After more than two decades of use and abuse, the DMCA takedown notice has managed to make enemies on all sides.

Rightsholders decry the need to send millions of them, nobody likes receiving them, and people on both sides feel outraged when DMCA notices are used as a weapon.

And they are, on a daily basis, and in their thousands, with almost no repercussions for the overwhelming majority of perpetrators.

Bungie Fights Back

In March 2022, videogame giant Bungie decided to make an example of an unknown individual who was believed to have sent 96 fraudulent DMCA takedown notices to YouTube. Subsequent content removals were wrongfully attributed to Bungie and high-profile Destiny content creators felt let down. With the community in uproar, Bungie’s response was delivered by its legal team.

Among other things, Bungie’s $7.7m lawsuit demanded $150,000 in statutory damages for each fraudulent takedown notice, claiming that every time its content was taken down, the company’s right to authorize the public display and performance of its copyrighted works was violated.

When Bungie filed an amended complaint in June 2022, the company revealed that a sophisticated investigation had identified the alleged DMCA fraudster: Destiny gamer and Bungie customer Nicholas Minor, better known online as ‘Lord Nazos’.

Six Months Later…

In common with many similar lawsuits carrying multi-million dollar claims, public excitement surrounding the Bungie/Minor case was soon displaced by routine court filings and dramas elsewhere. A joint status report and discovery plan filed mid-November lacked fireworks and little hope of a settlement.

“Plaintiff spent considerable resources addressing the community outcry and investigating the fraudulent takedowns, eventually identifying Defendant as the person issuing the takedowns,” Bungie informed the court.

“[P]laintiff pled six causes of action: fraudulent notice under §512(f) of the DMCA, false designation of origin under 15 U.S.C. § 1125(a), copyright infringement under 17 U.S.C. § 501 et seq, business defamation, violation of the Washington Consumer Protection Act under RCW 19.86.020, and breach of contract.”

The statement from Minor was brief. He denied engaging in willful conduct or bad faith as alleged in the amended complaint, and then denied almost everything else too.

“Defendant disputes Bungie’s contentions that he submitted knowingly false DMCA notices or counternotices, that he infringed Bungie’s copyrighted works or that there is a factual or legal basis for an infringement suit for any infringement that was the subject of a DMCA notice,” Minor’s statement reads.

“Bungie’s claims for false designation of origin, business defamation and violation of the Washington Consumer Protection Acts are legally and factually inapplicable to this case.”

The Long Haul Ahead

The deadline for joining additional parties to the case expired a few days ago without any being added. January 6, 2023, marks the deadline for amended pleadings and on September 18, 2023, expert witness reports are due.

Motions related to discovery must be filed by October 18, 2023, and discovery itself must be completed by November 17, 2023. Any motions to dismiss some or even all of the claims are due a month later, on December 18, 2023. Or to put things another way, almost a whole year from now.

If the parties fail to reach a settlement, the case will go to a jury trial. The date set by the court is April 15, 2024, and the trial itself is expected to last between three and five days.

A win is always a win, but beyond that, it’s hard to see any benefit for either side. By April 2024, the reasons for the lawsuit will be long forgotten and if DMCA notices are still as relevant as they are today, they’ll still be abused to disappear content, for whatever reason prevails on that particular day.

The status report and order setting trial date can be found here and here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

A lawsuit filed in 2021 targeting businesses, owners and individuals behind the Wallhax, SecureAC, SecureCheats and CODHax platforms, is just a small part of a larger Bungie campaign.

Faced with growing numbers of cheaters in its online games, Bungie filed several lawsuits in the U.S. They sent the clearest possible message that similar behavior can have serious consequences.

For regular gamers honing innovative strategies to triumph within the parameters of clearly defined rulesets, elimination of cheaters can’t come soon enough.

Filed in 2021 , the lawsuit against Wallax identified some defendants by name and others by their online handles. All faced allegations of copyright infringement, violations of the DMCA’s anti-cicumvention provisions, RICO violations, conspiracy, plus sundry other charges

In June 200, Robert Nelson and two companies under his control admitted copyright infringement after violating Bungie’s copyrights and injecting code into Destiny 2, thereby creating unlicensed derivative works. Bungie’s damages award was $13.5m .

Information provided by Nelson enabled Bungie to pursue developer Daniel Larsen in Denmark, and when he failed to appear, Bungie obtained an entry of default. Information also led Bungie to Germany where ‘Badger’ was identified as Patrick Schaufuss. He also agreed to settle by cooperating with Bungie.

