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.
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.]
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.