Advanced Copyright Issues on the Internet - Fenwick & West LLP

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immunization of interoperability from anticircumvention liability under § 1201(f).” 629 Thislanguage, although dicta, characterizes the Section 1201(f) exemption very broadly. 630Another dictum by the court in connection with articulating its rationale for rejectingsuch a broad interpretation of anti-circumvention liability makes clear the court’s belief that theanti-circumvention provisions should not be construed to prevent interoperability of computerprograms:Chamberlain’s proposed construction would allow any manufacturer of anyproduct to add a single copyrighted sentence or software fragment to its product,wrap the copyrighted material in a trivial “encryption” scheme, and thereby gainthe right to restrict consumers’ rights to use its products in conjunction withcompeting products. In other words, Chamberlain’s construction of the DMCAwould allow virtually any company to attempt to leverage its sales intoaftermarket monopolies – a practice that both the antitrust laws and the doctrineof copyright misuse normally prohibit. 631Components, Inc.(iv) Lexmark International, Inc. v. Static ControlFor a discussion of the applicability of the reverse engineering exception of Section1201(f) in this case, see Section II.G.1(o)(1) below.(v)Davidson Assocs. v. Internet GatewayIn this case, the plaintiff Davidson & Assocs., doing business as Blizzard Entertainment,owned the copyrights in several computer games. The games could be played in either a singleplayermode or in an online multi-player mode called “Battle.net mode.” 632 Blizzard operated a24-hour online gaming service known as the Battle.net service that allowed owners of certainBlizzard games to play those games against each other in Battle.net mode by linking togetherover the Internet through Battle.net servers. In addition to multi-player game play, Battle.netmode allowed users to chat with other potential players, to record wins and losses and saveadvancements in a password protected individual game account, and to set up private games onthe Battle.net service to allow players to determine whom they wished to interact with on theBattle.net service. 633 The court noted that these Battle.net mode features were “accessed from629630631632633Id. at 1200.The court noted that it had no occasion to reach the argument, raised by an amicus, that Section 1201(f) shouldcover the defendant’s actions in distributing a product that circumvented technological measures restrictingaccess to the plaintiff’s computer program so as to interoperate with it. Because Section 1201(f) is anaffirmative defense, the court noted that it would become relevant only if the plaintiff could prove a prima faciecase of anti-circumvention liability to shift the burden to the defendant, which the court ruled the plaintiff hadultimately failed to do. Id. at 1200 n.15.Id. at 1201 (citations omitted).Davidson & Assocs. v. Internet Gateway, 334 F. Supp. 2d 1164, 1168 (E.D. Mo. 2004).Id.- 152 -
within the games themselves,” which seems to mean that there was particular code within theBlizzard games that allowed them to operate in Battle.net mode and communicate with theBattle.net servers. 634The Battle.net service was designed to prohibit access and use of Battle.net mode byunauthorized or pirated copies of Blizzard games. In particular, in order to log on to theBattle.net service and access Battle.net mode, the Blizzard games were designed to initiate anauthentication sequence or “secret handshake” between the game and the Battle.net server basedon the “CD Key” of the game, a unique sequence of alphanumeric characters that was printed ona sticker attached to the case in which each game was packaged. The game would pass the CDKey to the Battle.net server, which would verify its validity and determine whether the same CDKey was already being used by another game that was currently logged on to the server. If theCD Key was determined to be valid by the server and not already in use, the server would send asignal to the game allowing it to enter the Battle.net mode and to use the Battle.net gamingservices. 635In order to install a copy of a Blizzard game, the user was required to click acceptance ofa clickwrap license agreement that prohibited reverse engineering of the software and thatrequired the user to agree to the Terms of Use of the Battle.net service, which prohibitedemulation or redirection of the communication protocols used by Blizzard as part of Battle.netservice for any purpose. 636The defendants developed a server, known as the bnetd server, that was designed toemulate the Battle.net service so as to allow players to play their Blizzard games in an onlinemulti-player mode through the bnetd server. 637 In order to develop the bnetd server, thedefendants had to reverse engineer the Blizzard games to learn the Battle.net protocol. Inaddition, because Blizzard games were designed to connect only to Battle.net servers, thedefendants had to modify a computer file in the Blizzard games containing the Internet addressof the Battle.net servers so as to cause the games to connect to a bnetd server instead. Thedefendants distributed a utility known as “BNS” that modified such file and caused Blizzardgames to connect to the bnetd server rather than the Battle.net server. Once connected to thebnetd server through the modified Internet address file, a Blizzard game would send its CD Keyto the bnetd server. When the bnetd server received the CD Key, unlike Battle.net, it did notdetermine whether the CD Key was valid or currently in use by another player. Instead, thebnetd server would always send the game an “okay” reply. Thus, both authorized as well asunauthorized or pirated copies of Blizzard games could be played in online mode through thebnetd server. 638634635636637638Id.Id. at 1169.Id. at 1169-71.Id. at 1172.Id. at *1172-73.- 153 -
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ADVANCED COPYRIGHT ISSUESON THE INT
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6. Peer-to-Peer File Sharing 57(a)
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(xv) Craigslist v. Naturemarket 140
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(iii) Gordon v. Nextel Communicatio
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(a) Facebook v. Power Ventures 263C
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l. UMG Recordings v. Veoh Networks
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3. The MetroGuide Litigation 5134.
