throbber
Case 1:10-cv-10216-NMG Document 32 Filed 08/16/10 Page 1 of 23
`Case l:10—cv—lO216—NMG Document 32 Filed 08/16/10 Page 1 of 23
`
`United States District Court
`
`District of Massachusetts
`
`JAGEX LIMITED:
`
`Plaintiff,
`
`V.
`
`IMPULSE SOFTWARE, ERIC SNELLMAN
`
`and MARC SNELLMAN,
`Defendants.
`
`~as4\./\/\¢\.4\.4»/\/\/
`
`Civil Action No.
`10-10216-NMG
`
`GORTON, J.
`
`MEMORANDUM & ORDER
`
`In the instant case, plaintiff Jagex Limited (“Jagex”),
`
`the
`
`owner of an interactive computer game, has brought various claims
`
`against defendants Impulse Software, Eric Snellman and Mark
`
`Snellman for copyright and trademark infringement. Before the
`
`Court are defendants’ motion to dismiss for lack of jurisdiction
`
`and plaintiff's motion for preliminary injunction.
`
`I.
`
`Factual Background
`
`Plaintiff Jagex, a foreign corporation organizing under the
`
`laws of the United Kingdom, owns and operates “Runescape,” a
`
`massive multi-player online game (“MMOG”).
`
`In 2008,
`
`the Guinness
`
`Book of World Records recognized Runescape as the world's most
`
`popular free online role—playing game, with over 130 million
`
`accounts created since the launch of the game in 2001.
`
`Runescape operates in a fantasy world in which a player
`
`guides a customizable avatar (a virtual character)
`
`through a
`
`_1_
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`

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`visually stimulating environment, completing goals and objectives
`
`as set by the player. Players interact with one another by
`
`trading, chatting or participating (cooperatively or combatively)
`
`in mini—games and challenges.
`
`A player may choose either to play Runescape for free,
`
`whereby he gains basic access to the game or to pay for a
`
`subscription which provides access to additional levels and
`
`skills.
`
`Succeeding at either version of Runescape entails a
`
`substantial commitment of time and effort.
`
`For example, as of
`
`October, 2009,
`
`the three highest-ranked 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. As players progress,
`
`they are rewarded with “experience points" and virtual “gold
`
`coins” which symbolize status in the Runescape community and
`
`allow the players to acquire resources and complete quests more
`
`effectively.
`
`The defendants, Eric and Mark Snellman, both of whom reside
`
`in Florida and do business as Impulse Software,
`
`(collectively,
`
`“the Snellman brothers") operate several websites which offer
`
`tools that allow players to cheat at MMOGs such as Runescape.
`
`More specifically,
`
`the Snellman brothers develop and sell a
`
`software program called “iBot" or “Bot”
`
`(gamer jargon for
`
`“robot”)
`
`that enables Runescape users to advance their characters
`
`through the game with little or no human participation.
`
`

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`The Bot software functions by downloading a copy of
`
`Runescape from the free, online website and using a process
`
`called “reflection” to examine the game's internal operation
`
`which is normally hidden from users.
`
`The Bot software uses this
`
`information to identify objects within the Runescape game with
`
`which it wishes to interact and then completes a desired task
`
`according to instructions from a script.
`
`In essence,
`
`the Bot
`
`plays the game for its owner while she is away from her computer.
`
`The defendants’
`
`technology allows a Bot user to progress more
`
`rapidly than a player who completes each task manually,
`
`thereby
`
`giving the Bot user an unfair advantage over the “honest” player
`
`and allegedly resulting in a diminished experience for the gaming
`
`community as a whole.
`
`Jagex alleges that although Runescape’s Terms and Conditions
`
`expressly prohibit the use of such Bots, more and more players
`
`have begun to use them.
`
`As a result, honest players have
`
`purportedly become frustrated and stopped playing the game and
`
`new players are increasingly reluctant to sign up.
`
`Jagex also
`
`claims that since being served with the complaint
`
`in this
`
`lawsuit,
`
`the Snellman brothers have launched a new website from
`
`which they sell the allegedly infringing Bots.
`
`II. Procedural History
`
`On February 9, 2010, Jagex filed a four—count complaint
`
`against the Snellman brothers alleging 1) copyright infringement,
`
`

