copyright and the dmca mm450 issues in new media theory february 17, 2009 steven l. baron

Copyright and the DMCACopyright and the DMCA

MM450 Issues in New Media Theory

February 17, 2009

Steven L. Baron

MDY Industries v. Blizzard MDY Industries v. Blizzard Entertainment Entertainment

What court?

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


– 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


–


Factual Background– WoW players create avatars who fight in a

virtual landscapes– Blizzard creates and operates WoW and owns

all copyrights– 11.5 million players– $1.5 billion in annual revenue


Factual Background (cont’d)– Game client software– Game server software– 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.


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

Tur v. YouTube, Inc.Tur v. YouTube, Inc.

CourtLevel of CourtJudgePlaintiffDefendantNature of claim


Court = United States District Court, Central District of California

Level of Court = Federal trial court Judge = Florence-Marie Cooper Plaintiff = Robert Tur d/b/a LA News Service Defendant = YouTube, Inc. Nature of claim = copyright infringement and

unfair competition – use of video clips on YouTube


YouTube asserts immunity under Section 512(c) of the DMCA– “Safe harbor” provision for internet service

providers– How does the safe harbor work?


DMCA Section 512 (c) safe harbor:– No liability to ISP if:

No actual knowledge that material is infringing; Not aware of facts from which infringing activity is apparent; Upon obtaining knowledge, acts expeditiously to remove or

disable access to material; Does not receive a financial benefit directly attributable to

infringing activity (if ISP has right and ability to control activity); and

Upon notice, acts expeditiously to remove or disable infringing material.


YouTube moves for summary judgment.Tur moves to voluntarily dismiss.YouTube objects to dismissal. Why?Status of case today?

Questions?Questions?

Quote of the DayQuote of the Day

“A lawyer’s advice is his stock in trade.”– Abraham Lincoln

copyright and the dmca mm450 issues in new media theory february 17, 2009 steven l. baron

Documents

liableis blizzard

blizzard entertainmentparties

blizzard entertainmentmdy

baronmdy industries

wardenmdy industries

blizzardmdy industries

revenuesmdy industries

blizzard game server