June 15, 2004

Atari v 321 Studios, DMCA lawsuit over Games X Copy

321 Studios, which makes backup-software, is being sued under the DMCA by Atari and other Entertainment Software Association members, over 321's Games X Copy backup product (via Copyfight).

Press Release: Leading video game companies sue 321 studios

Text of complaint against 321

By coincidence, I was just going through the decision of 321 v MGM, a similar DMCA case, which 321 lost. Notable excerpts (my emphasis):

This Court finds, as did both the Corley and Elcom courts, that legal downstream use of the copyrighted material by customers is not a defense to the software manufacturer's violation of the provisions of S 1201 (b)(1).


Fair use and misuse are defenses only to copyright infringement claims, which are not at issue in this motion. Additionally, as this Court has already related in some detail in the summary judgment portion of this opinion, the First Amendment is not an affirmative defense to a claim under the DMCA. Therefore, as 321's proposed amended defenses are futile, this Court DENIES the motion to amend counterclaims.

Frankly, I don't think 321 Studios has a chance here.

By Seth Finkelstein | posted in dmca , legal | on June 15, 2004 06:55 PM (Infothought permalink) | Followups
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I think it's actually an open issue whether fair use allows you to make personal backup copies of copyrighted material (even ignoring the DMCA). I read the Sony case rather closely and the holding did not go this far.

Posted by: Cypherpunk at June 16, 2004 05:08 PM

It's copyright law section 117, not the _Sony_ case.

Posted by: Seth Finkelstein at June 16, 2004 05:13 PM