CS-202: Law For Computer
Science Professionals
Last Class: More Copyright
Law
David W. Hansen, Instructor
December 7, 2006
© 2006 Skadden, Arps, Slate, Meagher & Flom LLP
The Motion Picture
Association Of America
Strikes Back
Grokster
Grokster
th
(9
Cir. 2004)
• Grokster and Streamcast created
“peer-to-peer” Internet services.
• These services enable millions of
people everyday to copy and
distribute, without permission and
without paying, copyrighted sound
recordings and motion pictures.
• It is undisputed that:
– Grokster and Streamcast users are
thereby committing copyright
infringement.
– Infringing activity accounts for at
least 90% of the activity on the
services.
– Both services can be used lawfully
for authorized exchanges of digital
files.
Grokster
th
(9
Cir. 2004)
• Grokster and Streamcast do not
earn revenue by distributing their
software, which is free.
• Both services earn millions of
dollars annually from ads that are
displayed to users of their services.
• The services’ ad revenues are tied
directly to the infringements.
• The services were designed to
capture the millions of users who
would be looking for an
“alternative” when the courts
“pulled the plug” on Napster.
Grokster
th
(9
Cir. 2004)
• It is estimated that more than 2.6 billion
infringing music files are downloaded
each month.
• Between 400,000 and 600,000 copies of
motion pictures are unlawfully
downloaded every day.
• Estimates of lost music sales alone range
from $700 million to several billion
dollars annually.
• “Illegal movie trafficking represents the
greatest threat to the economic basis of
moviemaking in its 110-year history.”
Dan Glickman, MPAA President (11/04)
• The Register of Copyrights has described
the scale of copyright infringement
resulting from the use of these services as
“mind boggling.”
Grokster
th
(9
Cir. 2004)
• The services were sued by the
major motion picture studios and
record companies, as well as a
class of 27,000 music publishers
and song writers.
• The suit sought an injunction
against continuing infringement.
• The suit was based on the theory
that the services were unlawfully
“contributing to,” or were
“vicariously liable for,” their
user’s copyright infringement.
• A prior suit in the 7th Circuit
against Aimster had resulted in an
injunction.
Grokster (9th Cir. 2004)
• Contributory infringement:
– There is no statutory rule of liability for
contributory infringement – a court-made
rule.
– The party alleging contributory infringement
must show:
• “(1) direct infringement by a primary infringer, (2)
knowledge of the infringement, and (3) material
contribution to the infringement.”
• Vicarious liability:
– An “outgrowth” of respondeat superior,
which imposes liability on those with a
“supervisory relationship” to the infringer.
– A defendant may be liable under a “vicarious
liability” theory if the plaintiff demonstrates:
• “(1) direct infringement by a primary party, (2) a
direct financial benefit to the defendant, and the
right and ability to supervise the infringers.”
Grokster
th
(9
Cir. 2004)
• The 9th Circuit recognized that the
Grokster and Streamcast software
“enables a user to participate in the
respective peer-to-peer file-sharing
networks.”
• The Court also recognized that “the
vast majority of the files are
exchanged illegally in violation of
the copyright law.”
• The Court noted that both Grokster
and Streamcast know that their
services are being used for
infringement, and both services
“profit handsomely” from their
user’s infringement.
Grokster
th
(9
Cir. 2004)
• The Court nonetheless held that
contributory infringement required
a “higher standard” when an
accused product or service has
noninfringing uses.
• To avoid liability, “a product need
only be capable of substantial
noninfringing uses.”
• The fact that at least 90% of the
uses were infringing was not the
proper inquiry.
• The services were not liable
because the noninfringing uses
have “commercial viability.”
Grokster
th
(9
Cir. 2004)
• The "uncontroverted evidence” showed
“that many artists and authors welcome
the free distribution of their works on P2P
networks”:
– Nine-time Grammy nominated singersongwriter Janis Ian credits P2P sharing of
her music for increased CD sales.
– Numerous well-known bands, including
Phish, Pearl Jam, the Dave Matthews Band
and John Mayer have authorized free P2P
sharing of live concert recordings among
fans.
– The “record indicates that thousands of other
musical groups have authorized free
distribution of their music through the
internet.”
• P2P networks are also being used to
distribute “shareware" and "freeware”
software that is authorized for
redistribution.