Amended Complaint Unmasks More Defendants, More Details

Filed this week in a Washington District Court, Bungie’s first amended complaint identifies former Doe defendants ‘Luzypher’, ‘Yimosecai’, ‘Rulezzgame’, ‘Sentinent’, ‘CHENZHIJIE402’, and ‘Mindbender’ (aka ‘Bluegirl’), by their real names.

It also provides additional detail on some of the other defendants, including the entity ‘Dsoft CVR36454303’.

Daniel Larsen / Dsoft CVR36454303

Previously alleged to be just the administrator of Wallhax, Larsen is now described as the owner. Working under the pseudonym ‘Gokke’, it’s alleged he developed the code framework for the Wallhax cheat and was involved in designing, coding, updating and maintaining cheats for Destiny 2.

“Larsen and the other partners in the Wallhax business share in its profits and losses and engage in joint decision-making, with Larsen having particular say in matters in his area of expertise (software engineering),” Bungie writes.

“Defendant DSoft, registered with the Danish Business Authority under CVR 37454303, (‘DSoft’) is Larsen’s registered sole proprietorship, with a principal place of business located at [redacted address] in Denmark.”

Bungie says the Dsoft corporate entity was used to conduct business and accept funds relating to the Wallhax cheating operation.

Other Targets Identified

According to Bungie, ‘Luzypher’ is a Wallhax senior support specialist and moderator of the Wallhax forums. The company already knew that ‘Luzypher’ lives in the Netherlands but now identify him as Sebastiaan Juan Theodoor Cruden along with a specific address in a central region of the country.

Previously just a ‘Doe’ defendant, Bungie has added ‘Goodman’ to its complaint. The developer still doesn’t know his name but believes he’s in Sichuan, China, from where he sells Wallhax cheats and shares revenue with other Wallhax defendants. Chenzhijie Chen (aka chenzhiji402) of Shangai, China, faces identical allegations.

The defendant previously known as ‘Yimosecai’ is now identified as Yunxuan Deng of Shangai, China. Together with Eddie Tran (aka Sentient) of California, Anthony Robinson (aka Rulezzgame) of Germany, and Marta Magalhaes (Mindbender/Blue Girl) of Portugal, all stand accused of reselling Wallhax cheats.

Bungie frames their actions rather more elaborately, describing the defendants and others yet to be identified as complicit in a racketeering exercise. Other previously named defendants, including ‘Riddell’ and ‘piskubi93’, are absent from the amended complaint but for reasons not cited in the complaint.

Escalation Strategy

At least from the information available in court documents, it seems that Bungie is using compliant defendants (i.e those who have agreed to settle) as a means to identify others. That’s nothing out of the ordinary and can prove extremely effective.

As an abstract example unrelated to this case, if we take Defendant 1 as the main target in a civil action, he may know a lot about partner defendant 2, so if Defendant 1 starts to cooperate under threat of financial ruin, Defendant 2 is rendered vulnerable.

Lower players, let’s call them Defendants 6 and 7, may be happy to share personal information with each other, feeling they’re largely unimportant. But if Defendant 4 knows either and happens to be friendly with Defendant 3, none of the group are secure if Defendant 2 throws in the towel.

Defendant 5, meanwhile, may feel that settling is the only option because apparently everyone else has. Pressure to settle may not always work though, especially in far-off lands with different legal standards and potentially uncooperative governments.

The amended complaint can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

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Bungie a fait savoir aux joueurs PS5 de Destiny 2 que nombre d'entre eux jouent en réalité à la version PS4. Un phénomène qui prouve que Sony gère encore très mal le passage d'une génération à l'autre. [Lire la suite]

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In response to mass cheating in Destiny 2, last year Bungie began filing lawsuits against entities involved in the creation and distribution of cheating software.

One of the lawsuits targeted Canadian company Elite Boss Tech, its alleged owner, and around 20 ‘John Doe’ defendants.

The complaint alleged that all were involved in the cheat tool business operated from Wallhax.com, SecureAC.io, SecureCheats.net, and CODHax.com, among others

In June 2022, a consent judgment saw Elite Boss Tech, Inc., 11020781 Canada Inc., and owner Robert James Duthie Nelson, admitting to copyright violations.

The defendants accepted that their cheating software “displays a graphical overlay” that integrates into and annotates Bungie’s copyrighted Destiny 2 work, and injects new code into Destiny 2’s copyrighted code, in both cases creating an unlicensed derivative work.

