United States District Court District of Massachusetts Boston Division

Case 1:10-cv-10216-NMG Document 41 Filed 11/12/10 Page 1 of 13

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS BOSTON DIVISION

JAGEX LIMITED, ) ) Case No. 1:10-cv-10216 PLAINTIFF, ) ) v. ) ) IMPULSE SOFTWARE, ) ERIC SNELLMAN, and ) MARK SNELLMAN ) ) DEFENDANTS. ) ______)

DEFENDANTS AMENDED ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM

Defendants, IMPULSE SOFTWARE, ERIC SNELLMAN and MARK SNELLMAN

(“Defendants”) by and through their undersigned attorneys hereby file their Amended Answer,

Affirmative Defenses and Counterclaim to Plaintiff, JAGEX LIMITED’s (“Plaintiff” or “Jagex”)

Complaint and state:

NATURE OF THIS ACTION

1. Admitted that Jagex is seeking injunctive relief, damages and other related equitable relief for the alleged violations described in its Complaint, but denied that Jagex is entitled to such relief.

THE PLAINTIFF AND THE RUNESCAPE® GAME

2. Without knowledge and therefore denied.

3. Without knowledge and therefore denied. Case 1:10-cv-10216-NMG Document 41 Filed 11/12/10 Page 2 of 13

4. Admitted that Jagex operates the website www.runescape.com, and that

RuneScape® is a massive multiplayer online game (“MMOG”) that takes place in a fantasy- themed realm divided into several different kingdoms, regions and cities. Without knowledge as to the remaining allegations in this paragraph and therefore denied.

5. Without knowledge and therefore denied.

6. Admitted that Jagex offers both subscription and free-to-play versions of

RuneScape®. Without knowledge as to the remaining allegations in this paragraph and therefore denied.

7. Admitted that game players on RuneScape® can customize their own avatar and battle demons and dragons, complete quests, or increase their experience in the skills. Also, admitted that players interact with each other through trading, chatting, or by participating in both combative and cooperative minigames and activities. Without knowledge as to the remaining allegations in this paragraph and therefore denied.

8. Admitted that playing RuneScape® requires a substantial investment of time and effort. Without knowledge as to the remaining allegations of this paragraph and therefore denied.

9. Denied.

10. Denied.

11. Without knowledge and therefore denied.

12. Denied.

THE DEFENDANTS

13. Denied.

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14. Admitted that Eric Snellman and Mark Snellman own and operate Impulse

Software. Admitted that 675 Hummingbird Drive, Indialantic, Florida 32903 is Eric and Mark

Snellman’s permanent place of residence, but denied that they reside there. Admitted that

Impulse has a mailing address of P.O. Box 13347, Gainesville, Florida 32604. Denied as to all of the remaining allegations in this paragraph.

15. Admitted that Defendants have operated websites in relation to a variety of massive multiplayer online games, but denied that Defendants have a history and pattern of owning and operating “cheating web sites.”

16. Admitted that Defendants developed and sell the “Nexus” and “iBot” software programs (“Bots”), but denied that such Bots circumvent any RuneScape® security measures and/or infringe on Jagex’s intellectual property rights. The remaining allegations in this paragraph are denied in all respects.

17. Admitted that the Bot software downloads a copy of the RuneScape® game client from www.runescape.com just as a player would using a web browser. Admitted that the Bot software uses a process called reflection, but denied that it examines the operation of the

RuneScape® client. The remaining allegations of this paragraph are denied.

18. Admitted that Defendants have written some scripts to perform specific functions such as woodcutting, mining or fishing, but denied that Defendants have written all scripts used on www.runescape.com.

19. Admitted.

20. Denied.

21. Admitted that Defendants sell the Bots for various prices. The remaining allegations in this paragraph are denied in all respects.

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22. Denied

JURISDICTION AND VENUE

23. Admitted for jurisdictional purposes only.

24. Admitted for jurisdictional purposes only.

25. Denied.

26. Denied.

27. Denied.

COUNT I – COPYRIGHT INFRINGEMENT UNDER FEDERAL LAW

28. Defendants reassert and reallege their responses to the allegations contained in the paragraphs above.

29. Denied that such copyright registrations are copyrights in the “Software” as alleged in Plaintiff’s Complaint. Admitted that certain copyright registrations were attached to

Plaintiff’s Complaint, but denied that such registrations are valid and effective registrations.

30. Denied.

31. Without knowledge and therefore denied.

32. Without knowledge and therefore denied.

33. Without knowledge and therefore denied.

34. Without knowledge and therefore denied.

35. Without knowledge and therefore denied.

36. Admitted that both the United Kingdom and the United States are signatories to the Berne Convention. All other allegations are denied since without knowledge as to whether a valid copyright exists for the Software.

37. Denied.

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38. Denied.

