Bungie’s Destiny 2 cheating lawsuit will be decided by jury trial this week

The jury trial between Destiny 2 developer Bungie and cheating software creator and distributor AimJunkies began Monday, nearly three years after the lawsuit was filed by Bungie lead attorney Jacob Dini in a Seattle court. It’s been a long, complicated journey to this point: AimJunkies, owned by Phoenix Digital Group, countersued Bungie in 2022 claiming the Sony-owned company illegally accessed James May’s computer and accessed his copyrighted material. Then, in 2023, parts of the lawsuit — anti-circumvention and trafficking violations — were resolved in arbitration, with Bungie winning $4.3 million. Months later, AimJunkies filed to appeal the decision, arguing that the arbitrator “blatantly disregarded some rules in making his decision.” That appeal is ongoing. This week, Bungie and AimJunkies are in court to settle the claim that AimJunkies violated Bungie’s copyright.

Opening statements began Monday after eight jurors were selected. It’s likely the first time a video game cheating lawsuit has made it this far in the court system, according to lawyers who spoke to Game File. The thing is, cheating isn’t explicitly against United States law. The arbiter determined that AimJunkies violated the Digital Millennium Copyright Act’s anti-circumvention rules by bypassing Bungie’s security measures and by trafficking — or selling — software designed to circumvent those measures. Now, Bungie is looking to prove AimJunkies violated copyright law, too.

Bungie’s lawyers are blaming one of the defendants, James May, for allegedly hacking into Destiny 2 to copy its code to create the cheating software sold by AimJunkies, according to court documents. Bungie said May split the revenue with Phoenix Digital’s Jeffrey Conway and Jordan Green. Bungie reportedly found records that Phoenix Digital paid May “more than $700,000 for his work,” according to Bungie lawyer William C. Rava during the opening statement, as reported by Law360. But the sales records provided by Phoenix Digital only documented $43,000 in sales. Bungie’s lawyers claim the company deleted cryptocurrency and other transactions, which is why they’re asking the jury to consider “spoliation of evidence,” according to court documents. This means Bungie’s lawyers are requesting that the jury presume the defendants destroyed evidence that might incriminate them.

The evidence that Bungie says was deleted purportedly includes forum messages, records of the cheat software, and sales information. Bungie claims that May “wiped four hard drives that [May] alleges Bungie improperly accessed in relation to this suit.” Phoenix Digital’s lawyers don’t want Bungie to be allowed to ask the jury to consider this, they said in their own filings.

Beyond this, Bungie told the jurors about several other confusing details, like Phoenix Digital’s purported sale of AimJunkies for 7,000 bitcoins, worth more than $480 million, to a company called Blome Entertainment in 2022. Phoenix Digital founder David Schaefer told Bungie’s lawyers that he created the sale press release to see Bungie “run around in circles and look like fools.” (Phoenix Digital had to pay $5,000, plus attorney fees, to Bungie “as a sanction for Schaefer’s harassing and unprofessional behavior” at one deposition in March 2023, according to court documents.)

On Phoenix Digital and AimJunkies’ side, lawyer Philip P. Mann said in his opening statement that May didn’t create the Destiny 2 cheat, and that the Destiny 2 maker had subjected Schaefer to 16 hours of questioning in a “discovery campaign to find out who Bungie thinks is behind this international conspiracy to develop cheats,” according to Law360. Mann said Bungie doesn’t have much evidence. Mann added that the lawsuit has basically put Phoenix Digital out of business and May out of a job, all while Bungie goes after the alleged $10,000 in profit the company made from Destiny 2 cheat software — suggesting this is a David and Goliath scenario.

Mann’s argument centers on the fact that cheating isn’t illegal, and that there’s been no copyright infringement by the cheatmakers, because May didn’t even make the cheats — AimJunkies.com is a cheat marketplace, the lawyer said, not a cheat creation company. Phoenix Digital also contends that May isn’t an employee of the company, just another person who sells cheats — crucially, not Destiny 2 cheats, according to Phoenix Digital — on the platform.

The cheating software in question lets players do stuff like see through walls, and therefore see where their enemy is located, giving the cheating party an advantage. There are also cheats for having better aim or reducing a gun’s recoil, for instance. Again, it’s not necessarily illegal to cheat in a video game — though Bungie argues it could be a breach of Destiny 2’s terms of service even for the player — but it is illegal for a cheat maker to use copyrighted code to create the cheating software. It’s an argument Bungie and its lawyers are familiar with — Bungie has sued plenty of cheating software creators and sellers in the past few years. A lot of the time, it wins by defaulting or settling before getting to a trial.

Court resumed Tuesday at 9 a.m. PDT and is expected to continue throughout the week. Though the trial will resolve the copyright issue, Bungie and AimJunkies will also have to settle the arbitration appeal in the United States Court of Appeals for the Ninth Circuit at a later date. In the appeal, Mann describes this move as the first instance of a company to “actually stand up to Bungie and seek a decision on the merits as to whether ‘cheating’ in computer games is unlawful in the absence of an actual violation and existing intellectual property right.” The appeal is currently being considered for oral arguments in a Portland, Oregon court in August or September. Polygon has reached out to lawyers for both Bungie and Phoenix Digital and AimJunkies for comment.