As a bit of background information, I work in the IT department at my university and part of my job is to handle copyright violations by processing the email notices sent to us by the RIAA, Universal Studios, HBO, ESA, etc.
In the past year, the RIAA and other copyright compliance organizations have stepped up their efforts in preventing the sharing and distribution of copyright protected material (movies, music, TV shows, etc). This is evident in the number of copyright violation notices my university has received this year compared to the year before.
What brings up concern is the notice I recently received from the ESA (Entertainment Software Association). Here is an exact excerpt of that notice (with sensitive information omitted):
The Entertainment Software Association (“ESA”) is a U.S. trade association that represents the intellectual property interests of numerous companies that publish interactive games for video game consoles, personal computers, handheld devices and the Internet (hereinafter collectively referred to as “ESA members”). ESA is authorized to act on behalf of ESA members whose copyright and other intellectual property rights it believes to be infringed as described herein.
ESA is providing this notice pursuant to the Section 512 of Title 17 of the U.S. Code (as enacted by the ‘Online Copyright Infringement Liability Limitation Act’) to make University of __________ aware that the IP Address identified below is using the services and systems of University of __________ to infringe the exclusive copyright and other rights of one or more ESA members. This notice is addressed to you as the agent designated by University of __________ to receive notifications of claimed infringement.
Based on the information at its disposal on 17 Dec 2008 17:37:18 GMT, ESA has a good faith belief that the subscriber using the IP address xxx.xxx.1.200 is infringing the copyright rights of one or more ESA members by copying and distributing unauthorized copies of game products (through peer-to-peer or similar software/services), in violation of applicable copyright laws, through internet access that University of __________ provides directly to the xxx.xxx.xxx.200 or through a downstream provider that purchases this access for xxx.xxx.xxx.200. The copyrighted works that have been infringed include but are not limited to:
Title: Warhammer 40,000: Dawn of War
Notice ID: xxxxxxxx0064
Infringement Source: BitTorrent
Infringement Timestamp: 17 Dec 2008 17:37:18 GMT
Infringement Last Documented: 17 Dec 2008 17:37:18 GMT
Infringer Username:
Infringing Filename: Warhammer 40000 Dawn of War Soulstorm FIXED Keygen – Serial Works ONLINE PC
Infringing Filesize: 1083239
Infringer IP Address: xxx.xxx.xxx.200
Infringer DNS Name:
Infringer Port ID: 64701The unauthorized copies of game product are listed and/or identified thereon by their titles or variations thereof, game-related listings/references/descriptions, or depictions of game-related artwork. Such copies, titles, game-related listings/references/descriptions, depictions, and material that is the subject of infringing activities are hereinafter referred to as “Infringing Material.”
Notice that the “Infringing” file is a key generator, not the game files themself. For the most part, this is a question of under what jurisdiction does the ESA have to claim that downloading or sharing a non copyright protected key generator is, in fact, a violation of US copyright laws. Afterall, the ESA sent us that notice to inform us of a copyright violation. However, the file is not a product of Relic Entertainment or THQ, therefore, it is not protected by the same copyright protection offered to products of the latter companies.
Keep in mind that we are talking about jurisdiction, not legality. Whether the file is illegal or not, the ESA is still claiming something that does not belong to them. Wait, wouldn’t that make them pirates, too?
It seems as if at least one organization is overstepping their boundaries. The ESA’s job is to keep people from infringing on the rights of the copyright holders they represent, but isn’t the ESA infringing on the rights of the people who made the key generator by falsley presenting themselves as representatives? It can be assumed that the key generator uses some algorithm from the copyright protected program, but that is it; you can only assume. In other words, there is no definite proof that the material belongs to Relic Entertainment or THQ. It’s not like copyrighted music where the instrumentals and vocals can clearly be traced back to their owner.
I sent the ESA a reply to the notice we received (as seen above) and I’m eagerly awaiting their reply on this controversial issue. Here’s a copy of what I sent them:
Thank you for giving us notice about copyright violations. We have remediated the past incidents in a manner cooperating with your standards, but I have a few questions about the notice seen below. In this case, the infringing material is “Warhammer 40000 Dawn of War Soulstorm FIXED Keygen – Serial Works ONLINE PC”. From what I can tell, this file is known as a “key generator”, a program that can possibly create serial numbers for use with registering or installing different software.
While I do understand how the infringing material is controversial in the realms of whether it is legal software or not, I do not understand why the ESA is claiming that downloading or uploading the non-copyright protected key generator is, in fact, a violation of US Copyright laws.
Could you please explain how the key generator is a violation of copyright laws and what legislation made it so? Is the key generator intrinsically or extrinsically illegal? As far as I can tell, the material in question is not a product of Relic Entertainment or THQ. That leads me to the question of under what jurisdiction does the ESA claim that the material in question is, in fact, a violation of US copyright laws?
I will post an update as soon as I receive their response. In the meantime, what are your thoughts on this issue? Is the ESA in compliance? Is a slippery slope scenario plausible?
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