When legal scholars consider instances over the past 25 years in which the Supreme Court has struck down federal legislation as unconstitutional, two cases come up most frequently: United States v Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). I decided recently to take a second look at those cases – and was surprised at what I found.
In Lopez, the Supreme Court struck down the Gun-Free School Zones Act, which made it a federal crime to possess a gun within 1,000 feet of school property. In Morrison, the Court invalidated the section of the Violence Against Women Act that gave victims of gender-motivated violence a federal cause of action.
In each case, the Court held that Congress had exceeded its authority under the Commerce Clause because what it was regulating wasn’t “commerce.” It was “acts of violence” or noneconomic conduct of a criminal character, matters over which the states have traditionally had jurisdiction. However, I also found reaffirmation of the general principle that where Congress’ goal is to regulate commercial transactions or control prices or stabilize markets, its legislation will be upheld. In other words, where the transactions or markets Congress is regulating are economic in nature, its enactments will be sustained.
I found a second thing when I revisited Lopez. I also found Justice Kennedy’s concurring Opinion. It is inspiring. Here are the highlights of this lengthy opinion. Justice Kennedy makes four basic points:
Point #1: After reviewing the history of the Commerce Clause and the jurisprudence concerning it, Justice Kennedy concluded that the Court was and should be committed to a “practical conception of the commerce power.”
“Commerce” was not intended to be “a technical legal conception,” he said, “but a practical one, drawn from the course of business.” Consistent with this view, he eschewed the practice in which the Court had engaged for many years of drawing “content based or subject matter distinctions, thus defining by semantic or formalistic categories those activities that were commerce and those that were not.” For example, he specifically rejected the distinctions that had once been made between
- ‘transportation’ on the one hand, and “manufacture” or “production” on the other; and between
- activities ‘directly’ affecting commerce and those only ‘indirectly’ affecting it.
Point #2: Congress is owed considerable deference in determining how its powers under the Commerce Clause are to be exercised.
The powers conferred on the government by the Commerce Clause have been vested in Congress, not the Courts. As a consequence, the Court has long recognized that Congress is owed considerable deference in determining when and how that power is to be exercised and when the states alone are to be left to regulate a field.
While “the States and the National Government both have authority to regulate certain matters absent the congressional determination to displace local law,” it is Congress’ obligation, not the Court’s, “in the first and primary instance” to determine the federal-state balance. Put another way, the Commerce Clause “grants Congress … ample discretion to determine its appropriate exercise.”
In order to give proper effect to this deference, the Court has adopted the “rational basis” test. Under that test, it does not ask whether the subject matter of specific legislation sufficiently affected interstate commerce to justify its enactment. It is, instead, limited to asking whether Congress had a “rational basis” for concluding that it did. If Congress did have a rational basis for so concluding, then it is deemed to have acted within the scope of its Commerce Clause powers. If it didn’t have a rational basis for so concluding, then it can be found to have exceeded its powers under the Commerce Clause and the legislation it has enacted can be stricken.
This is the test nearly all of the Court’s current members have embraced and the Lopez and Morrison majorities applied. The history of its application “counsels great restraint” before the Court determines that the Clause is insufficient to support an enactment.
Point #3: In addition to deferring to Congress, it is important for the Court to adhere to its already established Commerce Clause jurisprudence.
Given the history of its decisions in this area, Justice Kennedy concludes that “the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point.” That means that judicial restraint counsels against calling into question “the essential principles now in place” regarding the commerce power, and against reverting to earlier “semantic or formalistic” artifices:
“That fundamental restraint …forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy…; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.
In Justice Kennedy’s view, the holding in Lopez was a “limited” one that did not “call[ ] in question” the Court’s “practical conception of commercial regulation” or resurrect former obstacles to Congress’ exercise of its plenary power.
Point #4: The Court should intervene to preserve the federal-state balance only where Congress has clearly exercised powers that are not its own but belong exclusively to the States.
