Ninth Circuit Affirms Copyright Dismissal for Client Ironmace
July 22, 2024 – Press ReleaseGreenberg Glusker congratulates Aaron Moss, Josh Geller and Emily Avazian, who prevailed on a Ninth Circuit appeal on behalf of client Ironmace, a Korean videogame startup and developer of the popular game Dark and Darker.
The controversy stemmed from Nexon's allegations that two of its former employees, who later co-founded Ironmace, infringed a Nexon development project in creating their breakout game, “Dark and Darker.” Despite initiating a copyright suit in Korea, Nexon sought to escalate the dispute to U.S. soil, hinging their argument on Ironmace’s intended U.S. market presence.
In August 2023, the Western District of Washington sided entirely with Greenberg Glusker's arguments. It recognized Korea as an adequate forum to handle the litigation, dismissing Nexon’s assertions about the inefficacies of the Korean judiciary. Furthermore, the Court highlighted Nexon's inconsistent positions, pointing out the company's ulterior motives for moving the case stateside, especially given the pre-existing forum selection clause in Nexon’s employment contracts.
On appeal to the Ninth Circuit, Nexon asserted that Ironmace’s submission of a counternotification under the Digital Millennium Copyright Act precluded Ironmace’s forum non conveniens argument as a matter of law. Litigation partner Josh Geller argued the case before the appellate court in San Francisco, explaining to the three-judge panel that the DMCA required only that a subscriber consent to personal jurisdiction, not venue, and that the statute did not foreclose a forum non conveniens challenge.
In a comment to Law360, Aaron Moss, Partner in the firm’s Litigation Department and lead counsel for Ironmace stated: "We're gratified that the Ninth Circuit ruled in Ironmace's favor and recognized that the DMCA's jurisdiction consent provision means exactly what it says: a consent to jurisdiction, not a waiver of forum non conveniens venue challenges. We look forward to Ironmace prevailing in its litigation with Nexon in Korea — where the case belongs — and are thrilled that gamers worldwide will continue to enjoy Dark and Darker in the meantime."
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