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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`BUNGIE, INC.,
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`Plaintiff,
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`v.
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`AIMJUNKIES.COM; PHOENIX
`DIGITAL GROUP LLC; DAVID
`SCHAEFER; JORDAN GREEN;
`JEFFREY CONWAY; and JAMES
`MAY,
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`Defendants.
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`C21-811 TSZ
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`PRELIMINARY INJUNCTION
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`THIS MATTER comes before the Court on a motion for preliminary injunction,
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`docket no. 35, filed by plaintiff Bungie, Inc. (“Bungie”). The Court has reviewed all
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`papers filed in support of, and in opposition to, the motion, and has determined that oral
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`argument is unnecessary. For the following reasons, the motion is GRANTED.
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`Background
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`Bungie is the owner of the popular Destiny video game franchise, which includes
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`Destiny 2. See Kaiser Decl. at ¶ 6 (docket no. 36). In September 2017, Bungie released
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`Destiny 2, which is now a free-to-play video game with paid expansions and an
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`“estimated player base of over 30 million.” Id. On November 10, 2020, Bungie released
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`Destiny 2: Beyond Light, an expansion to Destiny 2. Id. Bungie owns multiple
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`copyrights in computer code and audiovisual material for Destiny 2 and Destiny 2:
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`Beyond Light, which are registered in the Copyright Office. See Ex. 1 to Rava Decl.
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`(docket no. 37-1).
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`Bungie alleges that defendants Aimjunkies.com (“Aimjunkies”), Phoenix Digital
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`Group LLC (“Phoenix Digital”), David Schaefer, Jordan Green, Jeffrey Conway, and
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`James May (collectively the “Defendants”) “develop, advertise, use, and distribute” cheat
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`software that gives players an unfair advantage in Destiny 2 and its expansions.1
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`Am. Compl. at ¶ 2 (docket no. 34). Bungie claims that the Defendants previously sold
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`their cheat software through the Aimjunkies.com website for $34.95 per month. See
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`Ex. 4 to Rava Decl. (docket no. 37-1). The Defendants contend that they stopped
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`distributing the cheat software on November 12, 2020. Schaefer Decl. at ¶ 7 (docket
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`no. 28-5).
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`On April 27, 2022, this Court dismissed all of Bungie’s claims against Schaefer,
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`Green, Conway, and May without prejudice. See Order (docket no. 33). The Court also
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`dismissed without prejudice Bungie’s claim of copyright infringement against Phoenix
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`Digital and Aimjunkies, and referred a number of Bungie’s claims against these entities
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`1 Bungie alleges that defendants Schaefer, Green, and Conway are managing members of Phoenix Digital
`and actively participated in all infringing activities. Am. Compl. at ¶¶ 5–7 (docket no. 34). Bungie
`contends that May, although not a member of Phoenix Digital, contributed to the development of the
`cheat software. See id. at ¶ 8.
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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 3 of 13
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`to mandatory arbitration.2 Id. On April 28, 2022, the website torrentfreak.com published
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`an article discussing this Court’s ruling. See Ex. 5 to Rava Decl. (docket no. 37-1). The
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`article reported that Phoenix Digital was “in the final stages of selling the AimJunkies
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`websites to a Ukrainian group of investors.” Id.
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`On May 11, 2022, Bungie emailed the Defendants, asking whether the purported
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`sale had been completed and if it included the cheat software at issue in this case. See
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`Ex. 6 to Rava Decl. (docket no. 37-1). On May 19, 2022, having received no response to
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`its email, Bungie filed its amended complaint, docket no. 34, and the present motion for
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`preliminary injunction, docket no. 35. On May 23, 2022, Aimjunkies and Phoenix
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`Digital issued a press release reporting that Blome Entertainment (“BME”), an allegedly
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`Ukrainian company, had “completed and signed definitive agreements” with Phoenix
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`Digital to acquire the Aimjunkies.com website.3 Ex. 4 to 2d Rava Decl. (docket no. 43-1
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`at 20). The press release provides that the “acquisition will give BME access to
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`2 The Court granted Bungie leave to amend its complaint on or before May 27, 2022. See Order at 13
`(docket no. 33).