While acknowledging that the duty to maintain the balance between national and state power is entrusted “in the first and primary instance” to Congress, Justice Kennedy perceives the courts as having a back-up role to play – in especially clear-cut and egregious cases. Thus, “when one or the other level of Government has tipped the scales too far” and trespassed upon the other’s exclusive territory, the Court may be required to intervene to say which side of the Federal/State divide certain powers fall on.
That was the case in Lopez. There, Congress sought to take over “an area of traditional state concern, … having nothing to do with the regulation of commercial activity” and, in so doing, it ““foreclose[d] the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise.” The Court was, accordingly, obliged to intervene to vindicate federalism.
The same is not true of the Affordable Care Act for at least two reasons. First, the Act’s nexus to commerce is incontrovertible. Second, as I have already demonstrated, here , States have not in any event been foreclosed from experimenting in the creation and operation of insurance exchanges or otherwise attaining the Act’s goals. Accordingly, short of a challenge to the Act “as applied,” the Court has neither cause nor occasion to intervene on these grounds.
* * *
UPDATE: This morning the United States Supreme Court upheld all but one provision of the Affordable Care Act – 42 U. S. C. §1396c. That provision would have permitted the Secretary of Health & Human Services to take away a State’s existing Medicaid funding if it did not agree to a proposed Medicaid expansion. The provision was found to be severable and the remainder of the Act upheld. The upshot is that States have three options when it comes to the Medicaid Program: 1) They can choose to participate in the expansion and receive additional federal funding; 2) They can choose not to participate in the expansion and maintain their current level of funding; or 3) They can choose not to participate in the program at all and forego federal funding altogether.
As to the more sensational provisions of the Act, the line-up was as follows: Five members of the Court, including the Chief Justice, voted to uphold the so-called mandate as an exercise of Congress’ power to “lay and collect Taxes.” Four members of the majority (Ginsburg, Breyer, Sotomayor & Kagan) believed that it could also be sustained under the Commerce Clause. Justices Scalia, Kennedy, Thomas & Alito issued a joint dissent, arguing that the Act should have been stricken in its entirety.
 All of the quotes in this blog post are from Lopez. For reasons of time and readability, I am not including legal citations. On request, I will glad to provide a version that does include them.
How can I say this? Very simply, because the Court had already confirmed three things: It clearly found that the Copyright Act was applicable to the case. SONY BMG Music Entertainment v. Tenenbaum, 672 F. Supp. 2d 217 (D.Mass. 2009) (“Tenenbaum #2″); SONY BMG Music Entertainment v. Tenenbaum, 626 F. Supp. 2d 152, 155 (D.Mass. 2009) (“Tenenbaum #1″) It found the statute itself to be constitutional. Tenenbaum #1 at 152-154. And, it found the jury had been properly instructed on awarding damages under its provisions. Tenenbaum #3, 721 F. Supp. 2d at 92-93.
In my opinion, once it had found these three things, its constitutional inquiry was at an end. It could not go on to undertake the analysis it did and unilaterally reduce the jury’s award without either 1) rewriting the statute (by substituting a different statutory damages range), thereby violating separation of powers or 2) substituting its own judgment – for the jury’s – of the amount that should be awarded within the original range, thereby violating the Seventh Amendment. It wasn’t entitled to do either.
It was the District Court, therefore, and not the jury that violated the Constitution.
The Proceedings Before The District Court:
Under section 504 of the Copyright Act, a plaintiff is entitled to elect his remedy. He can either choose an “actual damage” remedy or a form of liquidated damages. In 1999, the United States Congress increased the statutorily-prescribed range for the latter remedy. As a consequence, a litigant that opts for statutory damages is entitled to recover between $ 750 and $ 30,000 per infringement. Under the Seventh Amendment, the United States Supreme Court has been unequivocal in holding that the amount to be awarded within this range is a matter for a jury, rather than the court. See Feltner v. Columbia Pictures Television Inc., 523 U.S. 340, 353 (1998)(the right to a jury trial includes “the right to have a jury determine the amount of statutory damages … awarded to the copyright owner” for an infringement).
