It should come as no surprise that rights holders of video games often go after those who modify their games or release fangames. However, I rarely see these lawsuits go beyond a DMCA notice and the other party following said notice. Most of the time, the potentially infringing party complies with the DMCA, and you never hear about them again.
The only case I’ve ever seen reach court comes from a team built on reverse engineering GTA 3. The team’s GitHub received a DMCA notice, which GitHub complied with.[1] In this case, the team opted to send a counter DMCA notice, which required GitHub under the US DMCA to restore the content, which includes reverse-engineered code from GTA 3.[2] However, a user must have a copy of GTA3 or VC if they want to apply this restoration to their game. Take-Two sued the known parties that reverse-engineered the game to make their restoration.
The defendant’s lawyer articulated that creating the reverse-engineered code is fair use because “Such actions, comprising reverse engineering, are a transformative use” and “any complaint of copying of copyright-protected material that did occur, if any, was kept to a minimally required amount.” The lawyer further articulated that “Upon information and belief, Plaintiff ceased releasing updates to the complained of software, often called “patches” or “bug-fixes” years before any complained of actions of Defendants. For a third party to use the software developed by Defendants, the third party must have a copy of the complained of software, i.e., the games Grand Theft Auto III and Grand Theft Auto Vice City”. If a third party wanted to use this reverse-engineered code to improve their game, they require a copy of GTA 3 or Vice City. Therefore, their lawyer argues that the work won’t impact the sales of GTA 3, a 15-year-old game (when the answer and affirmative defenses were made).[3]
Overall, it sounds like Take-Two wouldn’t be impacted by a patch of an older game. However, at the time, Take-Two was developing their remake of GTA3, Vice City and San Andreas. So, the damage to the market that this reverse-engineered project is more impactful than what the team’s lawyer argues. It should be noted, however, that Take Two’s remake of the games received horrible reception, and most notably, it was not even the previous console versions of the games being remastered to modern systems but the mobile versions.[4]
Regardless of these facts, we didn’t see how a fair use argument can be made against reverse engineering videogame code because Take-Two dismissed their lawsuit against the named defendants. Potentially, a settlement was reached between the parties as no one announced anything. Take-Two did say that they would go after the unknown parties in the lawsuit. I’m doubtful these unknown parties would ever be found, given that this saga has lasted a few years without being identified.[5]
So, what is a person who wants to remaster/reverse engineer an old video game to do? What works is never speaking about their project and releasing it into the wild without any progress updates, developer blogs, or identifying information about who they are. Your project can be momentarily released, as evidenced by the release of Link’s Awakening DX HD. The creator is only known as linksawakeningdxhd and built a 1998 video game port with HD visuals, 120 frames per second scrolling, and widescreen support. Even the ability to zoom out of the entire map and see each active enemy across the game’s overworld island. An achievement that shocked experts at videogame porting.[6]
The difference linksawakeningdxhd has against the team that made GTA 3 reverse-engineered is that they didn’t contest the DMCA on their respective platform and released a finished product they were happy with. It may no longer be available on itch, but the internet’s nature means it’s probably on another website for someone to access.
[1] “DMCA Notice Wipes Reverse-Engineered GTA Code from GitHub * TorrentFreak”, online: <https://torrentfreak.com/dmca-notice-wipes-reverse-engineered-gta-code-from-github-210221/>.
[2] “Github Restores Reverse-Engineered GTA Code Following DMCA Counter Notice * TorrentFreak”, online: <https://torrentfreak.com/github-restores-reverse-engineered-gta-code-following-dmca-counter-notice-210507/>.
[3] “GTA Modders to Court: Our Game Fixes & Enhancements Are Fair Use, Not Piracy * TorrentFreak”, online: <https://torrentfreak.com/gta-modders-to-court-our-game-fixes-enhancements-are-fair-use-211116/>.
[4] John Linneman, “Grand Theft Auto 3: Definitive Edition – the good, the bad and the ugly Massive disappointment.”, Eurogamer (15 November 2021), online: <https://www.eurogamer.net/digitalfoundry-2021-grand-theft-auto-3-definitive-edition-the-good-the-bad-and-the-ugly>.
[5] “Take-Two Dismisses Claims Against Lead Defendants in GTA Mods Lawsuit * TorrentFreak”, online: <https://torrentfreak.com/take-two-dismisses-claims-against-lead-defendants-in-gta-mods-lawsuit-230405/>.
[6] Wesley Yin-Poole, “Link’s Awakening DX HD Is an Unofficial PC Remake of the Game Boy Color Classic”, (13 December 2023), online: IGN <https://www.ign.com/articles/links-awakening-dx-hd-is-an-unofficial-pc-remake-of-the-game-boy-color-classic>.
By Samuel Honer
Communications Law