`
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`2) violation of the Digital Millennium Copyright Act, 3)
`
`trademark infringement under the Lanham Act and 4) violation of
`
`the Computer Fraud and Abuse Act.
`
`The defendants responded by
`
`moving to dismiss for lack of personal jurisdiction and improper
`
`venue.
`
`In the alternative,
`
`they seek transfer to the United
`
`States District Court for the Middle District of Florida, where
`
`they both reside.
`
`Jagex also seeks a preliminary injunction
`
`prohibiting the defendants from selling and promoting their
`
`allegedly infringing software.
`
`The Court convened a motion hearing on July 27, 2010, at
`
`which time it announced its tentative rulings and posed various
`
`questions to the parties. Having fully considered the parties’
`
`written submissions and oral arguments,
`
`the Court now publishes
`
`its decision.
`
`III. Qgggl Analysis
`
`A.
`
`Defendant's Motion to Dismiss [Docket No. 16]
`
`The defendants have moved to dismiss the plaintiff's claims
`
`on the grounds that 1)
`
`the Court lacks personal jurisdiction over
`
`the defendants, both of whom are Florida residents and do not
`
`operate any offices or manufacture their products in
`
`Massachusetts, and 2) venue is improper in Massachusetts.l
`
`Alternatively,
`
`they move the Court to transfer the case to the
`
`Given that Impulse Software is not a legal entity,
`personal jurisdiction is dependent on the activities of the two
`individual defendants.
`
`

`
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`Middle District of Florida, Orlando Division.
`
`1.
`
`Exercise of Personal Jurisdiction in Massachusetts
`
`On a motion to dismiss for want of personal jurisdiction,
`
`the plaintiff bears of the burden of demonstrating that
`
`jurisdiction is 1) statutorily authorized and 2) consistent with
`
`the Due Process Clause of the United states Constitution. Astro-
`
`
`Med
`Inc. v. Nihon Kohden America,
`
`Inc , 591 F.3d 1,
`
`8
`
`(1st Cir.
`
`2009). Because the Massachusetts long—arm statute reaches to the
`
`full extent that the Constitution allows,
`
`the Court will proceed
`
`directly to the Constitutional analysis.
`
`ee Tatro v. Manor
`
`Care, Inc., 625 N.E.2d 549, 553 (Mass. 1994).
`
`Due Process requires that the defendants have “minimum
`
`contacts” with the forum state such that the “maintenance of the
`
`suit does not offend traditional notions of fair play and
`
`substantial justice.”
`
`Int’l Shoe Co. v. Washington, 326 U.S.
`
`310, 316 (1945).
`
`The First Circuit employs a tripartite analysis
`
`to determine whether specific jurisdiction is appropriate.2 The
`
`court inquires as to: 1) whether the claims arise out of or are
`
`related to the defendants’
`
`in—state activities, 2) whether the
`
`defendants have purposefully availed themselves of the laws of
`
`the forum state and 3) whether the exercise of jurisdiction is
`
`reasonable under the circumstances.
`
`See, e.g., Platten v.
`
`fig
`
`2 Although the plaintiff does not expressly allege specific
`jurisdiction, general jurisdiction is unwarranted.
`
`-5-
`
`

`
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`Bermuda Exempted, Ltd. 437 F.3d 118, 135 (1st Cir. 2006).
`
`a.
`
`Relatedness
`
`The “relatedness” test is a “flexible,
`
`relaxed” standard
`
`that focuses on the nexus between the plaintiff's claim and the
`
`defendants’ contacts with the forum state. AStIO:M§g, 591 F.3d
`
`at 9;
`
`Iiggetmaster—New York v. Alioto, 26 F.3d 201, 206-07 (1st
`
`Cir. 2004). Here, although the Bots are created in Florida,
`
`they
`
`are sold to customers in Massachusetts via the defendants’
`
`website.
`
`Those customers then use the Bots (in Massachusetts)
`
`in
`
`alleged violation of the game's Terms and Conditions which,
`
`in
`
`turn, purportedly causes harm to other, honest players.
`
`Plaintiff alleges that, as of February, 2010, Massachusetts was
`
`home to more Runescape players using the defendants’ Bots than
`
`all but three other states. Therefore, notwithstanding the fact
`
`that the Bots are manufactured in Florida, plaintiff's claims are
`
`sufficiently related to defendants’ Massachusetts activities.
`
`b.
`
`Purposeful Availment
`
`To satisfy the second requirement,
`
`the Snellman brothers’
`
`“in-state contacts must represent a purposeful availment of the
`
`privilege of conducting activities” in Massachusetts, “thereby
`
`invoking the benefits and protections” of the laws of the
`
`Commonwealth. Astro—Med, 591 F.3d at 10.
`
`The purposeful
`
`availment factor focuses on voluntariness and foreseeability.
`
`Ticketmaster 26 F.3d at 207.
`
`

`
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`In cases involving internet commerce, personal jurisdiction
`
`operates on a sliding scale whereby the likelihood that
`
`jurisdiction can be exercised is “directly proportionate to the
`
`nature and quality of commercial activity that an entity conducts
`
`over the Internet.”
`
`Zippo Manufact. Co. v. Zippo Dot Com,
`
`Inc.,
`
`952 F. Supp. 1119, 1124 (W D. Pa. 1997)
`
`
`(cited in Gather
`Inc. v.
`
`Gatheroo, LLC, 443 F. Supp. 2d 108, 115 (D. Mass. 2006)). At one
`
`end of the spectrum are situations in which a defendant clearly
`
`does business in a foreign jurisdiction by entering into
`
`contracts with residents of that jurisdiction or by knowingly and
`
`repeatedly transmitting electronic files to those persons. At
`
`the opposite end are situations in which a defendant has simply
`
`posted information on a passive website that is accessible to
`
`users in a foreign jurisdiction.
`
`In the middle ground,
`
`there are
`
`websites in which a user can exchange information with a host
`
`user whereby:
`
`the exercise of jurisdiction is determined by analyzing
`the level of interactivity and commercial nature of the
`exchange of information that occurs on the website.
`
`In this case,
`
`the defendants operate interactive websites
`
`that allow Massachusetts users to exchange payment
`
`information
`
`for software codes that enable the Bots to function. Although
`
`the defendants do not specifically seek out Massachusetts
`
`customers,
`
`they do not bar them or discourage them from
`
`

`
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`purchasing Bots. Moreover,
`
`the defendants’ websites are not
`
`“passive” in nature and Massachusetts residents use the websites
`
`to sign electronic agreements with the defendants and to purchase
`
`and use their products. Accordingly,
`
`the defendants have
`
`purposefully availed themselves of the privileges of conducting
`
`business in Massachusetts.
`
`c.
`
`Reasonableness
`
`In evaluating reasonableness,
`
`the Court considers a series
`
`of “Gestalt factors," including 1)
`
`the defendant's burden of
`
`appearing, 2)
`
`the forum state's interest in adjudicating the
`
`dispute, 3)
`
`the plaintiff's interest in obtaining convenient and
`
`effective relief, 4)
`
`the judicial system's interest in obtaining
`
`the most effective resolution of the controversy and 5)
`
`the
`
`common interests of all sovereigns in promoting substantive
`
`social policies. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
`
`477 (1985).
`
`Here, none of the Gestalt factors weighs heavily for or
`
`against the exercise of jurisdiction in Massachusetts. Although
`
`it would be less convenient for the defendants to defend the case
`
`in Massachusetts,
`
`this factor is only significant when defendants
`
`“can demonstrate some kind of special or unusual burden,” which
`
`they have not shown here. Pritzker v. Kari, 42 F.3d 53,
`
`64
`
`(1st
`
`Cir. 1994).
`
`Second, because Massachusetts residents have been
`
`affected by the defendants’ actions, Massachusetts has an
`
`

