Take-Two Interactive Software Inc & Anor v James & Ors

Summary judgment is appropriate where a claim or defence has no realistic, rather than fanciful, prospect of success and there is no other compelling reason for trial. Short points of law may be decided summarily where the evidence is sufficient and the parties have had a proper opportunity to address them.

The tort of inducing breach of contract requires breach, persuasion or inducement, knowledge, intention and damage. Knowledge of the contract and wilful blindness to its terms may suffice. Supplying software which inevitably causes users to make transient copies of copyright material may amount to authorising infringement. A disclaimer does not prevent authorisation where it is merely window-dressing.

The claimants, publishers and developers of the video game Grand Theft Auto V, sought summary judgment concerning software known as Epsilon. The fourth and fifth defendants admitted involvement in developing the software but denied liability.

The claims included breach of contract, inducing users to breach their contracts, and copyright infringement through copying, adaptation, authorisation and circumvention of technical protection measures. The fifth defendant argued that he was a minor when he entered the relevant contract. The application concerned liability only; quantum remained unresolved.

1. Summary judgment. The court applied the requirement that the claim or defence have no real prospect of success and that there be no other compelling reason for trial. The relevant facts were sufficiently established through the evidence and oral submissions. The court could therefore determine the principal liability issues summarily.
2. Breach of contract. The contractual prohibition on cheating and instructing others how to cheat was plainly breached by the fourth defendant. The position of the fifth defendant could not be determined summarily. The scope of the rules governing contracts with minors, including whether the game licence was an interest in property or a necessary, required fuller argument and remained a realistic defence.
3. Inducing breach of contract. The court applied the elements identified in OBG Ltd v Allan [2008] 1 AC 1. Users breached their contracts by cheating; Epsilon was supplied to persuade or induce that conduct; the defendants knew of the contracts and were wilfully blind to the precise terms; they intended the breaches; and the claimants suffered damage.
4. Copyright infringement. Supplying Epsilon authorised users to copy the GTAV program or substantial parts of it. Under Copyright, Designs and Patents Act 1988, copying includes transient copies. Epsilon reproduced information from the game libraries so that weapons and other assets could be instantiated during gameplay. The defendants’ continuing relationship with users, control over the software, and the inevitability of infringement when it was used as intended supported authorisation.
5. The purported disclaimer was treated as ineffective window-dressing. Public availability of source material did not provide a defence. The decompilation defence under section 50B was unavailable on the evidence and, in any event, would not answer the separate finding of authorised copying.
6. The court did not determine adaptation under section 21 or circumvention under section 296, since those issues were unnecessary to the result or involved potential factual disputes. Summary judgment was granted on liability on the stated bases. A quantum trial might still be required.

Not stated in the judgment.