copyright and the dmca im 350 issues in new media theory sept. 22, 2009

Copyright and the DMCACopyright and the DMCA

IM 350 Issues in New Media Theory

Sept. 22, 2009

MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment


Factual Background– Blizzard creates and operates WoW and owns all

copyrights– 11.5 million players– $1.5 billion in annual revenue– Glider = bot = software that plays WoW and

accumulates points while owner is away– MDY owns Glider.

100,000 copies $3.5 – 4.0 million in revenues


Factual Background (cont’d)– Blizzard uses “Warden” to detect and prevent

use of bots Scan.dll

– Scans for unauthorized programs before user logs on Resident

– Runs periodically while the user plays WoW

MDY designed glider to avoid detection by Warden


Factual Background (cont’d)– Literal elements of game client software stored on

user’s hard drive may be accessed and copied without connecting to Blizzard game server.

– Non-literal aspects of the game – visual and aural components

Users can view and listen to discrete components stored on hard drive

User cannot create or experience the dynamic, changing world of the game without signing on to Blizzard


The DMAC Section 1201(a)(1) anti-circumvention claim– No person shall manufacture, import, offer to the

public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.


United States District Court– (Federal, not State Court)– (Trial Court, not Appellate Court)

District of ArizonaJudge David CampbellOpinion dated January 28, 2009Case filed in 2006


– Parties: MDY = plaintiff and counter-defendant

– Owns and distributes Glider software

Blizzard and Vivendi = defendants and counter-plaintiffs and third party plaintiffs

– Owns and distributes World of Warcraft game

Michael Donnelly = third party defendant – President of MDY


Procedural Posture (i.e. where are we in the case and how did we get here?)– Court previously held MDY liable to

Blizzard/Vivendi on certain claims: Tortious interference with contract Contributory and vicarious copyright infringement

– Court previously granted summary judgment in favor of MDY on unfair competition claim


Procedural Posture (cont’d)– Court orders MDY to pay $6,000,000– Court sets “bench trial” on remaining issues:

DMCA claims Is Donnelly personally liable Is Blizzard entitled to permanent injunction


MDY argues:– Dynamic, non-literal elements of WoW cannot

be copyrighted– Warden is not a “technological measure” that

“effectively controls access to a work.”


Court rules:– Audio-visual displays of computer games are

subject to copyright protection, and a player’s interaction with the software of those games does not defeat this protection even though the player’s actions in part determine what is displayed on the computer screen.

– Warden constitutes a technological measure…


Court rules Blizzard satisfies 6 factor test:– Valid copyright in dynamic nonliteral elements– Access effectively controlled by Warden– Glider enable TP to access D.N.E.– Blizzard has not authorized access– After access, players may copy D.N.E.– MDY made Glider primarily to circumvent

Warden


The DMCA Section 1201(b)(1) claim:– Applies to technological measure “that

effectively protects a right of a copyright owner under this title in a work or a portion thereof[.]”

– Court finds that Warden satisfied this requirement with respect to D.N.E.

Glider prevents or interrupts some Glider user’s access to servers and effectively prevents that user from copying the D.N.E.


Personal liability of Michael Donnelly– What does that mean?– Is he personally liable?– For what?


What’s an injunction– Factors:

Irreparable injury Inadequate remedy at law (i.e. $$$$ won’t help) Balance of hardship Public interest

Result: court enters injunctions– But considers stay pending appeal

Viacom v. YouTubeViacom v. YouTube

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

March 13, 2007 Relying on O’Brien’s treatment in “COPYRIGHT CHALLENGES FOR

USER GENERATED INTERMEDIARIES:VIACOM V YOUTUBE AND GOOGLE

YouTube has harnessed technology to willfully infringe copyright on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentive of America’s creative industries, and profiting from the illegal conduct of others as well. Using the leverage of the Internet, YouTube appropriates the value of creative content on a massive scale for YouTube’s benefit without payment of license. YouTube’s brazen disregard of the intellectual property laws fundamentally threatens not just the Plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy.

