Bungie v. Aimjunkies
The Parties
Plaintiff: Bungie Inc.
Plaintiff’s Firm: Perkins Coie
Defendant: Aimjunkies.com et al
Defendant’s Firm: Mann Law Group
The Big Picture
A cheat maker raises a couple of novel defenses alleging that Bungie violated the cheat maker’s terms of service by decompiling and reverse engineering the cheat software and committed various CFAA and DMCA violations by surveilling a developer without consent.
PROCEDURAL HISTORY
As discussed previously, in June 2021, Bungie sued Aimjunkies (and others), developers of a popular Destiny 2 cheating tool for:
Copyright Infringement (Count 1);
Trademark Infringement (Count 2);
False Designation of Origin (Count 3);
Circumvention of Technological Measures (Count 4);
Trafficking in Circumvention Technology (Count 5);
Breach of Contract (Count 6); and
Tortious Interference (Count 7).
In January 2022, Aimjunkies filed a motion to dismiss for failure to state a claim on most Counts and to compel arbitration for Counts 3-7.
In April 2022, the court granted Aimjunkies’ motion with respect to Counts 1 and 2, but provided Bungie with the opportunity to file an amended complaint. The court also found that Bungie’s Limited Software License Agreement (“LSLA”) required all but Claims 1, 2, and 3 to be arbitrated (Bungie probably realized they were going to lose on this point and voluntarily submitted a demand for arbitration on those claims in February. Bungie hasn’t updated their LSLA to, for example, exempt DMCA claims (Counts 3 and 4) so we’ll see if they end up changing their arbitration clause in the future.
Bungie filed an amended complaint in May and, on September 16, Aimjunkies filed its Answer and counterclaims.
Answer And Counterclaims
Defendants’ answer includes Counterclaims for Unauthorized Access with Intent to Defraud, Theft of Computer Data, Unauthorized Access, and Circumvention of Technological Measures with respect to Defendant James May and Breach of Contract and Digital Circumvention of Technological Measures with respect to Defendant Phoenix Digital.
Essentially, Defendants have two main counterclaims. First, Defendants argue that Bungie’s anti-cheat software obtained information from Defendant May’s computer about the operation of cheating programs, but Bungie’s LSLA did not provide Bungie with any authority or ability to do so. (Bungie’s current LSLA states that Bungie’s anti-cheat software will process certain information such as running processes, but this wasn’t true for the entire time period at issue.) Defendants also allege that Bungie then used that information to do further surveillance on other parties who also presumably did not consent to such surveillance.
Second, Defendants argue that Bungie agreed to Defendants’ own terms of service to download the cheat and that those terms of service were breached when Bungie decompiled and reverse-engineered the software. It would be interesting to see how the court handles these Counterclaims, but I would assume the case will result in some form of settlement before they are resolved.