Consistent with this constitutional imperative, in the Tenenbaum case, the United States District Court for the District of Massachusetts initially left it to a jury to decide how much Sony and RIAA were entitled to recover for the unlawful downloading and file-sharing of their music. The jury awarded an amount within the range prescribed by the statute- or $ 22,500- for each infringement. On July 9, 2010, the court set aside the jury’s award on the grounds that it allegedly violated defendant’s due process rights. The District Court made its own assessment of the damages to which it believed plaintiffs were entitled and reduced the jury’s award accordingly. Specifically, it reduced the per-infringement award from $ 22,500 to $ 2,250 and total award from $ 675,000 to $ 67,500. 
As suggested above, after reviewing the decision in detail, I have reluctantly come to the conclusion that it was not the jury, but the District Court that acted unconstitutionally. It usurped Congress’ role, invaded the province of the jury, and deprived plaintiffs of a property right. Each of these usurpations violated the Constitution. The first violated separation of powers principles; the second, the Seventh Amendment; and the third, the Due Process and Just Compensation clauses.
I examine the first two violations briefly.
A. A Court Cannot Alter A Statutorily-Prescribed Damages Range Without Violating Separation Of Powers.
It is a fundamental precept of separation-of-powers principles that “the lawmaking function belongs to Congress, U.S. Const., Art. I, §, and may not be conveyed to another branch or entity.” Loving v. United States, 517 U.S. 748, 758 (1996)(quoting Field v. Clark, 143 U.S. 649, 692 (1892)). This principle does not mean that only Congress can promulgate rules; it can obviously delegate some of its authority. Wayman v. Southard, 23 U.S. 1 (1825).
“‘The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.'”
Loving, supra, 517 U.S. at 759 (quoting Cincinnati, W. & Z.R.Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 (1852)).
It follows that when Congress has specified the remedy or remedies that attach for the violation of a statute, the courts have no authority to rewrite the remedial scheme. See, e.g., Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 20 (1979); National RR. Passenger Copr. V. National Ass’n of Railroad Passengers, 414 U.S. 453, 458 (1974)(when legislation specifies a particular remedy or remedies, that remedy is generally understood to be exclusive); Wilder Mfg. Co. v. Corn Products Refining, 236 U.S. 165, 174-75 (1915)(where a statute prescribes the penalty for an offense or remedy for a statutory violation, “the punishment or the remedy can be only that which the statute prescribes”); Barnet v. National Bank, 98 U.S. 555 (1878). This is presumably as true where Congress has provided for a range of damages as where it has specified a precise amount.
A court cannot alter the upper or lower limits of the statutorily-prescribed range without usurping the legislative function. And, while it could always, theoretically, have found the statute to have been unconstitutional on its face, it did not to do that here. (See Tenenbaum #1 at 152-154). Quite to the contrary, it upheld the facial validity of the Act’s provisions and the instructions it gave regarding their application. (See Tenenbaum #3 at 92-93). The only fault the District Court found was with the jury’s verdict. See Tenenbaum #3. Specifically, it took issue with the per-infringement figure the jury chose from within the range prescribed by the statute to remedy the proven infringement.
B. The Supreme Court’s Punitive Damages Jurisprudence Wasn’t Applicable To The Tenenbaum Case And Did Not Authorize The Court’s Actions.
The Tenenbaum Court premised its right to review the amount of the jury’s award for excessiveness on the Supreme Court’s punitive damages jurisprudence. Its reliance is misplaced.
In Cooper Industries v. Leatherman Tool, the United States Supreme Court held that a court is not precluded by the Seventh Amendment from reviewing an award of punitive damages because the amount of punitive damages a jury awards in a case is not a “fact” within the meaning of that Amendment. The Seventh Amendment isn’t implicated, therefore, when a court substitutes its own judgment of what an appropriate punitive damages award would be for that of the jury.
The opposite is true when a court substitutes its judgment of the appropriate statutory damages award for that of the jury. Why the difference? Because the United States Supreme Court has been unequivocal in holding that the Seventh Amendment affords a plaintiff the
“right to a jury trial on all issues pertinent to an award of statutory damages under 17 U.S. C. § 504(c), including the amount itself.”
