Months after not proving it Fate 2 cheaters had infringed on their copyright, Bungie has stepped up in the late game, as a bizarre counterclaim accusing Bungie of “hacking” the cheat makers’ computers has been dismissed.
AimJunkies, a division of Phoenix Digital, makers of cheat tools for many popular games, including Fate 2 (since removed but archived), had survived the typically effective claim that their cheat software illegally copied aspects of an original game in order to function. It was a tactic used successfully by the creators of Grand Theft Auto Online, Overwatch, Rainbow Six, Fortniteand other characteristics.
Judge Thomas Zilly of the Western District of Washington struck down most of those claims in late April, ruling that Bungie “had not pleaded sufficient facts to allege that [the cheat maker] copied elements of Bungie’s work.” Zilly also ruled at the time that Bungie’s own license agreement for destiny 2, which compels arbitration for circumvention and other disputes, meant that the claims could not proceed in federal court until they first tried arbitration. However, Zilly gave Bungie time to restate its case, and it focused on trademark infringement, reverse engineering and code copying.
AimJunkies hit back with subpoenas and press releases in August and, remarkably, counterclaims pursuant to Data 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 on August 21, 2021, gives the BattleEye software the right to scan a computer for cheat tools. AimJunkies’ James May states in a counterclaim that Bungie accessed his computer “on at least 104 occasions” between the fall of 2019 and May 2021. AimJunkies also claimed that Bungie had “decompiled, reverse engineered and/or otherwise inspected the internal workings” of its cheating software, in violation of the DMCA.
Zilly’s ruling (PDF), obtained by TorrentFreak, largely agreed with Bungie’s response. May’s evidence that Bungie had access to his computer was inconclusive, Zilly writes, and he also failed to prove that the damages from such access would have exceeded the $5,000 necessary for a CFAA claim. “Although detailed factual allegations are not necessary… additional factual content is required“, writes Zilly.
As for the DMCA circumvention claim, that too lacked evidence, Zilly said. Neither May nor Phoenix Digital provided evidence that Bungie works around digital protection, or that anything Bungie might have accessed was copyrighted. Bungie’s violation of Phoenix Digital’s license for AimJunkies similarly lacked both evidence and proof of damages, writes Zilly. Zilly adds that Phoenix Digital’s delays and frivolous claims could have resulted in the dismissal of its claims with prejudice, preventing amendment and refiling, but upcoming deadlines in other cases prevent him from doing so.
Phoenix Digital has until 21 November to amend its counterclaims. Bungie’s pursuit of trademark claims is still pending.