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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.

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.

Take Down Duties for Copyrighted Material

Ben Sheffner writes about the recent Viacom v. YouTube case, which he finds extremely disappointing in its dodging of the question of what, besides an official takedown notice, can require an online content provider to remove copyrighted material.

Quick background: the DMCA requires that a content provider, such as YouTube, Facebook, Flickr, etc., remove copyrighted content if: 1) it has “actual knowledge” the material is infringing; or 2) it is “aware of facts or circumstances from which infringing activity is apparent.”  The first situation arises easily: a copyright owner sends a takedown notice complying with the DMCA’s substantive requirements, and the material is removed (generally).  Result: no liability for the infringing work.

What leaves Ben, courts, and countless others baffled is the circumstance in which the second situation would arise.  What are facts and circumstances which show infringing activity?  Apparently, material labeled “illegal” or “stolen” is not sufficient – in the context of pornographic photographs.  Ben questions “whether the panel would have ruled the same way had actual red flags been waved in the defendants’ faces.”  I think so.

Yeah, that situation is far-flung.  But the “illegal” or “stolen” descriptors on porn run parallel to the content – they increase the excitement value and more likely describe the source of the pictures rather than the status of the copyright.  A thin distinction, but an important one.

Imagine a video that gains global attention.  Any video: Lady Gaga’s latest music video, in its entirety, is posted by CpyrghtAbUsr.  For whatever reason, this video soars to the top of YouTube.  It overwhelms their transmission lines.  Corporate decides to dedicate huge amounts of bandwidth for this single video.  The Today Show covers the video.  Lady Gaga herself refers to it, but for some reason never sends a takedown notice.  Would this qualify as a red flag?

Perhaps this is a ridiculous situation, but that may be the very nature of the case that finally forces a court to decide what satisfies the test.  Until then, the judiciary may continue to dodge and weave, and we’ll be left without meaningful interpretation.