Justifying Video Game Piracy – The Backup Defense

Posted By: Ryan Rempp

controllerThe video game emulator community has a second argument to justify downloading copies of video games. They argue that as long as the downloader has a legal copy of the game, it is not illegal to download a backup copy. Unfortunately, that argument does not work. In fact, obtaining a digital copy of a video game is a tricky legal issue.

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Pixel Police: DRM and Securing Photos Online

Posted by: Lauren Stewart

April 20, 2015

pad-lockA disturbing trend has emerged, primarily on Instagram, called baby-role playing. This is where a person, often a teenage girl, steals images of a child from the Internet, gives them a new name, and creates a user profile claiming the child as her own. Some even portray themselves as adoption agencies and followers request photos of specific babies they would like to adopt. Also labeled “digital kidnappers” the general reaction to this apparent fantasy role-play is that it is bizarre and horrifying. Worst, parents fear that some of these people might resort to more abusive or sexual fetish behavior. Once reported, Instagram will remove stolen photos pursuant to their terms of use and community guidelines. But parents are likely wishing they could prevent the thefts altogether.

Stealing photos is nothing new or surprising. Most people probably think that it is ok and that there is no harm in it. But baby role-play presents a chilling scenario where preventing digital photo theft seems more pressing. Without a doubt, stealing photos online is copyright infringement and if identified, a parent could file suit against a baby role-player. Ideally though, there should be a way, other than not sharing photos online, to prevent photo theft beforehand or to catch the thief when stealing occurs. Enter digital rights management. Continue reading

Does Unlocking On-Disc DLC Violate the Anti-Circumvention Provision of the DMCA?

Posted by: Kyle Sol Johnson

April 20, 2015

dmcaIncreasingly videogames are released alongside downloadable content (DLC) the adds some aspect or function to the underlying game. These may be packs of maps, new zones, new weapons and armors, or even entirely new missions. Often it is a combination of the above. Traditionally, DLC is offered some months, or even years when it comes to expansion packs, after the release of the original game. However, many games of late have been released alongside so-called Day One DLC that is immediately available for purchase when the underlying game is released. Some videogame developers have taken this a step further, including unlockable content on the original game disc itself and later selling consumers a key that will allow them to access the encrypted data.

This ‘disc-locked content’ has drawn copious amounts of ire and criticism from consumers and game journalists. Consumers feel that they have paid for the disc and should thus have access to everything on it as the owners thereof. These consumers claim that disabling the encryption to gain access to the locked content constitutes a fair use because it is a noncommercial use under §107 of the Copyright Act. Continue reading

They’re Shutting Down the Internet: The Responsibility of Internet Service Providers in Combating Piracy

Posted by: Macaulay Christian

April 20, 2015


The Pirate BayImagine that, for some time and on a fairly consistent basis, you download and listen to all of your favorite music through one or more torrent sites. Whatever your personal beliefs are, you do know that, legally speaking, what you are doing is wrong. Your Internet service provider has even sent you periodic letters informing you that your conduct is infringing on various copyrights and that you should cease your activities immediately. You’ve allowed these notices to pile up, not even bothering to open the latest ones. Then, something happens, something that hasn’t happened before—your Internet is shut off. After playing around with your router, you phone your provider, wanting to have your service reestablished. You are informed that you have been permanently disconnected from the Internet because of your repeated copyright infringement, at the request of the major record labels.

The thought is almost scary, if not only that your ISP could be compelled to permanently disconnect your service, going on in today’s highly interconnected world without regular access to the Internet is borderline unthinkable. It’s difficult enough for Millennials to try and conjure up conceptualizations of what life was like before the Internet, before computers. To have to navigate modern expectations of productivity, entertainment, and communication one must have access to the Internet.

The crux of the matter is what responsibility does or should ISPs have in policing copyright infringement committed by its subscribers on its network? In the United States, the answer to that question may rest in a lawsuit initiated against Cox, while in the case in Ireland may given big content a reason to hope. Continue reading

Does the Constitution Follow the Net?: The Digital Millennium Copyright Act, Free Speech, & Fair Use

 Posted by: Macaulay Christian

April 20, 2015

dmcaTake a moment to think about computers. There isn’t an aspect of daily life that hasn’t been at least touched, if not outright revolutionized, by the advent of the computer. They no longer mammoth machines existing within the confines of a single, massive space—they’re portable. You probably have a laptop or notebook, maybe that’s what you are using to read this right now but, in the modern era, you aren’t shackled to just the more traditional idea of a computer, you could just as easily be reading this from you smartphone. Others still could be making use of an iPad or other tablet computer. Common accessories are becoming embedded with computing capabilities from watches to wristbands. Even the home is becoming more and more connected: Refrigerators, thermostats, and home automation technology. Your pet might have a GPS chip implanted in case they get lost. Your car speaks to you and understands your oral commands. Computers are everywhere in the 21st Century.

