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Subpoenaing ISPs For User Identities May Now Be More Difficult–At Least in Florida

In decisions that could have positive implications for bloggers and other social media users who wish to maintain their anonymity, two judges in the Eleventh Judicial Circuit of Miami-Dade County, Florida have recently quashed subpoenas seeking the disclosure of the identify of hundreds of nationwide “John Doe” defendants. In the two cases, plaintiffs Open Mind Solutions, Inc. and Boy Racer Inc. issued the subpoenas to a number of Internet Service Providers (“ISPs”).  Although the John Does are alleged to have infringed the plaintiffs’ copyrights in motion pictures through file sharing, rendering jurisdiction exclusive in federal court, the cases were filed in state court under a procedure called a “pure bill of discovery.”  One judge noted in dismissing the suit filed by OpenMind Solutions without prejudice that OpenMind Solutions could amend the suit if it named the ISPs from which it sought discovery as parties (to allow the ISPs to assert available defenses) and alleged that any specific John Doe actually committed… Continue Reading

>MDY v. Blizzard – The Court of Appeals Weighs-in

>As you may recall (and as we’ve been covering), last January, an Arizona District Court found that using MDY’s Glider bot program in conjunction with Blizzard’s World of Warcraft game software fell outside the scope of the game’s End User License Agreement (EULA). The District Court then held that MDY is responsible for players running Glider outside the scope of the EULA, and awarded Blizzard a $6.5 million judgment against MDY for copyright infringement. MDY appealed the case to the Ninth Circuit Court of Appeals, which recently issued its own decision. The Ninth Circuit overturned the District Court’s finding of copyright infringement, but nevertheless held MDY liable for breach of the EULA on a different ground – violation of the Digital Millennium Copyright Act (DMCA).The Ninth Circuit held that using Glider while playing World of Warcraft in violation of the EULA did not amount to copyright infringement. The Ninth Circuit… Continue Reading

>The End of Used Video Games?

>Are you one of the 75 million used video game purchasers in the U.S? Or, are you one of the 26 million used video game sellers looking to subsidize your next game purchase with a trade-in? If so, you might not want to delay too long before making your next trip to GameStop. The Ninth Circuit Court of Appeals recently ruled that Timothy Vernor, an eBay seller of used commercial versions of Autodesk’s AutoCAD, is not permitted to sell used AutoCAD discs under copyright law. The court held that the “first sale” doctrine that traditionally protects used book sellers from charges of copyright infringement does not apply to used software sellers. The court based this distinction on the finding that the company that originally sold its old copy of AutoCad to Vernor was not an owner of software, but merely a licensee. The court held that a software user is… Continue Reading

>Boomshine v. ChainRxn update

>As we covered back in March, casual game designed Daniel Miller filed a complaint in the Northern District of California, accusing the creator of a copycat game, known as ChainRxn, Yao Wei Yeo, and Facebook, of copyright infringement. The federal judge hearing the case has recently issued a ruling refusing to dismiss the suit, shooting down a argument by Facebook that Miller didn’t properly allege infringement based solely on how the two games “look and feel.” Miller’s complaint accused Yeo of direct copyright infringement, claiming he improperly accessed the source code for Miller’s game Boomshine to create ChainRxn. Facebook had argued that Miller didn’t adequately plead direct infringement by Yeo, because Miller’s bare complaint that ChainRxn “looks and feels” identical to Boomshine is insufficient to allege that Yeo had copied the game source code. The Judge disagreed with Facebook, noting that a plaintiff can rarely examine a defendant’s source code… Continue Reading

>Casual Games and Casual Copying

>Imagine releasing a new flash game on the net and then finding out that someone else made your game into a Facebook/iPhone application without your knowledge. The designer of a certain casual game, Boomshine, Daniel Miller, doesn’t have to imagine. His story illustrates why it’s important to understand and consider the range of intellectual property protections available for your next game. Miller has filed a complaint in the Northern District of California, accusing the creator of a copycat game, known as ChainRxn, Yao Wei Yeo, and Facebook of copyright infringement, and improperly allowing the game to remain posted even after being notified of the alleged infringement. In both Boomshine and ChainRxn, the game begins with a set of multicolored dots bouncing around a black background. The player’s only interaction with the game is a single click to create an initial white circle, which causes any of the dots that collide… Continue Reading

