Bungie, Inc. v. Thorpe

BUNGIE, INC., et al., Plaintiffs, v. ANDREW THORPE, et al., Defendants.

No. 21-cv-05677-EMC (DMR)

United States District Court, N.D. California

November 8, 2021

ORDER DENYING WITHOUT PREJUDICE EX PARTE APPLICATION FOR LEAVE TO TAKE LIMITED EARLY DISCOVERY

Re: Dkt. No. 11

DONNA M. RYU UNITED STATES MAGISTRATE JUDGE

Plaintiffs Bungie, Inc. (“Bungie”), Ubisoft Entertainment and Ubisoft, Inc. (together, “Ubisoft”) own and publish two popular online multiplayer video games. They claim that Defendants Andrew Thorpe, Jonathan Agueda, Wesam Mohammed, Ahmad Mohammed, and a number of unnamed defendants (the “Doe Defendants”) operate an online business venture called Ring-1 that sells software that provides cheats and hacks to Plaintiffs' games. Plaintiffs allege violations of copyright, trademark, and related laws.

Plaintiffs make this ex parte application for leave to take limited early discovery pursuant to Federal Rule of Civil Procedure 26(d) and Civil Local Rule 7-10 to identify nine anonymous Doe Defendants. Application for Leave (“Appl.”) [Docket No. 11]. The Honorable Edward M. Chen referred this matter to the undersigned for resolution. This matter is suitable for determination without oral argument. Civil L.R. 7-1(b). The court denies Plaintiffs' application without prejudice.

I. BACKGROUND

Plaintiffs are the owners and publishers of the online multiplayer video games “Destiny 2” and “Tom Clancy's Rainbow Six: Siege” (“R6S”) (the “Games”). Compl. ¶ 1 [Docket No. 1]. Bungie is the owner and developer of Destiny 2, a game in which players can cooperate to fight against computer-controlled opponents or fight against one another. Id. ¶¶ 22-23. Bungie offers Destiny 2 to the public for free; players simply download the software online. Id. ¶ 43. Players must purchase in-game currency to acquire optional items, unlock new characters, or gain access to exclusive content. Id. Bungie owns all rights to Destiny 2 and multiple trademarks associated with that software franchise. Id. ¶¶ 29-30. Bungie is incorporated in Delaware with its principal place of business in Bellevue, Washington. Id. ¶ 9.

R6S, created by Ubisoft, is a game in which a player assumes the role of an elite special forces operative. Id. ¶ 27. Each player must cooperate with other team members against a competing team to complete certain military-themed objectives. Id. Players must purchase a copy of the game or a license from a digital retailer. Id. ¶ 44. Players may acquire more items in game either on a “free” track or a “premium” track, the latter of which is available for purchase and that unlocks access to new benchmarks in the game and additional items. Id. ¶¶ 44-45. Ubisoft owns all rights to R6S and multiple trademarks associated with that software franchise. Id. ¶¶ 12, 35-36. Ubisoft Entertainment is incorporated and organized in France, while Ubisoft, Inc. is organized in California. Id. ¶¶ 10-11.

Plaintiffs claim that Defendants are engaged in developing, selling, and supporting software for sale to the public on the Ring-1 website that allows players to manipulate the Games to their own advantage (the “Cheating Software”). Id. ¶ 2. Defendants are software developers, operators or moderators of the Ring-1 website and its community forum, customer support and technical assistance providers, and/or resellers who acquire and resell keys for the Ring-1 software. Id. ¶ 64. They sell weekly and monthly access to the Cheating Software for both Games. Id. ¶ 65. Licenses for the Cheating Software are also available for purchase at authorized resellers. Id. ¶ 66. Defendants provide extensive and ongoing customer support for the Cheating Software. Id. ¶ 68. Plaintiffs allege the Defendants have made tens or hundreds of thousands of dollars from distribution and sale of the Cheating Software. Id. ¶ 67.

Plaintiffs claim that Defendants unlawfully accessed Plaintiffs' software code to develop the Cheating Software, which modifies and alters the way players engage with the games and circumvents the Game's anti-cheat technology. Id. ¶¶ 70-85. Defendants also unlawfully reproduce and use an array of images and artworks from the Games to market the Cheating Software on the Ring-1 website. Id. ¶¶ 64-69.