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crucial question whether the MAI ap
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machine or device. The term “copi
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terminal emulation program is not s
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describes the status of transition.
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sections of the Uruguay Round trade
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(b) The WIPO Copyright</str
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ecording industries, opposed any op
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in the case of Article 7, an earlie
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fact that copyright law has traditi
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and downloading of unauthorized cop
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downloads. “She provided the faci
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The defendant also argued that it c
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copying enhanced the defendants’
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copying was a fair use. The court r
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were brought against MP3.com as wel
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The principle distilled from these
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ecorded, the appropriate packets co
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commands and engages in no volition
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loaded the original copies of the s
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(b) Notwithstanding the provisions
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would have “independent economic
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such sound recordings because they
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(o) use in certain other cases of m
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matter belongs entirely to the jury
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7. The Immunity of the Audio Home R
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playlists with title and artist inf
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ecordings, other than with respect
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performance right was implicated by
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performances because the RS-DVR cus
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“[w]here a transmission is of a d
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although the court noted that the O
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images to allow users to recognize
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prima facie case of infringement as
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The district court concluded that t
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was no greater than necessary to ac
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court concluded that Google’s use
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The Ninth Circuit agreed, however,
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would likely succeed in establishin
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of its secondary liability claims b
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of ownership, or by rental, lease,
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(1) Cases Holding That Mere Posting
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unauthorized copy of a sound record
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(2) Cases Holding That Mere Posting
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version of the image displayed in t
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Page 107 and 108: e able to make an end run ar4ound t
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Page 117 and 118: transmission.” It is not relevant
Page 119 and 120: equire treaty signatories to provid
Page 121 and 122: 2. Literary works, including comput
Page 123 and 124: already adequately addressed the co
Page 125 and 126: the exemption only to “computer f
Page 127 and 128: 6. “Sound recordings, and audiovi
Page 129 and 130: of circumventing a technological me
Page 131 and 132: (iii) Sony Computer Entertainment A
Page 133 and 134: injunction prohibiting the defendan
Page 135 and 136: measures protected Blizzard’s rig
Page 137 and 138: (xi) CoxCom, Inc. v. ChafeeCoxCom l
Page 139 and 140: The court rejected a number of defe
Page 141 and 142: entire files within the software wh
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Page 145 and 146: that it was not supposed to be able
Page 147 and 148: The paper also raised concern about
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Page 153: DeCSS), and not dissemination of th
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Page 159 and 160: (vi) Sony Computer Entertainment Am
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Page 163 and 164: Streambox Ferret corrupted complete
Page 165 and 166: In addition, the court, citing Nimm
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Page 169 and 170: Links “to sites that automaticall
Page 171 and 172: Having rejected all constitutional
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Page 183 and 184: portion of the analog signal, the p
Page 185 and 186: software constitutes a violation of
Page 187 and 188: intended to ban only those circumve
Page 189 and 190: authentication sequence required th
Page 191 and 192: If any single byte of the Toner Loa
Page 193 and 194: that the defendant had copied the T
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Page 199 and 200: The court’s statements might impl
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- Second, the court’s interpretat
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With respect to the first reason, t
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The plaintiff brought a claim for v
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copyright owner. The plaintiff alle
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copy and the scanned copy did not r
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crawler’s operation. 955 The cour
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plaintiffs also alleged that the de
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characteristics or uses of an accus
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found that Filipiak knew at the tim
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(iv) MDY Industries, LLC v. Blizzar
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concerned that digital television b
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An important thing to note is that
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In March of 2005, a German court, o
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and, if reproduced in digital forma
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ackup copies may not be distributed
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(f)Protection of Certain Industrial
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(4) Adaptations of Unprotectable El
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awarded “shall constitute compens
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copyrighted songs through peer-to-p
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Finally, the court rejected the RIA
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efall Fatwallet as opposed to its s
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(2) abrogate or restrict the limita
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On Line (AOL), may constitute infri
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server other than the original serv
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to material on a site to a single u
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could argue that caching inherently
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4. Cases Adjudicating Caching Under
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The court also found that Field sho
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[Plaintiff] argues that merely by v
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The court ruled that, as a result o
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liability for contributory infringe
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However, the court was careful to n
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that online users saved in their de
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Napster argued that its users’ do
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drive do not constitute a “digita
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have not shown that the majority of
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erroneously concluded that sampling
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established artists’ songs render
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generalized knowledge that the Naps
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Napster “when linked to demonstra
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The Ninth Circuit’s view of the v
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[C]ontributory liability may potent
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On appeal in Napster I, the Ninth C
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“All parties shall use reasonable
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plaintiffs’ reading of the paragr
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fundamentally altered copyright lia
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works and files. This burden-shifti
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Next, the court turned to Napster
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Napster’s standing to challenge t
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(2) The Scour.com LawsuitAnother ca
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trafficking in copyrighted material
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Judge Posner, the Supreme Court in
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The court also rejected a challenge
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when the user logged off, that user
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Turning to the material contributio
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how “probable” the noninfringin
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also warned existing Australian use
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As explicated below, the Supreme Co
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The Required Threshold of Showing o
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The Court also noted that even Grok
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In the absence of other evidence of
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With respect to the first principle
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It is mindful of the limitations fa
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Whether the Seventh Circuit’s app
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product to be used to infringe sugg
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make some effort to mitigate abusiv
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It is important to recognize that t
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include any details of the filterin
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eferences to “reasonable” knowl
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infringements were occurring and ha
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over the course of three or four ye
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argument as insufficient, noting th
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summary judgment. The court denied
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were engaged in copyrighted infring
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(a) The Netcom Case and its Progeny
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content found within the sites maki
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On appeal, the Ninth Circuit affirm
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district court granted the defendan
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infringed its trademarks and copyri
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satisfied because Master had the po
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BitTorrent users had taken place in
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obligation of providing Defendants
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(1) Safe Harbors - Definition of a
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not make a copy of the material dur
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contributory copyright infringement
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The Ninth Circuit found that there
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and the material was transmitted th
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On appeal, the Seventh Circuit affi
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Banned WebmasterIf a webmaster, ide
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it operated in order to provide its
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infringement, it would need to be a
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transmission of such material to a
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Thus, Google’s cached meets the r
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identification of the copyrighted w
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identified them “with sufficient
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Because RemarQ had received adequat
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supply the preceding two elements,
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policy that provides for the termin
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Turning first to the issue of knowl
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court noted that because LoopNet’
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inducement as a matter of law.” 1
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that a defendant can look for enfor
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Section 512(c)(3)(B)(ii). 1875 In a
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e. The Aimster/Madster Lawsuits. Th
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could not control such sales. 1899
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With respect to the issue of contro
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epeat infringer’s access, suggest
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listings to Amazon’s attention, t
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platform amount to a right and abil
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link to view all 16 lower resolutio
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Finally, with respect to the issue
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servers to be accessed by other mea
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and such a holding would be contrar
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The court also rejected UMG’s arg
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Louis Vuitton v. Akanoc Solutions.
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failing to satisfy the requirement
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arguing that linking to or publishi
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from websites and the initiation of
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Finally, the court ruled that, as a
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give rise to a claim under Section
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Prince’s behest, based not on the
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DMCA are served by requiring copyri
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infringing could not be a “materi
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On Nov. 3, 1998, the Copyri
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the Internet, and encompasses the d
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D. Linking and FramingThe practice
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found. Linking to a site containing
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and programming services to Total N
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MasterCard prominence over any othe
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6. The Intellectual Reserve CaseIn
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[H]yperlinking does not itself invo
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defendant web page’s text and adv
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The court found stronger evidence o
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Batesville dealer, the Veterans Soc
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ight of public performance and the
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agreed that AM/FM webcasting was no
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2. The Digital Performance Right -
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digital transmission services, impo
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(b) Eligible Nonsubscription Servic
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proceeding. To be eligible for the
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On June 18, 2003, the Copyr
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On Aug. 23, 2007, SoundExchange als
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- On June 1, 2001, Launch and other
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genres and unrated quota. 2249 Alth
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embodied in phonorecords or digital
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allow users to listen to songs on t
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to assert claims based on the makin
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companies and to any digital music
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F. First Sales in Electronic Commer
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This provision seems to have been d
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thereof. 2297 In February of 2003,
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(b) Wells Fargo v. WhenU.comSimilar
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(c) 1-800 Contacts v. WhenU.comA th
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the domain name www.www1800Contacts
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pop-up and pop-under ads from appea
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copyright holder’s rights, then t
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