Months after failing to prove that Destiny 2 cheat makers had infringed their copyright, Bungie has surged ahead in the late game, as a quirky counterclaim accusing Bungie of "hacking" the cheat makers' computers has been dismissed.
AimJunkies, a division of Phoenix Digital, makers of cheating tools for many popular games, including Destiny 2 (since removed but archived), had survived the typically effective claim that their cheat software illegally copied aspects of an original game to function. It was a tactic successfully used by the makers of Grand Theft Auto Online, Overwatch, Rainbow Six, Fortnite, and other properties.
Western District of Washington Judge Thomas Zilly had struck down most of those claims in late April, ruling that Bungie had "not pleaded sufficient facts to plausibly allege that [the cheat maker] copied constituent elements of Bungie's work." Zilly also ruled at the time that Bungie's own license agreement for Destiny 2, which forces arbitration for circumvention and other disputes, meant that its claims could not go forward in federal court before first trying arbitration. Zilly did, however, allow Bungie time to restate its case, and it focused on trademark infringement, reverse engineering, and code copying.
AimJunkies fired back with subpoenas and press releases in August and, remarkably, counterclaims under the Computer Fraud and Abuse Act (CFAA) and the anti-circumvention clauses of the DMCA. Once again, the claims sprang from Bungie's own licenses, specifically its Limited Software License Agreement (LSLA).
Bungie's current LSLA, updated August 21, 2021, gives its BattleEye software the right to scan a computer for cheating tools. AimJunkies' James May states in counterclaims that Bungie accessed his computer "on at least 104 occasions" between fall 2019 and May 2021. AimJunkies also claimed that Bungie had "decompiled, reverse engineered and/or otherwise inspected the internal workings" of its cheat software, in violation of the DMCA.
Zilly's ruling (PDF), obtained by TorrentFreak, largely agreed with Bungie's responses. May's evidence of Bungie accessing his computer was unexplained, Zilly writes, and he also failed to prove that the harm from such access would have exceeded the $5,000 necessary for a CFAA claim. "Although detailed factual allegations are not required ... additional factual content is necessary," Zilly writes.
As for the DMCA circumvention claim, that, too, lacked evidence, Zilly ruled. Neither May nor Phoenix Digital offered proof of Bungie working around digital protections, nor that anything Bungie might have accessed was copyrighted. Bungie's breach of Phoenix Digital's license for AimJunkies similarly lacked both evidence and proof of damages, Zilly writes. Zilly adds that Phoenix Digital's delays and unfounded claims could have resulted in dismissing their claims with prejudice, preventing amendment and refiling, but upcoming deadlines in other case matters prevent him from doing so.
Phoenix Digital has until November 21 to amend its counterclaims. Bungie's pursuit of trademark claims is still pending.
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