The defendants further agreed that their cheat software circumvents technological measures used by Bungie to control access to Destiny 2’s code, thereby violating the anti-circumvention provisions of the DMCA.

Since the cheating software was downloaded 6,765 times, that was multiplied by an agreed statutory damages amount of $2,000 per violation. The total damages award was $13,530,000 and the defendants were restrained by a permanent injunction.

Bungie Obtains Information From Settling Defendants

Despite this multi-million dollar judgment, Bungie is still hoping to identify additional defendants, most of whom are currently known by their online handles. Slytiger, Arthur S. Aderholt, Luzypher, Goodman, Yimosecai, Riddell, and Piskurb193 are all proving difficult to unmask, but two other defendants haven’t been so lucky.

After naming him as a defendant, Bungie used processes available under the Hague Convention to serve Daniel Fagerberg Larsen via the Ministry of Justice in Denmark.

In accordance with Danish law, service was executed via ‘digital transmission.’ A physical address listed in documents filed in the U.S. matches the address of an IT company Larsen appears to own.

Bungie obtained an entry of default after Larsen failed to appear. The company informed the court that it was information received from Nelson that enabled it to positively identify Larsen as a Wallhax developer.

“Information received from the settling Defendants (Elite Boss Tech, Inc., 11020781 Canada Inc., and Robert James Duthie Nelson) identified Larsen as one of the developers of the cheat software at issue in this litigation, and therefore as having personal liability for the infringements, breaches, and other violations alleged in the Complaint,” Bungie said.

Bungie Continues to Connect The Dots

After obtaining an entry of default against Larsen, Bungie didn’t immediately file for default judgment. The company first wants to obtain more details concerning Larsen’s role in the ‘Wallhax Enterprise’ but to do that, it will require help from Nelson and another recently-unmasked defendant.

In submissions to the court, Bungie says that after reaching a settlement with Nelson in June, he handed over documents that enabled Bungie to positively identify ‘Badger’ in early July. On the Wallhax website, Badger is still listed as a Senior Programmer.

According to Bungie, the documents provided by Nelson contained contact details for Badger and also some kind of message that indicated he was willing to speak with Bungie.

On August 11, a paralegal at Bungie’s law firm used an email address associated with Badger to inform him that they were willing to talk.

“On August 11, 2022, less than an hour after I initially emailed ‘Badger,’ ‘Badger’ called Plaintiff’s counsel and confirmed that his name was Patrick Schaufuss. He further confirmed that he was willing to accept service of the summons and complaint by email,” the affidavit of service reads.

A summons dated August 12, addressed to Schaufuss at an address in Leipzig, Germany, advises that a lawsuit has been filed against him in the United States and failure to respond will result in a default judgment. It appears that in the wake of that correspondence, Badger agreed to start cooperating with Bungie.

Bungie and Badger Reach Agreement

In a status report dated October 12, Bungie reveals that after contacting Badger the parties have now reached an agreement.

“Per the terms of that settlement, ‘Badger’ will be providing Plaintiff with all documents and communications in his possession, custody, and control with respect to the Wallhax Enterprise,” Bungie writes.

“Additionally, both ‘Badger’ and former Defendant Mr. Nelson have agreed to sit for transcribed interviews, which Plaintiff intends to conduct after review of the documents received from ‘Badger’.”

Among other things, Bungie hopes to obtain new information that identifies the remaining ‘Doe’ defendants in the lawsuit. If that can’t be achieved, Bungie expects to dismiss the cases against those defendants by the end of November. It will do so without prejudice, meaning that Bungie can come back to court at a later date if required.

Despite being properly served, Larsen still hasn’t appeared. Bungie says it will seek default judgment against him by the end of the year after obtaining all possible information from the two defendants already cooperating.

Related documents can be found here ( 1 , 2 , 3 , pdf)

From: TF , for the latest news on copyright battles, piracy and more.

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After being sued by Bungie in a Washington court during the summer, a teenager accused of cheating in Destiny 2 and being abusive towards Bungie staff decided to fight back.

The core of Bungie’s lawsuit is that L.L. repeatedly breached the terms of its Limited Software License Agreement (LSLA) by using third-party cheating software, getting banned by Bungie, and then repeatedly signing back up to breach the LSLA’s terms once again.

