Last October we first reported on a copyright infringement lawsuit filed against Destiny 2 developer Bungie in which author Matthew Kelsey Martineau, who was writing under the pen name Caspar Cole, accused the studio of lifting elements from his sci-fi work to use in the FPS’s Red War narrative that was playable at launch but has since been removed from the game. Last we’ve heard, a motion to dismiss was filed by Bungie in late December, which countered that Martineau’s allegations were too vague and submitted fan-made videos and wiki pages as evidence that Martineau could have lifted these elements freely in his suit.
Well, as of last week, Judge Susie Morgan has effectively tossed out Bungie’s arguments and let the case proceed, denying the motion to dismiss and further stating that YouTube videos and wikis are not substantial enough to create a suitable side-by-side comparison, despite Bungie explaining that it couldn’t provide previous builds featuring the Red War because of “outdated code [that is] incompatible with Destiny 2’s underlying operational framework” – aka vaulting.
That lack of direct access to original files and the fact that Bungie’s offered evidence is third-party and is therefore considered to not be authentic led to Judge Morgan’s decision, particularly as Martineau’s complaint didn’t mention any outside sources beyond D2 itself.
She also points out that Martineau’s complaint has met a couple of important legal definitions that allow the case to move forward, specifically the allegation that Bungie had access to and took elements of his work after it was published and included them in Destiny 2 – aka “factual copying and substantial similarity.”
A date for the case hasn’t been included in the judgment, so it’s very likely that we’re not going to hear much news out of this one for another few months, but at least we can confirm that things will indeed proceed.
