Digital Rights Management Cases Lamoureux MM 450 April 22, 2008

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Which state? –NY Which court? –U.S. Southern District Court What kind of court action do we have here? –Two motions for summary judgment (one from each side) are combined Issues? –Cablevision is rolling out a DVR system but has not licensed (for copying) 20th C.F. content. Cablevision claims Sony/Betamax protection 20th C. F. claims infringement 20th Century Fox v.Cablevision

Interesting/contested technical/business features The RS-DVR service, in this case, is a system, not a box. The content is held on and moved across a number of Cablevision’s servers Cablevision could “tier” their service and tie it to added costs (thereby, perhaps, generating the $ for each content holder. But they do not want to do that; they are offering all digital content through this service. At several spots along the chain, the signal is buffered.

20th Century Fox v.Cablevision Interesting/contested trial aspects noted by trial judge –Cablevision waved fair use, so can’t use Betamax/Sony –Isn’t an ISP as such so can’t use safe harbor –The machine isn’t stand alone like a VCR –The performances are public –The buffer copies are neither ephemeral nor trivial; they are viable copies

20th Century Fox v.Cablevision “For the reasons set forth above, plaintiffs' motions for summary judgment are granted, and defendants' motion for summary judgment is denied. Defendants' counterclaim is dismissed with prejudice. Cablevision is permanently enjoined, in connection with its proposed RS-DVR system, from (1) copying plaintiffs' copyrighted works and (2) engaging in public performance of plaintiffs' copyrighted works, unless it obtains licenses to do so.”

20th Century Fox v.Cablevision, appeal United States Court of Appeals for the Second Circuit (NY) Cablevision is joined by a significant (in number and prestige) “friends of the court” brief filed by EFF and 28 professors of IP law.

Cablevisions Friends’ arguments RAM “Buffer” Copies Are Not Sufficiently Fixed To Constitute “Copies” –Under the Express Language of the Copyright Act, The Duration of a RAM Reproduction Is Indispensable For Determining If That Reproduction is a “Copy” –Treating All RAM Reproductions As “Copies” Would Undermine the Basic Policies and Purposes of the Copyright Act i. Copyright Liability Should Not Turn On An Arbitrary Distinction Between Analog and Digital Technology ii. The District Court’s Holding Would Create Monopoly Rights Over The “Right to Read” And Access Digital Information iii. This Vast Expansion of Copyright Protection Cannot Be Justified Based On The Possibility of Fact-Specific Defenses

Cablevisions Friends’ conclusion “In sum, amici respectfully urge this Court to reject the lower court’s sweeping conclusion that all RAM reproductions – regardless of their duration – are “copies” within the meaning of the Copyright Act. Instead, this Court should hold that transient RAM reproductions – such as the buffer copies that are automatically and necessarily created in Cablevision’s RSDVR system as it processes digital data, and which are destroyed almost immediately after they are created – are not sufficiently fixed to be deemed copies.”

Which state? –CA Which court? –Superior court of LA county What kind of court action do we have here? –Class action suit Issues? –Rootkit Intrudes Opens machines up to bad stuff EFF v. Sony et al.

By including a flawed and overreaching computer program in millions of music CDs sold to the public, Sony BMG has created serious security, privacy and consumer protection problems that have damaged music lovers everywhere. At issue are two software technologies - SunnComm's MediaMax and First4Internet's Extended Copy Protection (also known as XCP) - which Sony BMG claims to have placed on the music CDs to restrict consumer use of the music on the CDs but which in truth do much more, including reporting customer listening of the CDs and installing undisclosed and in some cases hidden files on users' computers that can expose users to malicious attacks by third parties, all without appropriate notice and consent from purchasers. The CDs also condition use of the music on unconscionable licensing terms in the End User Licensing Agreement (EULA ).

EFF v. Sony et al. Outcome: Class action settlement BMG/settlement_faq.phphttp://w2.eff.org/IP/DRM/Sony- BMG/settlement_faq.php

Cunningham v. McMahon Which state? –WV Which court? –Pre-trial magistrate for U.S. District court, southern What kind of court action do we have here? –Lower threshold for getting the case into court. Issues? –Cunningham wants to put DRM on trial –Has tried 15 earlier times –Not swinging with EFF or big lawyer –Sues McMahon, who owns the rights to the theme song purchased through Itunes...the DRM is free play….

Cunningham v. McMahon What happens? –Denied, out, no trial Why? –not enough of a case –insufficient evidence of harm –essentially, asks the court to do the research as to whether the practice violates fair use.The court declines.