Over the past several years, a wave of copyright infringement lawsuits has targeted alleged cheaters and cheat makers.
Game companies have emerged as relatively swift victors in most of these cases, but that’s not a given.
Two years ago, Bungie filed a complaint at a federal court in Seattle, accusing AimJunkies of copyright and trademark infringement, among other things. The same allegations were made against Phoenix Digital Group, the alleged creators of the Destiny 2 cheating software.
The case initially seemed set for a quick settlement, but the parties failed to reach an agreement. Instead, Bungie pressed on while AimJunkies went on the defensive, asking the court to dismiss several claims.
AimJunkies argued that cheating isn’t against the law. In addition, it refuted the copyright infringement allegations; these lacked any substance and were ungrounded because some of the referenced copyrights were registered well after the cheats were first made available, AimJunkies argued.
Dismissal, Hacking and Arbitration
Last year, U.S. District Court Judge Thomas Zilly largely sided with AimJunkies. The original complaint failed to provide sufficient evidence for a plausible claim that the ‘Destiny 2 Hacks’ infringed any copyrights.
This was bad news for Bungie but the court did offer the company the option to file a new complaint to address these shortcomings, which it did soon after.
Meanwhile, AimJunkies wasn’t sitting idly by. The cheat seller filed a countersuit, accusing Bungie of hacking when it allegedly accessed a defendant’s computer without permission. This hacking counterclaim was eventually dismissed.
Bungie scored its first major win earlier this year in an arbitration proceeding. Judge Ronald Cox concluded that the cheaters violated the DMCA’s anti-circumvention provision and related trafficking restrictions, awarding $3.6 million in damages to the game company.
This arbitration ruling is still under appeal and with the battle being fought on multiple fronts, attention shifted back to the federal lawsuit once more, where Bungie continued its copyright and trademark claims this summer.
Bungie’s Sealed Motions for Summary Judgment
In July, the game company submitted motions for summary judgment, which remain sealed and hidden from the broader public to this day. The sealed nature of this request makes it hard to report on but a minute order issued by District Court Judge Thomas S. Zilly last week fills in some of the blanks.
Bungie hoped to resolve the dispute without a trial, arguing that it’s clear that AimJunkies infringed its copyright. The cheat seller had to copy portions of the Destiny 2 game code to create its cheat, Bungie theorized.
In an order released late last week, District Court Judge Thomas Zilly is not convinced of this logic, as there is no hard evidence that any game code was copied. And without that, there’s no ground for a plausible copyright infringement claim.
Copyright Infringement Claim
In his order, Judge Zilly cites testimony from Bungie Engineering Lead, Edward Kaiser, who stated that cheating software couldn’t function without copying portions of the Destiny 2 code. However, that argument was little more than a well-informed theory; there is no proof.
“Notably, Dr. Kaiser is not certain that Defendants copied portions of Destiny 2’s copyrighted software code to create the Aimjunkies cheat software, and he explained during his deposition that, based on the available evidence, his opinion is merely ‘the most likely conclusion’,” Judge Zilly writes.
“Defendants deny that they copied any portions of Destiny 2’s software code, and contend that a non-party developer created the Aimjunkies cheat software,” the Judge adds, concluding that the motion for summary judgment on the copyright claims is denied.
Trademark Infringement Claim
In addition to the copyright claim, Bungie also argued that AimJunkies infringed its trademark. The cheat seller did indeed use Destiny 2’s trademark to promote its cheat. However, in order to show that this use is infringing, this use has to cause “consumer confusion”.
According to Judge Zilly, AimJunkies’ use is different than that of a typical counterfeiter, who uses trademarked logos to make a product look identical the original. After all, most cheaters are well aware of the fact that cheats are not sold by the game’s makers.
In fact, Judge Zilly notes that, Bungie’s license agreement -which all legitimate players agree to- explicitly prohibits the use of cheats.
“Unlike the case Bungie cites, involving a handbag, coin purse, and wallet bearing counterfeit reproductions of an accessory designer’s registered marks, in this matter, the mark at issue was used on a product that was different in kind from the one associated with the genuine mark and that Bungie’s online and multiplayer customers had contractually agreed not to use,” Judge Zilly writes.
Based on this reasoning, Bungie’s motion for summary judgment on the trademark infringement claim is denied as well. Instead, the copyright and trademark claims will have to be presented to a jury, at trial.
‘The Day of Reckoning’
Bungie also asked the court to dismiss Aimjunkies’ sealed counterclaims. The court didn’t deny this request outright but deferred it instead.
TorrentFreak reached out to Bungie for a comment on the order but the videogame company didn’t immediately reply.
Behind the scenes, the parties participated in mediation last month, but that was unsuccessful. The trial is currently scheduled to start in December but Bungie informed the court that it would like to extend this date by 120 days.
AimJunkies’ attorney Phil Mann is pleased with Judge Zilly’s decision to deny the motions for summary judgment. Instead of simply accepting Bungie’s theory, the decision is based on actual evidence, which stands in sharp contrast to the arbitration finding, Mann says.
“Unlike Arbitrator Cox, Judge Zilly is a real judge who does not simply accept whatever nonsense a large company and connected law firm puts before him,” Mann tells us.
AimJunkies believes that it has momentum now and the defendants oppose Bungie’s request to delay the trial. According to Mann, Bungie’s case is about to fall apart.
“From day one, we have known that Bungie’s case is a house of cards lacking any legal merit, and have looked forward to getting the truth before a jury. Tellingly, Bungie is now asking to delay the very trial it asked for. Take a guess as to why.
“The day of reckoning is near,” Mann concludes.