Bungie has failed to have a copyright lawsuit thrown out, because it’s incapable of presenting the game content being challenged now that it’s been ‘vaulted’.
Writer Matthew Kelsey Martineau sued Bungie last year for copyright infringement, alleging that Destiny 2’s Red Legion was taken directly from his writings on WordPress four years before the game was released.
Bungie filed a motion to have the case dismissed, stating that the examples cited in Martineau’s suit are demonstrably different in Destiny 2 than in his work, but the ‘demonstrably’ part has become an issue for the studio.
Much of the content being cited comes from Destiny 2’s Red War campaign and DLC like Curse of Osiris. However, because Destiny 2 is a live service with an evolving storyline this content has now been placed in the Destiny Content Vault, where it can no longer be accessed by players, or even by Bungie itself.
Bungie sent the court an affidavit by Destiny 2 game director Tyson Green, in which he explained why the studio was unable to provide the Red War and Curse of Osiris content to the court in its original form.
“The Red War and Curse of Osiris legacy builds can no longer run because their outdated code is incompatible with Destiny 2’s underlying operational framework, which has evolved considerably since the Red War and Curse of Osiris campaigns were retired,” Green said (via The Game Post).
“As a result, Bungie cannot feasibly provide the Court with the original Destiny 2 game as it existed in 2017, including the accused Red War and Curse of Osiris campaigns, in any operable or reviewable form. Nor will Bungie be able to produce the accused campaigns in operable or reviewable form if this matter proceeds to formal discovery.”
Bungie attempted to make up for this by instead submitting player-made YouTube videos and entries from the fan-written Destinypedia wiki explaining the lore of the now-archived content.
The court, deciding this wasn’t sufficient evidence, has denied Bungie’s motion to dismiss the case, because Martineau’s accusations are aimed at the game’s story itself, not third-party retellings of it.
“While Plaintiff does reference Destiny 2 in his complaint, he does not reference the YouTube videos containing Destiny 2 game footage, the Destinypedia pages, or the Tyson declaration,” Judge Susie Morgan’s order said.
She added: “The Court will not consider the exhibits attached to Defendant’s motion to dismiss and will not convert the Defendant’s motion to dismiss to a motion for summary judgment,” the court wrote. “There has not been sufficient time for discovery, and the attachments are admittedly of third-party origination. Their authenticity has not been established.”
The case will therefore continue.
