MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Filing 63

MOTION to File Amicus Curiae Brief in Support of Neither Party on Cross-Motions for Summary Judgment by Public Knowledge. (Attachments: # 1 Amicus Curiae Brief, # 2 Text of Proposed Order Granting Public Knowledge's Request to File an Amicus Brief)(Mableson, Connie) Modified on 5/5/2008 LODGED PROPOSED DOCUMENT EVENT NOT ENTERED. (REW, ).

MDY Industries, LLC v. Blizzard Entertainment, Inc. et al Doc. 63 1 2 3 4 5 6 7 8 9 ATTORNEYS AT LAW PHOENIX CORPORATE CENTER 3003 NORTH CENTRAL AVENUE, SUITE 1800 PHOENIX, ARIZONA 85012-3909 602 277 3000 Dodge Anderson, Ltd. 3003 North Central Avenue, Suite 1800 Phoenix, Arizona 85012-2909 Telephone: (602) 277-3000 Facsimile: (602) 277-7478 Email: connie@azlawyers.com Connie J. Mableson, #010665 Public Knowledge 1875 Connecticut Ave. NW, Suite 650 Washington, DC 20009 Telephone: (202) 518-0020 Facsimile: (202) 986-2539 Email: ssiy@publicknowledge.org Sherwin Siy Jef Pearlman Attorneys for Public Knowledge IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA MDY INDUSTRIES, LLC, Plaintiff and Counterdefendant, vs. BLIZZARD ENTERTAINMENT, INC., and VIVENDI GAMES, INC., Defendants and Counterclaimants, BLIZZARD ENTERTAINMENT, INC., and VIVENDI GAMES, INC., Third-Party Plaintiffs, vs. MICHAEL DONNELLY, an individual, Third-Party Defendant. Case No.: CV06-02555-PHX-DGC MOTION OF PUBLIC KNOWLEDGE FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF NEITHER PARTY ON CROSS-MOTIONS FOR SUMMARY JUDMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DODGE ANDERSON, LTD. 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 ATTORNEYS AT LAW PHOENIX CORPORATE CENTER 3003 NORTH CENTRAL AVENUE, SUITE 1800 PHOENIX, ARIZONA 85012-3909 602 277 3000 MOTION OF PUBLIC KNOWLEDGE FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF NEITHER PARTY ON CROSS-MOTIONS FOR SUMMARY JUDMENT Public Knowledge ("PK") hereby moves for leave to file the attached amicus curiae brief in the above-captioned case. PK is a Washington, D.C. based, non-profit public interest group working to defend citizen rights in the emerging digital culture. PK's primary mission is to promote innovation, protect the legal rights of all users of copyrighted works, and stop any legislation from passing that would slow technology innovation, unduly burden free speech, shrink the public domain, or prevent fair use. PK has been involved in a number of technology policy and copyright issues over the past several years, including participation as a named plaintiff in Am. Library Assoc. v. FCC, 406 F.3d 689 (D.C. Cir. 2005). PK has also joined as amicus curiae in a number of cases, several of which address important copyright issues. See, e.g., Eldred v. Ashcroft, 537 U.S. 186 (2003); Twentieth Century Fox Film Corp. v. Cablevision Sys., No. 07-1480-CV (2d Cir. amicus brief filed June 6, 2008); Explorologist, Ltd. v. Brian Sapient, No. 2:07-CV-01848-LP (E.D. Pa. amicus brief field Jan. 11, 2008). See also Victor Mosley v. V Secret Catalogue, Inc., No. 01-1015 (Supreme Court cert. amicus brief filed June 24, 2002) (trademark); Medtronic Vascular, Inc. v. Cordis Corp. No. 03-963 (Supreme Court cert. amicus brief filed Feb. 6, 2004) (patent). Defendant's pending summary judgment motion is premised in part on a view of the law which confuses copyright and contract in an attempt to gain the benefits of both areas of law while being subject to the limitations of neither. Specifically, the Motion for Summary Judgment argues that purchasers of World of Warcraft do not own their copies of the software, but merely license them. As a result, Defendants 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DODGE ANDERSON, LTD. 2 1 2 3 4 5 6 7 8 9 ATTORNEYS AT LAW PHOENIX CORPORATE CENTER 3003 NORTH CENTRAL AVENUE, SUITE 1800 PHOENIX, ARIZONA 85012-3909 602 277 3000 argue that users are not protected by 47 U.S.C. 117, which allows owners to use the software they lawfully purchased without fear of inadvertently violating the underlying copyright on that software. The result suggested by Blizzard is that a player who cheats in an online video game in violation of a license will immediately become a copyright infringer subject to severe penalties, including minimum statutory damages of $750. See 47 U.S.C. 504(c)(1). If this argument succeeds, Defendants will be improperly turning what is an alleged breach of contract into an alleged copyright violation, and will circumvent the carefully crafted tradeoffs in both areas of law. This will allow them to leverage the harsh penalties of copyright law while dodging copyright's carefully crafted consumer protections. It will also permit them to gain the flexibility of a contract without the associated limitations on remedies that contract law provides. This view of the law would eviscerate the rights of lawful purchases of software, and should be soundly rejected by this Court. The parties have been informed of the filing of this amicus brief. Plaintiff has consented to the filing of this brief. Counsel for Defendant has declined to consent to the filing of this brief. Dated this 2nd day of May, 2008. DODGE ANDERSON, LTD. BY: /s/ Connie J. Mableson Connie J. Mableson, #010665 3003 North Central Avenue, #1800 Phoenix, Arizona 85012 Tel: 602-277-3000 Fax: 602-277-7478 Counsel for Public Knowledge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DODGE ANDERSON, LTD. 3 1 2 3 4 5 6 7 8 9 ATTORNEYS AT LAW PHOENIX CORPORATE CENTER 3003 NORTH CENTRAL AVENUE, SUITE 1800 PHOENIX, ARIZONA 85012-3909 602 277 3000 I hereby certify that on May 2, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Name Lance C. Venable, Esq. Christian S. Genetski, Esq. Scott Jeremy Stein, Esq. Shane M. McGee, Esq. Email Address docketing@vclmlaw.com cgenetski@sonnenschein.com sstein@sonnenschein.com smcgee@sonnenschein.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I hereby certify that on May 2, 2008, I served the attached document by FIRST CLASS MAIL on the following, who are not registered participants of the CM/ECF System: Name Email Address DODGE ANDERSON, LTD. /s/ Connie J. Mableson 4