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8-23-2008 @ 3:35PM
Attempting to discuss anything with you is infuriating, since you're posting in a dozen different places."Ah, appeal to authority coupled with an ad hominem, always a guarantee that the rest of the argument's sound. :) " - When you're dealing with someone who mistakes uneducated opinion for fact, it's a little difficult to resist the temptation to tell them to stop, before they embarrass themselves."I notice that you have quoted neither case law nor indeed statues to prove your case yourself. Indeed, you haven't even told us on what basis you believe pwnies.org to be infringing. (And you haven't mentioned design right yet, which any IP lawyer of my aquaintance would have jumped straight to)" - I've already told you why it's an infringement, design right doesn't even come into it. Using somebody elses intellectual property without permission, outside of the exceptions of fair use and public domain is an infringement. What about that is so hard to understand? Do you really want me to start rattling off design right doctrine to people who know nothing about the legal system? I mean really. That and the fact that Design Right is a principle under British law, not American. Probably best to mention that. Copyright, Designs and Patents Act 1988 if I remember correctly?"So - if you're claiming that this is a copyright infringement, there must have been an instance where pwnies.org distribute copyrighted work - note, pwnies.org directly, not the user of the software. There's plenty of case law there in the lawsuits against Kazaa, Napster et al - MGM Studios, Inc. v. Grokster, Ltd, A&M Records, Inc. v. Napster, Inc., and dozens more."Ahh yes the old 'we only provide the road the drug-dealer drove on' argument. The difference is pretty clear, the sole purpose of the file-sharing program was not to provide a means of infringement, and indeed, infringement was in essence, the decision of the user, not the provider of the software. In this case however, the decision to infringe is not on the user, since the user cannot help it. The app is locked solely to that one site, the decision to infringe was the developer's, not the user's. Please note that almost all of those cases were decided in favor of the file-sharing application on the basis of who was doing the infringing, and the purpose and potential uses of the program. Napster, Kazaa etc did not infringe in and of themselves, however, this program does. There's the difference, explained in layman's terms."Now, pwnies claim that the distributed binaries and supplementary code - which is the only bit that they themselves are distributing - doesn't contain any of Blizzard's IP. If they're lying, they're screwed, but there's no reason to believe they are."The difference is that without access to the armory and the use of Blizzard's intellectual property, the program would not function. The above statement would be correct if we were not dealing with an online application. The fact of the matter is though, we are, and part of that application, whether they coded it or not, is Blizzard's IP. It doesn't matter if it's a part of the stand-alone code, the app still relies upon that material in order to function. It's effectively like coding half an app, and having the other half rely on somebody elses website. Indeed, that's exactly what this app does. Take away the third party's website, and the app ceases to function. "If the users were then infringing Blizzard's copyright in turn, then pwnies could be liable for contributory infringement. (Definition here - http://www.quizlaw.com/copyrights/what_is_contributory_infringem_1.php). However, the users are also engaging in an entirely legal activity, that being surfing the publically-accessible Armory site. I'm assuming you're not going to claim that viewing the Armory is infringement." - As mentioned earlier, the infringement occurs on the developers end, not the user. It is not comparable to the peer-to-peer cases you mentioned earlier."So, they're not on the hook for copyright infringement, by definition. They're not on the hook for contributory infringement. They might be screwed on design right, but I brought that argument up below. So what basis are you arguing? The legality of website terms and conditions? That's sticky ground - Kelly vs Arriba Soft Corp seems to bear upon this specific case. Something else?" - Yes, they really are, reasoning is stated above, and everywhere else in this thread."Saying "I'm a lawyer so I'm right" doesn't really cut it. " - Neither does substituting actual legal knowledge with Google-searching, and please, for the love of god don't mix American case-law with British statutes in the future. It just doesn't work that way.
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