Case 2:21-cv-00811-TSZ Document 318 Filed 08/30/24 Page 1 of 912345UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLE

67BUNGIE, INC.,

89101112Plaintiff,v.
PHOENIX DIGITAL GROUP LLC;DAVID SCHAEFER; JORDAN
GREEN; JEFFREY CONWAY; andJAMES MAY,

ORDER

Defendants.

1314C21-0811 TSZ

THIS MATTER comes before the Court on Defendants’ motion for judgment as a15 matter of law (“JMOL”) and for a new trial, docket no. 310. This case proceeded to trial
16 on a claim of copyright infringement brought by Plaintiff Bungie, Inc. (“Bungie”) against
17 all Defendants, and a counterclaim for circumvention of technological measures in18 violation of the Digital Millenium Copyright Act (“DMCA”) brought by Defendant
19 James May against Bungie. After a four-day trial, the jury rendered a verdict for Bungie
20 on its copyright claim and against May on his DMCA counterclaim. See Verdict (docket21 no. 299). The jury found that all Defendants had engaged in direct, vicarious, and22 contributory copyright infringement and that May had not proven his DMCA23ORDER - 1

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1 counterclaim. See id. at 1–3. In the pending motion, Defendants renew their half-time
2 motion for JMOL, contending that Bungie did not introduce sufficient evidence at trial to3 sustain the jury’s copyright infringement verdict. Additionally, May moves for a new
4 trial on his DMCA counterclaim, arguing that the Court erred in instructing the jury on
5 his spoliation of evidence.
6 Discussion
7 A.

Judgment as a Matter of Law on Bungie’s Copyright Claim8A jury’s verdict must be upheld if it is supported by substantial evidence. See

9 Wallace v. City of San Diego, 479 F.3d 616, 624 (9th Cir. 2006). Evidence is substantial
10 if it is adequate to support the jury’s conclusions, even if drawing a contrary conclusion
11 from the evidence is possible. Id. In ruling on a motion for JMOL, the Court may not
12 make credibility determinations or weigh the evidence. EEOC v. Go Daddy Software,
13 Inc., 581 F.3d 951, 961 (9th Cir. 2009). Rather, the Court must draw all inferences from
14 the evidence in the light most favorable to the nonmoving party, and it must disregard all
15 evidence favorable to the moving party that the jury was not required to believe. Winarto
16 v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001). The Court
17 must accept the jury’s credibility findings consistent with the verdict, and it may not
18 substitute its view of the evidence for that of the jury. Id. Judgment as a matter of law
19 may be granted only when the evidence, as appropriately viewed, permits only one
20 reasonable conclusion and such conclusion runs contrary to the jury’s verdict. A.D. v.
21 Cal. Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013).
2223
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To prove a claim for copyright infringement, a plaintiff must establish both

2 (1) ownership of a valid copyright, and (2) copying of protected aspects of the3 copyrighted work. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d4 1051, 1064 (9th Cir. 2020). Bungie and Defendants stipulated that Bungie owns valid
5 copyrights in the computer software and audiovisual works of Destiny 2 and Destiny 2:
6 Beyond Light (collectively, “Destiny 2”), the video games that underlie this suit.
7 Admitted Fact 3, Pretrial Ord. at 5 (docket no. 245). Thus, at trial Bungie needed only to
8 establish that the “Cheat Software” distributed by Defendants had copied protected
9 aspects of Destiny 2. Bungie could show that Defendants copied protected aspects of
10 Destiny 2 with either direct or circumstantial evidence of copying. See Range Road
11 Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1154 (9th Cir. 2012). Both types of
12 evidence were presented at trial.
131.

Direct Evidence

14

Direct evidence of copying can include party admissions. See Tolkien Tr. v.

15 Polychron, No. 23-cv-4300, 2023 WL 9471264, at *6 (C.D. Cal. Dec. 14, 2023). At trial,
16 May admitted that, in developing a cheat for Destiny 2, he attached reverse engineering
17 tools to the game. See Tr. (May 21, 2024) at 214:6–22 (docket no. 306); Tr. (May 22,18 2024) at 243:25–244:21 (docket no. 307); see Trial Ex. 56 (log of times May was banned
19 from Destiny 2 for connecting reverse engineering tools or other prohibited programs to20 the game). Those reverse engineering tools were designed to access Destiny 2’s code so
21 that May could copy the code structure and put it into the cheat he was developing. See22 Tr. (May 22, 2024) at 240:3–11, 241:5–21 (docket no. 307). Defendants’ argument that23ORDER - 3

