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Tag: copyright infringement

MDY v. Blizzard – Ninth Circuit Weighs in on Software ownership and DMCA Anti-Circumvention

The Ninth Circuit Court of Appeals yesterday released an opinion in a World-of-Warcraft case that has meaning both for the nature of software ownership and for a circuit battle ripe for review by the Supreme Court.  The case is detailed nicely over at EFF.

One of the claims made by Blizzard, the WoW creator, against Blizzard, creator of a Glide bot that ran on WoW, could have laid the groundwork for serious damage whenever a software user went beyond the scope of the license.  There is an argument that the license defines the scope of use, and that any use outside that scope is unauthorized.  A copy of software must necessarily be made in the computer for the software to run, so when the use of that software is unauthorized, it is arguably infringing.  And so went the claim: by operating the Glide bot in defiance of the WoW terms and conditions, the gamer was running an unauthorized copy of WoW and thus infringing the WoW copyright.

This line of logic is a powerful tool that could have been used to attack anyone using software in an unauthorized way with not just a contract claim, but a copyright infringement claim.  Double-dipping in this way creates some serious repercussions.  However, the court parried the argument and denied the copyright claim.

The Supreme Court comes into play because of the Ninth Circuit’s ruling on the DMCA provision.  The DMCA has many facets; one of them making it illegal to circumvent technological protections that protect copyrighted material.  The Fifth Circuit’s ruling in MGE UPS Systems Inc. v. GE Consumer and Industrial Inc., in July on this provision stated that liability would arise only if there were circumvention and copying.  In other words, merely breaking through technological protection and viewing or accessing the copyrighted work would not create problems – copying also would have to take place.  The Ninth Circuit has adopted a different track, however, and in this case it holds that both elements need not be present.  This adds another case to the circuit split among several appellate courts, meaning the issue could be ready for final decision by the Supreme Court.

What is a copyright search?

Some law firms provide copyright searches to find out if an image or work might infringe someone’s copyright.  Trademark searches are performed to see if a potential mark is likely to be registered or face obstacles during prosecution.  Patent searches are performed to see if an invention is novel and nonobvious and can be patented.  Copyright searches are a bit different, and often dangerous.

Copyright protection exists from the moment a work is created.  As these words flow from my fingers, I’m contemporaneously obtaining copyright protection in them.  Just about everything with a minimal level of creativity has copyright protection.  Federal registration of a copyright is another thing.  Copyrights that are registered are relatively easy to search and discover.  This makes sense – the government has a list of them catalogued away.  It would be impossible, however, to find all relevant, non-registered, copyrighted images.  Most works are never registered for copyright protection.  Think school essays, restaurant menu designs, website layouts, childhood drawings, and on and on and on….  All of these things have copyright protection, but they will be almost impossible to find because they are usually never registered.  If I draw something and file it away, it has copyright protection, but no one will ever really know about it.

The impossibility of finding them isn’t necessarily a problematic thing.  Because copyright infringement generally requires proof of both access and copying, the impossibility of searching and finding a work could correlate with it not being initially accessed, and therefore, not copied.  This, too, makes sense: the fact that one kid’s picture of the family, the house, the dog, and the sun looks like another kid’s doesn’t mean they are copies – it simply means they look alike.  If the first kid never had access to the other kid’s work, he couldn’t have copied it.

Doing a search opens a can of worms, and that can has the label “access.”  If you were to do a search of registered or non-registered copyrighted images and did find something that is similar to your work, you have now accessed that similar work.  If you then continue to use your work with your new-found knowledge of the similar work, there is an argument that you have now infringed the similar work’s copyright.  So a search doesn’t really help “avoid” infringement: if you copied your image from a work, then you know about the underlying work, and the search is unnecessary.  If you didn’t copy your image from a work, then you will only risk acquiring knowledge of a similar work by performing a search and exposing yourself to an infringement claim.

Copyright Protection and Fonts

A friend of mine is working on a children’s book and wanted to use some highly stylized fonts for the story. She asked me if she had to worry about copyright for any fonts she might use, and I was stumped. Copyright protection generally extends to an “original work of authorship fixed in a tangible means of expression.” My mother Pam Galvani is a calligrapher, so I know a little about fonts and typefaces. Clearly, fonts are the product of creative work, and they therefore seem to technically qualify for copyright protection. But I have never come across the issue before and something in my mind was telling me that the issue was more complex than simply meeting the test of an “original work of authorship fixed in a tangible means of expression.”

