction granted, the standing point concerning Rockstar Games, and the confidentiality orders affecting the reasons.

The public extract also records that this judgment followed an earlier 2021 decision in the same proceeding, Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024, which had already dealt with other claims. The detailed technical description of the TPMs is not fully available in the public material used here because the reasons were subject to confidentiality and redaction processes.