by Lee Gesmer | Sep 25, 2010 | CFAA, Copyright
A decision in Jagex v. Impulse Software, issued by Massachusetts U.S. District Court Judge Gorton in August, has some interesting (albeit not nonobvious) lessons for software developers seeking to protect their websites from copying or reverse engineering. The decision arises in the context of a preliminary injunction – a request by Jagex to provide it with legal relief at the outset of the case, before discovery or trial – so Jagex may yet prevail in this case, particularly since most of the reasons the court denied it relief that this stage can be corrected before the case progresses much further.
The plaintiff, Jagex operates an online role-playing game called “Runescape.” Runescape is a “massively multiplayer online role-playing game” (MMORPG for short, but we’ll just call it “the game”).
Impulse offers online cheat tools – software that lets users advance through the levels of the game without actually playing the game. Moving to higher and more challenging levels is the goal of the game, and the Impulse software allows users to reach those hallowed grounds without investing the time and effort the game expects users to endure. And, it is possible to invest a great deal of time and effort with this game – Judge Gorton noted that the top three Runescape players averaged about 20,000 hours of playing time.
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by Lee Gesmer | Sep 17, 2010 | Copyright
You’re out cruising garage sales on a hot summer Sunday morning when you spot an unopened copy of AutoCAD sitting on a card table for $40 – 40 buckeroos for a program people spend $700 for new. Yeah, it’s a couple of versions back, but you figure you can get $340 for it on eBay, and not break a sweat. You buy it from the clearly clueless seller, and the next thing you know you’re watching bids come in at over $300. Except that Autodesk, proud owner of this high-end computer aided design program, objects. You don’t own that program, they say, we licensed it to the original seller, and she had no right to sell it, no right at all. You are infringing our copyright by reselling the software, so take it off eBay right now, Autodesk’s lawyers insist in a hand delivered, “sign-here-to-acknowledge-receipt-sir” letter. In the meantime, they’ve sent eBay a DMCA take-down notice and eBay has killed your sale.
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by Lee Gesmer | Jun 25, 2010 | Copyright
Despite all the hoopla, this week’s copyright decision in Viacom v. YouTube (link on Scribd) was predicatable – a decision in the opposition direction would have been a shocker. Viacom accused YouTube (owned by Google) of massive copyright infringement. The court dismissed the case on summary judgment in favor of YouTube.
Of course, there is no question that copyright infringement is taking place on YouTube every instant of the day. The court noted that video is being uploaded to YouTube at the rate of 24 hours per minute. My calculator tells me that this is over 12.6 million hours of video per year. It’s no secret that people are uploading copyright material at a fantastic rate – a search of YouTube will find that almost any popular song can be located. it’s a simple matter to download the clip (either video of just audio), and share it with friends or on peer-to-peer networks. YouTube “ground zero” for online copyright infringement.
However, as I’ve noted in the past, the Digital Millenium Copyright Act – the DMCA – is a federal law that protects publishers such as YouTube as long as they follow the DMCA’s “notice and take-down” procedures (aka “whack-a-mole”), which YouTube has faithfully done. Thus, YouTube was able to claim that it followed “the letter of the law” and therefore its conduct fell within this statutory safe harbor.
Southern District of New York Federal District Court Judge Louis L. Stanton rejected Viacom’s argument that YouTube was aware of, and ignored, massive copyright infringement by YouTube users. The DMCA, the judge held, does not permit Viacom to establish liability based on “a general awareness that there are infringements.” The DMCA requires specific knowledge, and when YouTube had that knowledge (usually based on notice from Viacom), it “took down” the copyrighted work.
The atmospherics of the case were also helpful to YouTube. Unlike music sharing sites like Grokster, which were shown to have been aware of infringement but turned a blind eye to it (See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)), there were very few “smoking gun” emails uncovered by Viacom in discovery, so YouTube was able to credibly argue that it was not encouraging or turning a blind eye to infringement. (more…)
by Lee Gesmer | May 14, 2010 | General
I’ve written before about how generous juries in the federal courts in the Eastern District of Texas (EdTX) are to patent plaintiffs. (link). After I wrote about this a year ago there was a feeling that this trend might be reversing itself. However, Johnson & Johnson’s $1.6 billion judgment against Abbott and i4i’s $200 million verdict against Microsoft last summer put an end to those thoughts.
So, when Apple, Sirius XM and others were recently sued for patent infringement in EdTX they quite naturally looked for a way out. Massachusetts, they told the Texas district court, was a far better choice, particularly when you considered the fact that that the patent owner, a non-practicing entity, had set up a Texas company shortly before filing suit, and located its business in the offices of its Texas lawyers.
But, it’s not that easy.
After the EdTX trial court refused to transfer the case to Massachusetts, Apple and its co-defendants filed a “mandamus” with the Federal Circuit. Mandamus is a rare procedural tool. Its a way to ask a court (typically an appellate court) to take an action that isn’t really an appeal (because the there is no final judgment), and no specific statute authority authorizing interlocutory appeal. I think it fair to say that fewer than one in a hundred lawyers has ever filed a “writ of mandamus,” (more likely fewer than one in five hundred). (more…)
by Lee Gesmer | Mar 10, 2010 | Miscellaneous
Nice post title, eh? Mass MoCA is the Massachusetts Museum of Contemporary Art Foundation a contemporary art museum in North Adams, MA. Christoph Büchell is a Swiss “installation artist.” Think very large, very avant-garde. The New York Times describes his work “dense, fraught creations, which compress masses of material and objects into historically charged labyrinthine environments through which viewers walk, climb and crawl.” Wow. Sounds just right for good old, left-leaning western Mass. Not.
VARA is the Visual Artists Rights Act, a section of the U.S. Copyright Statute that gives grants artists “moral rights.” For example, part of the law provides that the author of a “visual work” has –
the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation
The First Circuit held that the Museum violated this right when, after installation of a work that called for, among other things, according to the Times, “a burnt-out fuselage of a 737 airliner” it displayed the work without the artist’s consent. That is, the artist stormed off after artistic differences with the museum, and museum prepared to present the work, entitled “Training Ground for Democracy,” like or not. Büchel sued under VARA, lost in U.S. District Court, but prevailed in the First Circuit, which is (I suppose) more sympathetic to moral rights than U.S. District Court Judge Ponsor had been. (more…)
