Destiny developer obtains first of its kind jury verdict against hackers

In January, Jake Lee and I wrote an article about the merits of using 17 U.S.C. § 1201 to sue video game hack developers.[1] Importantly, § 1201 can be asserted separately from traditional copyright infringement under 17 U.S.C. §§ 106 and 501. In our article, we mentioned multiple lawsuits that had been filed, but also lamented that “none of these cases have gone to trial, either due to the anonymity of the hack developers or due to the cases being arbitrated outside of court.” Well, as of this week, that is no longer true.

Back in 2021, Destiny 2 creator Bungie filed a lawsuit in the Western District of Washington against Phoenix Digital, AimJunkies and four individuals (these entities are referred to collectively as simply “AimJunkies” herein) based on hacks made/sold by AimJunkies. According to Bungie, these hacks provided players with an unfair advantage (e.g., by eliminating a player’s weapon recoil or allowing a player to see through walls).[2] In the complaint, Bungie alleged that AimJunkies’s acts, among other things: (1) constituted infringement of Bungie’s copyrights under 17 U.S.C. § 501 by copying, producing, preparing unauthorized derivative works, distributing, and/or displaying Destiny 2; (2) gave rise to circumvention of technological measures liability under 17 U.S.C. § 1201(a); and (3) gave rise to trafficking in circumvention technology liability under 17 U.S.C. §§ 1201(a) and 1201(b).[3]

On motion to dismiss, the judge dismissed Bungie’s cause of action for traditional copyright infringement under § 501 (although gave Bungie leave to amend) and sent both § 1201 claims to arbitration, in-line with the arbitration provision of Bungie’s Limited Software License Agreement (LSLA).[4] Thereafter, Bungie amended their complaint to more properly allege the § 501 copyright claim and proceeded with arbitration on the § 1201 claims.[5]

During the arbitration in 2023, Bungie was awarded $4.3 million and a permanent injunction against AimJunkies.[6] This was a result of the arbitrator finding that AimJunkies was liable under §§ 1201(a)(1), 1201(a)(2), and 1201(b) because: (i) Bungie had adequately put in place “technological measures” to “control access” to Destiny 2 (a copyrighted work) and (ii) AimJunkies had “circumvented” these measures using reverse engineering tools.[7] Like other decisions before it, this arbitration decision was another instance of a tribunal validating the use of § 1201 against hackers.[8]

The jury trial for the traditional § 501 copyright infringement claim, on the other hand, just concluded last week. For the reasons mentioned above, this type of case actually proceeding to trial is exceedingly rare (in fact, this is the first case that I am aware of in any jurisdiction that actually made it to trial). The reason this did proceed to trial is likely because defendant AimJunkies presented a counterclaim alleging that Bungie, in fact, infringed AimJunkies’s copyrights (by allegedly improperly accessing content on AimJunkies’s computers).[9]

Ultimately, on Friday, May 24, 2024, the jury rendered a verdict in favor of Bungie for counts of direct, vicarious and contributory copyright infringement committed by AimJunkies.[10] While the verdict only totaled $63,210 (based on the revenue generated by AimJunkies during the infringing period), it represents, to my knowledge, a first of its kind: a concrete example where copyright infringement under 17 U.S.C. §§ 106 and 501 was successfully asserted against a cheat developer.

Obviously, this is only a single jury verdict in a district court case, meaning it is not infallible. Further, AimJunkies plans to seek to dismiss the jury’s verdict and/or to potentially appeal.[11] Hence, this precedent is far from set in stone or definitive. Still, Bungie’s successes in this lawsuit (both during the arbitration and at the district court) have reinforced the legitimacy of copyright law tools (both traditional infringement under §§ 106 and 501 and circumvention liability under § 1201) to punish those who make and sell hacks.

[1] https://www.gamesindustry.biz/legal-hacks-to-eliminate-cheating-in-games

[2] https://storage.courtlistener.com/recap/gov.uscourts.wawd.300479/gov.uscourts.wawd.300479.1.0.pdf

[3] While not central to this article, Bungie also submitted causes of action in the complaint for trademark infringement under 15 U.S.C. § 1114, false designation of origin under 15 U.S.C. § 1125(a), breach of contract (under Bungie’s Limited Software License Agreement (LSLA)), tortious interference, violation of Washington’s Consumer Protection Act, and unjust enrichment.

[4] https://torrentfreak.com/images/Order-Granting-in-part-Motion-to-Dismiss-4-27-22-1.pdf

[5] https://torrentfreak.com/images/aim-refile.pdf

[6] https://torrentfreak.com/bungie-wins-4-3-million-award-against-cheat-seller-in-arbitration-230220/

[7] https://torrentfreak.com/bungie-wins-4-3-million-award-against-cheat-seller-in-arbitration-230220/

[8] See also, e.g., MDY Industries, LLC v. Blizzard Entertainment, Inc and Vivendi Games, Inc. (9th Cir., 2010)

[9] https://www.gamefile.news/p/bungie-aimjunkies-destiny-2-trial

[10] https://s3.documentcloud.org/documents/24689095/bungie-v-phoenix-digital-group-jury-decision.pdf

[11] https://www.theverge.com/2024/5/25/24164679/bungie-anti-cheating-lawsuit-jury-trial-aimjunkies-copyright-violation-victory