Epic Games, Inc. v. Sperry
Filing
10
FINAL JUDGMENT AND PERMANENT INJUNCTION ON CONSENT - Signed by Senior Judge W. Earl Britt on 4/30/2018. Sent to Joseph Sperry at 120 Highbrook Avenue, 2R Pelham, New York 10803 via US Mail. (Briggeman, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No.: 5:18-cv-00094
EPIC GAMES, INC.,
Plaintiff,
v.
JOSEPH SPERRY, a.k.a. “Spoezy,”
Defendant.
)
)
)
)
)
)
)
)
)
)
)
FINAL JUDGMENT AND PERMANENT
INJUNCTION ON CONSENT
Plaintiff Epic Games, Inc. (“Plaintiff” or “Epic”) and Defendant Joseph Sperry, a.k.a.
“Spoezy” (“Defendant” or “Sperry”) (together, the “Parties”) have reached an agreement to settle
the dispute between them, including without limitation, the above-captioned action, and have
consented to the entry of this Final Judgment and Permanent Injunction on Consent (the
“Consent Judgment”) based on the following stipulated findings of fact and conclusions of law,
which the Court hereby adopts for purposes of entry of this Consent Judgment.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1.
This Court has proper jurisdiction over the subject matter in this litigation under
28 U.S.C. §§ 1331, 1338(a), 1367(a), and 17 U.S.C. §§ 106 and 501, et. seq.
2.
This Court has personal jurisdiction over Defendant because Defendant consented
to jurisdiction in this District. Defendant entered into contractual agreements with Epic, the
terms of which included his consent to be subject to the exercise of jurisdiction over him by this
Court. This Court also has personal jurisdiction over Defendant because Defendant has
purposefully availed himself of the privileges of conducting activities and doing business in the
State of North Carolina and in this District, thus invoking the benefits and protections of North
Carolina’s laws and repeatedly accessing Epic’s servers under the terms of the aforementioned
PPAB 4162892v3
agreements, which are located in this District. This Court shall retain jurisdiction over
Defendant for the purpose of implementing and enforcing this Consent Order.
3.
Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and 1400(a).
Venue is also proper in this District because, among other things, Defendant entered into
contractual agreements with Epic, the terms of which included his consent to this District being
the proper venue.
4.
Epic, a Maryland corporation with its principal place of business in Wake County,
North Carolina, is the creator of Fortnite®, a co-op survival and building action game, and the
owner of all the intellectual property related to Fortnite, including, without limitation, registered
copyrights in Fortnite as set out below. In order to protect its property, Epic designed and put in
place technological measures that effectively control access to Fortnite’s copyrighted game code.
5.
In order to access Epic’s services, a user must create an account with Epic and
read and agree to Epic’s Terms of Service (“Terms”). The Terms include a section setting forth
the permissions users have with respect to Epic’s intellectual property and the activities from
which users are prohibited from engaging. In order to play Fortnite, a user must read and agree
to Fortnite’s End User License Agreement (“EULA”). The EULA includes a “License
Conditions” section, which sets out certain prohibited activities.
Epic has met all of its
obligations under the Terms and the EULA, and a user’s agreement to abide by the Terms and
the EULA creates a valid and enforceable contract between Epic and the user.
6.
Defendant, an individual, is a resident and citizen of New York.
7.
Epic is the author and owner of all the rights and title to valid and enforceable
copyrights in Fortnite including, without limitation, in its computer software, which are the
subjects of U.S. Copyright Registration Nos. TXu01-895-864 (dated December 18, 2013),
2
PPAB 4162892v3
TX008-186-254 (dated July 14, 2015), TX008-254-659 (dated March 3, 2016), and TX008-352178 (dated December 23, 2016), among others. (Complaint, D.E. 1-A.)
8.
Defendant created at least one account to access Epic’s services and also
downloaded, accessed, and continues to access, Fornite on his PC. In creating his account(s) to
access Epic’s servers, Defendant read and affirmatively agreed to abide by the Terms, which
created a valid, enforceable contract between Epic and Defendant. In downloading and accessing
Fortnite, Defendant also read and affirmatively agreed to abide by the EULA, which created a
second valid, enforceable contract between Epic and Defendant.
