Jumping into the battle royale between Blizzard Entertainment and MDY Industries. Public Knowedge (”PK”), filed a friend of the court brief on Friday May 3oth.

PK officially supports neither side in the dispute, but notes that–

“Blizzard’s argument would eviscerate the traditional relationship between copyright and contract and, in the process, upset the delicate equilibrium between the rights of copyright holders to manage their intellectual property (“IP”), and the rights of the public to use the products that embody that IP. Under Blizzard’s theory, a copyright owner could not only contractually impose the most onerous restrictions on its customers—restrictions that undermine rights guaranteed by copyright and First Amendment law—but could also enforce those conditions with the threat of copyright law’s high statutory damages.”

“Eviscerate” is a term generally reserved for Blizzard’s World of Warcraft in-game play, but it pretty neatly summarizes the problems with Blizzard’s legal theories. For example, if Blizzard were to prevail under its expansive theory, it would allow game creators (and virtually any copyright owner) to sue individuals for enormous copyright damages regardless of whether the individual violated the copyright act. That would be a neat trick.

Oral arguments on both motions for summary judgment are set for June 26th.

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On October 31, 2007, a number of progressive policy groups endorsed a set of Fair Use Principles for User Generated Video Content authored by the Electronic Frontier Foundation. In the world of Copyright and Fair Use, each step forward by content owners is typically followed by a step forward by fair use advocates seeking to secure content for public use. (Think: Spy vs. Spy.) The principles advocated by the Electronic Frontier Foundation (and other policy groups, like Public Knowledge) would interfere with YouTube’s recent attempts to filter out copyright-protected content from its online service.

Do these principles serve the public interest or do they go too far? Should content owners prove others are infringing instead of having persons posting content establish they have the right to do so (the Wikipedia model)? Should we adopt a model that burdens owners or users?

YouTube Model. Owners must spend time working with YouTube to ensure that thier content has been provided to YouTube so that it can filter out content. Otherwise, the owner must police YouTube and provide DMCA Takedown Notices in order to remove the content. Down side: some fair use materials will be screened out.

Wikipedia Model. Users must establish what right they have to upload material, whether they are the owner, licensee, or that material is public domain. Down Side: uploading material is more difficult under the Wikipedia Model.

The Fair Use Principles would increase the burden on YouTube (or its users), but would have little impact on Wikipedia, which removes any content not verified in a short period of time, while also providing a DMCA policy.

Policy groups (and YouTube) might do well to take a look at Wikipedia, which has a model that balances the public interest with the rights of authors and artists.

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