39. Denied.

40. Denied.

COUNT II – CIRCUMVENTION OF TECHNOLOGICAL MEASURES UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT

41. Defendants reassert and reallege their responses to the allegations contained in the paragraphs above.

42. Denied.

43. Denied.

44. Admitted.

45. Denied.

46. Denied.

47. Denied.

COUNT III – TRADEMARK INFRINGEMENT UNDER FEDERAL LAW

48. Defendants reassert and realleges their responses to the allegations contained in the paragraphs above.

49. Admitted that Exhibit “G” is a trademark registration for RUNESCAPE, without knowledge as to the viability and validity of such registration and therefore the remaining allegations contained in this paragraph are denied.

50. Denied.

51. Denied

52. Admitted that Defendants own the domain name www.runescape.su, but denied as to all of the other allegations in this paragraph. .

53. Denied.

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54. Denied.

55. Denied.

56. Denied.

COUNT IV – COMPUTER FRAUD AND ABUSE UNDER FEDERAL LAW

57. Defendants reassert and reallege their responses to the allegations contained in the paragraphs above.

58. Denied.

59. Denied.

60. Denied.

61. Denied.

62. Denied.

63. Denied.

COUNT V – TORTIOUS INTERFERENCE WITH CONTRACT

64. Defendants reassert and reallege their responses to the allegations contained in the paragraphs above.

65. Denied.

66. Without knowledge and therefore denied.

67. Without knowledge and therefore denied.

68. Denied.

69. Denied.

70. Denied.

71. Denied.

72. Denied.

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73. Denied.

DEFENSES AND AFFIRMATIVE DEFENSES

1. Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

2. Plaintiff’s Copyright Infringement claim must fail because Plaintiff does not have a valid registration for its software program.

3. Plaintiff is not the rightful owner of its software program available at www.runescape.com.

4. Defendants’ Bot does not infringe any of Plaintiff’s 21 visual arts copyright registrations.

5. Plaintiff’s terms and conditions are invalid, unenforceable, and insufficient to put a potential user and/or user of RuneScape® on notice of its terms because: (1) a hyper link for the terms and conditions cannot be seen unless you scroll down to the bottom of the home page;

(2) you are not required to review the terms and conditions before signing up for or playing the

RuneScape® game; and (3) if you do “accept” the terms and conditions when you sign up to play the game, in order to review the language regarding bots you are required to click through several hyperlinks.

6. Players of the RuneScape® game are not put on actual or constructive notice of the restriction in Plaintiff’s terms and conditions regarding the use of Bots and therefore

Plaintiff’s terms and conditions are not an enforceable contract.

7. Many of the players that are allegedly agreeing to the terms and conditions are minors and therefore the terms and conditions are unenforceable against the minors and against

Defendants.

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8. Plaintiff’s terms and conditions page related to bots and macroing states that the

terms are effective as of May 12, 2009. Therefore, any and all alleged copyright infringements,

violations of the DMCA, violations of the CFAA and tortious interferences by Defendants and/or

players of the game that occurred prior to May 12, 2009 cannot be pursued by Plaintiff because

the terms and conditions did not prohibit the use of bots and macroing at that time.

9. Plaintiff’s Copyright Infringement claim is barred under the doctrine of fair use.

10. Plaintiff’s Copyright Infringement claim is barred because Defendants’ alleged

use and/or copying of Plaintiff’s copyright is transformative and therefore protected under the

doctrine of fair use.

11. Plaintiff’s DMCA claim must fail because Plaintiff does not have a technological measure that Defendants’ Bots are circumventing.

12. Plaintiff’s DMCA claim must fail because its website is a free website accessible by anyone and does not have a password, encryption program or other firewall device that regulates access to the RuneScape® game/software program.

13. Plaintiff’s trademark infringement claim must fail because Defendants are no longer using Plaintiff’s RuneScape® trademark.

14. Plaintiff’s trademark infringement claim must fail because there was and is no

likelihood of confusion between Plaintiff’s use of the RuneScape® trademark and Defendants’

prior use of the mark.

15. Plaintiff’s trademark infringement claim is barred due to the fact that Defendants’

use is considered a parody and thus a fair use under the Lanham Act.

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16. Plaintiff’s CFAA claim must fail because Plaintiff cannot prove that Defendants exceeded their authorized access to the Jagex server by violating the Jagex’s terms and conditions.

17. Plaintiff’s CFAA claim must fail because Plaintiff cannot prove that Defendants personally have agreed to the Terms and Conditions and they are therefore not personally liable under the CFAA.

18. Plaintiff’s CFAA claim based on contributory or vicarious liability must fail because Defendants cannot be held liable under the CFAA for the actions of its customers.

19. Plaintiff’s Tortious Interference claim is barred because Plaintiff does not have valid and enforceable contracts with RuneScape® users as described in Affirmative Defenses

No. 5 and 6 above.

