Case 2:22-cv-00371-MJP Document 44 Filed 03/06/24 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`CASE NO. C22-371 MJP
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`ORDER GRANTING SUMMARY
`JUDGMENT
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`BUNGIE, INC.,
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`v.
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`Plaintiff,
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`NICHOLAS MINOR, a/k/a "LORD
`NAZO",
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`Defendant.
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`This matter comes before the Court on Plaintiff Bungie, Inc.’s Motion for Summary
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`Judgment. (Dkt. No. 38.) Having reviewed the Motion and all supporting materials and noting
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`the absence of any opposition, the Court GRANTS the Motion.
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`BACKGROUND
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`Bungie, a video game developer, creator, and publisher has filed suit against Nicholas
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`Minor for violating the Digital Millennium Copyright Act by posing as a Bungie employee and
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`placing fraudulent requests to YouTube to remove content derivative of Bungie’s copyrighted
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`ORDER GRANTING SUMMARY JUDGMENT - 1
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`Case 2:22-cv-00371-MJP Document 44 Filed 03/06/24 Page 2 of 5
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`works. (First Amended Complaint ¶ 1-12 (Dkt. No. 19).) Bungie now moves for summary
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`judgment, which Minor has not opposed.
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`To promote user engagement and market its videogame, Destiny 2, Bungie encourages
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`fans to create and display derivative works that use Destiny 2’s copyrighted video and music.
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`(Declaration of James Barker ¶ 2 (Dkt. No. 41); Declaration of Akiva M. Cohen Exs. 1-10 (Dkt.
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`No. 40).) Fans must still comply with Bungie’s “IP Policy,” which places limits on the use of the
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`copyrighted works. (Barker Decl. ¶ 2 and Ex. 1.) Fans occasionally post videos to YouTube that
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`violate the IP Policy, and Bungie issues requests to YouTube to remove the content in
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`compliance with the DMCA—known as “takedown notifications.” (Barker Decl. ¶ 3.) Bungie
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`issued one such notice to YouTube concerning a video that Minor had created and posted to
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`YouTube. (Barker Decl. ¶ 4.) Minor believed that the DMCA takedown notification was issued
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`in error given that his video had been on his YouTube channel for eight years without any
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`complaint. (Deposition of Nicholas Minor at 35 (Cohen Decl. Ex. 11).) “Confused” and “angry,”
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`Minor believed the notice was fraudulent, but was unable to get any information from YouTube
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`or get the video restored. (Minor Dep. at 34-35.) Purportedly hoping to raise awareness about the
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`lack of transparency around the DMCA takedown process, Minor then created email accounts
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`that he used to pose as a Bungie employee and then make ninety-six takedown requests to
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`YouTube to remove Destiny 2-related content including videos on Bungie’s own channel.
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`(Minor Dep. at 35-37; Id. ¶¶ 8-9; Declaration of James Barker ¶ 2 and Ex. 1.) Bungie avers the
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`requests were fraudulent and that the content targeted did not actually violate its IP Policy.
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`(Barker Decl. ¶ 5.) And Minor has admitted that he created the emails, posed as a Bungie
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`employee, and intentionally issued all of the takedown notifications at issue in this action.
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`(Response to RFA Nos. 6-11, 14-15, 17-24, 30-36 (Cohen Decl. Ex. 14) (Dkt. No. 40-14).)
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`ORDER GRANTING SUMMARY JUDGMENT - 2
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`Case 2:22-cv-00371-MJP Document 44 Filed 03/06/24 Page 3 of 5
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`Minor has admitted he “gravely messed up and fully accept[s] that this is [his] fault.” (Cohen
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`Decl. Ex. 13 (Dkt. No. 40-13).) Bungie asserts that Minor’s actions harmed its reputation and
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`caused economic damage by confusing and angering the Destiny 2 community about whether
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`they could continue to create derivative works to post on YouTube. (Am. Compl. ¶ 10.) And
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`Minor has admitted he was “oblivious to the reprehensible damages [he] was causing to the
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`community” and Bungie in issuing the fraudulent takedown notices, and that he caused financial
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`and emotional damage to several Destiny 2 fans whose videos were subject to the fraudulent
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`takedown notices. (Cohen Decl. Ex. 13.)
