Bungie, Inc. v. Thorpe

Background

Bungie, Inc., Ubisoft Entertainment, and Ubisoft, Inc. own and publish the online multiplayer games Destiny 2 and Tom Clancy’s Rainbow Six: Siege. The companies alleged that four individuals were affiliated with Ring-1, an online business that develops, markets, and sells software designed to evade the games’ anti-cheat systems.

The complaint asserted seven claims: trafficking in circumvention devices under the Digital Millennium Copyright Act, copyright infringement, trademark infringement, false designation of origin, intentional interference with contractual relations, unfair competition, and violating the Computer Fraud and Abuse Act. Three defendants appeared and settled with plaintiffs. Those settlements included injunctions and $600,000 in total monetary relief.

Andrew Thorpe did not appear. The court had previously determined that service on him was proper, and his default was entered in April 2022. Plaintiffs then sought default judgment on three claims: trafficking in circumvention devices under the Digital Millennium Copyright Act, copyright infringement, and intentional interference with contractual relations. They requested a permanent injunction, more than $2.3 million in statutory damages, and $126,505.42 in attorneys’ fees and costs.

Personal Jurisdiction

The court focused on whether it had personal jurisdiction—the legal power to exercise authority over a defendant—because Thorpe is a resident of the United Kingdom. Under Federal Rule of Civil Procedure 4(k)(2), plaintiffs had to show that their federal claims qualified, that Thorpe was not subject to general jurisdiction in any state, and that exercising jurisdiction would satisfy due process.

The court found that the first requirement was satisfied because plaintiffs asserted claims under federal law. It also found the second requirement sufficiently met because Thorpe’s refusal to participate had prevented plaintiffs from learning whether he was subject to general jurisdiction elsewhere in the United States.

The dispute concerned due process and whether Thorpe purposefully directed his activities toward the United States. The court concluded that plaintiffs relied mainly on Ring-1’s contacts rather than Thorpe’s own contacts. Plaintiffs did not show that Thorpe and Ring-1 were alter egos, meaning that their separate legal identities should be disregarded. The evidence instead suggested that Thorpe acted more like a customer-service representative: he answered questions about the software, advised customers where and how to buy it, confirmed purchases, and announced software updates.

The court also found no adequate evidence that Thorpe personally targeted U.S. customers. The customer-support messages did not identify the customers’ locations. Seven online reviews came from U.S. customers, but the court found that this small number did not show that Thorpe should reasonably have expected to be sued in the United States. Evidence that U.S.-based game users had been banned for using the software also did not show that Thorpe focused his activities on the United States.

The court rejected plaintiffs’ argument that Ring-1’s general contacts could be attributed to Thorpe. It also noted that the Ninth Circuit had not endorsed attributing one alleged conspirator’s contacts to another for personal-jurisdiction purposes.

Disposition

The court held that plaintiffs had not shown that Thorpe purposefully directed his activities at the United States. Because the court lacked specific personal jurisdiction over him under Rule 4(k)(2), it concluded that default judgment was not warranted.

The court DENIED plaintiffs’ motion for default judgment. Because the other defendants had settled, the court directed the clerk to enter a final judgment and close the case. The order disposed of Docket No. 64.

The court separately observed that Thorpe might still be subject to the injunctions entered against the settled defendants if he received notice and acted in active concert or participation with them. But the court stated that, without personal jurisdiction over Thorpe, it had no power to enforce those injunctions against him.