IM 350 Issues in New Media Theory Sept. 21, 2010 Steve Baron Copyright and the DMCA IM 350 Issues in New Media Theory Sept. 21, 2010 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

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

Viacom v. YouTube UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK VIACOM INTERNATIONAL INC., COMEDY PARTNERS, COUNTRY MUSIC TELEVISION,INC., PARAMOUNT PICTURES CORPORATION, and BLACK ENTERTAINMENT TELEVISION LLC,Plaintiffs, 07 Civ. 2103 (LLS) -against- YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants

VIACOM’s STORY LINE: 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?

Viacom v. YouTube Decision of District Court – June 23, 2010 Summary judgment in favor of YouTube YouTube is entitled to safe harbor immunity under Section 512c of the DMCA Defendants are granted summary judgment that they qualify for the protection of17 U.S.C. (section) 512 (c), as expounded above, against all of plaintiffs' claimsfor direct and secondary copyright infringement. Plaintiffs' motions for judgment are denied.

Protecting ISPs DMCA safe harbor (section 512): exempts ISPs from liability for the infringing actions of their users, if ISPs satisfy certain conditions Communications Decency Act, 47 U.S.C. § 230 : 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.