L.L. is further accused of selling Bungie emblems on third-party platforms and using cheating software that modifies the Destiny 2 game, violates the DMCA’s anti-circumvention provisions, and creates infringing derivative works.

In a recent and spirited motion to dismiss, L.L. fought back against the developer but, rather than backing down, Bungie seems to have found new angles of attack. Indeed, the company’s response suggests that L.L.’s defense tactics are so flawed they have actually weakened his position.

Teen Voids LSLA, Bungie Says ‘Gotcha’

L.L.’s motion to dismiss doesn’t hide the fact that he cheated in Destiny 2 and streamed his cheating to the world using Twitch. It doesn’t deny that he publicly mocked Bungie’s inability to stop him as he signed up for new accounts. Instead, it notes that as a minor, L.L. was able to tear up Bungie’s LSLA to free him from its shackles and, as a result, three of Bungie’s causes of action.

In its opposition motion filed this week, Bungie agrees that by disaffirming the LSLA, L.L. has indeed rendered the contract void ab initio . Having no legal effect from the outset means there can be no future contractual obligations under the LSLA or any liability for past breaches.

As a result, Bungie says the court should go right ahead and dismiss all of its claims for breach of contract. The downside for L.L. is the nature of LSLAs. On the one hand, they prohibit a number of actions – cheating, for example. But on the other, they also grant permission – a license – for other actions too. Notably, simply playing the game.

“[T]he 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’s response reads.

“By disaffirming the LSLA and rendering it void ab initio , L.L. has affirmatively
conceded Bungie’s claims that he infringed its copyrights in the Destiny 2 software and
audiovisual work, because he never had a valid license to do anything with them.”

No LSLA? Stronger Copyright Claims Coming Right Up

Bungie says that L.L.’s decision to void the licensing agreement will lead to the developer filing an amended complaint. It will contain additional copyright infringement claims that take all of the Destiny 2 player’s unlicensed activities into consideration.

“[B]ungie intends to amend, after the Court’s decision on the remaining branches of the motion, to assert that all of L.L.’s downloads, uses, and streams of Destiny 2 were infringing, including his initial download, uses, and streams prior to his first violation of the LSLA,” Bungie’s response reads.

The claims could be significant. Bungie owns the copyrights to Destiny 2 as a software program and as an audiovisual work, meaning that every time L.L. played the game without a license, he created an infringing copy when he loaded it into RAM and infringed again when the game’s story played out on screen. Bungie says that if L.L. hadn’t torn up the LSLA, these activities could’ve been permitted.

Cheat Software and Derivative Works

Whether or not L.L. had the protection of the LSLA, any use of the cheat software would’ve constituted copyright infringement, Bungie says. According to the developer, the software in question adds a graphical overlay to Destiny 2, meaning that the game’s output as an audiovisual work is modified, effectively creating an unlicensed derivative work.

This assertion was previously rejected by the defendant by citing a 1992 case involving Nintendo and the Game Genie cheating device. In that matter, the court found that the Game Genie was incapable of producing images and anything that appeared on screen was produced by the NES console. In addition, the device did not manipulate the data stored in Nintendo game cartridges.

“Here, as Bungie has plead in its complaint, the cheat software L.L. used not only modifies the contents of Destiny 2 data structures in memory but also ‘creates visual elements.’ These novel visual elements are readily apparent in the video clips L.L. recorded and posted to his Twitter,” the company adds.

DMCA Anti-Circumvention Provisions

Bungie says that L.L. circumvented five types of technological protection measures (TPM) and in various public comments, including on Twitter, he identified some of them by name including account bans, BattlEye and hardware ID bans.

“7 bans in and still going strong @Bungie battleye is shit took me 30 seconds to get around your silly hardware ban,” one declared.

Bungie also challenges claims made in L.L.’s motion to dismiss regarding the DMCA’s anti-circumvention provisions. The defense claimed that since Bungie’s code was resident on L.L.’s PC and not on Bungie’s server, he was “perfectly free to examine and see what files, data, programs, etc.,” because they were on his computer.

The developer disagrees, adding that the motion confuses the DMCA with the Computer Fraud and Abuse Act so incorrectly focuses on which computer contained the protected data.

“But where the data resides is irrelevant to a DMCA anti-circumvention claim. Unlike the Computer Fraud and Abuse Act, which criminalizes unauthorized access to protected computers, 18 U.S.C. § 1030(a)(1) , the DMCA bars users from circumventing TPMs that control access to copyrighted works. That is true regardless of where the work resides,” Bungie adds.

