Download day 7

Copyright 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 RSDVR 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
Entertainment
MDY Industries v. Blizzard
Entertainment

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
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) anticircumvention 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

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 counterplaintiffs 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 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