1. Copyright and the DMCA MM450 Issues in New Media Theory February 17, 2009 Steven L. Baron

2. MDY Industries v. Blizzard Entertainment What court?

3. 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

4. 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

5. 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

6. 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

7. MDY Industries v. Blizzard Entertainment –

8. 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

9. 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

10. 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

11. 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

12. 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.

13. 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.”

14. 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…

15. 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

16. 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.

17. MDY Industries v. Blizzard Entertainment Personal liability of Michael Donnelly – What does that mean? – Is he personally liable? – For what?

18. 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

19. Tur v. YouTube, Inc. Court Level of Court Judge Plaintiff Defendant Nature of claim

20. 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

21. 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?

22. 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.

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

24. Questions?

25. Quote of the Day “A lawyer’s advice is his stock in trade.” – Abraham Lincoln