Advanced Copyright Issues on the Internet - Fenwick & West LLP

(iv) MDY Industries, LLC v. Blizzard Entertainment, Inc.The facts of this case and the court’s various rulings on liability are set forth in SectionII.G.1(a)(2) above. Blizzard requested that it should be entitled to a minimum statutory damagesaward of $24 million based upon MDY’s sales of at least 120,000 Glider licenses (120,000 x$200). The court, however, awarded statutory damages of $6.5 million, the amount of thedamage award in the stipulated judgment between the parties. The court refused to make areduction of damages on the basis of innocent infringement because MDY had designed itsGlider software specifically to bypass the plaintiff’s Warden software. 996(2) Jurisdictional <strong>Issues</strong> – Blueport Co. v. United StatesIn Blueport Co. v. United States, 997 the Court of Claims ruled that the United Statescannot be sued under the DMCA’s anti-circumvention provisions because the DMCA containsno clear waiver of sovereign immunity, and waiver under the DMCA could not be inferred fromwaiver under the copyright laws because the DMCA is not a copyright statute. The FederalCircuit affirmed this ruling on appeal for the same reasons invoked by the Court of Claims, andalso noted the rule that the Court of Claims lacks jurisdiction to adjudicate claims created bystatutes, like the DMCA, which specifically authorized jurisdiction in the district courts. 998(d) Alternative Approaches to the DMCA That Did Not PassTwo of the alternatives bills that were introduced to implement the WIPO treaties whichdid not pass, S. 1146 and H.R. 3048, would have prohibited only certain defined circumventionconduct, rather than devices. Specifically, Section 1201 of S. 1146 and H.R. 3048 provided thatno person, “for the purpose of facilitating or engaging in an act of infringement, shall engage inconduct so as knowingly to remove, deactivate or otherwise circumvent the application oroperation of any effective technological measure used by a copyright owner to preclude or limitreproduction of a work or a portion thereof.” Thus, these bills would not have bannedcircumvention undertaken for reasons other than facilitating or engaging in infringement, such asfair uses. In addition, Section 1201 of these bills expressly defined “conduct” not to includemanufacturing, importing or distributing a device or a computer program.Although Section 1201(a) of these bills referred only to technological measures used topreclude or limit reproduction of a copyrighted work, and did not refer to access to a copyrightedwork (as is included in the DMCA), the definition of “effective technological measure” inSection 1201(c) of these bills included two references to access. Specifically, “effectivetechnological measure” was defined as information included with or an attribute applied to atransmission or a copy of a work in a digital format which “encrypts or scrambles the work or aportion thereof in the absence of access information supplied by the copyright owner; or includesattributes regarding access to or recording of the work that cannot be removed without degrading996997998MDY Industries, LLC v. Blizzard Entertainment, Inc., 2009 U.S. Dist. LEXIS 38260 at *4-6 (D. Ariz. Apr. 1,2009).80 U.S.P.Q.2d 1585 (Ct. Fed. Claims 2006).Blueport Co. v. United States, 533 F.3d 1374, 1382-84 (Fed. Cir. 2008).- 221 -