Page:Take-Two Interactive Software, Inc v Anderson.pdf/21

 51 Counsel for the applicants submitted that any variations between the particular agreements (in relation to terms barring cheating or the use of unauthorised mods) were immaterial. He submitted that all versions of the EULA and the ToS over the relevant period contained a term or terms that barred players from cheating or using unauthorised mods. He further submitted that Mr Anderson must have been aware of the substance of those terms and that the argument put forward by Mr Macinnis is untenable. This submission was (in part) based on the fact that Mr Anderson had himself played GTA V and in doing so must have accepted the EULA and the ToS prior to downloading and launching the GTA V application.

52 The relevant evidence appears at [8]–[10] of Mr Anderson's affidavit where he says:

8. The version of the EULA and Terms of Service shown before downloading and installing the latest GTA V installer consist of a single undated document, viewable in a small window or optionally printable, and does not represent the current versions of either the EULA or the Terms of Service. those documents and are undated. [sic]

…

8.1. … The contents appear to be derived from license documents consistent with similar documents dated on or around October 2013, rather than the more recent versions updated on 22 January 2018 which came into force approximately 5 months before the applicants signed and released this installer.

8.2. The same outdated and undated documents are included in later releases, including releases made after the operative license agreements were again updated on 18 September 2018, which is the same date that this matter was filed, are therefore not mentioned in the applicant's claim.

Entry into the EULA and the Terms of Service (GTA V's Online Mode)

9. The version of the EULA and Terms of Service shown before a user first enters GTA V's Online Mode – as distinct from the previously mentioned document which is shown during installation of GTA V itself – are also not the current versions of those documents, are undated, and cannot be saved to disk, printed, or viewed in any fashion outside the limited game interface provided.

9.1. Copies of these documents were obtained on or around 15 January 2019, by taking more than 100 screenshots, identifying, and separating each paragraph, inverting the colours, then pasting each paragraph into a Microsoft Word document.

…

Alternative EULA and Terms of Service documents

10. I am informed and believe that there have been at least six versions of Rockstar's "End User License Agreement" ("EULA") and the Rockstar's "Terms of Service" ("TOS") have been operative since GTA V was first released on 17 September 2013 and when I became aware of the applicant's

Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024