Runescape Publisher Denied Preliminary Injunction Against Maker of Auto-Player Software — Jagex Ltd. v. Impulse Software

[Post by Venkat]

Jagex Ltd. v. Impulse Software, et al., Case No. 10-10216-NMG (D. Mass.) (Aug. 16, 2010)

Jagex operates “Runescape,” a popular and free online role-playing game. The game has over 130 million accounts, and users spend a significant amount of time “rising through the levels of the game”:

as of October, 2009, the three highest-ranking players had each spent an average of approximately 20,000 hours [!] involved in a game, e.g., 50 hours per week for almost eight years.

Impulse (along with the individual defendants) operate websites offering “cheat” tools – i.e., software that allows users to advance their characters without actually playing the game. Defendants’ software downloads a copy of Runescape and “uses a process called ‘reflection’ to examine the game’s internal operation which is normally hidden from users.” The software then “plays the game for its owner while she is away from her computer.”

Jagex brought claims under the Computer Fraud and Abuse Act, as well as claims for copyright infringement, DMCA violations, and trademark infringement. Defendants moved to dismiss and transfer venue.

Defendants’ motion to dismiss: Runescape’s terms of use does not appear to have a forum selection clause so Jagex argued that defendants were subject to jurisdiction in Massachusetts because Massachusetts was one of the states which had one of the highest numbers of Runescape players (who were presumably harmed in Massachusetts by virtue of defendants’ software). The court applies the sliding scale test, and rejects defendants’ jurisdictional arguments, finding that defendants marketed their software to Massachusetts residents and subjected themselves to personal jurisdiction there. (The court also rejects defendants’ venue and transfer arguments.)

Copyright claim: While Jagex obtained copyright registrations in certain “two-dimensional icons” that appear in the game, Jagex did not produce any registrations for either its website or software. Accordingly, Jagex didn’t adequately allege that defendants copied anything that was covered by Jagex’s registrations. The court finds Jagex’s copyright claims are unlikely to succeed.

DMCA claim: Jagex argued that the “reflection” process effected by defendants’ software circumvented technological measures put in place by Jagex to protect its copyrighted works. This claim failed both because Jagex did not identify copyrighted material (see above) or any “technological measures.”

Trademark claim: The court found that Jagex’s trademark claims were moot because defendants “removed all potentially confusing references to Runescape from [defendants'] websites.” Defendants replaced “Runescape” with “RS.” Jagex argued that it owned a community (EU) trademark for “RS,” and therefore defendants continued to infringe. This argument did not sway the court either. The court found that the term “RS” was not being used in a manner that would cause consumer confusion: “it is implausible that the creator of a computer game would create a website that encourages players to cheat at it, the likelihood of consumer confusion is slim”.

Computer Fraud and Abuse Act claim: Defendants first argued that Jagex’s Computer Fraud and Abuse Act claims fell short because the Runescape servers were not “protected computers,” since the game was freely available to end users who did not have to download the game client without agreeing to the terms and conditions. The court disagreed with defendants, noting that in order to progress beyond the introductory levels, players had to upgrade and agree to the terms and conditions. Even assuming the Runescape servers were “protected computers,” the court declined to find contributory liability for a violation of the Computer Fraud and Abuse Act. Additionally, the court held that Jagex did not allege that defendants (as opposed to end users) agreed to the terms and accessed any protected computers. [Contributory liability under the Computer Fraud and Abuse Act is a relatively unexplored legal area. At least one court has found (contrary to the result in this case) that a plaintiff may assert a claim for vicarious liability under the Computer Fraud and Abuse Act: Charles Schwab & Co. v. Carter, 2005 U.S. Dist. LEXIS 21348 (N.D. Ill. Sept. 27, 2005). The issue has largely arisen in the employer/employee context, which differs slightly from the scenario here.]

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In contrast to Jagex, Blizzard (publishers of World of Warcarft) has successfully litigated against third parties who offer software or services which allow players to play a game in violation of the rules (or the terms of use). THR, Esq. notes a judgment Blizzard recently obtained against Scapegaming for $89MM (“Massive Judgment in World of Warcraft Copyright Infringement Case“)! There’s also MDY v. Blizzard (cited by the court in the Jagex case), where Blizzard obtained significant damages in a similar situation. (The Lawbringer has a history of this litigation: “The history of Blizzard and MDY (Glider).” The case is on appeal to the Ninth Circuit, which held oral argument in MDY along with Vernor v.Autodesk – both cases raised the issue of whether particular software was sold or licensed. See, an EFF blog post discussing the appeal here.)

The result may seem friendly to the cheat software maker, but this is only because Jagex did not have its ducks lined up in a row. It didn’t register any copyrights in the software. It had a messy (leaky, to say the least) terms of use set-up. And it didn’t have any technological measures in place.

Jagex’s failure to satisfactorily allege anything copyrightable that defendants copied allowed the court to sidestep the issue (raised in Ticketmaster v. RMG) of whether browsing (which Jagex allows players to freely do) would be infringing when defendants engaged in it to design their software. This failure also avoided the Betamax issue (of whether defendants could be held liable for the players’ acts of infringement by virtue of supplying the means to effect such infringement). Jagex’s terms of use fumble also swept under the rug the issue of whether defendants’ use of the ‘reflection’ process (which wasn’t detailed in the order) was a violation of Runescape’s terms of use which Runescape could enforce. (This was hashed out in the district court in Blizzard v. BNETD. See the EFF page collecting documents.)

We’ll see what happens as the case progresses, but this seems like it could have been an interesting case, had Jagex taken some lessons in enforcement from Blizzard.

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