Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`BUNGIE, INC., a Delaware corporation,
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`CASE NO. 2:21-cv-01111-TL
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT
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`v.
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`Plaintiff,
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`KUNAL BANSAL, an individual, d/b/a
`LAVICHEATS.COM,
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`Defendant.
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`This matter comes before the Court on Plaintiff Bungie, Inc.’s Motion for Default
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`Judgment against Defendant Kunal Bansal (Dkt. No. 48).1 Having reviewed the Motion and all
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`supporting materials, the Court GRANTS the Motion in part, ENTERS default judgment, and
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`permanently ENJOINS Bansal on the terms specified below.
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`1 The Court notes that Bansal is the only remaining defendant in this action, given Bungie’s voluntary dismissal of
`all claims against the “Doe” defendants named in the complaint. See Dkt. No. 17.
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 1
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 2 of 20
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`I.
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`BACKGROUND
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`Operating out of Bellevue, Washington, Bungie develops, distributes, and owns the
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`intellectual property rights to a video game called “Destiny 2.” Dkt. No. 1 ¶¶ 1, 4. Bungie alleges
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`that Bansal, a resident of India, operates a website, Lavicheats.com, through which he advertised
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`and sold cheat software that “hacks” the Destiny 2 software to allow players a competitive
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`advantage against other players in violation of Bungie’s software license agreement (“LSLA”)
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`that binds all Destiny 2 users. Id. ¶¶ 5, 43; Dkt. No. 47 ¶¶ 33–36; Dkt. No. 50 ¶ 4; Dkt. No. 51 ¶
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`2. Bansal sold two different variations of Destiny 2 cheating software—the “Delta” cheat and a
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`more extensive cheat called the “Ring-1” cheat (collectively the “Bansal Cheats”). Dkt. No. 50
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`¶¶ 6–7. Bungie claims that Bansal did not develop the Bansal Cheats, but acted as a reseller. Id. ¶
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`8. Bungie alleges that the Bansal Cheats infringe on four copyrights to the computer software
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`and audiovisual works and screen displays in Destiny 2 and its “expansions”: (1) Registration
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`No. TX 8-933-655; (2) Registration No. TX 8-933-658; (3) Registration PA 2-282-670; and
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`(4) Registration PA 2-280-030. Dkt. No. 1 ¶ 24. Bungie also alleges that Bansal has used without
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`permission various trademarks associated with the Destiny 2 franchise. Id. ¶¶ 25 (listing five
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`trademarks), 52–53. Bungie alleges that the Bansal Cheats contain measures intended to avoid,
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`bypass, and impair Bungie’s technological measures that control access to the copyrighted works
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`at issue in this case and which violate the terms of the LSLA. Dkt. No. 1 ¶¶ 31–42, 50, 54–61.
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`Bungie asserts the following claims against Bansal: (1) violations of the Digital
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`Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201(a)(2); (2) contributory copyright
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`infringement; (3) vicarious copyright infringement; (4) trademark infringement; (5) false
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`designation of origin and unfair competition in violation of 15 U.S.C. § 1125(a); (6) violations of
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`the Washington Consumer Protection Act (“CPA”); (7) tortious interference with contractual
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`relationship; and (8) unjust enrichment. Dkt. No. 1 ¶¶ 64–135. Bungie seeks entry of default
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 2
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 3 of 20
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`judgment on all but the unjust enrichment claim and asks for judgment to be entered in the
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`amount of $6,700,973.34. Dkt. No. 48 at 38. This represents the sum of: (1) $5,580,000 in
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`statutory damages under the DMCA, id. at 28–31; (2) $300,000 in statutory damages based on
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`the willful infringement of two copyrighted works, as permitted under the Copyright Act, 17
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`U.S.C. § 504(c), id. at 31–32; (3) $579,270 in damages as permitted by the Lanham Act, 15
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`U.S.C. § 1117(a), id. at 32–33; (4) attorney fees of $183,850.71; and (5) costs, including expert
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`fees, totaling $57,852.63. Id. at 33–35. Bungie also asks for entry of a permanent injunction
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`barring Bansal from engaging in future or further conduct that forms the basis of its Copyright
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`Act, Trademark Act, and DMCA claims in this action. Id. at 35–38.