Grokster
th
(9
Cir. 2004)
• P2P is used to distribute noninfringing
entertainment and promotional, as well as
public domain and government works:
– A variety of ventures, including the Prelinger
Archives, GigAmerica, Reel Mind and J!ve
Media, have built their businesses by using
P2P networks to promote and distribute
hundreds of thousands of authorized copies of
music, games and video content.
– Several noncommercial efforts, including
Project Gutenberg and the Internet Archive,
have been using P2P networks to distribute
thousands of public domain works.
– “[D]espite using a deliberately blinkered
search strategy,” plaintiffs’ expert was unable
to avoid finding public domain works by
Shakespeare, the King James Bible, the
Koran, the Communist Manifesto, and several
of Plato's dialogs.
• The noninfringing commercial uses of
P2P networks have been growing rapidly.
Grokster
th
(9
Cir. 2004)
• The Court held that “contributory
infringement” required the service to
have:
“specific knowledge of infringement at a time at
which they contributed to the infringement
and failed to act upon that information.”
• It was “irrelevant” that the services had
notice of hundreds of thousands of
specific infringements.
• Theses notices “arrive when Defendants
do nothing to facilitate, and cannot do
anything to stop,” the infringement.
• Unlike Napster and Aimster, Grokster and
Streamcast did not use centralized servers
that indexed available files.
– Even if they “closed their doors and
deactivated all computers within their control,
users of their products could continue sharing
files with little or no interruption.”
Grokster
th
(9
Cir. 2004)
• The Court also held that the services did
not “materially contribute” to copyright
infringement.
• Defendants do not provide the “site and
facilities” for infringement.
• Infringing messages or file indices do not
reside on defendants’ computers.
• Defendants do not have the ability to
suspend user accounts.
• Defendants are not required to upgrade
their software to filter out infringing files.
– “Failure” to alter software located on
another’s computer is simply not akin to the
failure to delete a filename from one’s own
computer, to the failure to cancel a
registration name and password of a
particular user from a user list, or to the
failure to make modifications to software on
one’s own computer.”
Grokster (9th Cir. 2004)
• The services also were not liable on
a “vicarious infringement” theory.
• Defendants did not have the “right
and ability to supervise the direct
infringers.”
• The possibility of upgrading
software on the user’s computers to
install copyright filters was
“irrelevant to determining whether
vicarious liability exists.”
• This may be a remedy required of
those already found liable of
vicarious infringement.
Option 1: Supreme Court
Grokster: The Cert Petition
• Petition For A Writ Of Certiorari
(USSC):
– Contributory liability should exist
where the “predominant” and
“intended” use was to further
infringement for profit.
– Liability should exist where the service
was designed to “disable” their ability
to block infringement (while keeping
available noninfringing uses).
– Allowing free services like Grokster
and Streamcast to operate puts at risk
the viability of lawful pay services like
Movielink, CinemaNow & iTunes.
– Conflict between the 7th and 9th
Circuits.
Grokster: The Cert Petition
• The Opposition:
– The 9th Circuit correctly interpreted the
Sony (US 1984) decision relating to
contributory infringement.
– Like the Supreme Court in Sony, the 9th
Circuit correctly concluded that
Congress, not the courts, is better
suited to determine how best to expand
the scope of the copyright monopoly.
• There are currently 8 bills pending before
Congress addressing P2P sharing.
– Injunction would have precluded
significant noninfringing uses,
unlawfully expanding the copyright
holders’ monopolies.
– No circuit conflict: in Aimster, “no
evidence was tendered of any
noninfringing product use.”
Option 2: Congress
The “Inducing Infringement of
Copyrights Act of 2004”
• S 2560 was introduced by Sen.
Orrin Hatch (R-UT) and others on
June 22, 2004.
• The bill would create a new cause
of action for “intentional
inducement of infringement.”
• It would not affect the existing court
made law of contributory and
vicarious infringement.
• The bill is technology neutral, but
its wording suggests (and Sen.
Hatch has stated) that the present
intended target is distributors of
P2P systems used to infringe
copyrighted music.
The “Inducing Infringement of
Copyrights Act of 2004”
• Commentators have suggested that the bill
would have application to a range of
activities in addition to P2P.
• The bill would add a new subsection (g)
to§501 of the Copyright Act:
– (1) In this subsection, the term “intentionally induces”
means intentionally aids, abets, induces, or procures,
and intent may be shown by acts from which a
reasonable person would find intent to induce
infringement based upon all relevant information
about such acts then reasonably available to the actor,
including whether the activity relies on infringement
for its commercial viability.
– (2) Whoever intentionally induces any violation
identified in subsection (a) shall be liable as an infringer.
– (3) Nothing in this subsection shall enlarge or diminish
the doctrines of vicarious and contributory liability for
copyright infringement or require any court to unjustly
withhold or impose any secondary liability for copyright
infringement.
Option 3: Sue Direct
Infringers
Option 4: Education
And Technical Measures
MPAA Nov. 2005 Press
Release
Grokster – Supreme Court
• Vacated the 9th Circuit order affirming
summary judgment on June 27, 2005.
• Remanded for further proceedings.
• The Supreme Court held that:
– One who distributes a device with the
object of promoting its use to infringe
copyright, as shown by clear expression
or other affirmative steps taken to foster
infringement, going beyond mere
distribution with knowledge of thirdparty action, is liable, under the
Copyright Act, for the resulting acts of
infringement by third parties using the
device, regardless of the device's lawful
uses.
Grokster – Supreme Court
• The Supreme Court held that summary
judgment in favor of Grokster and
StreamCast was error.
• There was “substantial evidence”
against Grokster and StreamCast on all
elements of inducement of infringement:
– Each had shown itself to be aiming to
satisfy a known source of demand for
copyright infringement.
– The copyright holders had shown that
neither distributor attempted to develop
filtering tools or other mechanisms to
diminish the infringing activity using the
software.
– The more the software was used, the greater
the distributors' revenue from
advertisements on the screens of computers
employing the software became.
The Digital
Millennium Copyright
Act
The Digital Millennium
Copyright Act
Violations Regarding
Circumvention of
Technological Measures
No person shall circumvent a
technological measure that effectively
controls access to a work protected
under this title.
17 U.S.C. § 1201(a)(1)(A)
Lexmark (6th Cir. 2004)
• Lexmark sold “Prebate” and “NonPrebate” toner cartridges for its
laser printers.
– “Prebate”:
• Sold to business customers at an upfront
discount.
• Customers agree, via “shrink wrap”
agreement, to use the cartridge once and
return the empty unit to Lexmark.
– “Non-Prebate”:
• Sold without any discount.
• Not subject to restrictive agreement.
• May be re-filled with toner by the
customer or a third-party remanufacturer.
Lexmark (6th Cir. 2004)
• Two Lexmark computer programs
were at issue:
– The “Toner Loading Program”:
• Located on a microchip in Prebate toner
cartridges.
• Calculates the toner level.
• Two versions: 33 program commands
(37 bytes) and 45 commands (55 bytes).
– The “Printer Engine Program”:
• Located on a microchip within Lexmark
printers.
• Controls various printer functions (e.g.,
paper feed and movement, printer motor
control).
• Involves over 20 pages of code.
• Neither program is encrypted and
each can be read and copied from
its respective memory chip.
Lexmark (6th Cir. 2004)
• Lexmark printers use an
“authentication sequence” that
performs a “secret handshake”
between the printer and cartridge.
• Uses a publicly available “Secure
Hash Algorithm-1” (SHA-1)
encryption algorithm.
• A “Message Authentication Code” is
calculated based on data in the chip’s
memory.
• The code calculated by the chip must
match the code calculated by the
printer for the printer to work.
• Intended by Lexmark to block use of
unauthorized toner cartridges.
Lexmark (6th Cir. 2004)
• Lexmark printers perform a second
calculation after the “authentication
sequence.”
• The Printer program downloads a
copy of the Toner program from the
toner cartridge chip to measure
toner levels.
• Before running the Toner Program,
the printer runs a “checksum.”
– Compares the calculation on the data
of the transferred copy of the Toner
program with a checksum value
located on the chip.
• The two values must match for the
printer to work.
Lexmark (6th Cir. 2004)
• Static Control Components (SCC),
sells the “SMARTEK” chip that
permits consumers to satisfy
Lexmark’s authentication sequence.
• SCC advertising boasts that its chip
breaks Lexmark’s “secret code”
which “even the fastest computer
available today . . . would take
Years to” break.
• SCC sells its chips to third-party
remanufacturers, who replace the
Lexmark chip in Prebate cartridges
with the SCC “SMARTEK” chip.
• The recycled Prebate cartridges are
sold to consumers as low cost
alternatives to new Lexmark toner
cartridges.
Lexmark (6th Cir. 2004)
• SCC’s SMARTEK chips contain a
copy of Lexmark’s “Toner Loading
Program.”
• SCC admits that it “slavishly
copied” the Toner Loading Program
“in the exact format and order”
found on Lexmark Prebate
cartridge chips.
Lexmark (6th Cir. 2004)
• Two copyright statutes were at issue:
– The Copyright Act:
• has been in effect in various forms since
1790 and protects “original works of
authorship.”
– The Digital Millennium Copyright Act:
• enacted in 1998 and proscribes the sale of
products that can be used to “circumvent a
technological measure that effectively
controls access to a work” protected by the
Copyright Act.
Lexmark (6th Cir. 2004)
• Lexmark sued to enjoin sale of
SCC’s SAMRTEK chip, claiming:
– SCC’s chip copied the Toner
Loading Program in violation of the
Copyright Act.
– SSC’s chip violated the DMCA by
circumventing a technological
measure designed to control access
to the Toner Loading Program.
– SSC’s chip violated the DMCA by
circumventing a technological
measure designed to control access
to the Printer Engine Program.
Lexmark (6th Cir. 2004)
• District Court (E.D. Ky.): Held that it is
likely that Toner Loading Program
copying violated the Copyright Act:
– Computer programs are protected “literary
works.”
– The “requisite level of creativity” needed
to establish originality “is extremely low.”
– The Toner program could be written in
multiple ways.
– The program was not a “lock out code”
whose elements are dictated by functional
requirements.
• Even if it were a “lock out code,” security
systems “are not inherently unprotectable.”
– No “fair use”:
• commercial purpose, wholesale copying, effect
on market.
– No “misuse”:
• Lexmark is not using the program “to secure an
exclusive right or limited monopoly not
expressly granted by copyright law.”
Lexmark (6th Cir. 2004)
• District Court (E.D. Ky.): It is also
likely that the DMCA was
violated:
– SCC circumvented a “technological
measure” preventing unauthorized
access to a copyrighted work.
– Lexmark’s authentication sequence
(not the checksum) was a
“technological measure” that
controls access to two copyrighted
works.
– It controls a consumer’s ability to
use the two programs.
– Circumvention was the “sole
commercial purpose” of the
SMARTEK chips.
• In fact, SCC openly marketed the chips
for this purpose.
Lexmark (6th Cir. 2004)
• District Court (E.D. Ky.):
– The DMCA’s “reverse engineering”
exception did not apply.
– Under the exception, circumvention
devices may be produced and made
available “solely for the purpose of
enabling interoperability of an
independently created program with
other programs.”
– SCC’s SMARTEK chips are not
“independently created” computer
programs.
– Directly copied Lexmark’s
programs.
Lexmark (6th Cir. 2004)
• Sixth Circuit: The parties agreed
that:
– Computer programs (both source and
object code) can be protected “literary
works.”
– Registration constitutes prima facie
evidence of copyright validity.
– SCC had the burden of rebutting
validity.
– Only “original” works are protectable:
• The work must be independently created.
• The work must possess “at least some
minimal degree of creativity.”
• The “threshold showing of originality is
not a demanding one” – “even a slight
amount will suffice.” (Feist (US 1991))
Lexmark (6th Cir. 2004)
• Sixth Circuit: Separation of “ideas” from
“expression”:
– The task of separating “idea” from
“expression” in connection with computer
programs “is a vexing one.”
– In ascertaining this “elusive boundary line”
courts look to two doctrines:
• Merger
• Scenes a faire
– Merger:
• The “expression is essential to the statement of the
idea,” or
• “There is only one way or very few ways of
expressing the idea.”
– Scenes a faire:
• “External factors” which “constrain the choice of
expressive vehicle.”
• In the computer programming context, “the
elements of a program dictated by practical
realities – e.g., by hardware standards and
mechanical specifications, software standards and
compatibility requirements, computer
manufacturer design standards, target industry
practices, and standard computer programming
practices.”
Lexmark (6th Cir. 2004)
• Sixth Circuit: Copyright Act
violation not shown to be likely:
– First, district court erred by refusing to
consider whether “external factors such
as compatibility requirements, industry
standards and efficiency” limited the
ways to write the Toner program.
• Scenes a faire doctrine directed to the
“originality” aspect of copyrightability,
not the “substantial similarity” test for
infringement.
– The “originality” requirement is not
satisfied merely because there are other
ways of writing a program.
– The proper inquiry:
• whether alternative ways are “feasible”
under the particular facts.
Lexmark (6th Cir. 2004)
• Sixth Circuit: Copyright Act violation not
shown to be likely:
– Second, the district court needs to determine
whether the ideas, methods of operation and
facts of the Toner program could have been
expressed in any other form.
– Must take into account the “functionality,
compatibility and efficiency demanded of the
program.”
– The expert evidence showed that
“functionality and efficient considerations
precluded material changes,” e.g.,:
• The Printer program understands only a single
language “composed of eight simple commands.”
• The program “must consist of only 55 bytes.”
• The program is a “no-thought translation of the
formulas to the language that the internal loading
program must be written in, and [the programmer
doesn’t] have much choice.”
– The “originality” of the Toner program “may
be de minimis.”
Lexmark (6th Cir. 2004)
• Sixth Circuit: Copyright Act
violation not shown to be likely:
– Third, the district court erred in
assessing whether the Toner program
functions as a “lock out code”:
• The fact that the code functions as such
undermines a contrary conclusion.
• Altering a single byte in the program will
result in the checksum not matching.
• Expert testimony showed that discovering
and encoding the correct checksum on the
SCC chip would have been
“computationally impossible.”
• The checksum “imposes a compatibility
constraint in the most literal sense
possible” – “if any single byte of the
Toner Loading Program is altered, the
printer will not function.”
– “On this record, pure compatibility
requirements justified SCC’s copying.”
Lexmark (6th Cir. 2004)
• Sixth Circuit: “Fair use.”
– First factor: “commercial purpose”
• The issue is whether the user stands to
profit from exploiting the “copyrighted
material.”
– SCC did not seek to unjustly benefit from
creative energy devoted by Lexmark to the
Toner program.
– SCC did not use the Toner program to
calculate toner levels.
– The SMARTEK chip used the program’s data
bytes as input to the checksum to permit
printer functionality.
– Fourth factor: “market effect”
• The issue is the impact on the market for
the copyrighted work itself.
• The District Court incorrectly focused on
the market for toner cartridges.
• Correct focus is on the market for the
Toner program.
• Unlikely there is a market for a program
“as elementary” as the Toner program.
Lexmark (6th Cir. 2004)
• Sixth Circuit: The Court rejected other
Lexmark Copyright Act arguments:
– Use of Lexmark’s stock symbol, “LXK,” in
the Toner program is functional since it
serves as an input to the checksum.
– The uncopyrightablity of the Toner program
is not the death knell of computer program
copyrightability since most programs do not
simultaneously operate as a “lock out.”
• Code that functions as a “lock out” (no feasible
alternatives available) is not protectable. This an
expert issue.
– Short programs may still be copyrightable if
they “reveal high levels of creativity” and
present “simple, yet unique solutions to
programming quandaries.”
– “But, unless a unique creative flair is shown,
a very brief program is less likely to be
copyrightable because it affords fewer
opportunities for original expression.”
Lexmark (6th Cir. 2004)
• Sixth Circuit: The DMCA:
– Enacted to implement the WIPO
Copyright treaty.
– Concerned with the threat of “massive
piracy” of digital works due to ease
with which they can be copied and
distributed worldwide.
– Copyrighted works likely to be
encrypted and made available to
consumers upon payment for access.
– DMCA directed at stopping those who
decrypt the protective codes or provide
others with devices to do so.
– DMCA backs with legal sanctions “the
efforts of copyright owners to protect
their works from piracy behind digital
walls such as encryption codes or
password protections.”
Lexmark (6th Cir. 2004)
• Sixth Circuit: The DMCA:
– Three liability provisions:
• First prohibits circumvention of “a
technological measure that effectively
controls access to a work protected by a
copyright.”
• Second prohibits selling devices that
circumvent access-control measures:
– “primarily designed or produced for the
purpose of circumventing”
– “only limited commercially significant
purpose or use other than to circumvent”
– marketed “for use in circumventing”
• Third prohibits devices aimed at
circumventing tech measures that allow
some forms of “access” but restrict other
uses of the copyrighted work:
– E.g., streaming media, which permits users to
view a copyrighted work but prevents
downloads.
Lexmark (6th Cir. 2004)
• Sixth Circuit: The DMCA:
– Three “reverse engineering” defenses:
• First, access control measures can be
circumvented “for the sole purpose of
identifying and analyzing those elements
of the program that are necessary to
achieve interoperability of an
independently created computer program
with other programs . . .”
• Second, a person “may develop and
employ technological means” that are
“necessary” to enable interoperability.
• Third, the above technological means may
be made available to others “solely for the
purpose of enabling interoperability of an
independently created computer program
with other programs.”
– Inapplicable if there is “traditional”
copyright infringement.
Lexmark (6th Cir. 2004)
• Sixth Circuit: DMCA violations not
shown to be likely with respect to
the Printer program:
– Parties agreed that the program was
copyrightable.
– The “authentication sequence” is not
what “controls access” to the program:
• Purchase of a Lexmark printer allows
access to the program.
• Anyone who purchases a printer may read
the code directly from memory “with or
without benefit of the authentication
sequence.”
• No security device protects access to the
Printer code and no security device must
be “circumvented” to obtain access to the
code.
• The authentication sequence only blocks
one form of access.
Lexmark (6th Cir. 2004)
• Sixth Circuit: DMCA violations
not shown to be likely with respect
to the Toner program:
– In light of Printer program ruling
“we can dispose quickly” of
Lexmark’s Toner program claim.
– The SCC SMARTEK chip does not
provide “access” to the Toner
program.
– It replaces the program.
– Also, to the extent that the Toner
program is not a copyrightable
“work,” it is not protected by the
DMCA.
Lexmark (6th Cir. 2004)
• Sixth Circuit: DMCA violations not
shown to be likely with respect to
the Toner program:
– Further consideration of SCC’s
“interoperability” defense is also
required:
• The SMARTEK chip might qualify as an
“independently created computer
program” since it includes functionality
beyond the Toner program data on the
Lexmark chip.
• The SMARTEK chip might therefore
serve purposes other than merely
circumventing Lexmark’s authentication
sequence.
• The chip might qualify as “enabling
interoperability of an independently
created computer program with other
programs.”
Lexmark (6th Cir. 2004)
• Sixth Circuit: Concurrence of Judge
Merritt:
– “We should make clear that in the
future companies like Lexmark cannot
use the DMCA in conjunction with
copyright law to create monopolies in
manufactured goods for themselves
just by tweaking the facts of this case:
by, for example, creating a Toner
Loading Program that is more complex
and ‘creative’ than the one here, or by
cutting off other access to the Printer
Loading Program.”
– “The crucial point is that the DMCA
forbids anyone from trafficking in any
technology that ‘is primarily designed
or produced for the purpose of
circumventing a technological measure
that effectively controls access to a
[protected] work.’”
Lexmark (6th Cir. 2004)
• Sixth Circuit: Judge Merritt concurring:
– SCC’s microchip “is not intended to reap any
benefit from the Toner Loading Program –
SCC’s microchip is not designed to measure
toner levels – but only for the purpose of
making SCC’s competing toner cartridges
work with printers manufactured by
Lexmark.”
– “If we were to adopt Lexmark’s reading of
the statute, manufacturers could potentially
create monopolies for replacement parts
simply by using similar, but more creative,
lock-out codes. Automobile manufacturers,
for example, could control the entire market
of replacement parts for their vehicles by
including lock-out chips.”
– “Congress did not intend to allow the DMCA
to be used offensively in this manner, but
rather only sought to reach those who
circumvented protective measures ‘for the
purpose’ of pirating works protected by the
copyright statute.”
Sony v. Divineo (N.D. Cal. 9/11/06)
• The lawsuit involved several
technologies that thwart the
authentication protocol used by the
Sony PlayStation and PlayStation 2
video game consoles to validate that
a game inserted into the player is a
legitimate copy.
