A serial Destiny 2 cheater currently facing a lawsuit from Bungie is arguing in court that his status as a minor means he can effectively opt out of the game’s license agreement, including any anti-cheating provisions he may have violated. Ironically, though, trying to make use of this loophole may have opened the defendant up to much more serious copyright infringement claims.
In a motion to dismiss filed earlier this month (as noted by TorrentFreak), the plaintiff in the cheating case (referred to in court documents as L.L. to protect his real identity) argues that he is not subject to Bungie’s Limited Software License Agreement (LSLA). That’s because, as a minor, L.L. has the right to “disaffirm” that contract, which means it is “legally treated as if it was never formed.” L.L. did just that on September 8, filing documents disaffirming “any and all contracts between himself and Bungie.”
In his motion to dismiss, L.L. argues that this move means he is retroactively not subject to LSLA clauses that prevent players from “hack[ing] or modify[ing]” the game or “us[ing] any unauthorized software programs to gain advantage in any online or multiplayer game modes.” Thus, Bungie’s claims based on breach of that contract should be dismissed.
In a response to L.L.’s motion filed this week, Bungie concedes that the contract disaffirmation means that the court “should grant L.L.’s motion to dismiss the breach of contract claim.” At the same time, though, Bungie notes that L.L. now has a new legal problem because “without a license, all of L.L.’s [Destiny 2] gameplay becomes infringing activity.”
Out of the frying pan…
After disaffirming the LSLA, the court has to “treat the parties as though the contract never existed in the first instance,” Bungie writes. But the LSLA is the only contract that allows a player to make use of Bungie’s copyrighted, free-to-play Destiny 2 software at all. That means L.L. has “retroactively erased any authorization he had to download, install, copy (to random access memory (“RAM”) or otherwise), play, or stream Destiny 2, or to possess (let alone sell) any of its ‘Live Content’ (such as emblems),” Bungie writes.
So while disaffirmation lets L.L. avoid the inconvenient anti-cheating parts of the LSLA, it also voids the licensed rights he relied on to play the game. “The LSLA was a license agreement, and its mere existence was the only thing that rendered L.L.’s repeated downloads and plays of the Destiny 2 software and audiovisual work non-infringing,” Bungie writes. Without the LSLA in place, L.L. “never had a valid license to do anything” with Destiny 2 in the first place.
What’s more, disaffirming a contract “does not relieve [L.L.] of liability for his deception” because Bungie can still legally “pursue a fraud claim regardless of whether a contract exists.” In other words, Bungie writes, “the law does not provide minors with a special haven from civil liability that may arise or be exacerbated when… they choose to disaffirm any number of license agreements that may otherwise have authorized infringing conduct.”
Elsewhere in his motion to dismiss, L.L. brings up the landmark Galoob vs. Nintendo of America case to defend himself against Bungie’s copyright infringement claims. In that case, the 9th Circuit Court of Appeals found that Galoob’s Game Genie—which altered specific instructions sent by the game cartridge to the console CPU—didn’t actually create a copyright-violating “derivative work” of the game.
In its response, though, Bungie notes that the Game Genie differs from today’s cheat software because it didn’t actively create any distinct audiovisual elements. The Destiny 2 cheat tools that L.L. used, on the other hand, use “visual overlays incorporated into the game’s displays” to create a legally distinct (and copyright infringing) derivative work, Bungie argues.
A judge is set to hear oral arguments on the motion to dismiss on Friday, September 30.
