Bungie Fails To Get Summary Judgement On Aimjunkies For Cheat-Selling… Again
from the are-we-done-here? dept
I must admit that before even beginning to write this story up about Bungie losing in court in the summary judgement phase on copyright and trademark infringement claims against cheat-seller Aimjunkies, I had to check the dates on the TorrentFreak post several times. That’s because we already talked about this a year ago, when Bungie had its initial suit against Aimjunkies dismissed after Judge Thomas Zilly rejected the claims on the grounds that Bungie had failed to offer any evidence of copyright infringement. That dismissal did leave room for Bungie to re-file, though, which Bungie did, this time promising it had solid evidence to bring before the court. Judge Zilly once again fielded Bungie’s request for summary judgment. And, once again, Judge Zilly has handed Bungie a loss, denying summary judgment, due to a lack of evidence.
Now, separately there was an arbitration hearing over all of this, as required by Bungie’s terms of service. This court case is completely separate, but Aimjunkies was ordered to pay $3.6 million in arbitration. That ruling is currently being appealed by Aimjunkies. In this case, which may well inform some of how that appeal goes, Zilly once again points out that Bungie simply making assumptions when it comes to how Aimjunkies created its cheats is not in and of itself evidence of copyright infringement.
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.
“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.
We brought evidence this time, said Bungie. And that evidence is… one of our own people’s best theory as to how a cheat for Destiny 2 would be made! The delta between evidence and theory ought to be plain to all involved. I’m quite surprised this was the best Bungie could muster given its choice to re-file the suit. This will now go to trial, where discovery will be key here. Cheating in online games is not itself copyright infringement. What matters here is whether or not Aimjunkies, or the cheat it had on offer, did any actual copying of game code. This is binary: either it does or it doesn’t. I will admit I don’t understand enough about how cheat-coding works to know whether one could create one without copying any game code or not, but Aimjunkies’ posture here doesn’t make much sense if it really did copy game code.
The request for summary judgment over trademark infringement, brought because Aimjunkies did indeed use trademarked imagery when advertising its Destiny 2 cheats, similarly was denied, as the question of whether or not the offering is actually a “counterfeit” and whether or not there is a likelihood of confusion is a factual dispute, not a legal, one, and therefore should be left up to the jury.
Whether a mark is counterfeit is a question of fact, id., and requires proof that the infringing mark is “(1) a non-genuine mark identical to the registered, genuine mark of another, where (2) the genuine mark was registered for use on the same goods to which the infringer applied the mark,” Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 946 (9th Cir.
2011). Although the parties do not dispute that the Phoenix Digital Defendants used the DESTINY mark in connection with their sale of unauthorized cheat software for the Destiny 2 videogame, factual issues regarding the likelihood of confusion preclude summary judgment on Bungie’s trademark infringement claim.
So now, there may be a trial to determine this, if the parties don’t settle first. The trademark claim feels destined for the waste bin, frankly. It’s difficult to see how there’s a likelihood of confusion, given the very clear way that this was used for a cheat program. As for the copyright claim, as stated, either something was copied or it wasn’t. If Bungie can’t prove that the code was copied, it’s going to have a difficult time winning this case.
Cheating in online gaming sucks and none of us like it. But our distaste for it doesn’t inform whether any of this is truly infringement or not.
Filed Under: aimjunkies, cheat software, copyright, counterfeit, likelihood of confusion, trademark
Companies: bungie
Comments on “Bungie Fails To Get Summary Judgement On Aimjunkies For Cheat-Selling… Again”
Although the parties do not dispute that the Phoenix Digital Defendants used the DESTINY mark in connection with their sale of unauthorized cheat software for the Destiny 2 videogame, factual issues regarding the likelihood of confusion preclude summary judgment on Bungie’s trademark infringement claim.
i always hate the artificial delay window between when a software house releases its game and when it releases the cheat programs. Worse than patches and DLCs.
I will admit I don’t understand enough about how cheat-coding works to know whether one could create one without copying any game code or not
The problem is Bungee for sure knows it is hardly necessary, experts and their own devs would tell them so, they’re just clinging to their moral outrage and control freak nature, hoping they catch the judge on a good day, but probably know they can’t outright lie without consequence.
Probably not as surprised as Bungie, to be honest. “I’m surprised the judge didn’t buy it this time. We said “copyright infringement”! Twice! In a super serious voice! That should’ve worked!”
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That should’ve been “It always works for the RIAA, now come it doesn’t work for us?!
A short story:
In 1985, I was using AutoCAD for an engineering service. That year, they brought out Version 2.5, with a copyright-protection hardware key. It took me and a mate less than an hour to figure out what the key was doing, and how to bypass it. No code was inspected, we simply looked at the results of the code being invoked, and found that the parallel port was being queried for the existence of the key. In fairness, we did expect this to be the case, otherwise why have the key in the first place.
We simply wrote a small cmd file (Hey, this was in the days of DOS!) meant to go TSR, and told it to look for this particular string of characters aimed at the parallel port – if found, send back “You found the key, you may proceed!”. A couple of minutes testing with different machines, and two days later the head of Autodesk had a copy of our file on his desktop.
Not very long after that, AutoCAD 2.52 came out. Guess what was no longer present?
No code was copied or in someway disassembled for inspection, all we did was investigate what was being done by the original code as it executed. Chances are excellent that this what the cheat makers have done.
Re: Thank you
You 100% hit the nail on the head what is happening here. The laughable part is in the arbitration where they said they had an active anticheat. They did not. You are going to see this story turn very soon against Bungie. They have broken the law on MANY counts with other conspirators and their day is coming.
Copyright law continues to be the main mechanism by which plaintiffs expect judges to spread their legs and law enforcement to scramble over themselves to make sure that plaintiff demands are met.
It’s not surprising why copyright law is heavily abused as a vector to get the legal and judicial systems to do what you want from them. Critical video on YouTube? Don’t want citizens to read a law on the books? Patients threatening to leave negative reviews? Just throw copyright law at them, and let the system fuck them over before someone realizes that no copyright was infringed at all.
Maybe this is how we can dedicate more resources to solving murder and rape cases, just say that the victims’ copyright to their bodies was infringed and watch the police mobilize the fucking army.
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That sad but true button…
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Which is why it’s as much a threat to free speech as Soviet censorship was to those living in Russia. We DEFINITELY got to start relaying information to innocent people or those outside jurisdiction, so that said information can be preserved in some way, shape, or form. To defeat copyright, people got to be willing to suffer for what they believe in.