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1 the cheat May was working to develop was not the Cheat Software at issue in this case,
2 and that the Cheat Software was actually developed by non-party Andreas Banek, was
3 necessarily rejected by the jury.
4Bungie also presented direct evidence that the use of the Cheat Software caused

5 unauthorized copying to occur. Defendants conceded that, in order for the Cheat
6 Software to function, it had to be “injected” into the Destiny 2 process. See Tr. (May 22,7 2024) at 232:7–233:11, 417:6–15 (docket no. 307). As Bungie’s expert witness, Dr.
8 Edward Kaiser, explained, when a cheat is “injected” into Destiny 2, a copy of the9 Destiny 2 code with the Cheat Software code inside of it runs on the customer’s
10 computer, creating a modified version of the game. See Tr. (May 21, 2024) at 77:18–
11 78:3, 89:20–90:5 (docket no. 306).
12

Copyright protection also extends beyond Destiny 2’s code to the game’s

13 audiovisual works. The parties stipulated to how the Cheat Software affected the14 audiovisual output of Destiny 2: the “ESP feature allows users to see other Destiny 2
15 players and non-player characters through solid walls by displaying a distinct box around16 the other players, displaying the players’ names, and [disclosing] the distance between
17 the cheating and non-cheating players.” Admitted Fact 11, Pretrial Ord. at 6 (docket
18 no. 245). This stipulation, and Defendants other admissions, are direct evidence that the19 Cheat Software infringed Destiny 2’s audiovisual works. Substantial direct evidence
20 supports the jury’s verdict that Defendants engaged in copyright infringement.
212223ORDER - 4

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Circumstantial Evidence

2Bungie also presented circumstantial evidence that is substantial enough to sustain

3 the jury’s verdict. To prove copying via circumstantial evidence, Bungie was required to
4 show that (i) Defendants had access to Destiny 2, and (ii) Destiny 2 and the Cheat
5 Software are substantially similar. See Skidmore, 952 F.3d at 1064.
6Proof of access can be shown via either direct evidence of access or, alternatively,

7 “circumstantial evidence can be used to prove access either by (1) establishing a chain of
8 events linking the plaintiff’s work and the defendant’s access, or (2) showing that the9 plaintiff’s work has been widely disseminated.” Art Attacks Ink, LLC v. MGA Ent. Inc.,
10 581 F.3d 1138, 1143 (9th Cir. 2009) (citation omitted). The parties stipulated that
11 Destiny 2 has a player base of over 30 million players and was widely disseminated, see
12 Admitted Fact 2, Pretrial Ord. at 5 (docket no. 245), and May admitted that he accessed
13 Destiny 2 and its object code, Tr. (May 22, 2024) at 243:25–244:4, 259:2–7 (docket
14 no. 307).
15

Substantial similarity is evaluated using a two-part test. “The first part, the16 extrinsic test, compares the objective similarities of specific expressive elements in the
17 two works.” Skidmore, 952 F.3d at 1064 (citing Cavalier v. Random House, Inc., 297
18 F.3d 815, 822 (9th Cir. 2002)). “The second part, the intrinsic test, ‘test[s] for similarity
19 of expression from the standpoint of the ordinary reasonable observer, with no expert
20 assistance.’” Id. (alteration in original, quoting Jada Toys, Inc. v. Mattel, Inc., 518 F.3d
21 628, 637 (9th Cir. 2008)). Bungie satisfied both the extrinsic and intrinsic tests for
22 substantial similarity.
23
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Defendants rely heavily on the case Antonick v. Electronic Arts, Inc., 841 F.3d

2 1062 (9th Cir. 2016), to support their argument that Bungie failed to prove substantial3 similarity at trial. Antonick is distinguishable from this case in two ways. First, in
4 Antonick the plaintiff failed to admit the alleged infringing computer code into evidence.
5 Id. at 1065. Although Bungie likewise did not admit the source code of the Cheat
6 Software into evidence, in this matter, the Court gave a spoliation of evidence instruction
7 to the jury. See Jury Instruction No. 9 (docket no. 293 at 13–14) That instruction
8 informed the jury that they “may presume” any spoliated evidence, including records
9 relating to the Cheat Software and the Cheat Software itself, were adverse to Defendants.
10 See id. This permissive presumption gave the jury a basis to find that the Cheat Software
11 was substantially similar to Destiny 2.
12Second, Antonick involved only infringing computer code and not audiovisual

13 works. 841 F.3d at 1067. Audiovisual works are, however, one of the Destiny 2
14 components that Bungie has copyrighted. Admitted Fact 3, Pretrial Ord. at 5 (docket
15 no. 245); Trial Ex. 1 (Destiny 2 Audiovisual Copyright Registration and Deposit
16 Materials); Trial Ex. 3 (Destiny 2: Beyond Light Audiovisual Copyright Registration and17 Deposit Materials). At trial, the jury was able to compare both the original audiovisual
18 elements of Destiny 2 and the modified audiovisual elements created by the Cheat
19 Software. See Trial Ex. 1 (Destiny 2 Audiovisual Copyright Registration and Deposit
20 Materials); Trial Ex. 3 (Destiny 2: Beyond Light Audiovisual Copyright Registration and21 Deposit Materials); Trial Ex. 29 (screenshots from Aimjunkies.com showing the Cheat
2223
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1 Software in use). Thus, substantial circumstantial evidence also supports the jury’s
2 verdict.
33.