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`3 Bungie raises doubt concerning the Defendants’ claim that they sold the Aimjunkies.com website to a
`group of Ukrainian investors. On November 20, 2020, before Bungie initiated this action, defendant
`Conway sent a letter to Bungie’s counsel. See Ex. 2 to 2d Rava Decl. (docket no. 43-1). In his letter,
`Conway alleged that he no longer owned Aimjunkies.com, and that the “referenced sites were sold to
`Phoenix Digital Group LLC, and Phoenix Digital Group in turn sold them to CallofDutyHacks.RU site
`owners some time ago.” Id. On June 29, 2021, the Defendants sent a letter to Bungie explaining that the
`sale referenced in Conway’s November 20, 2020, letter “ultimately did not go through.” Ex. A to 2d
`Schaefer Decl. (docket no. 39-2). Further, the press release announcing BME’s acquisition of
`Aimjunkies.com appears to be an altered version of a January 31, 2022, press release announcing Sony
`Interactive Entertainment LLC’s acquisition of Bungie. Compare Ex. 4 to 2d Rava Decl. (docket no. 43-1
`at 20) with Ex. 5 to 2d Rava Decl. (docket no. 43-1 at 23).
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`PRELIMINARY INJUNCTION - 3
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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 4 of 13
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`Aimjunkies’s world-class cheat library,” and all equity and property rights in Phoenix
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`Digital’s other websites, VirtualAdvantage.com and Mombot.com. Id.
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`Bungie seeks a “narrowly tailored” preliminary injunction for its copyright
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`infringement claim to stop only the Defendants’ transfer of the Destiny 2 cheat software,
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`and not the entirety of the Aimjunkies.com websites, to any third party prior to the final
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`disposition of this case.
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`Discussion
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`A preliminary injunction is an extraordinary remedy, “never awarded as of right.”
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`Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A party seeking a
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`preliminary injunction must establish: (1) a likelihood of success on the merits; (2) a
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`likelihood of irreparable harm in the absence of preliminary relief; (3) a balancing of
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`equities tips in favor of a preliminary injunction; and (4) an injunction is in the public
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`interest. Id. at 20. The Ninth Circuit has also articulated an alternative “sliding scale”
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`approach pursuant to which the first and third Winter factors are analyzed on a
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`continuum; under such standard, a weaker showing on the merits, combined with a
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`stronger demonstration on the balancing test, might warrant preliminary injunctive relief,
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`assuming the second and fourth Winter elements are met. All. for the Wild Rockies v.
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`Cottrell, 632 F.3d 1127, 1131–35 (9th Cir. 2011). Under this “sliding scale” method, the
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`movant need only raise “serious questions going to the merits,” but the balance of
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`hardships must tip “sharply” in the movant’s favor. Id. at 1131–32; see also Farris v.
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`Seabrook, 677 F.3d 858, 864 (9th Cir. 2012).
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`PRELIMINARY INJUNCTION - 4
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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 5 of 13
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`1.
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`Likelihood of Success on the Merits
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`In their response to Bungie’s motion, docket no. 39, the Defendants do not contest
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`Bungie’s assertion that it is likely to succeed on the merits of its direct and secondary
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`copyright infringement claims. Instead, the Defendants challenge only whether Bungie
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`has demonstrated immediate irreparable harm. Having reviewed the motion and
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`Bungie’s claims, the Court concludes that Bungie is likely to succeed on the merits of
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`some claims, and raises serious questions going to the merits of others.
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`a.
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`Direct Infringement
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`Bungie alleges that the Defendants’ actions constitute direct copyright
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`infringement. Am. Compl. at ¶ 107. To establish direct copyright infringement, Bungie
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`must “(1) show ownership of the allegedly infringed material, and (2) demonstrate that
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`the alleged infringers violate at least one exclusive right granted to copyright holders
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`under 17 U.S.C. § 106.” See Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856
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`(9th Cir. 2017) (internal quotations omitted). Bungie has shown that it owns two
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`audiovisual copyrights and two software code copyrights in Destiny 2 and its expansion.