Feltner, 523 U.S. at 355; see also page 353 (“The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner.”). It follows that “if a party so demands, a jury must determine the actual amount of statutory damages under § 504(c) in order “to preserve ‘the substance of the common-law right of trial by jury.'” 523 U.S. at 355 (emphasis added).
By substituting its own judgment as to where within the statutory range the appropriate per-infringement award lay in this case, the Tenenbaum court usurped the decision-making function of the jury and violated the Seventh Amendment.
This conclusion is inescapable since a review of the District Court’s Opinion demonstrates that it engaged in virtually the same calculus it instructed the jury to undertake. Thus, by its own account, the Court instructed the jury to arrive at a damage figure by considering the following factors:
(a) The nature of the infringement;
(b) The defendant’s purpose and intent;
(c) The profit that the defendant reaped, if any, and/or the expense that the defendant saved;
(d) The revenue lost by the plaintiff as a result of the infringement;
(e) The value of the copyright;
(f) The duration of the infringement;
(g) The defendant’s continuation of infringement after notice or knowledge of copyright claims;
(h) The need to deter this defendant and other potential infringers, and
(i) The defendant’s “willfulness,” if the jury found the infringements to be willful.
(Tenenbaum #3 at 93, citing Jury Instructions 3, Case No. 03-cv-11661-NG, document #909.)
As Tenenbaum #3 then goes on to demonstrate, the District Court considered precisely these same factors. Thus, it considered
- the nature of the infringement in which the defendant had engaged, finding “file-sharing” to be “low on the totem pole of reprehensible conduct” (721 F. Supp. 2d at 116);
- the defendant’s purpose and intent, noting that Tenenbaum acted “willfully,” although not for “commercial gain,” (see, e.g., 721 F. Supp. 2d at 112, 116 (“Tenenbaum willfully engaged in thousands of acts of copyright infringement”);
- the benefit Tenenbaum reaped and/or expense he saved by virtue of the infringement, finding that he saved at least $ 1,500 per year (i.e., the cost of subscribing to a music downloading service, see 721 F. Supp. 2d at 114);
- the revenue plaintiff lost as a result of the infringements, calculating plaintiffs loss at either $ 1.00/per song or $1,500 per subscription license (see 721 F.Supp. 2d at 114-116);
- more generally, the value of the copyright, divining from its review of 50 other copyright infringement cases [see 721 F.Supp. 2d at 108-110 and footnote 14] that its value lay somewhere between $ X and $ Y;
- the duration of Tenenbaum’s infringement, noting that it extended over eight years or 96 months (see 721 F.Supp. 2d at 114 and n. 16);
- the fact that the infringement continued even after Tenenbaum was told to cease and desist and was put on notice of the claims; (see at 721 F.Supp. 2d at 116, 119-20); and, finally,
- defendant’s willfulness (see, again, 721 F.Supp. 2d at 116 (“Tenenbaum willfully engaged in thousands of acts of copyright infringement”).
Since it is the jury, and not the court, that is constitutionally tasked with these fact-finding functions, the Court usurped the jury’s function when it undertook its own analyses and evaluations. See Feltner; City of Monterrey.
The real constitutional question in Tenenbaum is not whether the jury verdict violated due process, but whether the Judge violated the Seventh Amendment.
C. The Court Violated The Seventh Amendment A Second Time When It Reduced The Award Sua Sponte.
The Seventh Amendment’s re-examination clause provides that
“in suits at common law, no fact tried by a jury shall be … re-examined … [other than] according to the rules of the common law.”
U.S.Const., Seventh Amendment. Because the “common law” this clause alludes to “is … the common law of England,” it only permits facts decided by a jury to be re-examined in the same circumstances they could have been re-examined in 1791. Dimick v. Schiedt, 293 U.S. 474, 487 (1935)(Seventh Amendment “in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791”).
