Pokies, Piracy, and Proof: The Aristocrat Technologies Case and the Evidentiary Lessons of Gaming Copyright

Electronic gaming machines — pokies — are sophisticated devices that combine proprietary software, carefully designed artwork, and regulatory compliance systems. When those elements are stripped out, cloned, and sold as refurbished machines, the consequences extend well beyond breach of contract: it is copyright infringement on a commercial scale. The Federal Court's decision in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2009] FCA 1495 is a high-profile reminder that the gaming industry's intellectual property is robustly protected — and that the evidentiary rules governing how that infringement is proved matter as much as the substantive law.

Background

Aristocrat Technologies Australia Pty Ltd is one of the world's leading manufacturers of electronic gaming machines — the company behind many of Australia's most recognised pokie titles. Aristocrat holds copyright in a wide range of intellectual property embedded in its gaming machines, including:

• Computer programs (literary works) — the software that controls gameplay, mathematics, and regulatory compliance;

• Artwork and visual displays (artistic works) — the distinctive graphics, symbols, animations, and reel imagery that define each game title; and

• Compliance plates and machine identification — regulated markings required for legal machine operation.

Global Gaming Supplies Pty Ltd and the associated respondents were alleged to be operating in the grey market for refurbished gaming machines. Rather than selling machines with legitimate Aristocrat software and artwork, they were alleged to have supplied machines containing pirated copies of Aristocrat's programs and artwork — effectively replacing the genuine, licensed content with infringing duplicates and selling those machines commercially.

The Legal Framework

Copyright in Software and Artwork

As literary works under the Copyright Act 1968 (Cth), Aristocrat's computer programs attracted full copyright protection from the moment they were written. The programs are not simply functional tools — they embody significant creative and technical investment. Similarly, the artistic works (reel symbols, backgrounds, animations, character designs) are protected as original artistic works.

Reproducing these works — by copying the programs onto new machines or recreating the artwork for use in substitute hardware — is primary infringement under section 36. Commercially distributing those copies engages section 38 (dealing in infringing copies).

Scale of Commercial Infringement

The scale of the alleged infringement — commercial distribution of refurbished gaming machines containing pirated content — placed the conduct squarely within the category of flagrant infringement under section 115(4) of the Copyright Act. Courts take a dim view of deliberate commercial exploitation of copyright works in contexts where the infringer derives direct financial benefit from substituting infringing copies for legitimate products.

The Evidentiary Issue: Tendency Evidence Under the Evidence Act

While the substantive copyright findings at first instance were significant, the more technically important aspect of the Aristocrat litigation relates to the use of email evidence and the rules governing tendency evidence under the Evidence Act 1995 (Cth).

What Is Tendency Evidence?

Tendency evidence is evidence that a person has, or had, a tendency to act in a particular way — used to suggest they probably acted consistently with that tendency in a specific instance. Section 97(1) of the Evidence Act provides that tendency evidence is not admissible unless:

• The party seeking to adduce it gives reasonable notice to the other parties; and

• The court considers the evidence to have significant probative value that substantially outweighs the danger of unfair prejudice to the defendant.

What Happened on Appeal

At first instance, the primary judge used email communications between the respondents as evidence of their knowledge and involvement in the infringing conduct. The Full Federal Court found that the primary judge had, in doing so, used the emails as tendency evidence — reasoning from a pattern of conduct to infer involvement in specific infringing acts — without complying with the procedural requirements of section 97(1). This was an appealable error.

When Aristocrat sought special leave to appeal from the Full Court's decision, the High Court refused — finding that the Full Federal Court's characterisation of the primary judge's reasoning was open to it. The evidentiary error stood.

The Practical Lesson

The tendency evidence issue in Aristocrat v Global Gaming is one of the most important practical lessons in Australian IP litigation. Internal emails, text messages, and other communications are frequently the most powerful evidence in intellectual property infringement cases — but their use must comply with the Evidence Act. A failure to give proper notice of a tendency evidence case, or to establish the necessary probative value threshold, can undermine an otherwise strong set of facts.

The Grey Market in Gaming Machines

The gaming machine industry in Australia is heavily regulated — machines must be approved by gaming regulators before they can be legally operated, and approved software versions are tightly controlled. The grey market in refurbished machines creates regulatory as well as copyright risks:

• Machines running pirated or modified software may not comply with regulatory approvals;

• Gaming venues operating such machines may themselves face regulatory sanctions;

• The commercial supply chain for refurbished machines must be scrutinised carefully.

Aristocrat's enforcement action was directed at the supply end of this market — the suppliers of infringing machines — but venues accepting machines without proper documentation face their own exposure.

Strategic Takeaways

• Gaming machine software and artwork are fully protected copyright works. Reproducing, modifying, or distributing them without authorisation is infringement. This applies to manufacturers, refurbishers, and suppliers alike.

• Evidentiary procedure matters in IP litigation. Tendency evidence under section 97 of the Evidence Act requires proper procedural steps — parties must give advance notice and establish significant probative value. Failure to comply can sink an otherwise compelling case.

• Email evidence is powerful but must be used correctly. In commercial IP disputes, internal communications are often the most probative evidence available. Legal teams must plan carefully how to adduce this evidence within the rules.

• Buyers of second-hand gaming equipment must verify legitimacy. Venues and distributors acquiring used gaming machines should verify that all software and artwork is genuine and licensed, not just that the hardware appears functional.

• Regulated industries face compound risk. Copyright infringement in the gaming sector can compound regulatory risk — a machine running pirated software may also be operating outside its approved specifications.

Conclusion

The Aristocrat v Global Gaming litigation is a case study in two legal domains simultaneously: copyright enforcement in a high-value commercial context, and the evidentiary challenges that arise when proving what the defendant knew and did. For businesses in the gaming sector — and for IP litigators generally — both lessons are essential.

Stellar IP Law advises on copyright protection, IP enforcement strategy, and complex evidentiary issues in IP litigation. If your intellectual property is being exploited without authorisation, contact our team for strategic advice.