According to Plaintiffs, Defendants' Cheating Software severely damages their business model. Id. ¶ 47. Plaintiffs generate revenue from the sale of game content, virtual currencies, digital enhancements or expansions, and other so-called Battle Passes (which Plaintiffs describe as a “microtransaction system” in R6S). Id. ¶¶ 44, 46. Plaintiffs say that “[i]f players perceive others are cheating or have an unfair advantage, they may grow frustrated with the Games and stop playing them, ” which will disrupt the online player community. Id. ¶ 47. Despite Plaintiffs' use of anti-cheat technologies that are installed on players' computers when the software is installed, entities like Ring-1 devise methods to avoid the detection of their cheating software, thereby generating an “arms race” of sorts between game developers like Plaintiffs and architects of cheating software like Defendants. Id. ¶¶ 52-56.

The complaint names four Defendants who are allegedly Ring-1 staff members or community members: (1) Andrew Thorpe, known by his online alias “Krypto, ” who is based in the United Kingdom; (2) Jonathan Agueda, a/k/a “Overpowered, ” based in Florida; (3) Wesam Mohammed, a/k/a “Grizzy, ” based in Indiana, and (4) Ahmad Mohammed, also based in Indiana. Compl. ¶¶ 13-16. The complaint also names Doe Defendants who are involved with the Ring-1 operation and who provide customer support, are moderators and/or administrators of the Ring-1 website, resell the Cheating Software, and/or develop and maintain the Cheating Software. Id. ¶ 19; Appl. at 4-5. Plaintiffs allege violations of the Digital Media Copyright Act, 17 U.S.C. § 1201(a)(2), the federal Copyright Act, the Lanham Act, the Computer Fraud and Abuse Act, California's Unfair Competition Law, and intentional interference with contractual relations.

Plaintiffs request early discovery to ascertain the identities of nine Doe Defendants allegedly involved in the Ring-1 venture, known only by their online aliases “Berserker, ” “Cypher, ” “Admin, ” “Calc, ” “Overseer, ” “Tralepo, ” “Frost, ” “Dove, ” and “Pingu.” Appl. at 4-5. Plaintiffs seek to issue third-party subpoenas to the following eleven entities that they suspect have information that will help identify the Doe Defendants: NameSilo, LLC; Cloudflare, Inc.; Hostwinds, LLC; DigitalOcean, LLC; Lex Holdings Group, LLC; Namecheap, Inc.; Discord Inc.; Google LLC; Apple Inc.; PayPal, Inc.; and Vimeo.com, Inc. Appl. at 5. These entities are possible domain name registrars, content distributors, web hosts, communication applications, and payment processors. Id. at 5-7. The subpoenas seek the names, addresses, email addresses, and other identifying information of persons or entities who registered and use the aliases at issue with accounts administered by the third parties, as well as the Internet Protocol (IP) addresses used to access these accounts. Id. at 7.

II. LEGAL STANDARD

In the Ninth Circuit, “exceptions to the general rule” that discovery may not be initiated prior to the Federal Rule of Civil Procedure 26(f) conference are “generally disfavored.” Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, a court may authorize earlier discovery “for the parties' and witnesses' convenience and in the interests of justice.” Fed.R.Civ.P. 26(d)(3). Courts have permitted “limited discovery . . . after [the] filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant.” Columbia, 185 F.R.D. at 577; see also Gillespie, 629 F.2d at 642 (“[W]here the true identity of the defendants will not be known prior to the filing of a complaint . . . the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds”).

The plaintiff must show good cause for early discovery. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Id.; see also Am. LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063, 1066 (C.D. Cal. 2009) (“The party seeking expedited discovery . . . has the burden of showing good cause for the requested departure from usual discovery procedures” (quoting Qwest Commc'ns Int'l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003)).

In evaluating whether a plaintiff establishes good cause to learn the identity of Doe defendants through early discovery courts employ safeguards to ensure that such discovery “will only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant pre-service, and will prevent use of [early discovery] to harass or intimidate.” Columbia, 185 F.R.D. at 578. Courts examine whether the plaintiff (1) has “identif[ied] the missing party with sufficient specificity such that the Court can determine that the defendant is a real person or entity who can be sued in federal court, ” (2) recounted “all previous steps taken to locate the elusive defendant, ” (3) established that the action can withstand a motion to dismiss, and (4) demonstrated a “reasonable likelihood that the discovery process will lead to identifying information about [the] defendant that would make service of process...