Bungie Fails To Get Summary Judgement On Aimjunkies For Cheat-Selling… Again
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 anorderreleased 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.