Copyright

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Playing World of Warcraft, the world’s most popular massively multiplayer online role-playing game (MMORPG), can be, well, a drag. As the parents, teachers and spouses of gamers know all too well, playing through the 70 or more levels of the game in order to amass desired virtual currency, weapons and armor can be extremely time-consuming. So some gamers have resorted to the use of bots (automated game-playing software robots) to make their way more quickly from the more tedious early levels of the game to the more interesting upper levels. Michael Donnelly developed WoW bot software (Glider) for his own use and it worked so well that he decided to sell it to other gamers. And that worked well, too. In a few years, Donnelly (incorporated as MDY Industries) had gross revenues of $3.5 million from sales of Glider licenses.

For Blizzard Entertainment, the distributor of WoW software and the operator of the servers that enable online game play, bots are, well, a drag. Other gamers complain that they constitute cheating, and Blizzard potentially loses revenue when gamers finish the game sooner rather than later. So Blizzard added a provision to the WoW Terms of Use prohibiting the use of bots and similar third-party software. WoW also deployed a software solution, WoW Warden, that checks gamers’ computers for prohibited software and prevents their access to the server if it is present. Warden works only so-so at blocking Glider-using players, though, and it costs a lot of money to deploy and maintain.

So Blizzard also sent its lawyers to Donnelly’s home to personally demand that he cease selling the Glider program. (Whether he called them Worgen and tried to repel them with his Corpse-Impaling Spike is not part of the record.) Donnelly subsequently filed an action seeking a declaratory judgment that his sale of the Glider program did not infringe Blizzard’s copyrights, and Blizzard responded with counterclaims under copyright law, the Digital Millennium Copyright Act and state law.

Game on.

Who owns the firmware on a smartphone, the device manufacturer or the purchaser?  Ownership of copies of computer programs is a thorny issue with which the federal courts have grappled in numerous cases. The issue arose during the most recent round of triennial rulemaking that resulted in the promulgation of a new set of exceptions to 17 U.S.C. § 1201(a), which prohibits the circumvention of technological measures deployed to limit access to copyrighted works.

The “copyright management” provision of the Digital Millennium Copyright Act, 17 U.S.C. § 1202, prohibits the provision or dissemination of copyright management information that is false, as well as the removal or alteration of copyright management information. An issue that has divided federal courts is whether the scope of this section is limited to digital copyright management systems such as digital rights management technologies, or whether it extends to the removal or alteration of copyright information that is affixed to or associated with works by more traditional means. For example in IQ Group, Ltd. v. Wiesner Pub., LLC, 409 F. Supp. 2d 587 (D.N.J. 2006), the court ruled that section 1202 was intended to cover “copyright management performed by the technological measures of automated systems,” but not “copyright management performed by people.” But several other courts addressing the issue have disagreed, including Associated Press v. AllHeadline News Corp., 608 F. Supp.2d 454 (S.D.N.Y. 2009), in which the court concluded that there was no textual support in the DMCA for limiting the copyright management provision to technological copyright management systems.

In Wayne Cable v. Agence France Presse, et al., 2010 U.S. Dist. LEXIS 73893 (N.D. Ill. July 20, 2010), Cable, the photographer-copyright owner, authorized a realtor to display his photographs of a home on the realtor’s Web site with the proviso that the display include attribution of his authorship and a link to his own own Web site. The Web site included a credit line attributing the photographs to “Photos©2009 wayne cable, selfmadephoto.com.” The copyright notice was encoded as a link to Cable’s own Web site. Cable alleged that the photographs were subsequently copied by defendant Agence France Presse without his permission and displayed elsewhere without attribution. AFP moved to dismiss the DMCA claim, contending that Cable failed to allege that the attribution information functioned as a component of an automated copyright protection or management system and thus it did not constitute “copyright management information” within the scope of the DMCA.

A technology start-up company can be an informal environment – both Apple Computer and Hewlett-Packard famously started out in garages, and Yahoo!, Google and Facebook were developed, initially at least, in college dorm rooms. But informality can, and frequently does, lead to legal disputes down the road. In JustMed, Inc. v. Byce, 2010 U.S. App. LEXIS 6976 (9th Cir. Apr. 5, 2010), the Ninth Circuit was faced with a dispute over ownership of the source code for a program that operated a digital audio device.

Michael Byce, the programmer who wrote most of the code in question, claimed to be an independent contractor and thus the author, and copyright owner, of the code. JustMed claimed that Byce was an employee and that the code was a work for hire, with copyright ownership vested in the company. The appeals court concluded that the well-established factors for making the intensely fact-sensitive determination of employee status should be weighed specially in light of the fact that the company involved was a technology start-up and the activity in question was computer programming.

Jacobsen v. Katzer involves a dispute over rights in software code distributed pursuant to the open source Artistic License. Last year the case yielded one of the very few judicial rulings dealing with open source software. As we wrote at the time, the U.S. Court of Appeals for the Federal Circuit rejected the argument that open source licenses are enforceable only in a breach of contract action. In a broadly worded opinion that endorsed the open source approach to licensing, the court held that open source license restrictions are enforceable under U.S. copyright law, thereby making the federal courts, and the potent remedies under the Copyright Act, available to open source licensors.  
 
The case was remanded to the district court for further proceedings, and has now yielded another ruling favorable to the plaintiffs on a number of critical points, including eligibility of software code that is distributed for free for copyright infringement damages.  Jacobsen v. Katzer, No. C 06-01905 (N.D. Cal. Dec. 10, 2009) .

Vernor v. Autodesk, Inc. is a closely followed case in which an eBay reseller of software argues that his resales are protected by the copyright first sale doctrine, and software company Autodesk is arguing that because the AutoCad software Mr. Vernor is auctioning on eBay is licensed, not sold, Mr. Vernor is not an owner of the copies within the meaning of the doctrine. Vernor instituted this action seeking a declaratory judgment that his resales did not constitute direct or contributory copyright infringement.

In May 2008, the court denied Autodesk’s motion for summary judgment dismissing Vernor’s complaint. As we blogged at the time, the court ruled that the original transation between Autodesk and Vernor’s transferor (an architectural firm that purchased the AutoCAD software for use in its practice) constituted a sale, and thus the subsequent transfer of the software to Vernor was a further sale protected by the first sale doctrine. Following discovery, the court has now concluded that there are no materially relevant facts different from those before the court, and that judgment should be entered in favor of Vernor.

UPDATE: The U.S. Supreme Court denied the petition for certiorari on June 29, 2009.

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The petition we are talking about here is the petition for certiorari filed in the US. Supreme Court in the case more formally known as The Cartoon Network LP, LLP  v. CSC Holdings, Inc. (2d Cir. 2008), petition for cert. filed sub nom. Cable News Network, Inc. v. CSC Holdings, Inc. The dispute concerns Cablevision’s plans to deploy a remote DVR system that would permit subscribers to record content broadcast over the Cablevision network to remote servers maintained by Cablevision, for playback at will. Cablevision brought the action seeking a declaratory judgment that the deployment and use of the system would not infringe the copyrights of content owners who provide programming to Cablevision.

Talking about video recorders and copyright is, of course, a U.S. Supreme Court déjà vu moment – the Court ruled in 1984 in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), that the sale of home video recorders used to tape television program for later viewing did not constitute contributory copyright infringement.