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`See Ex. 1 to Rava Decl. (docket no. 37-1); see also United Fabrics Int’l, Inc. v. C&J
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`Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011) (explaining that a copyright registration
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`is “prima facie evidence” of the validity of a copyright). Bungie, therefore, has
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`sufficiently satisfied the first element of its claim.
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`Bungie has also submitted an unrebutted declaration which demonstrates that the
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`Defendants likely infringed its copyright. See generally Kaiser Decl. (docket no. 36).
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`Bungie contends that the Defendants created, advertised, and offered for sale cheat
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`PRELIMINARY INJUNCTION - 5
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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 6 of 13
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`software that includes non-authorized features such as Extra-Sensory Perception (“ESP”),
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`AIMBOT, and One Position Kill (“OPK”).4 See Ex. 2 to Rava Decl. (docket no. 37-1).
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`Bungie alleges that, to create cheat software that includes these features, Defendants
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`necessarily copied the Destiny 2 software code that corresponds to key attributes in the
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`Destiny 2 video game, such as the data structures for player and combatant positioning.
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`Kaiser Decl. at ¶¶ 14, 17 & 20. Bungie believes that the Defendants also reverse
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`engineered software code in Destiny 2, including the code for rendering functions and the
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`code that calculates the angle deltas for mouse movements. Id. at ¶¶ 14 & 17. According
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`to Bungie, the Defendants then incorporated cheat software derived from copied Destiny
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`2 code into every copy of their cheat software. Id. at ¶¶ 14, 17 & 20. Further, because
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`Bungie periodically modifies or updates the Destiny 2 code, Bungie asserts that the
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`Defendants necessarily created new copies of Bungie’s code whenever Bungie updated
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`the Destiny 2 software code to ensure that the cheat software’s features continued to
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`function. Id. at ¶ 22. Bungie has made a strong showing that this conduct likely
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`constitutes infringement of its exclusive right to copy or reproduce Destiny 2.5
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`4 ESP allows users of the cheat software “to see the location of other Destiny 2 players and non-player
`characters, including through solid walls, by displaying a distinct box around the other players, displaying
`the players’ names, and their distance from the cheat user.” Kaiser Decl. at ¶ 11 (docket no. 36).
`AIMBOT allows users of the cheat software to “aim their weapons automatically and accurately at other
`Destiny 2 player and non-player characters with little to no input (i.e., movement of the mouse and/or
`controller joystick) by the cheat users.” Id. at ¶ 16. OPK “automatically teleports characters to a position
`advantageous to the cheat user,” allowing cheat users to easily damage their opponents. Id. at ¶ 19.
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`5 Bungie also argues that the Defendants likely created unauthorized derivative works of Destiny 2 by
`implementing their cheat features. See Take-Two Interactive Software, Inc. v. Zipperer, No. 18 Civ.
`2608, 2018 WL 4347796, at *8 (S.D.N.Y. Aug. 16, 2018) (holding that a defendant’s alternative version
`of plaintiff’s video game “with added elements that allow its users to use features not available in the
`original version” likely constituted a derivative work). The Defendants’ ESP feature, for example,
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`PRELIMINARY INJUNCTION - 6
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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 7 of 13
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`b.
