Yesterday, a federal judge for the US District Court in the Southern District of New York issued a preliminary injunction against a man distributing cheating software for Grand Theft Auto 5. In other words, he’s prohibited from making or selling any more cheat programs for the game until the court can definitively sort out whether he broke the law.
The injunction was the latest development in an ongoing lawsuit that started in March between GTA publisher Take-Two Interactive and David Zipperer, who the company claims has threatened “irreparable harm” to its games and business by creating cheating programs that allow players to bank endless money in GTA 5’s online mode.
The publisher has accused Zipperer of copyright infringement by way of copying the game to his computer in order to create a cheat program, and that the cheat program is a derivative work as a result. The suit also alleges he breached the terms of GTA 5’s User Agreement and encouraged other players to do the same by selling the cheat programs, and Take-Two is seeking to recover a minimum of $US500,000 ($687,820) in damages as a result.
Zipperer, meanwhile, has countered in part that since his cheating software is a separate program, it doesn’t count as copyright infringement. Zipperer’s lawyer did not immediately respond to a request by Kotaku for comment.
However, US District Judge Louis Stanton found Take-Two’s claims credible enough to grant a preliminary injunction against any further distribution of the software. According to the opinion released by the court yesterday, he did so based primarily on the fact that Zipperer hadn’t attempted to rebut Take-Two’s claims that he had been selling a program enabling other players to hack GTA Online.
Zipperer’s run-in with Take-Two began last winter over a program called “Menyoo” that was sold for $US10 ($14), essentially a mod for GTA 5 that lets players use money-making exploits while playing in the game’s online world against other people.
Take-Two sells these in-game bucks for real world cash, so cheating programs such as these, in addition to making the playing field uneven, also cut into GTA’s profit margins, according to the publisher.
Cease and desist orders from Take-Two in June of 2017 were enough to get Zipperer to close down the websites through which Menyoo was being distributed. After which he said he’d donate the earnings to charity.
In its original complaint filed on March 23 of this year, Take-Two said that it was forced to pursue further legal action after Zipperer broke off communication with the publisher and allegedly began distributing a second program that did the same thing called Absolute, which Take-Two says he was selling for between $US20 ($28) and $US40 ($55).
“While Mr Zipperer originally appeared cooperative and disabled access to the Menyoo program, it recently has come to Take-Two’s attention that Mr Zipperer distributed a new cheating program titled Absolute,” the company wrote in its complaint. “Take-Two demanded on multiple occasions that Mr Zipperer cease his willful and infringing conduct. Mr Zipperer has refused to comply. Upon information and belief, Mr Zipperer continues to infringe Take-Two’s rights.”
Zipperer had claimed the injunction was unnecessary because he’s no longer distributing the cheating program or profiting off of it.
He’s also argued that the venue for the case should be changed to Georgia where he lives, but Judge Stanton denied this request as well, citing language in GTA 5’s User Agreement allowing Take-Two to have the matter settled in New York.
Zipperer claimed that resolving the case in the Southern District would be, in Stanton’s words, “unreasonable and unjust”, because Zipperer hadn’t ever read that part of the User Agreement, had a Year 9 education, and insufficient funds to pay for ongoing legal action in a state nearly 1600km away.
The judge didn’t find these arguments persuasive though, saying they were insufficient to warrant overriding the terms he technically agreed to first start playing the game. Take-Two also disputes that Zipperer is poor, citing PayPal records submitted to the court but which have not been made public which allegedly show over 1000 transactions.
“Take-Two is committed to protecting our multiplayer community from harassment and other disruptions to their shared entertainment experiences,” a spokesperson for the company told Kotaku in an email. “We can and will continue to take legal action against those who interfere with the multiplayer environment enjoyed by our audiences.”
Since it was released in 2013, GTA 5 has gone on to be Take-Two’s most successful game of all time, in large part because of its online mode, which continues to get new updates even five years later. Last August, shortly after the company had sent Zipperer and other GTA modders cease and desist orders, it made $US418 million ($575 million) in net revenue from the game in just the previous three months alone.