9.
Defendant created cheat software (“cheats” or “hacks”) in order to unlawfully
circumvent technological measures that effectively control access to the Fortnite software and to
materially modify Fortnite’s copyright protected code so that Defendant and those who purchase
and use his cheats can gain an unfair competitive advantage in Fortnite.
10.
Defendant promoted, marketed, and sold these cheats to third parties for personal
financial gain.
11.
Defendant directly infringed Epic’s copyrights in Fortnite. Defendant used the
cheats. His use of the cheats created unauthorized derivative works of Epic’s copyright protected
Fortnite code that are substantially similar to Epic’s copyrighted work.
12.
Defendant engaged in acts of contributory copyright infringement of Epic’s
Fortnite game. In addition to creating and using the cheats, Defendant promoted, marketed, and
sold these cheats to third parties, and actively encouraged and induced these other cheaters to
purchase and use the cheats to gain an unfair advantage in Fortnite.
13.
Defendant has materially contributed to and/or substantially participated in
others’ direct infringement of Epic’s copyrights and has actual knowledge of the direct infringing
activity of these other cheaters.
3
PPAB 4162892v3
14.
Defendant’s activities violate the Digital Millennium Copyright Act (“DMCA”),
17 U.S.C. §§ 1201(1)(a)-(b) and 1203. The cheat software Defendant created and used contains
technology, components, or parts, which are primarily designed to circumvent technological
security measures Epic put in place to control access to Fortnite’s copyright protected code.
15.
Defendant’s cheats have no commercially significant purpose or use other than to
circumvent Epic’s technological security measures, which were put in place to control access to
Fortnite and to unlawfully modify Epic’s game software code.
16.
Defendant’s actions further violated the DMCA because Defendant created and
offered to the public, provided, and otherwise trafficked in the United States, cheat software that
contains technology, components, or parts primarily designed to circumvent technological
security measures that Epic put in place to control access to Fortnite’s code. Defendant’s cheats
have no commercially significant purpose or use other than to circumvent Epic’s technological
security measures put in place to control access to Fortnite and to unlawfully modify Epic’s
game software code.
17.
By promoting, selling, and distributing the cheats, Defendant actively assisted
other cheaters in using the cheats and materially contributed to the unlawful (i) circumvention of
technological measures that effectively control access to the Fortnite software and (ii)
modification of Fortnite’s code, creating an unlawful derivative work and giving the cheater(s)
an unfair competitive advantage over other Forntite players.
18.
Defendant breached both the Terms and the EULA in violation of North Carolina
law by, among other things, making derivative works based on Fortnite; copying, reproducing,
distributing, displaying publicly, using, modifying, performing publicly, republishing, and/or
transmitting Fortnite in a way not authorized by the EULA or the Terms; removing, disabling,
circumventing, or modifying any proprietary notice or label or security technology included in
4
PPAB 4162892v3
Fortnite; and/or creating, developing, distributing, or using unauthorized software programs to
gain advantage in any online or other game modes.
19.
Defendant, himself a registered user of Epic’s services, including Fortnite, knew
of the contracts between Epic and its registered users and the prohibitions that the Terms and the
EULA place on such users.
20.
Defendant acted without justification and intentionally encouraged and induced
users of Fortnite to use the cheats and, therefore, intentionally interfered with the contracts
formed between Epic and its users in violation of North Carolina law.
21.
Defendant’s violations of the Copyright Act, the DMCA, and North Carolina law
have caused, and continue to cause, Epic great and irreparable injury that cannot be fully
compensated or measured in money. Epic has no adequate remedy at law for Defendant’s
wrongful conduct because Epic’s copyrights are unique and valuable property that have no
readily determinable market value, Defendant’s infringement constitutes an interference with
Epic’s goodwill and customer relations, and Defendant’s wrongful conduct, and the damages
resulting therefrom, are continuing. Accordingly, the Parties consent to the below Permanent
Injunction and enter into this Consent Judgment voluntarily after consulting with counsel and
waive any rights to appeal from it.
It is hereby ORDERED, ADJUDGED, and DECREED that:
22.