Defendants actively engage in, promote and induce this infringement. YouTube itself publicly performs the infringing videos on the YouTube site and other websites. Thus, YouTube does not simply enable massive infringement by its users. It is YouTube that knowingly reproduces and publicly performs the copyrighted works uploaded to its site. YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value. YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site. Because YouTube directly profits from the availability of popular infringing works on its site, it has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it “take down” the infringing works.

1. Public performance – the defendants have, without permission of the copyright owner, publicly performed and authorised the public performance of the infringing uploaded videos;

2. Public display – the defendants have, without permission of the copyright owner, publicly displayed and authorised the public display of the infringing uploaded videos; and

3. Reproduction – the defendants have, without permission of the copyright owner, reproduced and authorised the reproduction of the infringing uploaded videos through the YouTube website.

4. Inducement of copyright infringement – the defendants areliable for inducing the infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading infringing videos to the YouTube website.

5. Contributory copyright infringement – the defendants are liable for contributing to the infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading infringing videos to the YouTube website.

6. Vicarious copyright infringement – the defendants are vicariously liable for the infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading infringing videos to the YouTube website.

Viacom’s claimsViacom’s claims

YouTube’s responseYouTube’s responseViacom’s complaint in this action challenges the careful balance established by

Congress when it enacted the Digital Millennium Copyright Act (DMCA). The DMCA balances the rights of copyright holders and the need to protect the Internet as an important new form of communication. By seeking to make carriers and hosting providers liable for Internet communications, Viacom’s complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment and political and artistic expression. Google and YouTube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well and beyond what the law requires.

YouTube and Google’s defence, essentially denies each of the allegations in Viacom’s complaint and raises 12 defences in their favour. These defences include the safe harbors, licence, fair use, failure to mitigate, failure to state a claim, innocent intent, copyright misuse, estoppel, waiver, unclean hands, laches and substantial non-infringing uses.

Key issuesKey issues Is the infringement volitional? Or does YouTube’s

technology work behind their backs in ways for which they are not responsible?

Does YouTube qualify for DMCA safe harbor protection?– Esp. have they been red flagged enough to know that the stuff

often infringes? Could they be expected to be able to identify which, and block it?

– To what degree do they financially benefit from the infringements?

Maybe even bigger implications for other casesMaybe even bigger implications for other cases

In particular, a recent class action filed against YouTube and Google by the English Premier League and independent music publisher, Bourne Co.30 The copyright issues associated with these user generated intermediaries also have the potential to extend to more participatory intermediaries, such as blogs and wikis.31 Indeed, in many cases the copyright issues involved are likely to be more prevalent, given the highly personalised form of content production which blogs and wikis provide. In this regard, it should be noted that thus far, there is yet to be a major reported decision involving issues of copyright infringement on a blog or wiki, although there have been a number of cases filed against blogs and bloggers, which have failed to proceed to trial.

Illegal Downloading/File Sharing: Illegal Downloading/File Sharing: Capitol v. Thomas; RIAA v. TannenbaumCapitol v. Thomas; RIAA v. Tannenbaum

Thomas: 2M for 24 songs– Previously: lost, $222,000 judgment, mistrial

declared, didn’t settle; retrial.

Tannenbaum: $675,000 for 30 songs

Protecting ISPsProtecting ISPs

DMCA safe harbor (section 512): exempts ISPs from liability for the infringing actions of their users, if ISPs satisfy certain conditions

47 U.S.C. § 230 : US Code - Section 230: Protection for private blocking and screening of offensive material– Section 230(c)(1) provides immunity from liability for providers

and users of an "interactive computer service" who publish information provided by others

– Does not apply to intellectual property rights, though we cover it when we get to defamation which IS a form of IP law.

Electronic Communications Privacy Act of 1986– Protects electronic communication from government, third parties,

and interception, but not from employers.

copyright and the dmca im 350 issues in new media theory sept. 22, 2009

Documents

liableis blizzard

blizzard entertainmentparties

wardenmdy industries

blizzardmdy industries

revenuesmdy industries

blizzard game server

favor of mdy

mdy liable