`
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`interest in adjudicating the dispute, albeit not an especially
`
`compelling one given that Massachusetts laws and policies are not
`
`implicated.
`
`The third factor is not particularly significant
`
`because the plaintiff, a U.K. company, has no real connection to
`
`Massachusetts other than the fact that many Runescape players
`
`reside here.
`
`The fourth and fifth factors are neutral because
`
`there is no evidence that the dispute would be resolved more
`
`effectively in one forum over another. Accordingly, because most
`
`of the Gestalt factors are neutral,
`
`jurisdiction in Massachusetts
`
`is reasonable.
`
`2. Whether Venue is Proper in Massachusetts
`
`Under 28 U.S.C.
`
`§ l39l(a)(2), venue is proper in a district
`
`“in which a substantial part of the events or omissions giving
`
`rise to the claim occurred.”
`
`In making that determination,
`
`the
`
`Court
`
`looks “not
`
`to a single triggering event prompting the
`
`action,” but
`
`takes a “holistic view” of the “entire sequence of
`
`events underlying the claim.” Astro—Med, 591 F.3d at 12. Venue
`
`is often appropriate in multiple districts and the Court's task
`
`is not
`
`to determine the best venue but merely a suitable one.
`
`gdg Here,
`
`the defendants’ promotion and sale of their Bots over
`
`the internet to Massachusetts residents, as well as the contacts
`
`and contractual relationships they have established with those
`
`residents, are sufficient to give rise to venue in this
`
`jurisdiction.
`
`

`
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`3. Whether Transfer to Florida is Warranted
`
`In the alternative,
`
`the defendants request that the Court
`
`transfer the case to the Middle District of Florida pursuant
`
`to
`
`the federal transfer statute, 28 U.S.C.
`
`§
`
`l404(a), which states:
`
`in the
`the convenience of parties and witnesses,
`For
`interest of justice, a district court may transfer any
`civil action to any other district or division where it
`might have been brought.
`
`Under that statute,
`
`the Court must first determine whether the
`
`case “might have been brought" in the suggested transferee
`
`district and,
`
`if so, whether convenience and the interest of
`
`justice favor transfer.
`
`In making that assessment,
`
`the Court
`
`considers a number of factors,
`
`including 1)
`
`the relative
`
`convenience of the parties and witnesses, 2)
`
`the law to be
`
`applied and 3)
`
`the connection between the forum and the issues.
`
`Qgady v. Ashcroft & Gerea, 223 F.3d 1, 11 (1st Cir. 2000).
`
`Although the decision to transfer a case under § 1404 lies solely
`
`in the discretion of the Court,
`
`there is a strong presumption in
`
`favor of the plaintiff's choice of forum and the burden of proof
`
`rests with the party seeking transfer. Holmes Group,
`
`Inc. V.
`
`Hamilton Beach[Proctor Silex, Inc., 249 F. Supp. 2d 12, 16 (D.
`
`Mass. 2002).
`
`Here, although the case “might have been brought" in the
`
`Middle District of Florida, none of the relevant factors weighs
`
`heavily in favor of transfer. Although it would be more
`
`convenient for the defendants to litigate the case in their home
`
`-10-
`
`

`
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`state,
`
`transferring venue to Florida would merely shift the
`
`inconvenience to the plaintiff. Moreover, it is too early to
`
`determine where the majority of the witnesses will be located
`
`and, given that most of the relevant documents are electronic,
`
`the physical location of such documents is inconsequential.
`
`Under the second and third factors, because federal law will be
`
`applied, neither state is substantially more connected to the
`
`issues and either would provide a suitable forum. Accordingly,
`
`defendants’ yequest
`
`to transfer venue will be denied.
`
`B.
`
`Plaintiff's Motion for Preliminary Injunction [Docket
`No. 22]
`
`1.
`
`Standard of Review
`
`To obtain preliminary injunctive relief under Fed. R. Civ.
`
`P. 65, a movant must demonstrate
`
`(1) a substantial likelihood of success on the merits,
`
`(2) a significant risk of irreparable harm if the
`injunction is withheld,
`(3) a favorable balance of
`hardships and (4) a fit (or lack of friction) between
`the injunction and the public interest.
`
`Nieves—Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)
`
`(citation omitted). Likelihood of success on the merits is the
`
`critical factor in the analysis and, accordingly, a strong
`
`likelihood of success may overcome a “somewhat less" showing of
`
`another element.
`
`See Weaver v. Henderson, 984 F.2d 11, 12 (1st
`
`Cir. 1993)
`
`
`(citations omitted); E.E.O.C. v. Astra United States
`
`Inc.,
`
`94 F.3d 738 (1st Cir. 1.996).
`
`In copyright and trademark cases,
`
`the first factor plays an
`
`-11-
`
`