>Don’t Ignore Open Source License Terms

>If you embed open source software in a retail game or in gaming hardware, you should be diligent about compliance with the open source license terms. Otherwise, both you and your retailer may be in for an unpleasant surprise. The Software Freedom Conservancy, the non-profit corporate home of the open-source Linux application BusyBox, and Erik Andersen, one of the program’s principal developers, recently filed suit against a number of technology manufacturers and retailers, including Samsung and Best Buy. The suit accuses the defendants of infringing the copyright for Busybox by using the program in consumer products such as DVD players and HDTVs in violation of the terms of its license (the GNU General Public License, version 2). The complaint, filed the U.S. District Court for the Southern District of New York, claims that the defendants were advised that the terms of the GNU General Public License version 2 only allowed… Continue Reading

>Implied Licenses with Software Developers

>An interesting opinion denying a preliminary injunction in a software development case has just come out of the Eastern District of Washington. The defendant company, bVisual, was sued for copyright infringement by Numbers Licensing, an independent developer hired by bVisual to do software development work. Committing a surprisingly common error, bVisual failed to get a signed, written agreement with Numbers Licensing that placed ownership rights in the source code with bVisual. Therefore, when the two parties later got involved in litigation, the court found that the developer still owned the copyright in the developed source code on bVisual’s computers.However, all was not lost for the defendant, as the court also found that bVisual had an implied license to continue using and modifying the source code. The court found that the relationship between the parties, the defendant’s payment of a substantial amount of money for the software, and the fact the… Continue Reading

>Copyright Office and Electronic Filing

>The Copyright Office continues to try and push itself into the digital age. The Office has been trying to implement an electronic filing system, but there have been a few hiccups along the way. However, as they have been ironing out the kinks, the Copyright Office has become more aggressive in pushing filers to use the electronic system. Prices for filing copyrights will be changing on August 1. The new prices will be $35 for filing an electronic application, $50 to file the scannable CO form, and the traditional paper filing will now be $65. Remember, though, whenever you are filing the copyright application (electronic or otherwise), to be very careful about your deposit materials. I have seen many copyright infringement cases go awry because of mistakes made with the deposit materials … but I’ll save that for another post.

>Tip: Video Game Copyright Registration

>Most folks in the industry know about filing copyrights to protect their source code. One area of concern that I see, though, is a lack of awareness of the some of the Copyright Office requirements buried in the Copyright Office regulations. When filing a copyright registration for a book, it is generally pretty easy to decide when to register (when the book is finished) and what to register (the book). However, software (and games, in particular) is a much more fluid situation. When is a game truly ever finished? And, if we don’t know when the game is finished, what exactly do you decide to register with the Copyright Office? More importantly……the Copyright Office requires that “each separately published version of a computer program that contains new, copyrightable authorship must be registered separately, with a new appliation and fee.” (Circular 61) So, now the question becomes, how are defining a… Continue Reading

>Tip: Work Made for Hire vs. Get the Assignment

>One of the more common missteps involving intellectual property is the concept of a work made for hire. This concept is defined in the U.S. Copyright Act and there is a lot of case law over the years regarding it. Many people believe that “if Company A paid for Person B to develop The Thing, then Company A owns The Thing”… like all things lawyer, the answer is “maybe.” If Person B was an employee of Company A and it was part of Person’s B to develop The Thing, then The thing is a work made for hire. There is a second concept for work made for hire……that is spelled out in the statute, but it requires many other extra hoops for The Thing to qualify as a work made for hire. However, as you can see, not every instance qualifies as a work made for hire. And, if The… Continue Reading

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