From: Zaffron, Andy [mailto:azaffron@verant.com]
Sent: Monday, October 02, 2000 11:00 PM
To: 'bziegler@radix.net'
Cc: 'riley_russell@playstation.sony.com'; McQuaid, Brad
Subject: Cease and Desist Demand
Dear Mr. Ziegler:
I am Vice President and General Counsel for Sony Online Entertainment Inc. ("SOE"), which operates the online game EverQuest under license from its sister company Sony Computer Entertainment America Inc. ("SCEA") -- SCEA being the owner of the EverQuest trademark and all copyrighted material in and associated with EverQuest. It has come to my attention that you, at the URL http://www.uorobot.com/eqmacros.htm and perhaps through other means of distribution, are marketing and selling a product called "EQ Macros." The EQ Macros product, among other things, is a breach of the EverQuest User Agreement and Software License (the "License Agreement"), constitutes an unfair business act or practice under California Business and Professions Code section 17200, and is a tortious interference with the contracts and business relationships that SOE and SCEA (collectively, "Sony") have with the other 294,000 EverQuest players; it also violates Sony's exclusive rights under the Copyright Act. Accordingly, Sony demands that you and your agents immediately and permanently cease and desist from the development, advertising, marketing, distribution and sale of "EQ Macros."
The EverQuest License Agreement -- to which you must affirmatively agree when you install the game and each and every time you play the game -- prohibits you from (i) disassembling, decompiling and/or reverse engineering the software (section 7), (ii) using third party software to modify the game (section 9) and (iii) taking any action which places an unreasonably large load on Sony's servers (section 9). The EQ Macros product contains material (e.g. the zone maps, the compass, the zone location, and perhaps other material) which was and is derived through reverse engineering all or part of the EverQuest software, and it is obviously "third party software" which modifies the game (by displaying the maps, compass and "night vision scope", and by allowing the development of and use of macros). It places a larger load on Sony's servers because the use of macros allows substantially more data to be transmitted back and forth in a shorter period of time -- which incrementally decreases the processing time available to everyone else. Every time you play the game and click "I ACCEPT" on the License Agreement box, you make certain promises to Sony; by developing, marketing, distributing and selling EQ Macros, you are breaking those promises.
Section 17200 of the California Business and Professions Code prohibits, in pertinent part, any person from engaging in any "unfair business act or practice." As your lawyer will tell you, the California legislature and courts have construed this term very broadly. You are selling an infringing product which violates the EverQuest License Agreement. Additionally, you are marketing it deceptively by not conspicuously notifying the buyers that they violate the License Agreement through the use of the product and -- because use of the product violates the EverQuest Rules of Conduct (see, Rules of Conduct 5, 11 and 14) -- subjects their (and your) account to immediate termination.
The EQ Macros program, moreover, is likely a derivative work of EverQuest which violates Sony's exclusive rights to sell derivative works under section 106 of the Copyright Act.
Every one of EverQuest's 294,000 active players is precious to Sony; Sony has spent millions of dollars and thousands of person hours building new content, keeping the challenge in the game and keeping its side of the bargain that the License Agreement represents. The 294,000 active players each have a contract (the License Agreement) and a business relationship with Sony; by creating, marketing, distributing and selling EQ Macros, you are intentionally interfering with those contracts and business relationships. You understand EverQuest -- in a large sense, one player using the EQ Macros software does so to the disadvantage of other players. Some players who do not cheat or breach their contract by using your software may, when faced with others who do, quit the game. This causes damage to Sony's goodwill but, more importantly, to the greater game community as well.
For all of the above reasons, Sony hereby demands that you, and your agents, immediately and permanently cease and desist from the development, advertising, marketing, distribution and/or sale of the EQ Macros product. If you fail to do so before 5 p.m. on October 4, 2000, Sony may be forced to resort to commence legal action to protect its rights.
Nothing contained in this letter shall be construed as an admission or as a waiver of any rights or remedies that Sony may have at law or in equity, all of which are expressly reserved.
Andrew S. Zaffron
cc: Riley R. Russell (VP, SCEA) Brad McQuaid
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