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 RS- DVR 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

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) 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 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 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