There were only three modes of re-examining such facts at common law: A court could re-examine them in the context of: (1) granting a new trial, (2) offering the parties a consensual “remittitur,” or (3) in connection with issuing a venire facias de novo writ.
The Seventh Amendment is “a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner.” Parsons v. Bedford, 3 Pet. 433, 447-48 (1830)( Story, J). See also Hetzel v. Prince William, 523 U.S. 208, 211 (1998); Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., supra; Kennon v. Gilmer, 131 U.S. 22, 29-30 (1889).
The Tenenbaum Court did not reexamine the jury’s facts in any of the three ways permitted by the Amendment. In other words, it did not do so in the course of granting a new trial, as part of a common-law remittitur or in association with venire facias.
Instead, after conducting its own evaluation of the facts, it simply substituted its award for the jury’s. It relied on three Court of Appeals’ decisions to justify the substitution: Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16 (1st cir. 2006); Ross v. Kansas City Power & Light Company, 293 F.3d 1041 (8th Cir. 2002); and Johansen v. Combusion Engineering, Inc., 170 F.3d 1320 (11th Cir. 1999). None of these cases involved the Copyright Act or, indeed, statutory damages. Rather, in each, the District Court was reducing a punitive damages award to the maximum that was constitutionally permissible.
As the Eighth Circuit noted in responding to a claim that the District Court’s reduction constituted an improper and unilateral remittitur:
“While the traditional remedy of remittitur does require the plaintiff’s consent in order to comport with the Seventh Amendment right to a jury trial, Thorne, 197 F.3d at 1212, [fn4] the court’s mandatory review of a punitive damages award does not implicate the Seventh Amendment. The plaintiff’s consent to a constitutional reduction of a punitive damages award is ‘irrelevant’ because the court must decide this issue as a matter of law.”
Ross, 293 F.3d at 1049-1050.
The Eleventh Amendment is in accord:
“… [W]here a portion of a verdict is for an identifiable amount that is not permitted by law, the court may simply modify the jury’s verdict to that extent and enter judgment for the correct amount. …The Seventh Amendment is not offended by this reduction because the issue is one of law and not fact. … No one would dispute that the court, not the jury, has the responsibility for determining this constitutional limit. Courts decide questions of law, not juries.”
Johansen, 170 F.3d at 1330-1331.
The issue reduces, therefore, to a question of whether there is any reason to believe that the Supreme Court has retreated from its position that “the amount of statutory damages” to be awarded a copyright holder under § 504(c) is a question reserved to the jury. If it hasn’t retreated from that position- and there is no reason to believe it has- then the Seventh Amendment is implicated by the actions the District Court took in this case and no amount of manipulating the “fact” and “law” labels can avoid that fact.
Indeed, the Seventh Amendment hasn’t simply been implicated, it has been violated in the most fundamental of ways. In my opinion, there is only one outcome on appeal that would accord with the rule of law: reversal and a remand with directions to reinstate the jury verdict.
The fact that one may or may not personally applaud the outcome is irrelevant. If one believes in upholding the rule of law, then no other outcome is possible. It is the only outcome that can be reconciled with the manner in which our Constitution has allocated power between Congress and the courts, and judge and jury.
So, even for P2P-ers and file-sharers, much more is at stake than simply money. The right to have the representatives you elect make the laws in this country is at stake, as well as the right to trial by jury. Both rights are in jeopardy in this case, even if they are not specifically addressed.
 In St. Louis I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), the Supreme Court considered whether the range of penalties provided for by a particular statute (i.e., between $50 and $300, plus costs and attorneys’ fees) was “so severe and oppressive” and/or “obviously unreasonable” as to “amount to a denial of due process.” It did not, as the Tenenbaum Court suggests, “squarely consider[ ] the issue of whether a jury’s award … violated the Due Process Clause.” 721 F. Supp. 2d at 95 (emphasis added).
The distinction is an important one for the following reason: Separation of powers principles make the first type of inquiry appropriate. The Seventh Amendment makes the second inappropriate, except in accordance with its terms.
While the Tenenbaum Court could always, of course, have undertaken the type of statutory inquiry the Williams case contemplated, it obviously didn’t think it worthwhile.