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`In support of the requested damages, Bungie alleges that notwithstanding its anti-cheating
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`efforts, the Bansal Cheats have caused it harm by diminishing the enjoyment of the game for
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`those not cheating and reducing its potential revenue from in-game sales to players. Dkt. No. 1
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`¶¶ 62–63. Bungie’s Deputy General Counsel, James Barker, also explains the nature of its anti-
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`cheat circumvention efforts and the “minimum of $2,000,000 on game security staffing and
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`software” that it has expended to combat the Bansal Cheats and other cheating devices of
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`Destiny 2. Dkt. No. 47 ¶¶ 1, 17–32, 47–59. Bungie has also provided evidence that the Delta
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`cheat was downloaded 962 times, while the Ring-1 cheat was downloaded 1,828 times. Dkt. No.
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`50 ¶ 9; Dkt. No. 50-2. Bungie states that in order to download either cheat, the user would have
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`had to purchase the cheat from Bansal at prices that varied depending on the length of the license
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`and the cheat acquired. Dkt. No. 48 at 24. Bungie calculates Bansal’s profits to range between
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`$9,610.38 and $124,098 for the Delta cheat and between $36,377.20 to $455,172 for the Ring-1
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`cheat. Dkt. No. 51 ¶ 3; Dkt. No. 51-1; Dkt. No. 48 at 25. Bungie seeks an award of the higher
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`range of these profits as damages for its Trademark claims. Dkt. No. 48 at 25.
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 3
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 4 of 20
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`A.
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`Legal Standard
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`II.
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`DISCUSSION
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`The Court has already found Bansal in default. Dkt. No. 29. After entry of default, the
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`Court may enter a default judgment. Fed. R. Civ. P. 55(b). This determination is discretionary.
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`See Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988). “Factors which
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`may be considered by courts in exercising discretion as to the entry of a default judgment
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`include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive
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`claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the
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`possibility of a dispute concerning material facts; (6) whether the default was due to excusable
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`neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring
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`decisions on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). In
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`performing this analysis, “the general rule is that well-pled allegations in the complaint regarding
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`liability are deemed true.” Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002)
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`(quotation and citation omitted). And “[t]he district court is not required to make detailed
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`findings of fact.” Id.
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`B.
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`Jurisdiction
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`Before entering default judgment, the Court must assure itself that it has subject matter
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`jurisdiction and personal jurisdiction.
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`There is little doubt that the Court has subject matter jurisdiction over Bungie’s claims.
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`Bungie brings claims under various federal laws, which fall within the Court’s original
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`jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a). The Court has supplemental
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`jurisdiction over Bungie’s state-law claims pursuant to 28 U.S.C. § 1367(a).
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`The Court now turns to the question of whether it has personal jurisdiction over Bansal,
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`who is a nonresident, pursuant to Federal Rule of Civil Procedure 4(k)(2), the federal long-arm
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 4
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 5 of 20
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`statute. Under Rule 4(k)(2), personal jurisdiction may be established over a defendant if the
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`claims arise under federal law and: “(A) the defendant is not subject to jurisdiction in any state’s
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`courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States
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`Constitution and laws.”
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`To measure whether the exercise of personal jurisdiction is consistent with the
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`Constitution, the Court engages in a “due process analysis [that] is nearly identical to the
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`traditional personal jurisdiction analysis with one significant difference: rather than considering
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`contacts between the [defendant] and the forum state, we consider contacts with the nation as a
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`whole.” Lang Van, Inc. v. VNG Corp., 40 F.4th 1034, 1039 (9th Cir. 2022) (citation and
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`quotation omitted). To satisfy due process in this context, Bungie must demonstrate that: (1) the
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`nonresident defendant has either purposefully directed his activities at the United States or
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`purposefully availed himself of the privilege of conducting activities in the forum; (2) the claim
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`arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of
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`jurisdiction comports with fair play and substantial justice. Schwarzenegger v. Fred Martin
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`Motor Co., 374 F.3d 797, 802 (9th Cir. 2004); see Dkt. No. 48 at 5–8 (arguing that personal
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`jurisdiction is properly analyzed under the “purposeful direction” test of specific jurisdiction). To
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`establish “purposeful direction,” the Court applies the three-part “effects” test from Calder v.