20. Plaintiff’s claim for equitable relief is barred under the doctrine of unclean hands.

21. Plaintiff’s claim for injunctive relief is barred due to the fact that it has failed to establish a clear legal right, irreparable harm or any other factor justifying an award of injunctive relief in this action.

22. Plaintiff’s claims are barred in whole or in part due to Plaintiff’s failure to mitigate its damages.

23. Plaintiff’s claims are barred in whole or in part due to the fact that Plaintiff does not have and cannot prove damages because Plaintiff benefits financially from the use of Bots.

RuneScape® has more users and fewer drop outs as a result of Bots and therefore Jagex has actually benefited financially from the use of Bots on RuneScape®.

24. Plaintiff’s claims are barred in whole or in part under the doctrine of laches.

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25. Plaintiff’s claims are barred in whole or in part because this Court lacks personal jurisdiction over Defendants.

26. Plaintiff’s claims are barred in whole or in part because this case was brought in an improper venue.

27. Plaintiff’s claims are barred in whole or in part under the doctrine of acquiescence.

28. Plaintiff’s claims are barred by the statute of limitations.

29. Plaintiff’s claims are barred in whole or in part because the use of the Bots is in the public interest.

30. Plaintiff’s claims are barred in whole or in part because macroing or botting capabilities specifically designed for gamers is provided by hundreds of products from manufactures including, but not limited to, Microsoft and Logitech.

COUNTERCLAIM

IMPULSE SOFTWARE, ERIC SNELLMAN and MARK SNELLMAN

(“Defendants/Counter-Plaintiffs”) by and through their undersigned attorneys hereby sue

JAGEX (“Plaintiff/Counter-Defendant”) and alleges as follows:

1. This is a claim under the Declaratory Judgment under 28 U.S.C. § 2201 et seq. for a judgment declaring that Defendants/Counter-Plaintiffs do not violate the Digital Millennium

2. Plaintiff/Counter-Defendant has sued Defendants/Counter-Plaintiffs alleging that

Plaintiff/Counter-Defendant’s RuneScape® game and associated Software uses Java-based security measures to detect and prevent the use of Bot software, and that Defendants/Counter-

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Plaintiffs have designed their Bot software to circumvent the technological measures in the

RuneScape® game and associated Software.

3. Defendants/Counter-Plaintiffs’ contend that their Bot software does not circumvent any technological measures utilized by Plaintiff/Counter-Defendant in its

RuneScape® game and associated Software for the following reasons:

a. The Bot software developed by Defendants/Counter-Plaintiffs does not descramble a scrambled aspect of the RuneScape® game and associated Software, does not decrypt an encrypted aspect of the RuneScape® game and associated Software, or otherwise avoid, bypass, remove, deactivate, or impair the technological measure, instituted by

Plaintiff/Counter-Defendant in the RuneScape® game and associated Software.

b. The Bot software developed by Defendants/Counter-Plaintiffs is not primarily designed for the purpose of circumventing protection afforded by the alleged technological measure put in place by Plaintiff/Counter-Defendants in its RuneScape® game and associated Software.

c. The Bot Software developed by Defendants/Counter-Plaintiffs has a greater commercially significant purpose than simply being limited to circumvent protection afforded by the alleged technological measure put in place by Plaintiff/Counter-Defendant in its

RuneScape® game and associated Software.

d. Plaintiff/Counter-Defendant has not instituted a technological measure, as defined in the Digital Millennium Copyright Act, in the RuneScape® game and associated

Software.

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4. There is an actual and continuing controversy between the parties over whether

Defendants/Counter-Plaintiffs violate the Digital Millennium Copyright Act by offering their Bot

software to the public.

WHEREFORE, Defendants/Counter-Plaintiffs pray for judgment in their favor on all

counts and request their costs and attorney’s fees and other relief the Court finds just and

equitable, including a permanent injunction against Plaintiff/Counter-Defendant for all future conduct threatening or attempting to enforce a violation of the violate the Digital Millennium

2202.

Dated this 12th day of November, 2010.

Respectfully submitted, IMPULSE SOFTWARE, et al By its attorneys,

/s/ Terry M. Sanks______BEUSSE WOLTER SANKS MORA & MAIRE, P.A. Terry M. Sanks (Florida Bar No. 0154430) Amber N. Davis (Florida Bar No. 0026628) 390 North Orange Avenue, Suite 2500 Orlando, Florida 32801 Telephone: (407) 926-7700 Facsimile: (407) 926-7720 [email protected] [email protected] Lead Counsel to Defendants

-And-

HOLLAND & KNIGHT LLP Ieuan G. Mahony (BBO #552349) HOLLAND & KNIGHT LLP 10 St. James Avenue Boston, MA 02116 (617) 523-2700 [email protected] Local Counsel to defendants