These past few months, Take-Two Interactive has been going around hunting down Grand Theft Auto modders who have been producing proprietary graphical updates of older games in the series. With the imminent release of Grand Theft Auto: The Trilogy — The Definitive Edition, it is clear that the company was nuking the competition — when one group fought back, they got hit by a lawsuit.
As pointed out in our previous coverage of this phenomenon, Take-Two was specifically targeting mods that amounted to fan-made remasters of GTA games without altering or adding original content — effectively, they were deliberately going after anything that gamers might consider to be free alternatives to an officially released remaster.
Most of the mods and modding teams that were issued DMCAs went quietly, adhering to the takedown notices and removing all of their content. No individual or small hobby group was willing to tangle with a big scary corporation with a history of being merciless in legal matters. None, but one.
The modders behind Re3 and reVC, two projects that reverse-engineered the code and assets of GTA 3 and Vice City with the goal of improving the original titles both visually and mechanically, defied the DMCA notice issued. GitHub, the host of the project, initially took down the files after Take-Two issued the claim, which then the modders counter-claimed via official channels.
Since Take-Two did not dispute the counter-claim, GitHub restored everything. It is possible, in retrospect, that Take-Two ignored the counter-claim on purpose as a chance to escalate things further following the restoration and set a scary example to anyone else who would try the tactic.
True enough, Take-Two's legal team has gone and launched an infringement lawsuit in California, which was almost immediately followed by GitHub removing all of the Re3 and reVC content again, once again posting standard DMCA notices on all of the pages previously related to the project and its forks.
The legal team is also going straight for the jugular — Take-Two is seeking damages and is specifically geared towards setting a major precedent regarding the usage of counter-claims, which it styled as "bad-faith" in order to essentially poison the feature against future use.
Defendants are well aware that they do not possess the right to copy, adapt, or distribute derivative GTA source code, or the audiovisual elements of the Games, and that doing so constitutes copyright infringement. Defendant [aap] even stated publicly that he was "very much worried" about TakeTwo’s discovery of the re3 and reVC projects. And, when Take-Two attempted to remove Defendants’ infringing source code from the Internet, at least three Defendants (acting in at least one instance with other Defendants’ participation and direction) knowingly filed bad faith counter notifications that materially misrepresented the legality of their content, apparently claiming that because they allegedly 'reverse engineered' the Games’ source code, they somehow cannot be liable for copyright infringement.
The team behind Re3 and reVC has argued that their project fell under fair use, but it isn't clear whether this will hold up in court.
If the latest reports are true, then the Grand Theft Auto: the Trilogy — The Definitive Edition will launch this November. This will bring remastered versions of GTA 3, GTA Vice City and GTA San Andreas in the Unreal Engine to PC and current consoles. How the lawsuit turns out remains to be seen.
