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


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


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


Where did the legal fight start?– Federal District Court (New York)


What happens on appeal to the Second Circuit?– The decision is reversed and remanded back to

the District Court


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


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…”


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


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

copyright and the dmca im 350 issues in new media theory from notes by steve baron

Documents

licensecartoon network

injunctioncartoon network

premisescartoon network

copyright lawcartoon

district courtcartoon

blizzard game server

csc plans

csc injunction