Over the last five months, the saga of Daybreak’s efforts to quash for-profit EverQuest rogue servers has been one of the most interesting MMORPG developments of the year. Thus far, Daybreak has managed to successfully argue its way into a shutdown of The Heroes’ Journey server, which the judge said was at one point pulling in as much as $100,000 a month from gamers – at the expense of the actual live EverQuest MMORPG, which is still operating and launching annual expansions.
The THJ operators may have shuttered their emulator, but they haven’t actually given up. A few weeks ago, they submitted a request for reconsideration of the injunction order on the grounds that “the Court committed a clear error in its findings and conclusions”; it complains that Daybreak was effectively improperly granted full and final relief with the shuttering of the profitable rogue server using its IP, that Daybreak didn’t sufficiently prove THJ caused business harm, and that Daybreak didn’t sufficiently enforce its copyrights. These aren’t really new arguments, but I guess we can’t blame them for trying. (Daybreak’s rejoinder likewise says the filing “merely repackages arguments that were already made in the substantive underlying proceedings.”)
Either way, there’s been a little twist in the saga now. At the beginning of October, the THJ operators being sued here argued that the group was entitled to force Daybreak into arbitration under Daybreak’s own terms of service, which as we noted were being flouted by THJ’s operators.
But here, the judge has actually granted that motion to compel arbitration. Ultimately, she found that THJ hadn’t waived or invalidated its right to arbitration, that the ongoing and active infringement began after the 2018 amended EULAs and that their arbitration language should apply (rather than that of the older EULA), and that the Court “leaves the question of arbitrability to be decided by the arbitrator in accordance with the clear and unmistakable intent of the Parties as defined by prevailing state law.”
In the same decision, the judge denied the motion to stay the preliminary injunction, so THJ stays offline. She further makes clear that the arbitration order does not negate the injunction. Then she sent everyone to bed without supper until they can play nice for the arbitrator, with a full report due on her desk no later than January 30th, 2026. Unfortunately, it sounds like we’ll be right back here in a few weeks.
The whole story so far:
