Copyright and the DMCA
IM 350 Issues in New Media Theory
Sept. 22, 2009
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
Viacom v. YouTube

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK
 March 13, 2007
 Relying on O’Brien’s treatment in “COPYRIGHT CHALLENGES FOR
USER GENERATED INTERMEDIARIES:VIACOM V YOUTUBE AND
GOOGLE
YouTube has harnessed technology to willfully infringe copyright on a huge scale, depriving
writers, composers and performers of the rewards they are owed for effort and innovation,
reducing the incentive of America’s creative industries, and profiting from the illegal
conduct of others as well. Using the leverage of the Internet, YouTube appropriates the
value of creative content on a massive scale for YouTube’s benefit without payment of
license. YouTube’s brazen disregard of the intellectual property laws fundamentally
threatens not just the Plaintiffs, but the economic underpinnings of one of the most
important sectors of the United States economy.
Defendants actively engage in, promote and induce this infringement. YouTube itself publicly
performs the infringing videos on the YouTube site and other websites. Thus, YouTube
does not simply enable massive infringement by its users. It is YouTube that knowingly
reproduces and publicly performs the copyrighted works uploaded to its site. YouTube
deliberately built up a library of infringing works to draw traffic to the YouTube site,
enabling it to gain a commanding market share, earn significant revenues, and increase its
enterprise value. YouTube has deliberately chosen not to take reasonable precautions to
deter the rampant infringement on its site. Because YouTube directly profits from the
availability of popular infringing works on its site, it has decided to shift the burden
entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to
detect infringing videos and send notices to YouTube demanding that it “take down” the
infringing works.
Viacom’s claims
1. Public performance – the defendants have, without permission of the copyright owner,
publicly performed and authorised the public performance of the infringing uploaded
videos;
2. Public display – the defendants have, without permission of the copyright owner,
publicly displayed and authorised the public display of the infringing uploaded videos;
and
3. Reproduction – the defendants have, without permission of the copyright owner,
reproduced and authorised the reproduction of the infringing uploaded videos through
the YouTube website.
4. Inducement of copyright infringement – the defendants areliable for inducing the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
5. Contributory copyright infringement – the defendants are liable for contributing to the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
6. Vicarious copyright infringement – the defendants are vicariously liable for the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
YouTube’s response
Viacom’s complaint in this action challenges the careful balance established by
Congress when it enacted the Digital Millennium Copyright Act (DMCA). The
DMCA balances the rights of copyright holders and the need to protect the
Internet as an important new form of communication. By seeking to make
carriers and hosting providers liable for Internet communications, Viacom’s
complaint threatens the way hundreds of millions of people legitimately
exchange information, news, entertainment and political and artistic expression.
Google and YouTube respect the importance of intellectual property rights, and
not only comply with their safe harbor obligations under the DMCA, but go well
and beyond what the law requires.
YouTube and Google’s defence, essentially denies each of the allegations in
Viacom’s complaint and raises 12 defences in their favour. These defences
include the safe harbors, licence, fair use, failure to mitigate, failure to state a
claim, innocent intent, copyright misuse, estoppel, waiver, unclean hands, laches
and substantial non-infringing uses.
Key issues


Is the infringement volitional? Or does YouTube’s
technology work behind their backs in ways for which they
are not responsible?
Does YouTube qualify for DMCA safe harbor protection?
– Esp. have they been red flagged enough to know that the stuff
often infringes?

Could they be expected to be able to identify which, and block it?
– To what degree do they financially benefit from the infringements?
Maybe even bigger implications for other cases
In particular, a recent class action filed against YouTube and Google by
the English Premier League and independent music publisher, Bourne
Co.30 The copyright issues associated with these user generated
intermediaries also have the potential to extend to more participatory
intermediaries, such as blogs and wikis.31 Indeed, in many cases the
copyright issues involved are likely to be more prevalent, given the
highly personalised form of content production which blogs and wikis
provide. In this regard, it should be noted that thus far, there is yet to
be a major reported decision involving issues of copyright
infringement on a blog or wiki, although there have been a number of
cases filed against blogs and bloggers, which have failed to proceed to
trial.
Illegal Downloading/File Sharing:
Capitol v. Thomas; RIAA v. Tannenbaum

Thomas: 2M for 24 songs
– Previously: lost, $222,000 judgment, mistrial
declared, didn’t settle; retrial.

Tannenbaum: $675,000 for 30 songs
Protecting ISPs

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DMCA safe harbor (section 512): exempts ISPs from liability for the
infringing actions of their users, if ISPs satisfy certain conditions
47 U.S.C. § 230 : US Code - Section 230: Protection for private
blocking and screening of offensive material
– Section 230(c)(1) provides immunity from liability for providers
and users of an "interactive computer service" who publish
information provided by others
– Does not apply to intellectual property rights, though we cover
it when we get to defamation which IS a form of IP law.
Electronic Communications Privacy Act of 1986
– Protects electronic communication from government, third parties,
and interception, but not from employers.