In Plain English: The Curious Case Of Jagex V John Doe

legal

Those of you who play RuneScape or World of Warcraft are likely well acquainted with a popular phishing technique that made its rounds over the past few years, or at least you would be if you took a gander through your spam filter. The email warns players that they’ve been caught either botting or engaging in real money trading, and that further cheating will add them to a list of John Does in a pending lawsuit. While the email links to a fake login page designed to steal your account information, you might be surprised to know that the body of the email itself is indeed legitimate, or I should say was originally written by a legitimate source.

Jagex once filed lawsuit against cheaters, and it didn’t end in their favor.

No, seriously. I reported on this way back when it initially happened, getting confirmation from Jagex and from the central district court of California where the lawsuit was filed. The email cites both a valid case file and specific laws under which Jagex planned to file suit. The email threatened users that they could be hit with a fine ranging anywhere from $200 to $2500 per act of botting, past, present, and future. Recipients were informed that their accounts were on watch, and that they would be granted a one-time leniency. Cheat again, and be sued.

A bold move, certainly, but one that you wouldn’t really need a law degree to know is total bunk. While bot makers have been successfully sued in the past, cheating in a video game is not in itself a crime and there isn’t legal precedent in the United States to take a contrary position. For that matter, there isn’t a law specifically prohibiting making cheats either. In the past, developers like Jagex and Blizzard have gone down various avenues to shut down bot makers. Accusations include everything from DMCA violations by bypassing anti-bot software, copyright violations for using the game’s logo/trademark/assets without permission, receiving and then violating injunctions against maintaining the software, and raising costs/damaging revenue due to increased customer service and lost business from disgruntled customers.

But as far as players go, while there isn’t any precedent in the successful prosecution of cheaters, there is in their defense. In the case of Blizzard V Glider, the 9th circuit court of appeals ruled that the Glider bot did not violate Blizzard’s copyright because it didn’t modify the software. As a result, using the bot software was not illegal, noting that Blizzard cannot claim copyright infringement just because their terms of service prohibit such activity.

The court notes:

Were we to hold otherwise, Blizzard — or any software copyright holder — could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player’s abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player’s computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners.

While we will likely never know how many people Jagex targeted with these emails, we do know that the lawsuit specifically mentions ten John Doe defendants. In July 2011, the court approved a motion for Jagex to serve Paypal in order to obtain information on the defendants, with the addition that in the event that Paypal is unable to provide sufficient information, Jagex could go after the ISP of each John Doe to get more data.

The lawsuit references four attorneys representing Jagex, two of whom had to be approved by a judge to appear “pro hac vice,” allowing the lawyers to practice in jurisdictions that they are not licensed. Following the court dockets, Judge Cormac J. Carney approved both applications on July 6th and 7th. At this point, the lawsuit goes dark for a while.

Fast forward five months and on December 1, 2011, Jagex files an ex parte application for a hearing telephonic status conference. A telephonic status conference is essentially where the plaintiff gets in touch, by telephone, with the judge’s clerk to let them know how the case is proceeding, to ensure that requirements set out by the court are being kept, and to resolve any other issues before a trial. It’s pretty standard, but in John Doe cases the courts have a tendency to lose their patience when the investigation phase drags on.

On December 9th, Judge Carney rejected the application with no documented opinion. The following month, January 20th 2012, Jagex filed a notice of voluntary dismissal, dropping all charges. There are no official opinions noted either by Judge Carney or by Jagex in their dismissal, but the answer should be obvious. They didn’t have a case, the court likely recognized it as a waste of time or the judge requested that they show up in person and they never did, and everyone went home with nothing accomplished.

I should make a note here that I reached out to Jagex’s press relations in the hopes of at least giving them a chance to comment, and I received no response. It’s hard to imagine that Jagex intended this to be any more than a scare tactic to hopefully convince some teenagers and the occasional person using bots to make money, to change their ways. It took about forty minutes of searching court dockets to find precedent against cheaters being sued, in an appeal case ruled one year prior.

The original copyright ruling against Glider cited a court ruling from 1993 that stated a technician operating a computer for the purposes of repair constituted a copyright violation, in that the technician creates an unauthorized copy when the program is started and loaded into RAM. That provision of the case was overruled with an addition to title 17 of the United States Code dealing with maintenance or repair, however since the defendant had unauthorized copies of the software on their computer, they were still found guilty.

So now you know the story of when Jagex filed lawsuit against ten unnamed bot users. If I do get a response from Jagex, I’ll put it up at the top.

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