 It could, of course, have offered a remittitur or new trial.
 There are only two circumstances under which a statutory award can deviate from that range: (1) where a defendant is found to have acted “willfully,” damages of up to $ 150,000 per infringement can be awarded, and (2) where a defendant is found to have been an “innocent infringer,” damages as low as $ 200 per infringement can be awarded. 17 U.S.C. §504(c)(2).
 Since there were thirty compensable (30) infringements, the jury’s award totaled $ 675,000.
 This was the maximum the District Court said was constitutionally allowable given the specific injury before it.
 Query whether the fact that the figure falls within the range prescribed by an admittedly constitutional statute immunizes it against a due process challenge, or, indeed, any challenge except in accordance with the Seventh Amendment. See post at fnotes 8 and 9.
 The District Court’s calculation in this regard is totally unrealistic. Tenenbaum did not simply download music for his own personal use, he electronically uploaded it to a file so it could be shared with ever greater numbers of other Kazaa users. As anyone familiar with the workings of Kazaa knows, a song or tune so uploaded goes “viral”, and within a short period of time, it is being shared with untold numbers of other users. Tenenbaum’s actions didn’t simply deprive plaintiffs of one license, therefore; it deprived them of myriad licenses- perhaps millions.
 “Venire facias de novo (meaning “may you cause to come anew”) is a writ a court uses to summon new jurors when there is some irregularity or impropriety in the constitution of an already-existing jury, or where the verdict that jury has returned is so ambiguous or imperfect that no judgment can be entered upon it.
 There is nothing in either the Copyright Act or Feltner that precludes a court from exercising its discretion to propose a common-law remittitur, provided the remitted damages remain within the permitted statutory range and plaintiff is afforded the opportunity to elect between a remittitur (or reduction in damages) or a new jury trial. Plalintiffs made it clear that they would not have agreed to a remittitur in this case, so a new jury trial would have been required.
 Since courts do not reach constitutional issues where they can be avoided, I would not expect the Seventh Amendment issue to be discussed. There are myriad other grounds on which the First Circuit can reverse. It is only if it might otherwise affirm the lower court that it might address the issue. But, in my opinion, affirmance is unlikely.
I tweeted this morning about the fact that the 2014 Winter Olympics just chose a polar bear as one of its three mascots. No sooner did it do so than there was a copyright challenge. The creator of an earlier mascot from the 1980 Olympics claimed his “teddy bear” has been infringed.
My tweet met with a reply – and very trenchant complaint. Filemot tweeted back: “@bassesq if it is not fair use to show us the competing mascots its a really boring story.”
Wishing to oblige and thinking it should be fair use to illustrate my news flash by showing a side-by-side comparison of the two mascots, I searched for and found the images on Yahoo. You can see them here. http://urly.it/126r
Finding both images uninspiring, however, I offer the following images in their place. While they are not the images in contention, they have two advantages over those that are. They are unquestionably cute and can be reproduced in many circumstances without infringing copyright. The first image is in the public domain. The second, subject to a GNU or Creative Commons license.
It is unlikely, alas, that the Olympic Committee will ever adopt a “public domain” polar bear or Creative Commons “teddy.” Why? Because it makes considerable merchandising revenue from licensing its mascots’ images.
Merchandising aside, however, perhaps we have an idea here: How about it, Olympic Committee? How about adding a 3-minute copyright challenge to the sports already featured at the Games?
“]Aquellos de ustedes que están interesados en la ley de copyright de los Estados Unidos debería leer la decisión de la semana pasada por el Tribunal del Noveno Circuito de Apelaciones en el caso que se llama “World of Warcraft” (o “WoW”), http://bit.ly/gGa3D8. No, no tiene nada que ver con Orson Welles o HG Wells. Se trata de un universo virtual que muchos de nosotros nunca entrará.