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`Jones, 465 U.S. 783 (1984), which requires that the defendant must have “(1) committed an
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`intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows
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`is likely to be suffered in the forum state.” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d
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`1218, 1228 (9th Cir. 2011) (quotation and citation omitted). If Bungie satisfies the first two
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`Schwarzenegger elements, the burden shifts to Bansal to make a compelling case that the
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`exercise of jurisdiction would not be reasonable. Id. at 802.
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 5
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 6 of 20
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`The Court is satisfied that Bungie satisfies the requisite elements of Rule 4(k)(2). Bungie
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`pursues claims under federal law against a Bansal, who is outside of any state court’s general
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`jurisdiction. And the Court finds that the exercise of personal jurisdiction comports with the
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`Constitution based upon the three Schwarzenegger factors.
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`First, Bansal purposefully directed his activities at the United States. All three elements
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`of the “effects” test are satisfied. One, Bansal used his Lavicheats Website to advertise the
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`Bansal Cheats. Two, Bansal directed the Lavicheats Website to consumers in the United States
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`by using English on the website, displaying prices in U.S. Dollars, and providing product
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`assistance in English. See Dkt. No. 51 ¶ 6; Dkt. Nos. 51-4, 51-5; Dkt. No. 40 ¶¶ 15–22; Dkt. Nos.
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`40-8–40-12. And while Bansal appears to have advertised and sold the cheats to consumers
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`worldwide, he did not place any restrictions on the ability of United States residents to purchase
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`the cheats. Bansal also targeted a game developed by Bungie in the United States for which
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`Bungie has valid U.S. intellectual property rights. Three, it was foreseeable that Bansal’s
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`marketing and sales of the Bansal Cheats would harm Bungie in the United States—where it is
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`headquartered.
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`Second, Bungie’s claims arise out of Bansal’s forum-based activities. The Ninth Circuit
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`“relies on a ‘but for’ test to determine whether a particular claim arises out of forum-related
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`activities and thereby satisfies the second requirement for specific jurisdiction. Ballard v.
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`Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). Bungie has satisfied this by showing that its claims
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`would not exist but for Bansal’s use of Bungie’s U.S. intellectual property and decision to target
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`consumers of Destiny 2 in the United States.
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`Third, because Bungie satisfied the first two prongs of personal jurisdiction under Rule
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`4(k)(2), the burden shifts to Bansal to show personal jurisdiction is not reasonably exercised
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`here. By failing to appear in this matter, Bansal has conceded that the exercise is reasonable. But
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 6
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 7 of 20
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`for the sake of completeness, the Court has considered this factor and finds that the exercise of
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`personal jurisdiction is reasonable. The Court does so by balancing the following factors:
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`(1) the extent of a defendant’s purposeful interjection; (2) the
`burden on the defendant in defending in the forum; (3) the extent
`of conflict with the sovereignty of the defendant’s state; (4) the
`forum state’s interest in adjudicating the dispute; (5) the most
`efficient judicial resolution of the controversy; (6) the importance
`of the forum to the plaintiff’s interest in convenient and effective
`relief; and (7) the existence of an alternative forum.
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`Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1021 (9th Cir. 2002). The balance of
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`these factors shows that that the exercise of personal jurisdiction is reasonable. Bansal
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`purposefully directed his activities at the Untied States. There is no evidence of the burden on
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`Bansal in defending himself in this Court or conflicts with the sovereignty of a foreign state. The
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`United States has an interest in making sure that Bungie’s valid intellectual property rights are
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`protected, and this forum can efficiently resolve the conflict. And Bungie has an interest in
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`obtaining convenient and effective relief in this Court where there are no alternative fora
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`identified. Accordingly, the Court finds the exercise of personal jurisdiction to be reasonable.
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`C.
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`Eitel Factors Favor Default Judgment
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`The Court reviews the Eitel factors to assess whether default judgment should be entered
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`and in what specific amounts. The seven Eitel factors weigh in favor of entry of default judgment
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`in Bungie’s favor. But the Court finds that the judgment shall not be entered as to all claims or in
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`the full amount Bungie requests.
