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Epic Games, Inc. v. C.B.

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

October 21, 2019

EPIC GAMES, INC., Plaintiff,
v.
C.B., Defendant.

          FOR THE PLAINTIFF: Christopher M. Thomas N.C. Bar No. 31834, Catharine B. Arrowood N.C. Bar No. 6984, Catherine R.L. Lawson N.C. Bar. No. 44574, PNC Plaza 301 Fayetteville Street, Suite 1400 (27601) Attorneys for Plaintiff Epic Games, Inc.

          FOR THE DEFENDANT: Jonathan D. Sasser ELLIS & WINTERS LLP, David L. Hecht Yi Wen Wu PIERCE BAINBRIDGE BECK PRICE & HECHT LLP

          STIPULATED ORDER AND PERMANENT INJUNCTION ON CONSENT

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         Plaintiff Epic Games, Inc. (“Plaintiff” or “Epic”) and Defendant C.B., a minor (“Defendant” or “C.B.”), together with his mother, representative and general guardian, Kari Bennett (“Defendant's General Guardian” or “Ms. Bennett”), (all collectively, the “Parties”) have reached an agreement to settle the above-captioned action and consent to the entry of this Stipulated Order and Permanent Injunction on Consent (the “Consent Order”) based on the following stipulated findings of fact and conclusions of law, which the Court hereby adopts for purposes of entry of this Consent Order.

         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 and 1338(a) because this action arises under the Copyright Act, 17 U.S.C. §§ 106, 501, 1201, and 1203, et. seq. (Comp. [DE 1] at ¶ 17.)

         2. This Court has personal jurisdiction over C.B. because C.B. entered into a valid and enforceable agreements with Plaintiff under which he consented to the exercise of this Court's jurisdiction (Complaint [D.E. 1] (“Compl.”) at ¶ 18) and because C.B. by and though his general guardian and representative, Ms. Bennett, consented to the jurisdiction of this Court. (Declaration of Kari Bennett (“Bennett Dec.”) at ¶ 9.) The Court also has jurisdiction over C.B. under the North Carolina long-arm statute, N.C. Gen. Stat. § 1-75.4(4) (See id.).

         3. The Court's exercise of jurisdiction over C.B. comports with due process and is constitutionally reasonable. This Court shall retain jurisdiction over C.B. for the purpose of implementing and enforcing this Consent Order.

         4. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and 1400(a). (Compl. at ¶ 19.) Venue is also proper in this District because, among other things, C.B. entered into valid and enforceable contractual agreements with Epic, the terms of which included his consent to this District being the proper venue. (Id. at ¶¶ 19, 43, 52.)

         5. 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 intellectual property related to Fortnite, including, without limitation, registered copyrights in Fortnite as set out below. (Compl. at ¶ 20; see also Id. at ¶¶ 33-34.)

         6. C.B. is a resident and citizen of Illinois. (Id. at ¶ 21.)

         7. In order to access Epic's services, C.B. created an account with Epic and agreed to Epic's Terms of Service (the “TOS”). (Id. at ¶ 35.) The TOS includes 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. (Id. at ¶ 46, see also D.E. 1-5.)

         8. In order to play Fortnite on his PC, C.B. agreed to abide by the terms in the Fortnite End User License Agreement for PC (“EULA”). (Comp. at ¶ 47.) The EULA includes a “License Conditions” section, which sets out certain prohibited activities. (Id. at ¶ 55; see also D.E. 1-6.)

         9. Epic is the author and owner of all the rights in and title to valid and enforceable copyrights in Fortnite including, without limitation, in its computer software and the audio-visual works the code creates. (Id. at ¶¶ 29, 93.) Epic's copyrights in certain versions of Fortnite's computer code 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), TX008-352-178 (dated December 23, 2016), and TX0008-507-210 (dated March 21, 2018), among others. (Id. at ¶¶ 33-34; see also D.E. 1-3.)

         10. C.B. had access to Fortnite. (Id. at ¶ 95.)

         11. C.B. used, marketed, and sold cheat software, which he called “hacks, ” to unlawfully modify Fortnite's software so that he and his customers could have an unfair competitive advantage over ...


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