`
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`even greater role because the resolution of the other three
`
`factors will depend,
`
`in large part, on whether the plaintiff is
`
`likely to succeed in establishing infringement. Boringuen
`
`Biscuit Corp; v. M.V. Trading Corp., 443 F.3d 112, 115 (1st Cir.
`
`2006).
`
`2. Application
`
`a.
`
`Likelihood of Success on the Merits
`
`i.
`
`Copyright Infringement
`
`Section 106 of the Copyright Act grants the owner of a
`
`copyright
`
`the exclusive right to "copy" the copyrighted work,
`
`i.e ,
`
`to make a copy of the work,
`
`to prepare derivative works
`
`based on the work or to distribute copies of the work to the
`
`public.
`
`gee 17 U.S.C.
`
`§ 106(1)—(3).
`
`To prevail on a claim of
`
`copyright
`
`infringement, a party must demonstrate 1) ownership of
`
`a valid Copyright and 2) copying the elements of the work that
`
`
`are original. Feist Publ’ns
`Inc. v. Rural Tel. Serv. Co., 499
`
`U.S. 340, 361 (1991).
`
`A party may also contributorily infringe a
`
`copyright by “intentionally inducing or encouraging direct
`
`infringement of the copyright.”
`
`MGM Studios v. Grokster, Ltd ,
`
`545 U.S. 913, 930 (2005).
`
`Jagex alleges that it is the owner of several valid
`
`copyrights and that the snellman brothers have directly
`
`infringed, and encouraged others to infringe, such copyrights.
`
`As explained above,
`
`the Bots sold on the defendants’ websites
`
`-12-
`
`

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`operate by downloading a copy of the Runescape game client
`
`(the
`
`software that connects to the game's server) and then use
`
`“reflection” to examine the program code.
`
`The Bots perform
`
`automated functions by running a script
`
`(a kind of software
`
`program) which tells them to perform specific tasks.
`
`The game
`
`client used by the Bots is licensed to a user under Runescape’s
`
`Terms and Conditions, which state,
`
`inter alia,
`
`that the licensee
`
`must not use software to gain an unfair advantage [by
`using] automation tools, macros
`[or] bots [and] must
`not use any game specific,
`third—party software that
`encourages breaking of our rules.
`
`Jagex asseverates that by 1) selling Bots which copy the
`
`game client and subsequently violate Runescape’s Terms and
`
`Conditions and 2) encouraging others to buy and use those Bots,
`
`the Snellman brothers are directly and contributorily infringing
`
`its copyrights.
`
`In support of that claim, Jagex cites two recent
`
`cases from other districts involving similar allegations of
`
`copyright
`
`infringement of on—line products and services.
`
`In the
`
`first case, MDY Indus. LLC v. Blizzard Entertainment, Inc., 2008
`
`WL 2757357, at * 1-10 (D. Ariz. June 14, 2008),
`
`the court allowed
`
`summary judgment for the plaintiff,
`
`the owner of an MMOG called
`
`“World of Warcraft,” on a copyright
`
`infringement claim against
`
`the creator of a bot designed to cheat
`
`the game.
`
`In Ticketmaster
`
`LLQ v. gmg Technologies, Inc., 507 F. Supp. 2d 1096, 1104-1111
`
`(C.D. Ca. 2007),
`
`the court entered a preliminary injunction in
`
`favor of a website owner on its copyright claim against the
`
`-13-
`
`

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`creator of automated device designed to enter and navigate the
`
`website.
`
`Plaintiff's reliance on MQX and Ticketmaster is misplaced.
`
`In both of those cases, it was undisputed that the plaintiffs had
`
`copyrights on their websites and/or software.
`
`gee M91, 2008 WL
`
`2757357, at *3; Ticketmaster, 507 F. Supp. 2d at 1104. Here,
`
`however,
`
`the plaintiff has not alleged infringement of its game
`
`client software or website because it does not own such
`
`copyrights,
`
`The 21 copyright registrations attached to the
`
`plaintiff's complaint are all Visual Arts registrations for
`
`various two—dimensional
`
`icons that appear in the Runescape game
`
`(such as an “anvil
`
`icon,” an “archery icon” and a “chisel icon”),
`
`none of which the defendants currently use in their Bots or
`
`websites.3
`
`The plaintiff responds that registration of its game client
`
`software is not a prerequisite to filing suit because Runescape,
`
`which was entirely developed and initially published in the
`
`United Kingdom,
`
`is not a “United States work,” as defined by the
`
`Copyright Act.
`
`_§§ 17 U.S.C.
`
`§ 101 (defining “United States
`
`work”); 17 U.S.C.
`
`§ 411 (requiring registration or
`
`preregistration of a copyright of a United States work prior to
`
`filing suit). That argument is unavailing.
`
`Even if the absence
`
`* Apparently, plaintiff complained to the defendants about
`the use of such icons in the spring of 2008 and,
`in response,
`the
`defendants removed all such icons from their product.
`
`-14-
`
`