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`Secondary Copyright Infringement
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`Bungie also alleges that the Defendants are liable for contributory infringement
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`and vicarious infringement. Am. Compl. at ¶¶ 108–110. To be liable for a claim of
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`contributory infringement, a defendant must (1) know of the direct infringement, and
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`(2) either induce, cause, or materially contribute to the infringing conduct. Luvdarts,
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`LLC v. AT&T Mobility, LLC, 710 F.3d 1068, 1072 (9th Cir. 2013). “Put differently,
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`liability exists if the defendant engages in ‘personal conduct that encourages or assists the
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`infringement.’” Blizzard Ent., Inc. v. Bossland GmbH, No. CV 16-1236, 2017 WL
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`7806600, at *5 (C.D. Cal. Mar. 31, 2017) (quoting A&M Records, Inc. v. Napster, Inc.,
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`239 F.3d 1004, 1019 (9th Cir. 2001)). According to Bungie, every time a purchaser
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`downloads a copy of the Defendants’ cheat software, “a new copy of software code
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`derived from Bungie’s copyrighted code that was incorporated into the Cheat Software is
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`created.” Mot. for Prelim. Inj. (docket no. 35 at 15) (citing Kaiser Decl. at ¶¶ 14, 17 &
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`20). The Defendants admit that they sold $27,748 in copies of the cheat software
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`between April 2019 and November 2020, see Schaefer Decl. at ¶¶ 3, 7 & 8, and no
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`dispute exists that the cheat software was available for purchase on the Aimjunkies.com
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`website, see 2d Schaefer Decl. at ¶ 4 (docket no. 39-1). Bungie argues that the
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`modifies the audiovisual display of Destiny 2 “by displaying a distinct box around the other players,
`displaying the players’ names, and their distance from the cheat user.” Kaiser Decl. at ¶ 11. Bungie
`further alleges that the Defendants have infringed on its exclusive right to distribute copies of Destiny 2.
`See Nexon Am., Inc. v. S.H., No. CV 10-9689, 2011 WL 13217951, at *4 (C.D. Cal. Dec. 13, 2011)
`(finding that the defendant infringed on plaintiff’s exclusive right of distribution when it uploaded a
`modified version of plaintiff’s video game software to a website where it was downloaded by third-party
`users). In this case, no dispute exists that the Defendants sold the cheat software on Aimjunkies.com. See
`Schaefer Decl. at ¶¶ 6–7 (docket no. 28-5).
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`Defendants, as the sellers of the cheat software, were aware of the resulting infringement
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`by the purchasers, and that they induced, caused, or materially contributed to the
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`infringing conduct by offering the cheat software for sale on their website. The Court
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`concludes that Bungie has raised serious questions going to the merits of this claim.
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`To prevail on a vicarious infringement claim, a plaintiff must prove that the
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`defendant “(1) enjoyed a direct financial benefit from the infringing activity of the direct
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`infringer; and (2) declined to exercise the right and ability to supervise or control that
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`infringing activity.” Nintendo of Am., Inc. v. Storman, No. CV 19-7818, 2021 WL
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`4780329, at *4 (C.D. Cal. Aug. 5, 2021) (citing Ellison v. Robertson, 357 F.3d 1072,
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`1076 (9th Cir. 2004)). “A financial benefit exists where the availability of infringing
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`material acts as a draw for customers.” Id. (citation omitted). “A defendant exercises
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`control over a direct infringer when he has both a legal right to stop or limit the directly
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`infringing conduct, as well as the practical ability to do so.” Id. (quoting Perfect 10, Inc.
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`v. Amazon.com, Inc., 508 F.3d 1146, 1173 (9th Cir. 2007)). Bungie contends that it has
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`satisfied both elements of this claim because the Defendants enjoyed a direct financial
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`benefit from the cheat software, see Schaefer Decl. at ¶ 8, and had the right and practical
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`ability to control their purchasers’ infringement. To prove that the Defendants exercised
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`the requisite control over their purchasers, Bungie cites to the fact that the Defendants
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`removed the cheat software from Aimjunkies.com upon receipt of Bungie’s cease and
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`desist letter. Id. at ¶ 7. The Court similarly concludes that Bungie has raised serious
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`questions going to the merits of this claim.
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`2.
