HL74 Student CaseNotes: Is Paris Burning, the Liberation of the Google Search Engine

HL74 Student CaseNotes gives law students the PAID opportunity to write, learn, and publish. This Casenote is submitted by Caitlin Young, second year law student at St. John’s University School of Law.

Google Wins Anti-Piracy Filtering Lawsuit, Filters Anyway, TorrentFreak, May 6, 2011, http://torrentfreak.com/google-wins-anti-piracy-filtering-lawsuit-filters-anyway-110506/.

In April 2010, the Syndicat National de Ledition Phonographique (SNEP), filed legal action against Google under Article L336-2 of France’s intellectual property code in an attempt to force google to filter terms such as “torrent” and “RapidShare” from Google’s auto-suggest search feature. The Court of Appeals in Paris affirmed the decision in favor of Google, by the Tribunal de Grande Instance de Paris. The court held that the mere presence of such terms in a set of search results did not necessitate a finding of copyright infringement. The court noted that even if users of sites such as RapidShare and MegaUpload are downloading unauthorized copies of music or movies, the sites themselves are not automatically rendered illegal. The court explained that Google cannot be held liable for the subsequent activities of Google search engine users.

For the record, earlier this year Google decided to filter the auto-suggest search feature anyway.

[Editor’s note: Is Paris Burning, a 1966 film dealing with the 1944 liberation of Paris by rival branches of the French Resistance (communist and Gaullist) and the Free French Forces.]

HL74 Student CaseNotes: MDY Industries v. Blizzard Entertainment

HL74 Student CaseNotes gives law students the PAID opportunity to write, learn, and publish. This Casenote is submitted by Caitlin Young, second year law student at St. John’s University School of Law.

MDY Industries v. Blizzard Entertainment, 629 F.3d 928 (2010)

Blizzard is the creator of a “massive multi-player online role-playing game” called World of Warcraft (WoW). Players advance their characters through 70 levels through participation in quests and battles. Michael Donnelly (MDY) developed a software program called Glider, which is a robot that automatically plays WoW so that a player’s character can be developed through the early levels of the game without the player’s participation. MDY sought a declaration that Glider does not violate Blizzard’s copyrights. Blizzard counter sued for vicarious copyright infringement, violation of DMCA Sections 1201(a)(2) and (b)(1) and tortious interference with contract.

The court determined that WoW player are licensees of their copy of the game software and not owners because of the limitations that Blizzard places on transfer restrictions, game use and termination. However, the court held that players’ use of Glider did not exceed the scope of their license because Glider use constituted a breach of a covenant under Terms of Use, rather than a breach of a condition of the license. Therefore, Glider users were not direct infringers so MDY could not be held secondarily liable for copyright infringement. The holding here is important because the court clarifies that breach of the Terms of Use does not automatically result in copyright violation. There are many ways to violate the Terms of Use that are completely unrelated to the copyright’s exclusive rights.

The Digital Millennium Copyright Act (DMCA) was adopted in order to conform U.S. law with its obligations under certain international intellectual property treaties. The court held that DMCA Section 1201(a)(2) establishes an independent right of action for copyright owners to prevent copying in circumstances involving devices that circumvent technology that controls access to copyrighted work. The court determined that this is true even when the circumventing device does not enable infringement. The court held that Warden’s purpose was to control access to copyrights elements and since Glider constituted circumvention technology under 1201(a)(2), MDY was determined to be liable under 1201(a)(2). The court affirmed the district court’s entry of permanent injunction against MDY.

While applauding the court’s determination that violation of the Terms of Use did not constitute copyright infringement, commentator Mike Masnick denounced the court’s ruling concerning the DMCA. Masnick finds it troubling that the court decided to ignore a previous circuit court ruling, even though the Blizzard court was under no obligation to follow the other circuit court’s ruling. The previous ruling held that makers of garage door openers did not violate the DMCA by circumventing anti-circumvention tools in garage opener technology because no copyright was violated beyond the circumvention. However, Masnick fails to consider that the court in Blizzard based the DMCA ruling on extensive legislative history to determine that Congress’ intent in adopting the DMCA was to grant copyright owners an independent right to enforce the prohibition against circumvention of access controls.

The court remanded the case for determination of whether MDY’s conduct was improper under the Restatement Second of Torts for Blizzard’s claim of tortious interference with contract.