Intellectual Property Law

Runescape Copyright and CFAA Case Fails at Preliminary Injunction Stage, But Runescape is Not Down for the Count: Jagex v. Impulse Software

By Lee Gesmer

A decision in Jagex v. Impulse Software, issued by Massachusetts U.S. District Court Judge Gorton in August, has some interesting (but obvious) lessons for software developers seeking to protect their websites from copying or reverse engineering.  The decision arises in the context of a preliminary injunction ? a request by Jagex to provide it with legal relief before discovery or trial ? so Jagex may yet prevail in this case, or at least prevent the defendants from engaging in similar conduct in the future.

The plaintiff, Jagex operates an online role-playing game called “Runescape.?  Runescape is a ?massively multiplayer online role-playing game? (MMORPG for short, but we?ll just call it ?the game?).

Impulse offers online cheat tools – software that lets users advance through the levels of the game without actually playing the game.  Moving to higher and more challenging levels is the goal of the game, and the Impulse software allows users to reach those hallowed grounds without investing the time and effort the game intends users to experience.  And, it is possible to invest a great deal of time and effort with this game -Judge Gorton noted that the top three Runescape players averaged about 20,000 hours of playing time.

Impulse (actually brothers and Florida residents Eric and Mark Snellman) is able to provide the the cheat software by downloading a copy of Runescape and using a process the court describes as ?reflection? to study the internal working of the game.  Although this process wasn?t described in any detail, it sounds like it was some form of reverse engineering.  The software then plays the game for the user, advancing through the levels while the user is off doing, perhaps, more productive things.

After concluding that the court could exercise jurisdiction over Eric and Mark (a somewhat interesting aspect of the case that I won?t discuss in detail here), the court considered several claims, of which the most interesting are copyright infringement, violation of the Digital Millennium Copyright Act (DMCA) and

The copyright claim failed on a fundamental ground: although Jagex had copyright registrations in icons that appear in the game, the defendants did not copy these visual elements of the game; and, it appears that Jagex didn?t have registrations for the underlying software.  Accordingly, Jagex didn’t establish that the defendants had copied anything that was covered by Jagex’s registrations, leading the court to reject this claim at this stage of the case.  The court distinguished MDY v. Blizzard (D. Ariz. 2008) and Ticketmaster v. RMG (C. D. Ca. 2007), two cases in which website owners made successful claims against defendants who had engaged in similar activities, noting that in those cases the plaintiffs had valid registrations,

Jagex argued that Eric and Mark violated the DMCA claim because their software ?circumvented technological measures? (all magic words in the DMCA?s anti-circumvention section) in Jagex.  However, it appears that Jagex was unable to identify copyrighted material or “technological measures? to Judge Gorton?s satisfaction.

Jagex also claimed violation of the Computer Fraud and Abuse Act (CFAA).  But this claim required Jagex to show that the terms and conditions of use made the servers hosting the game “protected computers? ? that is, that users had to agree to the terms as a condition of use.   However, it appears from the decision that, Jagex was unable to show that the website had been configured in such a way as to require Eric and Mark to agree to the terms/conditions before accessing the site; therefore they couldn?t prove that the computers that hosted the game were ?protected computers.?

All of the problems Jagex faced when seeking a preliminary injunction in this case are easily fixable ? it can register the software so that if Eric and Mark (or anyone else) copies it in the future, they will be infringing registered copyrights.  And, they can rework their terms and conditions so that they clearly apply to anyone accessing the site, thereby bringing the computers that host the site under the CFAA.  Of course, these measures would require Jagex to create a new version of the site which would make the version copied unusable by Runescape users.

That way, the number of 20,000 hour Runescape users would grow.

Full post as published by Mass Law Blog on September 25, 2010 (boomark / email).