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`1.
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`Factor One: Prejudice to Bungie
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`Without entry of default judgment, Bungie will be prejudiced. Bungie has attempted to
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`litigate this case and vindicate its rights under federal and state law against Bansal. Bansal has
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`failed to appear or participate in this litigation despite being personally served. Bungie faces
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 7
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 8 of 20
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`prejudice by not being able to obtain complete relief on its claims against Bansal without entry of
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`default judgment. This factor weighs in favor of granting default judgment.
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`2.
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`Factors Two and Three: Merits of Bungie’s Claims and Sufficiency of
`Complaint
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`Bungie has demonstrated the merit of its claims and the sufficiency of the amended
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`complaint as to all but the CPA and unjust enrichment claims. The Court reviews each claim.
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`a.
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`DMCA
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`The DMCA prohibits the circumvention of any technological measure that effectively
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`controls access to a protected work and grants copyright owners the right to enforce that
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`prohibition. 17 U.S.C. § 1201(a). Bungie may prove its claim under § 1201 by demonstrating
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`that Bansal: “(1) traffic[ked] in (2) a technology or part thereof (3) that is primarily designed,
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`produced, or marketed for, or has limited commercially significant use other than
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`(4) circumventing a technological measure (5) that effectively controls access (6) to a
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`copyrighted work.” MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 953 (9th Cir. 2010), as
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`amended on denial of reh'g (Feb. 17, 2011), opinion amended and superseded on denial of reh’g,
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`No. 09-15932, 2011 WL 538748 (9th Cir. Feb. 17, 2011). Here, Bungie has provided allegations
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`and evidence that it has substantial measures to protect its copyrighted materials. Dkt. No. 1 ¶¶
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`34–42, 66; Dkt. No. 47 ¶¶ 19–21, 23–27, 29–31; Dkt. No. 49 ¶¶ 4, 6–8; Dkt. No. 50 ¶¶ 22–26.
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`And Bungie has shown that Bansal sold the Bansal Cheats that were designed to circumvent
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`Bungie’s technological measures to protect its copyrighted works in violation of § 1201(a). Dkt.
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`No. 1 ¶¶ 31–42, 50, 54–61, 67; Dkt. No. 47 ¶¶ 26–27, 31–32, 38, 56; Dkt. No. 49 ¶¶ 6–18; Dkt.
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`No. 50 ¶¶ 23, 27–33, 56. The Court finds that entry of default judgment on these claims is
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`proper.
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 8
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 9 of 20
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`b.
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`Secondary Copyright Infringement
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`“To establish direct copyright infringement, the [plaintiff] must (1) show ownership of
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`the allegedly infringed material and (2) demonstrate that the alleged infringers violate at least
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`one exclusive right granted to copyright holders under 17 U.S.C. § 106.” Disney Enters., Inc. v.
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`VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citation and quotation omitted). “Contributory
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`copyright infringement is a form of secondary liability with roots in the tort-law concepts of
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`enterprise liability and imputed intent.” Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788,
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`794–95 (9th Cir. 2007). “[A] defendant is a contributory infringer if it (1) has knowledge of a
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`third party’s infringing activity, and (2) induces, causes, or materially contributes to the
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`infringing conduct.” Id. at 795 (citation and quotation omitted). “Vicarious infringement is a
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`concept related to, but distinct from, contributory infringement.” Id. at 802. “To state a claim for
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`vicarious copyright infringement, a plaintiff must allege that the defendant has (1) the right and
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`ability to supervise the infringing conduct and (2) a direct financial interest in the infringing
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`activity.” Id. And “[t]o prove ‘willfulness’ under the Copyright Act, the plaintiff must show
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`(1) that the defendant was actually aware of the infringing activity, or (2) that the defendant's
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`actions were the result of ‘reckless disregard’ for, or ‘willful blindness’ to, the copyright holder’s
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`rights.” Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 944 (9th Cir. 2011)
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`(citation and quotation omitted).