To put this revolution in some perspective, once the computer became a consumer good, civilization set sail from the old, analog world for a new, digital one. But, just as the first colonists who came to the Americas learned, not everything that worked in the old world works with the rules of the new one. Principally, how to strike the appropriate balance between an 18th Century Constitution and the technological realities of 2015? Do some constitutional protections not exist when applied to the digital world? Continue reading

Is a Take Down a Taking?

Posted by: Chase Millea

April 20, 1015

dmcaUnder the Fifth Amendment to the Constitution, “private property [shall not] be taken for public use, without just compensation.” Traditionally we think of a government taking in the context of real property. If the government wants to knock your house down to build a highway, they are going to have to pay you (probably not as much as you wanted) for it.

Okay, so what about revenue-generating material on the Internet? For example, what about video gamers streaming their game play on websites like Twitch.tv? If the video game manufacturer files a takedown notice under the Digital Millennium Copyright Act (DMCA), and Twitch takes down the content in furtherance of obligations under the statute, does the video gamer get anything for having his or her product taken away? Continue reading

Penalties for Misrepresented Take Down Notices

Posted by: Chase Millea

April 20, 2015

Image_removed_DMCAIn the United States, a holder of a copyright under the Copyright Act maintains exclusive rights to reproduce and distribute work fixed in a tangible means of expression. In essence, that means that a person can protect against redistribution of original work without authorization.

The Digital Millennium Copyright Act (DMCA) authorizes a copyright holder to issue a “take down notice” to an infringer to remove infringing works “expeditiously… or disable access to the material.” For example, a copyright holder may make a claim under the DMCA to require YouTube to take down a personal video that was uploaded without their authorization. The DMCA requires YouTube to comply or face a penalty.

Although the DMCA offers broad protections for copyrighted material, it also explicitly prohibits entities from citing the Act to unlawfully restrict others from using non-copyrighted material. Now, one of the first cases on the topic affirms that courts are willing to penalize breaches of this provision. Continue reading

Twitch and Copyright Liability

Posted by: Bryan Zhao

April 19, 2015

twitchTwitch.tv is a website that provides video gamers with a centralized location to share and stream their video game experiences with others. Another blog post about Twitch is available on this site here. In August of 2014, Twitch was purchased by Amazon for roughly $970 million in cash. Upon the change in ownership, it implemented a new audio recognition policy to automatically flag content that includes copyrighted music during broadcasts. While the broadcast is not immediately muted, Twitch records and saves streams as videos on demand (“VOD”s) and automatically mutes any flagged stream. The change in policy likely exists so that the site does not violate 17 U.S. Code § 512(a)(4), which is required to maintain safe harbor protection for acts of copyright infringement committed by broadcasters. While the change was unpopular, it was a necessary change to protect Twitch and indirectly Amazon from eventual legal action. However, Twitch may also need to do more to prevent other copyright infringement claims in the future. Continue reading

Periscope vs. HBO

Posted by: Marcus Beecher

April 19, 2015

HBO_LogoOn March 26, 2015, Twitter released Periscope. Periscope allows users to broadcast what they (or their devices) are seeing in real-time to their followers. The makers of Periscope intend the app to become “a way of discovering the world through someone else’s eyes,” or, in different words, a “visual pulse of what’s happening right now.” A Periscope user can open the app, push a button, and start filming. That user’s followers will be notified that the user is ‘live’ and can then view what the user is filming, as the user is filming it.

Anybody who follows cyberspace law probably read the last paragraph and thought: ‘an app that allows users to broadcast anything their phone is pointing at? Ya, that’s going to lead to some serious copyright infringement.’

Indeed. It would appear that quite a few Periscope users recently pointed their phones at their TV screens, and broadcasted Game of Thrones to their followers. HBO, of course, is not happy about this development. In fact, HBO is seemingly not happy about Periscope in general, calling it a potential tool for “mass copyright infringement.” Continue reading

The Rare “Takedown” in DMCA Takedown Fraud

Posted by: Lauren Stewart

April 17, 2015

Image_removed_DMCAImagine you are a parking attendant and a person tells you that you have his car. He gives you no proof, but to avoid trouble you give him the keys. Rather than questioning the person about his ownership or enlisting the police to help in prosecuting the theft, not you, but rather, the guy who owned the car must get the car back, identify the thief, prove that the car was rightfully his, and prove damages resulting from the theft. This sort of thing is lurking on the Internet in the realm of DMCA safe harbor protection. The DMCA’s notice-and-takedown procedure gives copyright owners a simple and efficient procedure for removing content from websites that infringes their copyright. The downside of this procedure is that it is easily abused. Such abuse occurs often and those who have their content removed have an uphill battle in rectifying the situation and getting recourse for losses. To date, it appears that only two takedown fraud cases have been awarded damages. But shedding light on the breadth of takedown abuse and promoting efficient redress might subdue overzealous copyright owners and make them think twice before abusing the notice-and-takedown scheme. Continue reading