36 Over the course of the hearing of the interlocutory application Mr Macinnis identified four arguments based on Mr Anderson's affidavit that he submitted gave rise to an arguable defence. In summary, the respondent's defence is that:
- (1) When executing the Infamous mod no copy of the GTA V works was made by a user, and in creating the Infamous mod the respondent (and his associate(s)) did not copy any part of the GTA V works;
- (2) The Infamous mod is not a circumvention device and, therefore, the respondent did not manufacture a circumvention device;
- (3) The respondent lacked knowledge of the terms of the agreements between players using GTA V (with the Infamous mod installed) and the applicants and he therefore did not induce any breach of contract; and
- (4) The respondent was not operating in trade or commerce, nor via a telecommunications device and his actions are therefore not captured by the Australian Consumer Law.
37 I will consider each of these propositions in turn remembering that the question is whether Mr Anderson has raised a triable issue rather than whether Mr Anderson is likely to succeed in his defence of the proceeding.
The authorisation issue
38 Mr Macinnis submitted that merely by running the Infamous mod an end user does not reproduce any part of the relevant copyright works. He further submitted that in making the Infamous mod no part of the GTA V works was reproduced by Mr Anderson. For those reasons he submitted that Mr Anderson did not infringe the applicants' copyright.
39 These submissions and the related sections of Mr Anderson's affidavit (even if accepted as correct) cannot give rise to an arguable defence because they do not answer the applicants' pleaded case.
40 The applicants' pleaded case is (in essence) that by using the Infamous mod players breached the applicants' EULA and the ToS such that they no longer had a licence to use the relevant GTA V copyright works. When a player then loads the GTA V application, that player reproduces the GTA V works in RAM without a licence and therefore infringes the applicants' copyright.