`
`Case 1:10-cv-10216-NMG Document 32 Filed 08/16/10 Page 15 of 23
`Case 1:10—cv—10216—NMG Document 32 Filed 08/16/10 Page 15 of 23
`
`of a registered copyright for the Runescape software and game
`
`client does not bar injunctive relief, it makes it unlikely that
`
`the plaintiff will succeed on the merits of its copyright claim.
`
`The plaintiff maintains,
`
`in the alternative,
`
`that the
`
`defendants are still infringing its 21 Visual Arts copyrights
`
`notwithstanding the fact that they have removed all such images
`
`from their websites. According to the plaintiff, when a player
`
`downloads the defendants’ Bots and uses them in the Runescape
`
`game, which includes the 21 copyrighted images, he exceeds the
`
`terms of his limited license and thus infringes the copyrights of
`
`those images.
`
`Plaintiff's argument is futile.
`
`Even if the plaintiff's 21
`
`copyrighted images are included in the Runescape software, it is
`
`not at all clear that a Bot user infringes the copyrights of
`
`those images when he plays Runescape in excess of his limited
`
`license, particularly where the significance of such images
`
`within the Runescape game has not been explained.
`
`Thus,
`
`in the
`
`absence of a registered copyright on the Runescape software,
`
`the
`
`plaintiff has not demonstrated a substantial likelihood of
`
`success on the merits of its copyright claim.
`
`ii. Digital Millennium Copyright Act
`
`The Digital Millennium Copyright Act
`
`(“DMCA"), which was
`
`enacted to “strengthen copyright protection in the digital age,"
`
`prohibits persons from manufacturing or providing any technology
`
`-15..
`
`

`
`Case 1:10-cv-10216-NMG Document 32 Filed 08/16/10 Page 16 of 23
`Case 1:10—cv—10216—NMG Document 32 Filed 08/16/10 Page 16 of 23
`
`or product that is “primarily designed or produced for the
`
`purpose of circumventing a technological measure that effectively
`
`controls access” to a protected work.
`
`17 U.S.C.
`
`§
`
`l201(a)(2);
`
`Universal City Studios v. Corley, 273 F.3d 429, 435 (2nd Cir.
`
`2001).
`
`To establish liability under the DMCA, Jagex must
`
`demonstrate that
`
`trafficked in a technology and (2)
`the defendant[s]
`(1)
`the technology was primarily designed or produced to
`circumvent conditional access controls to protected
`works, or has limited commercially significant use
`other than such circumvention.
`
`CoXCom,
`
`Inc. v. Chaffee, 536 F.3d 101, 110 (1st Cir. 2008)
`
`(internal citation omitted).
`
`Jagex contends that the Bots, which allegedly download the
`
`Runescape game client and use a process called “reflection” to
`
`examine its internal operation, circumvent a “technological
`
`measure” put
`
`in place by Runescape to protect its copyrighted
`
`work. Because the Bots are specifically designed to facilitate
`
`cheating in the Runescape game,
`
`they have no commercially
`
`significant purpose other than to circumvent JageX’s protective
`
`measures.
`
`Jagex’s DMCA claim is untenable. First, as explained above,
`
`Jagex does not own a valid copyright for its software program or
`
`game client. Although it insists that copyright registration is
`
`not a prerequisite to filing suit,
`
`the absence of that copyright
`
`makes it difficult for plaintiff to succeed on it's the DMCA
`
`-16-
`
`

