For the sole defendant in yet another Bungie lawsuit, filed at exactly the same court in 2022, these headlines should make for uncomfortable reading. While the case doesn’t feature a cheat developer or seller, Bungie has shown few signs that it’s prepared to back down from its mission to stamp out game tampering.
Twitch Streamer Feels The Heat
In its July 2022 complaint, Bungie targeted a Twitch user who reportedly live streamed himself cheating in Destiny 2 while evading multiple bans. When it became apparent that the user was just 17-years-old, his name was removed from the docket and replaced by the initials L.L. Bungie continued, business as usual.
According to the complaint, L.L. and Bungie have a history. While using various pieces of cheat software, L.L. streamed his games on Twitch and using its own tools, Bungie detected his activity and banned him. L.L. responded by opening new accounts, which Bungie would eventually shut down. When L.L. posted a series of tweets in May 2022, in which ‘arson’ and ‘death’ were mentioned along with a named member of staff, Bungie was prompted into action.
In common with other lawsuits against cheaters, Bungie says that L.L.’s use of cheat software modified Destiny 2 and led to the creation of an unauthorized derivative work. That entitles the company to either $150,000 in statutory damages or an amount to be determined at trial. Bungie says that each time L.L. played the game, he also bypassed Bungie’s security measures. Citing violations of the DMCA’s anti-circumvention provisions, Bungie demands $2,500 for each time that happened.
More fundamentally, each time L.L. was banned and then signed up for a new account, he agreed to Bungie’s Limited Software License Agreement with no intent to comply with it; fraud according to Bungie. That’s on top of allegations that L.L. resold Bungie-issued digital emblems on a third-party platform with authorization to do so.
L.L. Came Out Swinging
Covered in detail last September, L.L.’s response to Bungie’s complaint can be summarized in a few key points.
Anything that L.L. may have said about Bungie was simply the teenager making fun of the company’s “apparently ineffective” efforts to combat cheating in Destiny 2. Since “Congress has not, at present, chosen to make [cheating] unlawful,” the defense continued, none of the alleged acts in the complaint violated any of Bungie’s rights.
Regarding violations of the LSLA, the court was informed that as a minor, L.L. has the right to disaffirm any contract within a reasonable time of becoming an adult. As it happened, he had already declared all contracts with Bungie null and void.
In its response to L.L.’s motion to dismiss, Bungie said the court could go right ahead and dismiss all of its claims related to the LSLA. While the LSLA prohibits things like cheating, it also acts as permission since it licenses certain actions, including playing the game.
With no license in place, Bungie said that every download and every play of Destiny 2 amounted to copyright infringement, potentially placing L.L. in a less advantageous position than he had enjoyed before.
In a subsequent filing, which appeared to reference the claim that Congress still hadn’t made cheating in games illegal, Bungie informed the court of the Yout vs. RIAA decision, which relates to the circumvention of technological measures that protect access to a copyright work.
Cheating may not be illegal but without circumvention, this type of cheating wouldn’t exist.
Court Steps in to Clarify the Law
In an order handed down this week, District Judge Richard A. Jones said that since L.L. had properly disaffirmed all contracts due to his status as a minor, he would now address L.L.’s motion to dismiss Bungie’s lawsuit for failure to state a claim.
With no enforceable contract between L.L. and Bungie, the Court dismissed Bungie’s breach of contract claim in connection with the LSLA. Bungie’s claim of fraudulent inducement, related to L.L.’s allegedly false statements when agreeing to the terms of the LSLA, is a matter to be addressed at a later stage, so was not dismissed.
Bungie’s arguments in support of its copyright infringement claim were described by the Judge as “persuasive.” The cheat software “transformed Destiny 2 by manipulating the software to add visual elements overlayed on the original visuals in the game” and since L.L. had no permission from Bungie, that amounts to an unauthorized derivative work.
Attempts by the defense, to play down the anti-cheat provision in the LSLA, also failed. Any use of software to cheat in Destiny 2 was preannounced in the LSLA as grounds for immediate termination of L.L.’s license.
Regarding Bungie’s anti-circumvention claims, the Court said that L.L. bypassed license access control measures when he agreed to the LSLA but with no intention to abide by it. He also bypassed Bungie’s “step control measures” when he created new accounts after being banned, and when he used cheat software to avoid detection by Bungie’s anti-cheat technology.
“The Court is not persuaded by Defendant’s cherry-picked reading of the DMCA that only establishes a violation when the Defendant decrypts, descrambles, or disables Plaintiff’s software,” Judge Richard A. Jones’ order continues.
“When read as a whole, the statute clearly states that avoiding or bypassing a technological measure violates the DMCA. Therefore, the Court denies Defendant’s motion to dismiss the circumvention of technological matters claim.”
L.L. enjoyed some success with the defeat of Bungie’s claim under the Washington Consumer Protection Act, which related to L.L.’s unauthorized sales of digital emblems. The Court accepted that L.L.’s cheating, selling, and other conduct caused injury to Bungie’s business, but the company failed to show that L.L.’s conduct is of public interest.
With the case set to continue, the Court invited Bungie to submit its first amended complaint.
Judge Richard A. Jones’ order can be found here (pdf)