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`Irreparable Harm
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`The party requesting a preliminary injunction “must demonstrate that immediate
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`or imminent irreparable harm is likely.” Disney Enters., Inc. v. VidAngel, Inc., 224
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`F. Supp. 3d 957, 966 (C.D. Cal. 2016). Speculative injury will not suffice. Id. (citing
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`Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)). Bungie
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`argues that the cheat software could be re-released on the market if the Defendants are
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`permitted to transfer the software to a third party. Bungie asserts that further distribution
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`of the cheat software would cause Bungie to suffer irreparable harm to its business
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`reputation and goodwill. See Rent-A-Center, Inc. v. Canyon Television & Appliance
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`Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (recognizing “that intangible injuries, such
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`as damage to . . . goodwill, qualify as irreparable harm”); see also Take-Two Interactive,
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`2018 WL 4347796, at *9 (“It is impossible to quantify the reputational harm that [a video
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`game developer] will suffer from losing its credibility with video game players who do
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`not use the [defendant’s] cheat programs.”). In support of this argument, Bungie has
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`provided a declaration from Edward Kaiser, an Engineering Lead for the company.
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`Kaiser Decl. at ¶ 1. Kaiser explains that following the Defendants’ initial release of the
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`cheat software, Bungie received over 6,000 reports from non-cheating Destiny 2 players
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`concerning other players’ use of the software. See Kaiser Decl. at ¶ 23; Ex. 1 to Kaiser
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`Decl. (docket no. 36-1) (providing one example of a Destiny 2 user report).
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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 10 of 13
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`In response, the Defendants argue that Bungie’s request for a preliminary
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`injunction is moot.6 According to defendant Schaefer, none of the Defendants have
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`distributed the cheat software since December 2020. See 2d Schaefer Decl. at ¶ 4.
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`Schaefer also states that Phoenix Digital did not develop the cheat software at issue in
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`this action. Id. at ¶ 5. Instead, the software was “developed by unknown third party
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`developers who make there [sic] products available for distribution through the
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`Aimjunkies.com website.”7 Id. at ¶ 5. Because they did not develop the cheat software,
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`Schaefer contends that the Defendants never had access to, or possession of, the
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`software’s source and/or object code. Id. at ¶ 6. Finally, Schaefer declares that the
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`Defendants sold Aimjunkies.com to a Ukrainian purchaser on May 5, 2022, before
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`Bungie filed its motion for preliminary injunction.8 See id. at ¶ 9.
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`6 The Defendants also contend that Bungie’s request for an injunction is untimely. The Court, however, is
`unpersuaded by this argument. Bungie has established that it moved for an injunction shortly after
`learning that the Defendants intended to sell the Aimjunkies.com website to a Ukrainian purchaser. See
`Exs. 5–6 to Rava Decl.
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`7 Schaefer explains that, [w]hen a potential customer places an order with Aimjunkies.com, upon payment
`of an agreed price, Aimjunkies.com allows the customer to access the third-party developer’s computer
`server and download the software directly from the third-party developer.” 2d Schaefer Decl. at ¶ 5
`(docket no. 39-1). Additionally, the Court notes that Schaefer’s declaration appears to conflict with an
`email he sent to Bungie on August 26, 2021. See Ex. 8 to Rava Decl. (docket no. 37-1). In his email,
`Schaefer alleges that he and his partners have been “making game cheats” since Bungie’s counsel was in
`high school. Id. Bungie contends that Schaefer also threatened to release the cheat software’s source
`code. See id. (“In the old days sites would put the source code on public forms . . . . Is that what you’re
`looking for in your game? Please for both of ours [sic] benefit call your crusader off.”).
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`8 According to Schaefer, the cheat software’s source and/or object code was not transferred to the
`purchaser because the code was never in the possession of, or accessible to, the Defendants. 2d Schaefer
`Decl. at ¶ 9.
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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 11 of 13
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`Although the Defendants contend that they no longer distribute the cheat software,
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`and do not have access to its source and/or object code, the available evidence
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`demonstrates that the Defendants have knowledge of, and/or access to, servers from
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`which future purchasers could download the cheat software, directly from the software’s
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`alleged developers. Further, despite the purported sale, whether the individual defendants
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`will still play some role in the management of Aimjunkies.com is unclear. According to
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`the Defendants’ press release, “[p]ost-acquisition, Aimjunkies will be an independent
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`subsidiary of BME and run by its Board of Directors . . . and Aimjunkies’s current site
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`management team.” Accordingly, the Court concludes that Bungie’s request for a
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`preliminary injunction is not moot. See Take-Two Interactive, 2018 WL 4347796, at *10
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`(holding that a defendant’s own statement that he did not intend to continue distributing
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`“cheat menus” for plaintiff’s video game was insufficient to satisfy his burden to show
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`mootness). Bungie has sufficiently demonstrated that any further sale, transfer, or
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`distribution of the cheat software, whether through Aimjunkies.com or other means, will
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`likely cause immediate irreparable harm to its reputation and goodwill.