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`Bungie has sufficiently alleged both contributory and vicarious copyright infringement.
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`First, Bungie has alleged that Bansal marketed, sold, and distributed the Bansal Cheats that he
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`reasonably knew infringed on Bungie’s copyrights related to Destiny 2. Dkt. No. 1 ¶¶ 81–82.
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`And Bansal helped induce the infringing conduct by aiding consumers of the Bansal Cheats to
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`install and use the software. Id. These allegations suffice to show contributory infringement.
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`Second, Bungie has shown vicarious copyright infringement. Bungie has alleged that Bansal
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 9
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 10 of 20
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`received financial benefit from those users who purchased the Bansal Cheats that infringed on
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`Bungie’s copyrights related to Destiny 2. Bansal maintained control over the Bansal Cheats, as
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`demonstrated by the fact that he removed them from his website after receiving notice of this
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`lawsuit and then moved the cheats to another website. See Dkt. No. 51 ¶¶ 3, 7; Dkt. No. 51-6.
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`The Court also finds the allegations suffice to show that the copyright infringement here
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`was willful, given allegations that Bansal knew the cheats violated and infringed on Bungie’s
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`copyrights. Dkt. No. 1 ¶¶ 13, 47–51, 56, 61, 72, 83, 86, 94, 97. The Court finds that entry of
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`default judgment on these claims is proper.
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`c.
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`Trademark Infringement & False Designation of Origin
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`To prevail on a trademark infringement claim, Bungie must establish (1) a protected
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`trademark and (2) the use of that trademark by a party accused of infringing on the trademark is
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`likely to cause consumer confusion. See Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352,
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`1354 (9th Cir. 1985). Federal registration of a mark provides prima facie evidence of the mark’s
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`validity and entitles the plaintiff to a strong presumption that the mark is protectable. See Yellow
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`Cab Co. of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925, 927–28 (9th Cir. 2005).
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`To prevail on its claim of false designation of origin, Bungie must show that
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`“(1) defendant uses a designation (any word, term, name, device, or any combination thereof) or
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`false designation of origin; (2) the use was in interstate commerce; (3) the use was in connection
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`with goods or services; (4) the designation or false designation is likely to cause confusion,
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`mistake, or deception as to (a) the affiliation, connection, or association of defendant with
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`another person, or (b) as to the origin, sponsorship, or approval of defendant's goods, services, or
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`commercial activities by another person; and (5) the plaintiff has been or is likely to be damaged
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`by these acts.” United Tactical Sys., LLC v. Real Action Paintball, Inc., 143 F. Supp. 3d 982,
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`1015 (N.D. Cal. 2015).
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 10
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 11 of 20
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`Bungie has provided sufficient allegations to support both claims. First, it has provided
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`evidence that it has valid, protected trademarks that Bansal has used to advertise and sell the
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`Bansal Cheats in interstate commerce. See Dkt. No. 1 ¶¶ 25–27, 52–53; Dkt. No. 1-5; Dkt. No.
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`51 ¶ 5; Dkt. No. 47 ¶ 12; Dkt. No. 47-3. Second, Bungie has alleged that Bansal’s unauthorized
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`use of one or more of Bungie’s trademarks in advertising and selling the Bansal Cheats is likely
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`to have deceived customers and potential customers regarding the origin, affiliation, association,
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`connection or endorsement of Bansal’s products. See Dkt. No. 1 ¶¶ 101–102, 107–108. The
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`Court finds that entry of default judgment on these claims is proper.
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`d.
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`CPA
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`To prevail on its CPA claim, Bungie must establish “(1) an unfair or deceptive act or
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`practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a
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`person’s business or property, and (5) causation.” Panag v. Farmers Ins. Co. of Wash., 204 P.3d
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`885, 889 (2009) (citing Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.3d
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`531, 535 (1986)). “[A] claim under the Washington CPA may be predicated upon a per se
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`violation of statute, an act or practice that has the capacity to deceive substantial portions of the
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`public, or an unfair or deceptive act or practice not regulated by statute but in violation of public
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`interest.” Klem v. Wash. Mut. Bank, 295 P.3d 1179, 1187 (2013).
