Copyright and the DMCA IM 350 Issues in New Media Theory From notes by Steve Baron.
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Transcript of Copyright and the DMCA IM 350 Issues in New Media Theory From notes by Steve Baron.
Copyright and the DMCACopyright and the DMCA
IM 350 Issues in New Media Theory
From notes by Steve Baron
Cartoon Network v. CSC
Who’s Who?– CN owns copyrights to movies and tv programs
Content owner
– CSC operates cable tv system Content distributor
Cartoon Network v. CSC
What are they fightin’ about?– CSC plans to launch Remote Storage DVR
System Customers can record shows on central hard drives
housed and maintained by CSC at remote location CSC did not seek a license from CN
– CN sues for direct copyright infringment Seeks declaration and injunction
Cartoon Network v. CSC
Who won in the District Court?– Cartoon Network
Court finds RS-DVR directly infringes CN copyrights
– Briefly storing data in ingest buffer– Copying programs onto server– Transmitting data from server to customers
Summary judgment entered against CSC Injunction against CSC to prevent operating RS-
DVR withou a license
Cartoon Network v. CSC
Where did the legal fight start?– Federal District Court (New York)
Cartoon Network v. CSC
What happens on appeal to the Second Circuit?– The decision is reversed and remanded back to
the District Court
Cartoon Network v. CSC
Rationale of appellate decision:– Analysis of “transitory duration”
No bit of data remains in buffer for more than a fleeting 1.2 seconds
So, the act of buffering does not create a “copy” under copyright law
Cartoon Network v. CSC
Rationale of appellate Court:– Who makes the copy?
CSC or customer? Court holds that customer makes copy and so CSC
is not liable for direct copyright infringement.– CSC “closely resembles a store proprietor who charges
customers to use a photocopier on his premises…”
Cartoon Network v. CSC
Rationale of appellate court:– Is RS-DVR playback a transmission of a
performance to the public?– Answer: No. Because each playback
transmission is made to a single subscriber using a single unique copy produced by that subscriber, such transmissions are not “public” and do not infringe any exclusive right of public performance
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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.
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
– 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
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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 Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
MDY argues:– Dynamic, non-literal elements of WoW cannot
be copyrighted– Warden is not a “technological measure” that
“effectively controls access to a work.”
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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…
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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.
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
Personal liability of Michael Donnelly– What does that mean?– Is he personally liable?– For what?
MDY Industries v. Blizzard MDY Industries v. Blizzard EntertainmentEntertainment
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