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`Bungie now moves for summary judgment on its DMCA claim, which Minor does not
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`oppose, though he has appeared in this action, sat for this deposition, and provided discovery
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`responses. The Court notes that Bungie also alleges the following claims that are not subject to
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`the motion for summary judgment: (1) false designation under 15 U.S.C. § 1125(a); (2)
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`copyright infringement under 17 U.S.C. § 501; (3) business defamation; (4) violations of the
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`Washington Consumer Protection Act; and (5) breach of contract. (See Motion for SJ; Am.
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`Comp. ¶¶ 154-202.)
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`A.
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`Summary Judgment Standard
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`ANALYSIS
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`Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
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`file, and any affidavits show that there is no genuine issue as to any material fact and that the
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`movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether
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`an issue of fact exists, the Court must view all evidence in the light most favorable to the
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`nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 248-50 (1986). A genuine issue of material fact exists where there is
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`Case 2:22-cv-00371-MJP Document 44 Filed 03/06/24 Page 4 of 5
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`sufficient evidence for a reasonable factfinder to find for the nonmoving party. Id. at 248. The
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`moving party bears the initial burden of showing that there is no evidence which supports an
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`element essential to the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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`Once the movant has met this burden, the nonmoving party then must show that there is a
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`genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the
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`existence of a genuine issue of material fact, “the moving party is entitled to judgment as a
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`matter of law.” Celotex, 477 U.S. at 323-24.
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`B. Minor Violated the DMCA
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`A person that abuses the DMCA “may be subject to liability under [17 U.S.C.] § 512(f).”
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`Lenz v. Universal Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2016). One such abuse is
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`providing a takedown notification that “knowingly materially misrepresents . . . that [the]
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`material or activity [identified in the notice] is infringing[.]” 17 U.S.C. § 512(f). To be liable, the
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`defendant must lack a subjective, good faith belief that the material targeted by the takedown
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`notification is infringing. See Lenz, 815 F.3d at 1153. The copyright owner may sue such an
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`individual under the DMCA for damages and attorneys’ fees and costs, but the owner must show
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`that it was damaged “as the result of the service provider relying upon [the defendant’s] . . .
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`misrepresentation in removing or disabling access to the material or activity claimed to be
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`infringing, or in replacing the removed material or ceasing to disable access to it.” Id.
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`The undisputed record before the Court shows that Minor violated the DMCA by
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`knowingly, intentionally, and materially misrepresenting to YouTube that the takedown
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`notifications were authorized by Bungie and that the material itself was infringing. Bungie has
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`provided evidence that the materials at issue did not violate its IP Policy, and that the DMCA
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`notices were not properly issued. And, crucially, Minor admits that he had no authority to issue
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`Case 2:22-cv-00371-MJP Document 44 Filed 03/06/24 Page 5 of 5
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`the notices, that he intentionally and knowingly issued the notices, and that he “gravely messed
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`up.” The evidence here shows that the violations of Section 512(f) were intentional, and that
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`Minor lacked a subjective, good faith belief that the targeted material was infringing. Bungie has
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`also provided evidence that the fraudulent notices harmed its reputation and caused it to devote
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`significant resources to attempt to remediate the harm. (See Barker Decl. ¶ 6.) The Court
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`therefore GRANTS summary judgment in Bungie’s favor on this claim and GRANTS the
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`Motion.
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`CONCLUSION
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`Bungie has demonstrated that it is entitled to relief on the merits of its DMCA claim and
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`the Court GRANTS the Motion. The Court notes that Bungie’s Motion does not resolve the
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`question of the amount of damages, costs, and attorneys’ fees to which Bungie may be entitled.
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`This makes entry of summary judgment partial as to this claim. Nor does it resolve any of the
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`other claims Bungie has alleged against Minor. These issues all remain to be resolved.
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`The clerk is ordered to provide copies of this order to all counsel.
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`Dated March 6, 2024.
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`A
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`Marsha J. Pechman
`United States Senior District Judge
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`ORDER GRANTING SUMMARY JUDGMENT - 5
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