Back in September Take-Two filed a lawsuit over the re3 and reVC fan projects (which reversed engineered both GTA 3 and Vice City), claiming they constitute copyright infringement. The projects distributed source code that aimed to bring the games to other platforms, and issue them with improvements.
After the project was made available again on GitHub in October, Take-Two issued a second takedown notice, for which GitHub complied and shared the document they were sent.
Now, the modders have issued an answer and affirmative defences via their attorneys (as discovered by Torrent Freak). The modders issue a few defences, including fair use, functionality, and implied license/abandonment.
The team states that using the source code as they have constitutes fair use under copyright law, and that the reverse engineering was in fact transformative of the original material. Adding that the plaintiff (Take-Two) had ceased releasing bug fixes and patches for the games, and that for any third-party (a prospective player) to use the mods, they must own the games themselves first as well.
The implied license/abandonment defence alleges that Take-Two, by virtue of supporting other mod projects in the past, has given the modders an implied license to make these mods in the first place.
It’s also put forth that Take-Two, via subsidiaries or predecessors, actually released portions of game software to the developers of Multi Theft Auto, a GTA mod project that makes older titles have multiplayer, which is actually still up here.
Take-Two CEO Strauss Zelnick said earlier in the year: “In terms of takedowns, we’re pretty flexible, frankly. That said, if the economy is threatened, or if there’s bad behaviour, and we know how to define that, then we would issue a takedown notice.”
With other mods still up then, it appears that this means Take-Two is taking down the re3 and reVC projects as they interfere with the recently released Grand Theft auto: The Trilogy – The Definitive Edition, as both GTA 3 and Vice City are a part of that collection. Although this has not been outright said by Take-Two as of writing.