Bungie has had a motion to dismiss a Destiny 2 copyright infringement lawsuit denied by the Eastern District of Louisiana court.
The lawsuit concerns content that’s been ‘vaulted’ – removed from the game – which has created logistical challenges for Bungie in providing evidence.
Plaintiff Matthew Kelsey Martineau previously alleged that Destiny 2’s campaign storylines The Red War and Curse of Osiris copied protected elements of his own published work, including faction and character details that were published on WordPress in 2013 and 2014.
In Bungie’s motion to dismiss the lawsuit, it attached various materials including Destiny 2 gameplay videos from the campaign, information from the wiki Destinypedia, and an affidavit from game director Tyson Green.
Bungie’s argument was that these materials were “accurate reproductions of the accused video campaigns, and the best way for the Court to view them”.
Green said in the affidavit (via The Game Post) that “the ‘Red War’ and ‘Curse of Osiris’ legacy builds can no longer run because their outdated code is incompatible with Destiny 2’s underlying operational framework,” which has evolved since the content was vaulted.
The plaintiff, however, argued that the works themselves should be compared side-by-side, rather than third-party materials like videos and Wiki articles.
The challenge for Bungie is that it ‘vaulted’ both The Red War and Curse of Osiris back in 2020, meaning they’re no longer available to players in the game. Or, to be shown as evidence in a case like this.
The following was stated in the relevant court document: “As Defendant admits in its reply, ‘[t]here is now no feasible way for [Defendant] to provide the Court with a reviewable form of the [Red War or Osiris] campaigns or to produce them should this matter proceed to discovery.'”
“Defendant does not explain how the Court would conduct a side-by-side analysis if it does not have Destiny 2.”
The motion to dismiss was denied as a result. “The Plaintiff has sufficiently alleged the elements of an action for copyright infringement,” said the court.
Bungie has been archiving content from Destiny 2 since 2020, as it prioritised new content that’s been added to the game with subsequent expansions.