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`3.
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`Balancing of Equities and the Public Interest
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`Bungie has demonstrated that the balance of hardships tips sharply in its favor.
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`When considering the equities of a preliminary injunction, the Court must “must balance
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`the competing claims of injury and must consider the effect on each party of the granting
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`or withholding of the requested relief.” See Winter, 555 U.S. at 24 (citation omitted).
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`Here, the record contains no evidence that the Defendants will be harmed by an
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`injunction. In fact, the Defendants do not claim that they will suffer any injury, rather,
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`PRELIMINARY INJUNCTION - 11
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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 12 of 13
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`they argue that the Court has nothing to enjoin. Bungie, however, has presented evidence
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`that it will suffer irreparable reputational harm among Destiny 2 players if the cheat
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`software is transferred to a third party. See Kaiser Decl. at ¶ 23. Finally, Bungie has
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`demonstrated that the public interest in the protection of copyrighted works is served by
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`an injunction in this action. The Court, therefore, concludes that a “narrowly tailored”
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`preliminary injunction is warranted.
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`Conclusion
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`For the foregoing reasons, the Court ORDERS:
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`(1)
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`Bungie’s motion for a preliminary injunction, docket no. 35, is
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`GRANTED9;
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`(2)
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`Aimjunkies, Phoenix Digital, David Schaefer, Jordan Green, Jeffrey
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`Conway, James May, and all of their officers, agents, servants, employees, and attorneys,
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`and all others who are in active concert or participation with Aimjunkies, Phoenix
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`Digital, David Schaefer, Jordan Green, Jeffrey Conway, James May, and/or their officers,
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`agents, servants, employees, and attorneys, who receive actual notice of this order by
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`9 In its amended complaint, Bungie realleges its claim for copyright infringement against all of the
`Defendants. Am. Compl. at ¶¶ 101–14. Pending before the Court is the Defendants’ second motion to
`dismiss, docket no. 40, which will note for the Court’s consideration on July 15, 2022. See Minute Order
`(docket no. 48). Defendants Conway, Schaefer, and Green move under Federal Rules of Civil Procedure
`12(b)(2) and 12(b)(3) to dismiss all claims against them for lack of personal jurisdiction and improper
`venue. Defendant May moves under Rule 12(b)(6) to dismiss the only claim against him (copyright
`infringement) for failure to state a claim. Defendants Aimjunkies and Phoenix Digital do not move to
`dismiss any of the claims against them. The Court must await completion of the briefing before ruling on
`the individual defendants’ motion to dismiss. This Order, nevertheless, binds Conway, Schaefer, Green,
`and May because of their status as officers, agents, servants, and/or employees of Aimjunkies and
`Phoenix Digital, or as other persons in active concert or participation with any of these entities or
`individuals, pending further order of the Court. See Fed. R. Civ. P. 65(d)(2)(B)–(C).
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`PRELIMINARY INJUNCTION - 12
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`

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`Case 2:21-cv-00811-TSZ Document 50 Filed 07/01/22 Page 13 of 13
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`personal service or otherwise, are ENJOINED until resolution of this action, or until
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`further order of this Court, from selling, providing, or otherwise transferring the cheat
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`software at issue in this action, including but not limited to any source code or object
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`code for any version of the cheat software, to any third party;
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`(3)
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`Bungie will not be required to post a bond; and
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`(4)
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`The Clerk is directed to send a copy of this Order to all counsel of record.
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`IT IS SO ORDERED.
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`Dated this 1st day of July, 2022.
`
`A
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`Thomas S. Zilly
`United States District Judge
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`PRELIMINARY INJUNCTION - 13
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`