Bungie Didn’t Know L.L. Was a Minor

We now know that L.L. is just 17 but Bungie didn’t know that when it sued since the Destiny 2 player claimed to be in his 20s online. Bungie accepts that the defendant is protected from contractual liabilities but says the law provides minors with no right to defraud licensors, infringe copyrights, or circumvent TPMs.

“Moreover, the law does not provide minors with a special haven from civil liability that may arise or be exacerbated when, through and perhaps in reliance on the advice of experienced counsel, they choose to disaffirm any number of license agreements that may otherwise have authorized infringing conduct,” an acerbic concludes.

Bungie’s opposition to L.L.’s motion to dismiss can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

In August 2021, game developer Bungie filed a flurry of lawsuits in the United States against entities accused of offering cheats for Destiny 2.

One of the complaints filed at a court in Washington targeted Kunsal Bansal (aka Lavi) of Bathinda, India.

Bungie identified Bansal as the operator of Lavicheats.com, a site offering cheats and hacks for Destiny 2 and other games including Apex Legends, Overwatch, Call of Duty, Rainbow Six, League of Legends, Fortnite, Rust, and Valorant.

Bungie says that software sold by Lavicheats, featuring ‘aimbots’ and ammo boosts, give players a competitive advantage. According to the company, offering this type of software also amounts to trafficking in circumvention devices contrary to the DMCA.

By inducing the direct infringements of Lavicheat users who “copy, reproduce, adapt, and/or create derivative works” from Bungie’s copyrighted works, Lavicheats is liable for contributory copyright infringement. Because it had the power to stop this behavior but didn’t, Lavicheats should be held vicariously liable too, Bungie said.

Bungie’s Attempts to Track Down Bansal

While the Lavicheats website is easy to find, even today, Bungie’s attempts to locate and then serve Bansal were less straightforward. Bathinda, India, has a population of more than 1.3 million people so Bungie began with the Lavicheats website and managed to find an associated email address.

In September 2021, the court gave Bungie permission to serve Bansal using email and by posting a link to the summons and complaint on the Lavicheats forum . The post was submitted but failed to appear in public so when Bungie filed a motion for default judgment a month later, the court found that Bansal had not been properly served.

The problem was overcome in December 2021 and default was entered, but Bunsal still failed to appear.

Discovery Process Begins

Early July 2022, Bungie filed a request to seek information from a number of third-party service providers associated with Bunsal and Lavicheats.

The court agreed that discovery could go ahead against Namecheap, Cloudflare, Stripe, PayDash and Coinbase Global. Requests relating to Invision Power Services, Discord, and Google, required more supporting information before they could be approved, the court ruled.

Just days later, another problem appeared. PayDash allegedly provided payment processing services for Lavicheats so Bungie needs its records to support a damages claim when it requests judgment against Bansal. But PayDash Limited is a UK company, meaning that additional steps need to be completed first.

Bungie filed an application with the US court to issue a letter of request for international judicial assistance under the Hague Evidence Convention ( pdf ) . The court has now granted the request but whether it will help to progress Bungie’s case is another question.

Comprehensive Request Against Collapsed Company

Directed towards the Royal Courts of Justice in London (the competent authority), the request seeks all documents related to Bunsal, the identified email address, plus the domains lavicheats.com and lavicheats.org. It further requests names, usernames, all addresses, telephone numbers, IP addresses (with timestamps), MAC addresses, activity logs, plus all sales, transaction and processing data, for all of the accounts identified, dating back to 2019.

Whether PayDash is able to provide any information will remain to be seen but problems may lie ahead. These details aren’t mentioned in the case but records show that PayDash Limited was incorporated on February 18, 2021. This means that as far as this legal entity goes, any data held on Bunsal is likely to be limited to the six months preceding the Bungie complaint.

Another complication is found in the corporate status of PayDash Limited. Early May 2022, before the company had even filed its first set of accounts, its sole director took the decision to wind up the business. Along with £48,000 in debt, it’s now in the hands of a liquidator.

Bungie is also interested in acquiring information obtained by PayDash as part of ‘Know Your Customer’ checks but whether they were a top priority for the company is unclear.

While it may have serviced many types of customers, PayDash appears to have been popular with cheat sellers, black hat-style webmasters and people looking to convert cryptocurrencies into cash. By the end, however, good reviews gave way to universal criticism , in some case linked to the alleged disappearance of customers’ cash.

Bungie’s request for international assistance can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

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