Defendant, Joseph Sperry, along with his agents, representatives, partners, joint
venturers, servants, employees, and all those persons or entities acting in concert or
participations with him will immediately destroy all copies of any cheat software (“cheats” or
“hacks”) in his possession, custody, or control that can be used to infringe any of Epic’s
copyrights or cheat at any of Epic’s games, and is PERMANENTLY ENJOINED and
RESTRAINED from:
5
PPAB 4162892v3
a. infringing any of Epic’s currently existing or future copyrighted works, including,
without limitation, infringement by the use of any software or device that copies
or modifies Epic’s software in violation of the Copyright Act;
b. creating, writing, developing, advertising, promoting, and/or distributing anything
that infringes Epic’s works now or hereafter protected by any of Epic’s
copyrights;
c. inducing or materially contributing to the direct infringement of any of Epic’s
currently existing or future copyrighted works by others, including, without
limitation, infringement by the use of any software or device that copies or
modifies Epic’s software in violation of the Copyright Act;
d. creating, writing, developing, advertising, promoting, using, and/or trafficking in
any technology, product, service, or device, part of which is primarily designed
for the purpose of circumventing a technological measure that effectively controls
access to Epic’s copyright protected work;
e. violating Epic’s Terms of Service;
f. violating any of Epic’s End User Licensing Agreements to which Defendant is a
or becomes a party;
g. intentionally interfering with Epic’s contracts or contractual relations with any
other party or parties to those contracts or contractual relations;
h. cheating at any of Epic’s games or at any game that Epic subsequently develops,
creates, or publishes;
i. materially contributing to cheating by others or inducing others to cheat at any of
Epic’s games or at any games that Epic subsequently develops, creates, and/or
publishes;
6
PPAB 4162892v3
j. engaging in any other activity that constitutes or creates an infringement of any of
Epic’s copyrights, or of any of Epic’s rights in, or rights to use or exploit, its
copyrights;
k. unfairly competing with Epic in any manner whatsoever; and/or
l. assisting, aiding, or abetting any other person or business entity in engaging in or
performing any of the activities referenced in paragraphs 21(a) through 19(k),
above.
For the purposes of this paragraph 21 only, the term “Epic” includes all of Epic’s
subsidiaries and affiliated companies.
23.
No bond or posting of security is required of the Parties in connection with the
entry of this Consent Judgment.
24.
Plaintiff and Defendant acknowledge that they have knowingly and voluntarily
entered into this Consent Judgment after reviewing the same with their counsel or having had
ample opportunity to consult with counsel. Plaintiff and Defendant understand the undertakings,
obligations, and terms of this Consent Judgment.
25.
Except as to Defendant’s obligations set forth in this Consent Judgment,
Plaintiff’s claims against Defendant in this Action, and any claims that could have been asserted
in this Action, are hereby dismissed with prejudice.
26.
This Consent Judgment is final and Plaintiff and Defendant each hereby waive
their rights to appeal from this order.
27.
Nothing in this Consent Judgment precludes Plaintiff or Defendant from asserting
any claims or rights that arise after Defendant’s agreement to this Consent Judgment or that are
based upon any breach of, or the inaccuracy of, any representation or warranty made by
7
PPAB 4162892v3
Defendant or Plaintiff in this Consent Judgment, or in the Settlement Agreement reached by the
Parties.
28.
Nothing in this Consent Judgment precludes Plaintiff or Defendant from asserting
any claims or rights against any third party.
29.
Defendant waives any objection under Federal Rule of Civil Procedure 65(d)
(pertaining to injunctions) to paragraph 21, above.
30.
This Court shall retain jurisdiction over this matter to enforce a violation of this
Consent Judgment’s terms. If any such violation occurs, the Court shall award, (a) without
regard to proof of actual damages, liquidated damages of Five Thousand Dollars ($5,000); as
well as (b) injunctive relief enjoining any further breach of this Consent Judgment, or such
modifications to the present Consent Judgment as the Court deems appropriate; (c) attorneys’
fees, costs and disbursements, as determined by the Court; and (d) such other relief as the Court
deems just and proper.
30
IT IS SO ORDERED this ____ day of April
, 2018.
The Honorable Judge William Earl Britt
Senior United States District Judge
8
PPAB 4162892v3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?