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`The Court remains unconvinced that Bungie has alleged a valid CPA claim. Specifically,
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`it has not provided evidence of an unfair or deceptive act that had the capacity to deceive a
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`substantial portion of the public. The Bansal Cheats was advertised and sold as an express means
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`to allow players to cheat in the Destiny 2 game. There are no cogent allegations or evidence that
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`individuals who purchased the Bansal Cheats were deceived or that they did not intend to
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`purchase a cheat-enabling software. Even if there were sufficient allegations that purchasers of
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`the Bansal Cheats were deceived to believe Bungie endorsed the cheats, this conduct has not
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 11
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 12 of 20
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`been alleged to have caused any damage or injury to Bungie. The Court rejects Bungie’s request
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`for entry of default judgment on this claim.
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`e.
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`Tortious Interference with Contractual Relationship
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`“A claim for tortious interference with a contractual relationship or business expectancy
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`requires five elements: (1) the existence of a valid contractual relationship or business
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`expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional
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`interference inducing or causing a breach or termination of the relationship or expectancy;
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`(4) that defendants interfered for an improper purpose or used improper means; and (5) resultant
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`damage.” Leingang v. Pierce Cnty. Med. Bureau, Inc., 930 P.2d 288, 300 (1997). “Intentional
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`interference requires an improper objective or the use of wrongful means that in fact cause injury
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`to the person’s contractual relationship.” Id.
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`Bungie has sufficiently alleged a claim that Bansal tortiously interfered with contractual
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`relationships Bungie maintains with Destiny 2 users. Players of Destiny 2 must agree to Bungie’s
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`LSLA, which contains a valid and enforceable contract between Bungie and the players that
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`forbids the use of cheating software like the Bansal Cheats. See Dkt. No. 1 ¶¶ 31–33, 121–123;
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`Dkt. No. 47 ¶¶ 13–16; Dkt. No. 47-4. Bansal was aware of the LSLA and that the Bansal Cheats
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`would violate the terms of the LSLA, as evidence by statements on his website that users of the
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`Bansal Cheats would not get caught by Bungie. Dkt. No. 1 ¶¶ 48–51; Dkt. No. 51 ¶ 4; Dkt. No.
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`51-2. Bansal also had an improper purpose in selling the Bansal Cheats—to help Destiny 2 users
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`cheat in the game and violate the LSLA and infringe on Bungie’s intellectual property rights.
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`And Bungie has shown evidence of harm, including the loss of revenue and reputational
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`damages. Dkt. No. 1 ¶¶ 21–23, 34–42, 62–63, 128–130; Dkt. No. 47 ¶¶ 26–27, 32, 46–54, 56–
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`59; Dkt. No. 49 ¶¶ 4, 6–8; Dkt. No. 50 ¶¶ 3, 57–58. The Court finds that entry of default
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`judgment on these claims is proper.
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 12
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 13 of 20
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`3.
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`Factor Four: Sum of Money at Stake
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`Given the substantial sums that are at stake and the seriousness of the alleged
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`misconduct, the Court finds that this Eitel factor favors entry of default judgment.
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`4.
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`Factor Five: Possibility of Dispute of Material Facts
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`The Court finds little possibility that the core, material facts are in dispute. Not only has
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`Bansal failed to appear in this action, but Bungie has provided detailed evidence in support of its
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`claims that is likely difficult to be rebutted. This factor favors entry of default judgment.
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`5.
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`Factor Six: Whether Default is Due to Excusable Neglect
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`There is no evidence that Bansal’s failure to appear is due to excusable neglect. Evidence
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`submitted by counsel shows that Bansal is aware of this action and has chosen not to participate.
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`See Dkt. No. 22 ¶ 3; Dkt. No. 22-1. This factor favors entry of default judgment.
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`6.
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`Factor Seven: Strong Policy in Favor of Decision on the Merits
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`The Court maintains a strong policy preference in favor of resolution of Bungie’s claims
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`on the merits. But Bansal’s decision not to appear in this case vitiates against this policy. This
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`factor weighs in favor of entry of default judgment.
