By: Henry Carrington
Bungie Inc. has made significant waves for both video game developers and players alike with a recent ruling in their ongoing legal battle against cheat producer Phoenix Digital. The precedent established opens a new avenue for developers to crack down on cheating moving forward, making games a safer and more enjoyable space for all.
On September 6, 2017, Bungie Inc. released the highly anticipated sequel to their online video game Destiny, aptly titled Destiny 2. When players first attempt to play Destiny 2, they are required to agree to both Bungie’s Limited Software License Agreement (“LSLA”) and Bungie’s Privacy Policy; these agreements allow Bungie to collect certain data from players such as their IP addresses and computer device IDs which are running Destiny 2. As part of Bungie’s LSLA, cheating and the use of cheat software while playing Destiny 2 is not allowed and any player accounts that were found to be cheating by Bungie during routine inspections would be banned for violating the LSLA.
During one of these investigations, Bungie caught James May who was an independent contractor working for Phoenix Digital Group LLC, a prominent distributor of cheat software for several games including Destiny 2. May was connecting reverse engineering tools to Destiny 2, as well as running the game alongside other programs attempting to hack the game and discover exploits he could use to develop cheats for Phoenix Digital; when discovered, Bungie recorded metadata from May’s computer and banned May in accordance with their LSLA. However, May continued to create new accounts to regain access to the game, and continued developing the cheat software until it was finally ready for distribution and sale on Aimjunkies.com, a website owned by Phoenix Digital.
The cheat software gave users access to features within the game that were not ordinarily available to players without the use of these cheats, giving users of the software an advantage over players who were not cheating. Prior to filing suit against Phoenix Digital and Aimjunkies, Bungie purchased a copy of the cheat software in January 2020 with the intent to decompile, reverse engineer, and overall inspect the programming to try and stop players from being able to use the cheats.
Bungie filed a complaint against Aimjunkies.com, Phoenix Digital, James May, and three other defendants on June 15, 2021. Bungie brought nine causes of action, but most notably, they alleged that the defendants were infringing upon Bungie’s copyrights and trademarks; Bungie primarily sought to prevent the defendants from profiting off their infringement of Bungie’s intellectual property. James May and Phoenix Digital both filed counterclaims alleging that Bungie violated the Digital Millennium Copyright Act (“DMCA”) by circumventing technological measures protecting copyrighted work. However, both defendants were unable to produce evidence that supported their claims, leading the court to dismiss them. Although several of Bungie’s claims against Phoenix Digital were settled during arbitration, the issue of whether the cheats sold by Aimjunkies.com were considered copyright infringement was taken to a jury trial. On May 24, 2024, all listed defendants in the case were found to have infringed upon Bungie’s copyrights and were required to pay Bungie a total of $63,210 in damages by the jury; creating a newly established precedent that cheat makers can be held liable by video game companies for infringing on their games’ copyright.1
The outcome of this case gives enhanced protection to video game copyright holders by providing a legal ruling allowing them to protect their games from third parties seeking to manipulate the protected work away from its intended design. Fundamentally, cheating in video games is not illegal, and this case did not change that fact. However, by reverse engineering Destiny 2 to create the cheat software, May was guilty of doing exactly what he accused Bungie of doing to him, circumventing technological measures protecting copyrighted work. This circumvention is ultimately what led to May and the other defendants being found guilty of copyright infringement. May had to tamper with Bungie’s copyrighted code in order to produce his work that was sold by Phoenix Digital and Aimjunkies. Without using Bungie’s protected work, the cheats could not have been made in the way they were, ultimately meaning that May and the other defendants infringed on Bungie’s copyrights.
This case will likely not stop the rampant cheating currently plaguing video games; however, it certainly opens the door to potential reform moving forward. Until now, companies have been combating cheaters within their games similarly to fighting the mythical hydra, get rid of one and two more spring up, mainly due to how accessible cheat software is to find. Now however, precedent has been established holding the creators of such cheats accountable and ultimately liable for infringing upon the game’s copyright. Should more companies follow in Bungie’s footsteps and go after the producers of these cheats, it is possible that overall access to cheat software availability could diminish and hopefully reduce the overall number of cheaters online. The precedent set forth in this case may pave the road to a safer online gaming space for not only players, but the developers as well.
Student Bio: Henry Carrington is a second-year law student at Suffolk University Law School. He is a staff member for the Journal of High Technology Law. Henry received a Bachelor of Science degree in Accounting and Management with a minor in Business Law from West Chester University in 2022.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
