Bungie’s wildest Destiny 2 cheating lawsuit heads to trial this week
Most cheat-sellers have folded, but in this case, they sued Bungie right back
Here’s an old one: A giant video game company is suing the people who make software that lets you cheat in their game.
And another familiar tale: The giant game company gets those cheat-makers to fold and/or extracts a multi-million dollar default judgment against them.
But here’s something different: Giant game company—Bungie, makers of Destiny 2, in this case—sues the cheat-sellers… they fight back and even counter-sue the game company?
That is the set-up for what just might be the first-ever jury trial over video game cheating, which kicks off this week in a Seattle courtroom.
The case is Bungie Inc. vs Aimjunkies.com. It pits the Sony-owned studio behind Destiny 2 against four men—David Schaefer, Jeffrey Conway, Jordan Green and James May—who allegedly made, sold and profited from cheats that let players of the popular first-person shooter see opponents through walls or instantly kill their foes, to gain a competitive advantage.
For Bungie, the trial is part of a years-long effort to deploy its legal firepower across multiple lawsuits to show that it won’t sit by as some players cheat in the game or harass its players and developers. Bungie sued Aimjunkies in mid-2021.
“Bungie’s Destiny 2 player base has been harmed by Defendants’ conduct,” Bungie’s lawyers said in a pre-trial brief in the Aimjunkies case.
“Bungie recorded more than 6,000 complaints about players using the Cheat Software and spent millions of dollars combatting cheaters and cheat developers such as Defendants in order to protect its player base.”
The other side says they’re getting steamrolled for activity that may be disliked by some people but isn’t illegal.
“What bothered me about this case from day one was that it looked like a bully company and a bully law firm pushing around smaller people,” Aimjunkies lawyer Philip Mann told Game File in an interview.
Soon, a seven-person jury in Seattle will decide who is right. That highly unusual. Lawyers who follow video game cheating lawsuits were unable to identify any for Game File that had previously gone before a jury.
Bungie and the cheat-sellers don’t agree on much.
What little common ground they have establishes that Aimjunkies.com was co-founded by Phoenix Digital, a company consisting of three of the cases’ four defendants, and used, in part, to sell Destiny 2 cheats.
They agree that, between late 2019 and early 2021, Aimjunkies sold at least 1400 copies of Destiny 2 cheating software, generating about $65,000 in revenue, based on records produced by the defendants.
Bungie is suing for those cheating revenues, a tiny sum compared to the $4.3 million it won against Phoenix Digital/Aimjunkies in early 2023 on separate grounds. That judgment was decided by an arbitrator and is under appeal.
Crucially for the forthcoming trial, the sides divide on even who made the cheats.
Bungie says it was defendant James May, who they say they caught reverse-engineering the game.
Phoenix Digital says the cheats were made by “an unknown, Ukrainian-based developer known only under the likely fictitious name,“ ‘Andreas Banek.’” Aimjunkies just sold the cheats, they say.
There is no law specifically against cheating in a video game, so both sides will be asking the jury in Seattle this week to consider something else, the thing that game companies commonly sue cheat-makers/sellers over: copyright.
Bungie’s position, like that of GTA-maker Take Two, World of Warcraft studio Blizzard and others before it, is that to make a tool to see through walls in a game or get instant kills, the cheat maker has to violate the game company’s copyright.
Bungie alleges that the creation of a cheat for Destiny 2 involves “accessing a local copy of the client software of Destiny 2 to reverse engineer it, copying code, and making derivative works.”
The game-maker says the cheat software itself also violates the game’s copyright. Aimjunkies’ ESP cheat, (the see-through-walls one) for example, allegedly extracts and copies “normally-inaccessible data about player positioning” and then uses the game’s camera and graphical output to display boxes around otherwise unseeable players. The studio says that’s a breach of its copyright.
(Bungie has also argued in its legal filings that these kinds of cheats cause the players using them to also breach copyright, but it has yet to sue a player who simply bought and used them.)
The copyright argument has been used by game companies for over a decade, and no cheat-maker has beaten it yet.
“Because cheat software is typically made through infringement, there's no real defense to be presented,” Matthew Vernace, an associate attorney with the firm Legal Moves and someone who has studied game cheating suits, told Game File.
“The plaintiff almost always has a strong case showing that the cheat maker reverse-engineered the plaintiff's software to make the cheat. So it's almost a moot point as to the defendants' liability, which makes it indefensible in court.”
In the Aimjunkies case, though, there’s a twist.
James May, the man Bungie alleges made the Aimjunkies cheats that violate the studio’s copyright, has said that, not only did he not create them, but he has turned around and made a counterclaim that Bungie has violated his copyright.
May and his lawyer, Phil Mann, say that records supplied by Bungie during the case show that the game studio snooped their way into May’s computer “without his authorization, [then] accessed one or more copyrighted works on his personal computer.”
Bungie says this is preposterous, that it detected alleged cheat-making programs May was running while using Destiny 2 and that it was entitled to do so. The user agreement that Destiny 2 players consent to grants Bungie the right to check for programs that are running on the player’s computer while the game is as well, the studio says.
Vernace calls May’s counterclaim “innovative” and the product of “aggressive” lawyering. “It takes a very creative defense team to take one of these cheating cases to trial,” he said.
The Bungie vs. Aimjunkies trial is expected to run through the week.
Phoenix Digital founder Schaefer and James May are set to testify, as are Bungie expert witnesses Steven Guris an outside cybersecurity expert, and Edward Kaiser, the head of the studio’s product security team.
A win would extend Bungie’s streak against the cheating industry, punctuating it with a jury verdict.
"Serious consequences await anyone else foolish enough to volunteer as a Defendant by targeting Bungie's community for attack," Bungie’s lawyers wrote in a legal brief a couple of years ago, as it began applying pressure on people it said were harming its games.
Don McGowan, then the studio’s top lawyer, told me in 2022 that the suits against cheaters was a “strategic push.” (He exited the company late last year).
The Phoenix Digital crew will soon find out if there’s a way around that push.
Item 2: In brief
⚔️ Larian Studios is opening up a new studio in Warsaw to work on the Baldur’s Gate III maker’s next two games, which are both in development, per an official announcement today. (It’s Larian’s seventh studio.)
🎮 Microsoft is partnering with ByoWave to release a new, modular $300 accessibility controller consisting of cubes that can be snapped together to suit a player’s needs, The Verge reports.
🤔 GameStop was slow to capitalize on the return of original meme-stock ringleader Roaring Kitty last week, even as fellow meme stock AMC nailed it, Axios reports.
🚙 Tesla will no longer offer access to Steam in its newly sold cars, Electrek reports (via VGC).
👀 “A while ago I purchased the world’s largest video game collection. I also collect U.S. Air Force nuclear missile bases. So I put that in one of my missile bases, 200 feet underground.” — Palmer Luckey, Oculus VR founder and now head of hi-tech weapons maker Anduril, as part of a 30-minute Bloomberg video profile.
Also quotable from Luckey: “Virtual reality came out of military research in the first place. And the games industry and the military industrial complex have always shared kind of back and forth.”