Derivative Works

4Defendants’ final argument for why they are entitled to JMOL on Bungie’s

5 copyright claim is that, as a matter of law, the Cheat Software does not create derivative
6 works. The case Defendants rely on to support this contention, Lewis Galoob Toys, Inc.
7 v. Nintendo of Am., Inc., 964 F.2d 965 (9th Cir. 1992), is distinguishable from the instant
8 case. Galoob involved a device known as the “Game Genie,” which was inserted
9 between a game cartridge and the game console and through which the cartridge’s code
10 would have to pass to get to the console. See id. at 967. The Game Genie blocked a
11 single byte of data from being transmitted from the cartridge to the console and allowed
12 the user to insert new data in place of the blocked byte. See id. In essence, “[t]he Game
13 Genie was dumb; it functioned only as a window into the computer program, allowing
14 players to temporarily modify individual aspects of the game.” Micro Star v. Formgen
15 Inc., 154 F.3d 1107, 1111 (9th Cir. 1998) (distinguishing Galoob from a case involving
16 alleged infringement of copyrighted audiovisual works and finding infringement in the
17 latter case where “the audiovisual displays generated by the [video game] from the18 [infringing products] are in the [infringing products] themselves”).
19

In the present case, the Cheat Software was not dumb and functioned as more than

20 a window into Destiny 2’s programming. Beyond just allowing the end user to edit a21 value in computer code generated from a valid source without modifying the underlying
22 source, the Cheat Software’s computer code is “injected” into the Destiny 2 code,
23ORDER - 7

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1 creating an essentially new and altered copy of the game. See Tr. (May 21, 2024) at
2 77:18–78:3, 89:20–90:5 (docket no. 306). Additionally, the Cheat Software added red
3 boxes around certain characters, creating a modified audiovisual display of Destiny 2, i.e.
4 a derivative work. See id. at 77:18–78:3, 89:20–90:5; Trial Ex. 29 (screenshots from
5 Aimjunkies.com showing Cheat Software in use). Defendants’ argument that the Cheat
6 Software does not create derivative works fails, and substantial evidence supports the7 jury’s verdict that Defendants infringed Bungie’s copyrights in Destiny 2.
8 B.

Jury Instruction on May’s Spoliation of Evidence

9May contends that he is entitled to a new trial on his DMCA counterclaim because

10 the Court erred in giving Jury Instruction No. 9, docket no. 293 at 13–14, which
11 instructed the jury regarding May’s spoliation of evidence. “On a motion for a new trial,
12 the Court’s inquiry is whether, giving full respect to the jury’s findings and considering
13 all of the evidence, the Court is left with ‘the definite and firm conviction that a mistake
14 has been committed.’” IDS Prop. & Cas. Ins. Co. v. Fellows, No. C15-2031, 2017 WL
15 2600186, at *3 (W.D. Wash. June 15, 2017) (quoting Landes Constr. Co. v. Royal Bank
16 of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987), and citing 11 Charles Alan Wright,
17 et al., Fed. Prac. & Proc. § 2806 & n.26 (3d ed. 2012)).
18On November 1, 2023, the Court issued an Order finding that Defendants,

19 including May, had spoliated evidence and that a spoliation instruction should be given at20 trial. See docket no. 216. May’s arguments that Instruction No. 9 was not supported by
21 the facts or the law ignore entirely the Court’s prior Order and findings therein. May has
22 not raised any doubt about the appropriateness of Instruction No. 9.
23ORDER - 8

Case 2:21-cv-00811-TSZ Document 318 Filed 08/30/24 Page 9 of 91 Conclusion
2For the foregoing reasons, the Court ORDERS:

3(1)Defendants’ motion for judgment as a matter of law and for a new trial,

4 docket no. 310, is DENIED.
5(2)6IT IS SO ORDERED.

7Dated this 30th day of August, 2024.

8The Clerk is directed to send a copy of this Order to all counsel of record.

A

9Thomas S. Zilly
United States District Judge

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