`
`Case 1:10-cv-10216-NMG Document 32 Filed 08/16/10 Page 17 of 23
`Case 1:10—cv—10216—NMG Document 32 Filed 08/16/10 Page 17 of 23
`
`claim which is dependent on proof of a valid copyright.
`
`Second, Jagex has not indicated a specific “technological
`
`measure" that the defendants’ Bots are circumventing.
`
`A
`
`technological measure is generally a password, encryption program
`
`or other firewall device that regulates access to a protected
`
`work.
`
`gee MQX, 2008 WL 2757357, at * 11 (where game had a
`
`protection called a “warden” that scanned the user's computer for
`
`unauthorized programs and revoked access to the game upon
`
`detection of a infringing program); Ticketmaster, 507 F. Supp. 2d
`
`at 1111-1112 (where website had a computer security program that
`
`blocked automated access to its copyrighted pages by
`
`distinguishing between human users and computer programs).
`
`In
`
`contrast,
`
`the Runescape website is generally accessible to the
`
`public and has no specific technological measure designed to
`
`block access to copyrighted works. Accordingly, Jagex is
`
`unlikely to succeed on the merits of its DMCA claim.
`
`iii. Trademark Infringement
`
`To prevail on a claim of trademark infringement, Jagex must
`
`show that 1)
`
`the mark “Runescape” is a valid,
`
`legally protectable
`
`trademark, 2) Jagex owns the mark and 3)
`
`the defendants’ use of
`
`similar marks is likely to cause consumer confusion as to the
`
`origin of the goods.
`
`See Three Blind Mice Designs Co. v. Cyrk,
`
`;flg;, 892 F. Supp. 303, 309 (D. Mass. 1995).
`
`Jagex alleges (and the defendants do not dispute)
`
`that it
`
`-17-
`
`

`
`Case 1:10-cv-10216-NMG Document 32 Filed 08/16/10 Page 18 of 23
`Case 1:10—cv—10216—NMG Document 32 Filed 08/16/10 Page 18 of 23
`
`owns Trademark Registration No. 2,829,952 for the mark RUNESCAPE
`
`for use in entertainment services,
`
`including providing an online
`
`multi-user computer games via local networks.
`
`It further
`
`contends that the defendants,
`
`in connection with the sale and
`
`marketing of Bots, are using the Runescape mark in a way that is
`
`likely to cause consumer confusion. Specifically,
`
`the plaintiff
`
`alleges that the defendants 1) promote the Bots on websites such
`
`as “Runescape cheating asylum"
`
`(www runescape su), 2) use the
`
`Runescape mark throughout such websites and 3) use an email
`
`address ending in @runescape.su, causing consumers to believe
`
`they are associated with or endorsed by Jagex.
`
`As the defendants point out, plaintiff's trademark claim is
`
`likely moot because defendants have already removed all
`
`potentially confusing references to Runescape from its websites.
`
`Subsequent to the filing of the instant lawsuit,
`
`the defendants
`
`1) disabled the website www.runescape.su, 2) changed the name of
`
`their active website (www.rscheata.net)
`
`from “Runescape Cheating
`
`Asylum” to “RS Cheating Asylum” and 3) began censoring their
`
`customers’ Qnline discussions such that anytime a user posts the
`
`word “Runescape” in a forum, it is automatically replaced with
`
`“RS”.
`
`The plaintiff insists that the defendants’ actions do not
`
`negate its trademark claim because the abbreviation “RS,” for
`
`which it owns a community trademark,
`
`is widely known to be
`
`-18..
`
`