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`*
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`*
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`*
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`Having considered and balanced the Eitel factors, the Court finds that entry of default
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`judgment is proper on all but the CPA and unjust enrichment claims. On this basis, the Court
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`GRANTS the Motion in part.
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`D.
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`Amount of the Default Judgment
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`Bungie asks the Court to award it $6,700,973.34, which represents the sum of:
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`(1) $5,580,000 in statutory damages under the DMCA; (2) $300,000 in statutory damages based
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`on the willful infringement of two copyrighted works, as permitted under the Copyright Act, 17
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`U.S.C. § 504(c); (3) $579,270 in damages as permitted by the Trademark Act, 15 U.S.C. §
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 13
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 14 of 20
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`1117(a); (4) attorney fees of $183,850.71; and (5) costs, including expert fees, totaling
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`$57,852.63. The Court agrees.
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`First, Bungie is entitled to statutory damages for Bansal’s violations of the DMCA.
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`Under the Act, the Court may award statutory damages “in the sum of not less than $200 or more
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`than $2,500 per act of circumvention, device, product, component, offer, or performance of
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`service, as the court considers just.” 17 U.S.C. § 1203(c)(3). Based on the allegations in the
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`Complaint and the evidence provided, the Court is satisfied that Bansal’s violations of the
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`DMCA were willful and that an award of up to $2,500 per download of the Bansal Cheats is
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`“just.” See, e.g., Sony Computer Ent. Am., Inc. v. Filipiak, 406 F. Supp. 2d 1068, 1075 (N.D. Cal.
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`2005) (finding that an award of $2,500 for the willful sale of copyright infringing devices).
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`Bungie has asked for only $2,000 for each of the 2,790 downloads of the Bansal Cheats and the
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`Court finds that this amount is appropriate. The Court will therefore enter default judgment in the
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`amount of $5,580,000 for Bansal’s violations of the DMCA.
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`Second, Bungie is entitled to recovery of actual damages for its Copyright Act claim. See
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`17 U.S.C. § 504. Bungie seeks to recover the maximum statutory damages for the infringement
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`of its two copyrighted works. See 17 U.S.C. § 504(c). Given the adequate allegations of Bansal’s
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`willful copyright infringement, the Court finds that the maximum statutory award is appropriate
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`and awards $300,000 in statutory damages.
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`Third, the court finds that Bungie is entitled to damages in the amount of Bansal’s profits
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`from his sale of the Bansal Cheats which violated Bungie’s rights under the Lanham Act. The
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`Lanham Act allows the prevailing plaintiff to obtain damages measured from the defendant’s
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`profits obtained from the infringing activity. See 15 U.S.C. § 1117(a). Here, Bungie has provided
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`allegations and evidence that Bansal used Bungie’s trademarks without permission to sell the
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`Bansal Cheats. Bungie also provides evidence that Bansal generated between $45,987.58 and
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`ORDER ON PLAINTIFF’S MOTION
`FOR DEFAULT JUDGMENT - 14
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`Case 2:21-cv-01111-TL Document 54 Filed 05/08/23 Page 15 of 20
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`$579,270. Dkt. No. 51 ¶ 3; Dkt. No. 51-1; Dkt. No. 48 at 25. The Court accepts as true that
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`Bansal earned the higher amount—given that the allegations in the complaint are accepted as
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`true—and the Court awards $579,270 in damages for the Trademark claims.
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`Fourth, Bungie is entitled to its reasonable attorney fees and costs. Reasonable attorney
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`fees and costs are recoverable under the Copyright Act and the DMCA. See 17 U.S.C. § 505; 17
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`U.S.C. § 1203(b)(5). “In deciding whether to award attorneys’ fees, courts in this Circuit
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`consider certain factors, including (1) the degree of success obtained; (2) frivolousness;
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`(3) motivation; (4) objective unreasonableness (both in the factual and legal arguments in the
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`case); and (5) the need in particular circumstances to advance considerations of compensation
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`and deterrence.” Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1230 (9th Cir.
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`2008) (quotation, brackets, and citation omitted). Here, the Court finds that all five factors favor
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`an award of attorney fees and costs. And it finds the requested amounts to be reasonable. The
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`Court therefore approves the award of attorney fees totaling $183,850.71 and