Los hechos básicos del caso se resume asi: La parte demandada Blizzard creó un juego en línea (“World of Warcraft”) que ha atraído a millones de jugadores. Al igual que muchos juegos, se trata de varios niveles de dificultad. A medida que avances de una fase a otra, el juego se vuelve más compleja:
… los jugadores de WoW desempeňan diversas funciones, como los humanos, elfos y monstruos, con el objetivo central de avanzar en el carácter a través de 70 niveles, participando en misiones y participar en batallas con monstruos. Como jugador avanza, el personaje acumula premios como la moneda del juego, armas y armaduras. El mundo virtual de WoW tiene su propia economía, en que los personajes usan su dinero virtual para comprar y vender artículos directamente el uno del otro, a través de vendedores, o el uso de casas de subastas. Algunos jugadores también utilizan WoW capacidades de chat para interactuar con los demás.
Decisión en la Parte I (A), página 5.
El demandante MDY creó un “bot” (“Glider”) que sustituyen a los jugadores de carne y hueso en las primeras rondas de juego. . . permitiendo a quienes usen el bot atender a otras cosas durante estas rondas y avanzar más rápidamente a niveles avanzados. Cuando Blizzard detectado el “bot”, creó un programa (“Warden”) para impedir a los que usen el “bot” conectir a su servidor. El demandante entonces se crea un programa para eludir Warden y permitir a los que usen Glider seguir jugando. MDY demandó en el tribunal que se declare que no se infrinjan los derechos de Blizzard y Blizzard reconvino.
El Tribunal de Distrito decidió que MDY ha cometido una serie de agravios o daňos. Decidió que era indirectamente responsable de infringir los derechos de autor directo. Decidió que se había violado dos de la DMCA “disposiciones contra la elusión”, diseñada para proteger contra el acceso no autorizado a las obras con derechos de autor. Y decidió que se había cometido la interferencia con las relaciones contractuales, un daňo bajo la ley estatal en véz de la ley federal. (Las relaciones con las cuales interfirieron fueron las que existen entre Blizzard y sus no-bot jugadores).
El Noveno Circuito revocó la sentencia del tribunal inferior en aspectos sustanciales. Tres aspectos de la decisión son más notables:
En primer lugar, el Noveno Circuito determinó que aunque el uso del robot (“Glider”) estaba en violación de los “Términos de Uso” de Blizzard, sólo se ha violado un “pacto contractual” y no un “estado de derecho de autor.” Eso significa que los jugadores que usen Glider no cometieron la infracción de derechos de autor directo, y MDY no podría ser indirectamente responsable de infringir. Este aspecto de la sentencia así puede tener repercusiones mucho más allá de los límites del caso, si sirve como modelo para la eliminación de los recursos (y sanciones) de derechos de autor cuando hay violaciónes de “Términos de Uso.”
En segundo lugar, el Noveno Circuito determinó que a pesar de que la elusión de las defensas de Warden no permiten que exista infracción de derechos de autor, el demandado Blizzard tuvo una causa de acción contra MDY por violar § 1201 (a) (2) de la DMCA. En este sentido, el Noveno Circuito no estuvo de acuerdo con el Circuito Federal, que ha declarado que no puede existir una violación de DMCA en ausencia de una infracción del derecho de autor. Ahora que hay una división entre los circuitos sobre esta cuestión, es posible que el Tribunal Supremo de los Estados Unidos decidirá considerar la cuestión. En mi opinión, el Noveno Circuito tiene el mejor argumento jurídico sobre esta cuestión en particular.
En tercer lugar, el Noveno Circuito devolvió a la Corte de Distrito el reclamo que trata de la interferencia contractual, porque habia una auténtica cuestión de hecho material. Decidió que la ley federal no reemplaza a la ley estatal en cuanto a este reclamo. Este es un tema sobre el que ha habido un debate considerable en numerosos casos.
En el análisis final, ambos bandos utilizaron una gran cantidad de moneda del mundo real tratando de redefinir al mundo virtual. Ni terminó aniquilando al otro.
Todavia, puede ser que la Corte Suprema va a decidir si ambos puedan seguir jugando … o si uno va a reclamar el terreno de juego entero.