operation, control access to copyright works. Based on Mr Anderson's description of the anti-cheat tools, they do not control access to the work. I therefore accept that the respondent has, at least on the evidence before me, an arguable defence to the claims made against him under ss 116AN and 116AO of the Copyright Act.
The knowledge issue
47 Mr Macinnis submitted that the respondent did not have knowledge of the particular terms of the agreements entered into between the applicants and the end users who used the Infamous mod. He submitted that, lacking such knowledge, the respondent could not knowingly induce a breach of contract and could not be liable for copyright infringement by authorisation. He also submitted that the applicants did not enforce the relevant contractual terms by allowing players who used unauthorised mods (including the Infamous mod) to continue playing GTA V. He submitted that the applicants therefore waived the related terms of the agreements.
48 The evidence relied on in support of this latter submission appears in Mr Anderson's affidavit at [14]–[16] where he states:
14. Players who cheat do not have their license to Grand Theft Auto V terminated.
15. During my considerable involvement in the GTA V player community, I have never heard of anyone having their permission to play GTA V denied, or by extension, having their license revoked.
16. In addition to previously mentioned examples confirming this policy, there are numerous additional official messages published by Rockstar confirming this
…
49 The argument that the applicants waived conditions of the EULA or the ToS is not pleaded in the respondent's defence. A defence to that effect was foreshadowed earlier in this proceeding and orders were made to allow the respondent to file an amended defence. He did not do so. No leave has been sought to amend the defence to allege that the applicants expressly or impliedly waived any terms of the EULA or the ToS.
50 Mr Macinnis also submitted that:
… there were so many combinations and permutations of the end user licence agreement and the terms of service, that we were not in a position to be aware at a specific time of the terms of the contract, and therefore, that element of inducing breach of contract is not made out …
