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and the DMCA

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									      Copyright and the DMCA


MM450 Issues in New Media Theory
       February 17, 2009
        Steven L. Baron
    MDY Industries v. Blizzard
        Entertainment
   What court?
     MDY Industries v. Blizzard
          Entertainment
   United States District Court
    – (Federal, not State Court)
    – (Trial Court, not Appellate Court)
 District of Arizona
 Judge David Campbell
 Opinion dated January 28, 2009
 Case filed in 2006
MDY Industries v. Blizzard
     Entertainment
– 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
          Entertainment
   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
          Entertainment
   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
     Entertainment
–
    MDY Industries v. Blizzard
         Entertainment
   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
    MDY Industries v. Blizzard
         Entertainment
   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
     MDY Industries v. Blizzard
          Entertainment
   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
          Entertainment
   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
          Entertainment
   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
         Entertainment
   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
          Entertainment
   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
          Entertainment
   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
         Entertainment
   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
          Entertainment
   Personal liability of Michael Donnelly
    – What does that mean?
    – Is he personally liable?
    – For what?
     MDY Industries v. Blizzard
          Entertainment
   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.
 Court
 Level of Court
 Judge
 Plaintiff
 Defendant
 Nature of claim
          Tur v. YouTube, Inc.
   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
         Tur v. YouTube, Inc.
   YouTube asserts immunity under Section
    512(c) of the DMCA
    – “Safe harbor” provision for internet service
      providers
    – How does the safe harbor work?
             Tur v. YouTube, Inc.
   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.
      Tur v. YouTube, Inc.
 YouTube moves for summary judgment.
 Tur moves to voluntarily dismiss.
 YouTube objects to dismissal. Why?
 Status of case today?
Questions?
            Quote of the Day
   “A lawyer’s advice is his stock in trade.”
    – Abraham Lincoln

								
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