Intellectual property theory often recognizes public policy, and it seemed possible that Congress could have said that fonts should not be subject to copyright protection so that the use of language would be proprietary. In other words, at first I though Congress might have decided that giving a select few font owners the power to exclude others from using fonts would limit the very ability of people to communicate and thus might have removed fonts from copyright protection.

A little research later…. Congress and the courts have said something along those lines. One case notes (calligraphers begin crying here) that “typeface is an industrial design in which the design cannot exist independently and separately as a work of art.” Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978). The regulation 37 CFR 202.1(e) says “typeface as typeface” is not eligible for copyright protection or for applications for copyright registration. What does “typeface as typeface” mean? Essentially, fonts as you think of them are not protected by copyright. They are specifically excluded by statute. However, software that produce fonts – generally PostScript or TrueType – are protected because they are computer programs, which typically are protected by copyright So you get a slight dichotomy: copying the computer program to produce the font would be copyright infringement, but “copying” a single character of the same font would not be copyright (generally).

That doesn’t mean that you can go out and copy any stylized lettering you see in print. The design of the letters may nevertheless be protected by copyright – it truly depends on the nature of the design, the amount of creativity involved, the amount of functionality, and other factors. And to address the letter-artists’ worries: while the individual design of a letter may not fall under copyright protection, your greater work probably is protected as an artistic piece, considering the arrangement of lettering, the use of space, background, organization, and all the other creative aspects that go into your work. Concerns beyond copyright: copying lettering could also raise trademark issues depending on the content you are emulating.

I usually don’t double-down with this disclaimer, but here I will. This area of copyright is complex and highly fact dependent. This post is a really high-level view of fonts, typefaces, and copyright. Please consult with an attorney before proceeding with a decision involving this area of the law.

Copyright Infringement on the Web – DMCA Takedown Notices

Congress created a procedure that content owners can use to ask websites to remove content protected by their copyright. The mechanism creates an incentive for webhosts, internet services providers, and search engines to remove (or at least investigate removing) material that may violate the content owner’s copyright. It is called a DMCA Takedown Notice.

Before this mechanism, content hosts could be liable for copyright infringement, even if they had not uploaded the offending content themselves. For instance, Google could be liable for copyright infringement if someone posted a Beastie Boys music video on YouTube. This provision now says that Google, if it receives proper notice of the music video, can avoid liability if takes steps to investigate the matter and remove the offending content. The idea is that by fostering communication between the content owner and the content host, copyright rights can be maintained and protected without litigation.

There a number of procedures that must follow. First, the protection is only available to the web host if it designates an agent to receive Takedown Notices and lists that agent with the Copyright Office. This allows a content owner to look up the name and address of the agent fairly easy, so that he or she can send the Notice without difficulty.

The Notice itself must conform to a number of requirements. Most importantly, it must identify the protected work, and the manner or location in which it is being infringed on the offending site. It must include a signature and a statement made in good faith that the content is being used without permission. Tied up in this is the requirement that there be copyright infringement (or at least alleged infringement). Merely copying a few words from one site to another is probably not copyright infringement. Using the overall design of a website for another site is probably not copyright infringement. Thus, there are some instances where, although the content owner may feel wronged, the actions don’t necessarily amount to infringement that can support a DMCA Takedown Notice. However, there are many instances where a serious argument can be made that the offending site is infringing, and in those circumstances a Takedown Notice is appropriate.

It is best to consult with an attorney before sending a Takedown Notice. A Notice that is spurious or lacks support can be a big mistake – the sender can be liable for damages, which may include the costs incurred by the webhost or search company in hiring an attorney to investigate the Notice.

Copyright Fair Use

Just because something is protected by copyright doesn’t mean it’s hands-off to you.  In some situations, you are allowed to reproduce such material.

Newscasts rely on this exception to copyright protection often, showing clips of movies, tv shows, commercials.  A newsworthy bit of video, when used briefly, can be allowable use.   Book critics can quote snippets of the books they’re reviewing without fear of copyright infringement.  Professors can often duplicate portions of material for educational use in their classes.

William Heinze has a nice article about the fair use doctrine.  It sums up some of the factors that courts consider when deciding whether a use is allowable or not.