• To confirm the CD-ROM's
authenticity, the console searches for
a unique code that cannot be copied
when the disk is duplicated. If the
console fails to find that code, it will
not play the game.
• Divineo Inc. distributed a trio of
work-around technologies to address
this problem.
Sony v. Divineo (N.D. Cal. 9/11/06)
• Divineo Inc. distributed a trio of workaround technologies to address this
problem:
– “HDLoader,” an external hard drive that
could be connected to the PlayStation. It
enabled users to copy an original game to the
HDLoader drive instead of the PlayStation's
internal hard drive. Thereafter, the game
could be directly accessed from the external
hard drive without going through the security
check. In theory, this would allow an
unscrupulous gamer the opportunity to further
copy the game from one hard drive to another
while preserving playability.
– “Mod chips" that could be wired into the
PlayStation and had the effect of bypassing
the authentication process.
– “Swap Magic,” disc which contained the
security code taken from an original
PlayStation game. Once the console reads
that code from the Swap Magic disc, the user
can then swap that disc out and insert the
bootleg copy of the game to play it.
Sony v. Divineo (N.D. Cal. 9/11/06)
• Defendants argued that the products
served non-infringing purposes:
– allowing users to play lawfully purchased
imported games hobbled by region-coding
restrictions, or
– enabling users to play home-brew games on
their consoles.
• The court granted Sony's motion for
summary judgment, awarded enhanced
statutory damages of $3.75 million,
attorneys' fees and costs, and permanently
enjoined the defendants from distributing
the devices.
• Where the device is primarily designed to
circumvent a video game console's antipiracy technology, other uses of the
device for non-infringing purposes have
no bearing on the distributor's liability for
trafficking in circumvention devices in
violation of the DMCA
DMCA “Safe Harbor”
17 U.S.C. § 512
“Service providers” are exempt from liability for “transmitting,
routing, or providing connections for, material through a
system or network controlled or operated by or for the
service provider, or by reason of the intermediate and
transient storage of that material in the course of such
transmitting, routing, or providing connections,” if:
• (1) the transmission of the material was initiated by or at
the direction of a person other than the service provider;
• (2) the transmission, routing, provision of connections, or
storage is carried out through an automatic technical
process without selection of the material by the service
provider;
• (3) the service provider does not select the recipients of the
material except as an automatic response to the request of
another person;
• (4) no copy of the material made by the service provider in
the course of such intermediate or transient storage is
maintained on the system or network in a manner ordinarily
accessible to anyone other than anticipated recipients, and
no such copy is maintained on the system or network in a
manner ordinarily accessible to such anticipated recipients
for a longer period than is reasonably necessary for the
transmission, routing, or provision of connections; and
• (5) the material is transmitted through the system or
network without modification of its content.
Tur v. YouTube (C.D. Cal. 2006)
• Copyright suit brought in July 2006 by
Los Angeles News Service owner Robert
Tur over several videos he alleges
appeared on YouTube without his
permission.
• Tur alleges that YouTube caused the
infringement of his copyrighted footage
of the Rodney King riots in Los Angeles.
• Tur relies on the Supreme Court's
Grokster decision that technology
services can be held liable for inducing
infringement.
• YouTube responds that it is protected by
the DMCA "safe harbor,“ claiming that it
has met the requirements for this
exemption which include responding to
notices of infringing material, and acting
quickly to remove the infringing material.
UMG v. MySpace (C.D. Cal. 2006)
• Universal Music Group filed a
copyright infringement suit against
MySpace on November 20, 2006, in
federal court in Los Angeles
• UMG accuses MySpace of using
“extensive efforts to encourage
members to upload pirated videos to
MySpace servers.”
• UMG claims that MySpace and its
parent, News Corp., have “made
infringement free and easy, turning
MySpace videos into a vast virtual
warehouse for pirated copies of
music videos and songs.”
UMG v. MySpace (C.D. Cal. 2006)
• MySpace argues that it does not
induce, encourage or otherwise
condone copyright infringement.
• It also claims to have taken
proactive steps to filter unauthorized
sound recordings.
• Myspace also claims that it is
protected by the DMCA "safe
harbor" provisions.
• “We are in full compliance with the
[DMCA] and have no doubt we will
prevail in court.”
• UMG previously settled a similar
lawsuit against YouTube (revenue
sharing).