`
`Case 1:10-cv-10216-NMG Document 32 Filed 08/16/10 Page 19 of 23
`Case 1:10—cv—10216—NMG Document 32 Filed 08/16/10 Page 19 of 23
`
`synonymous with Runescape.4 That argument is impotent.
`
`Even if
`
`the plaintiff has a registered community mark on the abbreviation
`
`“RS,” the defendants are not obviously using the mark to cause
`
`consumer confusion.
`
`It is clear from the name of the defendants’
`
`website (“RS Cheating Asylum”)
`
`that it does not promote a version
`
`of the Runescape game itself but rather a program intended to
`
`cheat that game.
`
`Thus, because 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. Accordingly,
`
`the plaintiff's Lanham Act claim is unlikely
`
`to succeed.
`
`iv. Computer Fraud and Abuse Act
`
`Finally, plaintiff alleges that the defendants violated the
`
`Computer Fraud and Abuse Act
`
`(“CFAA") by exceeding, and causing
`
`others to exceed, authorized access to the Runescape game
`
`software.
`
`The CFAA makes it unlawful to:
`
`knowingly and with the intent to defraud ... exceed[]
`authorized access [of a protected computer], and by
`means of such conduct further[] the intended fraud and
`
`obtain[] anything of value.
`
`l8 U.S.C.
`
`§ 1030(a) (4).
`
`Plaintiff alleges that the defendants, by offering the Bots
`
`for sale, exceed their authorized access to the Jagex server by
`
`violating the Terms and Conditions as stated on the Runescape
`
`A “community trademark” refers to a mark that is registered in
`the European Union.
`
`-19-
`
`

`
`Case 1:10-cv-10216-NMG Document 32 Filed 08/16/10 Page 20 of 23
`Case 1:10—cv—10216—NMG Document 32 Filed 08/16/10 Page 20 of 23
`
`website, specifically the prohibition on “automation tools,
`
`macros, bots, or autotypers [and] game-specific,
`
`third-party
`
`software that encourages breaking of
`
`[Runescape’s] rules."
`
`The
`
`defendants respond that the Runescape server does not qualify as
`
`a “protected computer” under section 1030 because 1)
`
`the website
`
`is available to anyone who accesses the internet and 2) players
`
`can download the game client without ever seeing or agreeing to
`
`the Terms and Conditions.
`
`Defendant's argument is disingenuous. Although a new player
`
`can try out Runescape without agreeing to its Terms and
`
`Conditions,
`
`such play is available only during a ten—hour trial
`
`period. After that initial period,
`
`the player exhausts all
`
`content that is available in the introductory mode and,
`
`if she
`
`wishes to continue to a higher level,
`
`she must register
`
`officially and agree to the Terms and Conditions.
`
`Nevertheless, even if Runescape’s Terms and Conditions
`
`transform its server into a “protected computer,” plaintiff has
`
`not demonstrated a strong likelihood of success on the merits of
`
`its CFAA claim. Notably, plaintiff fails to explain how the
`
`defendants (as opposed to the Bots users) exceed authorized
`
`access to the Runescape server, particularly where the defendants
`
`are not alleged to have agreed to the game's Terms and
`
`Conditions.
`
`The plaintiff's theory of contributory liability under the
`
`_.20_
`
`

`
`Case 1:10-cv-10216-NMG Document 32 Filed 08/16/10 Page 21 of 23
`Case 1:10—cv—10216—NMG Document 32 Filed 08/16/10 Page 21 of 23
`
`CFAA is also unpersuasive because the plaintiff has not cited any
`
`authority to support it. Qf; Doe v. Dartmouth—Hitchcock Medical
`
`Center, 2001 WL 873063, at *4—5
`
`(D. N.H. July 19, 2001)
`
`(rejecting plaintiff's theory of vicarious liability under the
`
`CFAA and noting that the statute creates only a “limited private
`
`right of action against ghg violator”)
`
`(emphasis in original).
`
`Thus, at least at this stage of the proceedings, plaintiff's
`
`allegations do not convince the Court that it is likely to
`
`succeed on its CFAA claim.
`
`b.
`
`Irreparable Harm
`
`Jagex contends that,
`
`in the absence of an injunction, it
`
`will suffer irreparable harm in the form of loss of goodwill,
`
`damage to its reputation and immeasurable financial damages.
`
`Specifically, Jagex alleges that the defendants’ actions have
`
`created a stigma surrounding Runescape and, as a result, members
`
`of the gaming community have chosen to play other MMOGs that are
`
`not riddled with cheaters.
`
`Jagex asserts that it has already had
`
`to invest time and resources into combating the intrusive
`
`software and resolving user complaints.
`
`Although a showing of likelihood of success on the merits of
`
`its infringement claims presumes irreparable harm, see I.P. Lund
`
`I;gQ;Qg_Ap§ v. Kohler Co., 163 F.3d 27, 33
`
`(1st Cir. 1998),
`
`plaintiff has failed to make the requisite

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