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October 2018
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Sony Caves: The PS4 Will Soon Begin Supporting Cross-Console Play

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Back in June, we talked about a fun little bit of trolling that Xbox and Nintendo teamed up for at the expense of Sony and its PlayStation 4. At issue was Sony's longstanding stance against inter-console play for multiplayer games that would otherwise allow for it, whereas Xbox and Nintendo players all over the world were happily playing MineCraft and Fortnite against one another. The end result of Sony's stance has been both a decent level of frustration by gamers that expect modernity in their console's features, and several YouTube videos and Twitter exchanges between Xbox and Nintendo highlighting that their own consoles had inter-console functionality. In that post, we said it was an open suggestion whether or not this public ribbing would change Sony's stance on the subject.Narrator: it changed Sony's stance on the subject.

After what it calls "a thorough analysis of the business mechanics required," Sony announced on Wednesday the first crack in the PlayStation Network's walled garden approach to cross-console functionality. Starting today, Fortnite on the PS4 will allow for "cross-platform gameplay, progression, and commerce" with versions on the Nintendo Switch and Xbox One (in addition to the Android, iOS, Windows, and Mac platforms where such support was already integrated).
By all accounts, the thorough analysis mostly consisted of high level executives sitting around a table, asking one another if the Playstation should finally support inter-console play, and then sort of staring blankly at one another for days on end until one of them quietly muttered, "Yes?" And this isn't the account of pissed off gamers without an understanding of how this works on the backend. Rather, publishers and developers have basically been screaming at Sony about this for several years now.
Sony has kept the PlayStation Network stubbornly closed off from other consoles' online platforms, despite complaints from multiple game developers that Sony's policy was the only thing stopping them from adding such support to their games.Things started coming to a head earlier this year, when Fortnite players found that merely linking their game accounts to the PS4 version of the game locked them out from using that same account on the Nintendo Switch version. More recently, Bethesda issued what it called a "non-negotiable" demand that any pending console version of its Elder Scrolls Legends card game must have full cross-console support.
So, while Sony can't credibly take credit for listening to fans, it can be said to have happened indirectly, with developers being the ones wanting to bring these features to their customers, and then pushing and threatening Sony over it. Now, of course, Sony will want platitudes for giving its customers what they've wanted for two or so years, but it likely won't get them.By stubbornly choosing protectionism in the form of a walled garden, Sony has made even its eventual good moves come without reward.

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Court Shoots Down Record Label's Attempt To Expand The Definition Of 'Vicarious' Infringement

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While there has been plenty of attention paid to the BMG v. Cox case, in which Cox was found not to be protected by the DMCA's safe harbors in dealing with repeat infringers, it's increasingly looking like the ruling in that case (which eventually led to a "substantial" settlement) was fairly unique to Cox's situation. Specifically, while much was made of Cox's "13 strikes" repeat infringer policy, in the end the nature of the policy wasn't what sunk Cox: it was the fact that Cox didn't follow its own policy. In other cases, courts seem willing to grant much more latitude to the ISPs to make their own calls. We wrote about the 9th Circuit and its ruling in the Motherless case, which made it clear that a platform gets to set its own policy, and that policy need not be perfect.Meanwhile, down in Texas, there's the UMG v. Grande Communications case, which many had seen as a parallel case to the BMG v. Cox case. This was another case that involved an ISP being bombarded with shakedown (not takedown) notices from Rightscorp, in which Righscorp and its clients felt that ISP was not willing to pass on those notices (thus denying Rightscorp and its clients the ability to collect money in exchange for a promise not to sue). As we noted back in April, while still in the district court, the Grande case wasn't going nearly as smoothly as the Cox case for those wishing to copyright troll. The magistrate judge was quite skeptical, and had tossed out entirely the claims of vicarious infringement (while somewhat skeptically allowing the claims of contributory infringement to move forward).Vicarious and contributory infringement are often lumped together, but they are different. For there to be vicarious infringement, you have to show that the party being sued both had the right and ability to supervise the activity, and that it would directly financially benefit from the infringement. The court rejected that in the case of Grande, noting that just because Grande makes money from its subscribers, that's not enough to show that it was profiting from the infringement.Universal Music tried to amend the complaint to show that it had "more evidence" that Grande and its management company, Patriot, were still vicariously liable -- but the magistrate judge says it's just trying to re-litigate what it lost last time. The recommendation makes fairly quick work of UMG's arguments:

The new evidence Plaintiffs rely on is: (1) Grande tracks its infringing customers; (2) thesecustomers are a la carte internet customers; (3) Grande's profit margins on a la carte customers areits highest of any business lines; and (4) Grande never terminated any user regardless of how manynotices of infringement it received... Plaintiffs contend that these facts make adifference, and are enough to suggest that Grande's failure to terminate infringers is a draw.... The Court disagrees. First, the original Complaint alleged essentially the sameor similar facts. Second, the new allegations still fail to say anything about the motivations ofGrande's subscribers when they sign up with Grande. That is, Plaintiffs still fail to plead factsshowing Grande gained or lost customers because of its failure to terminate infringers. Instead, theproposed amended complaint states that, the evidence demonstrates that Plaintiffs' CopyrightedSound Recordings were a draw to Grande's infringing customers, including customers Grande hadidentified as repeat infringers. ... But as has been noted in prior orders, the meansby which Plaintiffs contend the infringing subscribers infringed the Copyrighted Sound Recordingsby use of the internet and the BitTorrent protocol, which one can access through any ISP. Again,the draw must be something more than this to state a vicarious infringement claim. The allegedlynew facts are insufficient to overcome the deficiencies of the original Complaint.
This is important. For years, the legacy copyright players have continually tried to expand what third parties could be liable for when it came to infringement. It's always been a stretch to use both vicarious and contributory infringement claims in these ways, and it's good to see courts pushing back (though, in this case, the contributory infringement claims still have a chance...). The court directly pointing out that just because a company makes money from a client, that doesn't mean the money is from infringement is an important point that many among the copyright legacy world would like to ignore.

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