41 The evidence relied on by the respondent in support of his defence does not address this issue. It is not to the point that "[n]o copy of the … GTA V Works … was created in the memory of the user's computer just because they were running Infamous" or that "[n]o portion of the GTA V works was copied by Infamous". The key issue in relation to authorisation is whether the players (or end users) lost the benefit of their licence to use the GTA V works by installing and using the Infamous mod. If so, the end users infringed the applicants' copyright when they ran the GTA V application by making an unauthorised copy of the works in RAM and the respondent, who knowingly facilitated and encouraged their actions, is liable for his authorisation of those acts.
42 The first of the respondent's arguments does not rise to the level of an arguable defence.
The circumvention device issue
43 In his affidavit, Mr Anderson admits that the Infamous mod interfered with what he refers to as Real Time Memory Analysis ("RTMA") and Telemetry which comprise tools used by the applicants to detect cheating players. In his affidavit Mr Anderson otherwise denies circumventing other access control mechanisms.
44 On the evidence before me, there is nothing to indicate whether the anti-cheat tools the respondent admits he interfered with (or circumvented) are technological protection measures within the meaning of s 116AO (as defined in s 10) of the Copyright Act. Mr Anderson's affidavit stated that "[t]he taxonomy of technological protection measures is somewhat malleable, and it not my intent to assert the technological protection measures described … below are necessarily [access control technological protection measures] and [technological protection measures] (respectively) if the applicant's [sic] opine otherwise".
45 In his affidavit Mr Anderson states somewhat cryptically that:
My descriptions of the various elements of what the applicants claim as TPM and AC TPM does constitute an admittance that any elements so described were employed for the purpose of copyright protection and are therefore TPM or AC TPM in the legal sense.
46 On the evidence before me there is nothing to indicate whether the anti-cheat tools the respondent admits he interfered with (or circumvented) are access control technological protection measures as defined in s 10 of the Copyright Act. In order for the anti-cheat tools to come within that definition, it would be necessary that they, in the normal course of their
