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Epic Games, Inc. v. Sperry

United States District Court, E.D. North Carolina, Western Division

April 30, 2018

EPIC GAMES, INC., Plaintiff,
v.
JOSEPH SPERRY, a.k.a. “Spoezy, ” Defendant.

          FOR THE PLAINTIFF: Christopher M. Thomas ( N.C. Bar No. 31834) Tasneem A. Dharamsi ( N.C. Bar No. 47697) Parker, Poe, Adams, & Bernstein LLP Attorneys for Plaintiff Epic Games, Inc.

          FOR THE DEFENDANT: Joseph Sperry Edmond C. Chakmakin (New York Bar. No. 25889295) Attention: Edmond C. Chakmakian, Esq Attorney for Defendant

          FINAL JUDGMENT AND PERMANENT INJUNCTION ON CONSENT

          William Earl Britt Senior United States District Judge

         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 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), TX008-186-254 (dated July 14, 2015), TX008-254-659 (dated March 3, 2016), and TX008-352-178 (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 ...


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