Series Info...Trials, Triumphs & Trivialities #190:

Online Games & The Law, Part Six: The DMCA

by Shannon Appelcline

For a while now, I've been talking about legal issues that may effect you as an online game company. Today I want to talk about one of the biggest, the DMCA, or Digital Millennium Copyright Act, which was signed into law in late 1998 and which affects anyone offering online services.

There are five sections in the DMCA, but only the first two have any particular relevence to the gaming field: titles I and II. Title III talks about repairing computers, title IV covers various miscellaneous exceptions, and title V protects the copyright of boat hull designs. (Honestly.)

So this week I want to talk about those first two titles, which cover copyrights and safe harbors.

As always, I am not a lawyer. This is a layman's understanding of the law and how it might affect online gaming. Wikipedia was my primary reference.

Title I: Copyright Implementation

Title I itself has two major parts: section 102 and section 103.

Section 102 is pretty benign and just offers bilateral copyright protection to countries that signed various treaties. All you need to know: foreign works are copyrighted too.

Section 103, on the other hand, is the most controversial and the most autocratic of the laws collected in the DMCA. It's called the "anti-circumvention" provision, and it makes it illegal to circumvent access-control technologies or to sell devices who's primary purpose it to circumvent access-control. Later sections of title I claim that this anti-circumvention will not affect fair use of free speech, but that's been pretty liberally ignored by the courts since.

This law has been used to block Linux from playing DVDs or iTune songs and to prevent researchers from releasing security papers. Its relevence to the gaming industry was shown when isonews was raided by the FBI due to their manufacture of modchips for consoles.

Vivendi Universal v. Jung offers a similar, legal case. Here Blizzard's game server was reverse-engineered and cloned as bnetd. Blizzard sued and won a summary judgement. Though there was an issue of a click-wrap agreement that disallowed reverse engineering, an appelate judge also agreed that bnetd had violated the DMCA.

(There were issues with potential copyright violation with both of these cases, but what's relevent is that, particularly in the last case, the DMCA was upheld solely based on section 103, not actual copyright protections.)

On the whole, if you're an online game designer, this part of the DMCA is actually probably good for you. It prevents other people from competing in your space by reverse-engineering your protocols and setting up their own servers.

On the other hand, it also disallows niche companies which could have provided innovation for our industry. Under the DMCA there will never be third-party supplemental or support programs for games without explicit permission from a creator. Likewise as the first wave of MMORPGs slowly decreases in profitability they'll eventually die. Because there's no (legal) way for any one else to match their protocols and create the next generation of gaming and so give these early MMORPGs a second life.

So title 103 of the DMCA offers a thumbs up for the big guys and a strike against small publishers, which is a pretty common result for modern copyright law.

Title II: Liability Limitation

You may not even need to know about title I, because in main it describes some business models which are no longer legal, and if you're not engaged in those businesses, it probably doesn't affect you. Title II, however, is of a bit more importance because it outlines whether you can be held responsible for the extremely harsh penalties outlined in the DMCA for copyright infringement.

To be specific, title II offers protection to "online service providers". OSPs include ISPs as well as web sites. If you're offering an online game, then you're an OSP. If someone violates copyright by posting copyrighted material in your game or on your forums (or even talks about how to do so, per title I), you don't want to be responsible for that. Enter title II.

You have to meet a number of requirements in order to obtain this "safe harbor". In the main you have to not know about the infringing activity and not directly receive money due to people infringing copyright. You also have to register with the U.S. government, which I'd guess most people don't. (If you haven't, just click through on the "requirements" link, above; you'll find registration contact info there.)

Connected with this is the "take down and put back" provision, which specifies what an OSP must do in response to a claim of copyright infringement. In short, if an OSP receives an official (and appropriate) notice that copyright infringement has occurred, from someone authorized to act on behalf of the copyright holder, then they must quickly remove access to the material (following the well-known American legal precedent of "guilty until proven innocent"; an assault made by the Church of Scientology has shown how easily this can be abused).

The OSP must then notify the alleged infringer about the take-down. If the alleged infringer sends back an appropriate counter-notice, saying that the material does not infringe, the OSP must then notify the original claimant that the material will go back up in 10 days, then put it back up in 10-14 days ... unless the original claimant then state that they are seeking a court order to block access to the material.

(Wikipedia suggests that that even if you miss the requirements of the DMCA, as an OSP you might still be protected by the so-called Communications Decency Act. As far as I can tell, that's not actually true, and that while the CDA may offer protections to OSPs, it doesn't extend to IP-related issues like copyright infringement.)

Section 512(h) of title II also places a further requirement on OSPs: they must identify infringers if presented with a subpoena related to a valid take-down notice. Unfortunately this places burden on you as an OSP to ensure that a take-down notice is valid before you respond to the subpoena. If you end up in this situation, you need to talk to a lawyer.


So that's the DMCA Is a nutshell for online game makers: don't reverse-engineer and comply with the take-down provisions to avoid getting hit with IP lawsuits.

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