Over the past several years a wave of copyright infringement lawsuits has targeted alleged cheaters and cheat makers.
Last summer, Bungie filed a complaint at a federal court in Seattle, accusing AimJunkies of copyright and trademark infringement, among other things. The same accusations were also 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 for a default judgment, 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 and Do-Over
In May, U.S. District Court Judge Thomas Zilly largely sided with AimJunkies. The original complaint didn’t 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.
In an amended complaint the game developer added more copyright infringement details. Among other things, the defendants allegedly copied the Destiny 2 software code that corresponds to the data structures for player positioning, to create the cheat’s ESP feature.
These allegations were contested by AimJunkies’ employees David Schaefer, Jeffrey Conway, and Jordan Green, who asked the court to dismiss the claims against them for lack of jurisdiction.
In addition, defendant James May, who was allegedly involved in the development of the cheats, noted that Bungie’s arguments did not amount to a plausible copyright infringement claim as they remained vague.
Court Denies Dismissal Request
This week, District Court Judge Thomas Zilly ruled on the motion to dismiss. This time, his order clearly favors the game developer.
Bungie argued that the court has jurisdiction because the defendants signed its licence agreement, which includes a forum selection clause. Defendants Schaefer, Conway, and Green contested this but their arguments failed to persuade the court.
“In support of their motion, Conway, Schaefer, and Green have submitted declarations alleging that they never reviewed the LSLA or consented to be bound by its terms,” Judge Zilly writes.
“Conway, however, is the only defendant who claims that he has never played any computer game offered by Bungie, including Destiny 2. Green and Schaefer do not rebut Bungie’s allegation that they downloaded, installed, and/or played Destiny 2.’
In addition, the court says it has jurisdiction over Conway, who is believed to be involved in selling the cheats, including to Washington residents.
Copyright Claim Survices
Bungie’s original complaint didn’t provide sufficient evidence to plausibly claim that the ‘Destiny 2 Hacks’ infringed any copyrights. The amended version corrected these shortcomings.
For a plausible claim of direct infringement, a rightsholder has to show that it owns the infringed material and that the defendants violated at least one of its rights. That is indeed the case here, Judge Zilly notes.
Pointing out that the cheats allegedly used Destiny 2’s data structures and reverse-engineered Bungie code, that’s sufficient to let the case continue.
“Bungie has plausibly alleged that May infringed the Destiny 2 copyrights by copying the videogame’s software code,” the Judge adds, meaning that Defendant May’s motion to dismiss the direct copyright infringement claim is denied as well.
In addition, a request to dismiss the copyright infringement claims against the other defendants is not considered. That issue was first raised in a reply brief instead of the motion to dismiss, which is too late.
The recent order is good news for Bungie and keeps the lawsuit very much alive. Based on all the activity thus far, we can expect both sides to continue fighting tooth and nail.
A copy of U.S. District Court Judge Thomas Zilly’s order on the motion to dismiss is available here (pdf)