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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The Competing Interests of Open Source and Patents, or Not?

Posted By: Aidan L. Clark

Copyleft_imageSome would say that open source software and protection of intellectual property rights, in the form of patents, could not exist in the same sphere. The idea behind open source software is to encourage innovation by the free exchange of code. The idea behind patenting software is to encourage innovation by granting the inventor a limited-in-time monopoly on their software. Both methods provide a way for the innovative technology to be introduced into the public domain. And with both methods, certain restrictions are placed on both the authors of the code, and those that wish to use it. Can open source software and patented software exists in the same sphere?

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Computer Software: The Transfer of Licenses Sale of Back-up Copies in the European Economic Area

Posted By: Timothy T. Emmart

The European Court of Justice (ECJ) recently held that it is an infringement of copyright to sell or transfer a physical back-up copy of a software program, when the original physical copy has been damaged, lost or destroyed. This ruling came after another ruling by the same court that created criteria for the lawful transfer of software licenses to third parties. The later ruling is in the same vein as U.S. copyright law, which allows the owner of a copy of a computer program to make another copy of that program for archival purposes and to sell or transfer that copy, along with the copy from which such archival copies were prepared. Continue reading

Is Regulation of Encryption a Regulation of Free Speech?

Posted By: Aidan L. Clark


Could the government regulate encryption? Encryption is a word that is used quite often in the public vernacular. At times, encryption is used as a general term, which is invoked when one is referring to concepts of digital information security and securing content of communications. Oftentimes, encryption code is copyrighted, a form of intellectual protection usually reserved for forms of expression protected by the First Amendment. However, it is important to understand the concept of encryption in a fuller sense if there is to be a discussion on the feasibility of regulating such a technology. This is because it is vital to understand why encryption came about, what it is, what it can do, and what it certainly cannot do, when attempting to discover the public policy effects of putting rules in place to govern it. Continue reading

Bitcoin Faces Increased Federal and State Regulation

Posted by Sam Knecht

April 20, 2015

bitcoin2Bitcoin, a digital crypto-currency, operates on a decentralized network that was designed to promote anonymity and avoid government regulation. Promoters of Bitcoin say it can improve global financial inclusion, allowing those without access to other financial services, or those living in countries with fluctuating fiat currency, a means of security via cyberspace. Advocates also say Bitcoin allows consumers a means of increased privacy, allowing them to control information about themselves financially and otherwise while participating in the global economy. However, the digital capital is facing increasing regulation on both federal and state levels that is likely to greatly decrease this anonymity in the future.

In 2013, the Financial Crimes Enforcement Network issued guidance saying that it would treat transmitters of Bitcoin the same as it does transmitters of other money. Businesses that exchange Bitcoin are now required to register with FinCEN and keep records of transactions. FinCEN regulates companies under the Bank Secrecy Act, a set of regulations that includes Patriot Act laws and requires money transmitters to record personal information about its customers. Certain kinds of financial transactions must also be reported. 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

How Far Should Companies Go to Protect Personal Data?

Posted by: Chase Millea

April 20, 2015

youtube-logo-300x204 internet-computer-securityAs nearly every analog form of communication transfers to a digital format, we input our personal data (e.g. credit card numbers, contact information) on a host of devices in an even greater number of settings. Do employers, retailers, and other users of the Internet have duties to protect personal information? In light of recent data breaches (including Target and Sony), many consumers are rightfully concerned that existing protections are insufficient.

Many states and the federal government are actively trying to combat breaches of personal privacy. For example, a U.S. House of Representatives bill seeks to improve responses to a data breach, including enhancing notice requirements for those whose data was compromised.

Interestingly, the bill also seeks to preempt state laws on the topic. If the proposed legislation becomes law, states would be prohibited form enacting supplemental legislation, which some argue would place consumers at similar or greater risk. In any event, companies have a strong incentive to ensure adequate privacy protections for employees and customers alike. Continue reading

A Game of Piracy and Licenses

Posted by: Bryan Zhao

April 19, 2015

DVDGame of Thrones is one of HBO’s most popular series and a significant driver of income for the company. Recently, the show released its fifth season to viewers, attracting over 8 million viewers. It should have been a resounding success, but that success was dampened by a leak of the four episodes, nearly half of the new season. While the leak will presumably affect its business, HBO likely has a greater interest on a different front: DVD sales and the secondary DVD sale market, which may be in jeopardy soon.


The first sale doctrine generally allows for consumers that purchase a copyrighted work to sell or dispose of the copyrighted work as they see fit. Prior to the increased reliance on digital media, the doctrine was simple to understand. If you buy a book, you’re free to either resell, loan, or give away that book at your own discretion. The first sale doctrine is essentially what allows libraries to loan out books, movies, and sometimes even games to its patrons, as well as the reason why it’s okay to buy used games, books, and CDs at garage sales or online auctions.

When you buy computer software, you may not actually be the owner of that software. Between 2005 and 2007, a man named Timothy Vernor sold several copies of Autodesk, Inc.’s “Release 14” software on eBay. After several disputes between Vernor and Autodesk, the sides turned to the courts to make a ruling on whether Vernor’s sales were permissible in Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010). Autodesk’s argument primarily relies on the idea of the purchaser of the software being a licensee to use the software rather than the owner of the software. An owner would be permitted to resell the product, but a licensee is only granted a nontransferable license. The court found that even though Vernor purchased a physical copy of the software and he never consented to the fact that he was only a licensee of the software, he still did not actually own the software and was therefore not permitted to resell it on eBay to a third party.

This result is very counterintuitive to the first sale doctrine; even if you physically purchase a box, CD, and product key with software, you may not necessarily be the owner of that particular copy. Continue reading

The Illegality of DDoS

Posted by: Bryan Zhao

April 19, 2015

Denial-of-service_attackHave you ever wondered why certain websites, despite being backed by companies with a seemingly endless budget, can slow to a halt or even seemingly disappear for hours, days, or even longer at a time? While sometimes the crash in access is caused by innocuous sources, such as maintenance, hardware malfunction, or errors, there are other occasions when the reason for the crash could be much more malicious action: DDoS. While many readers may have heard of the term or even know what a DDoS consists of as well as the fact that performing a DDoS attack may lead to criminal liability, they most likely have never researched why that is so. Additionally, they may not know 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