Game industry disputes touch nearly every aspect of law. Sega v. MAPHIA makes a significant contribution to the fast moving, and very current, privacy laws – specifically the Electronics Communications Privacy Act of 1986. At first glance the case appears to be a straight forward, and typical, dispute between a major content publisher, Sega Enterprises, and a for-profit online pirate distribution service, MAPHIA. But in the case is a court clarification on legal evidence gathering that will cite Sega v. MAPHIA on privacy dispute court filings, such as DoubleClick, for decades to come.
Takeaways
- Privacy laws will not protect against evidence gathering of online material accessible by the public.
- Public use of login, anonymous or pseudonym, is not an exception to the above.
Activity
Sega’s copyrighted video games were available on MAPHIA’s bulletin board by users who uploaded the games. A user of the system was created by a typical forward facing public registration feature. The user of the service could upload a game, which then became available to an unlimited number of potential subscribers to the site. The defendants charged fees for the service.
Evidence Gathering
An employee of Sega gained access to MAPHIA’s bulletin board service using a pseudonym supplied by an already registered user acting as an informant. The Sega employee then obtained copyright violation evidence from the bulletin board service.
From the court opionion:
39. Sega undertook to collect evidence of the above activities by having a Sega employee gain access the MAPHIA bulletin board under a pseudonym, as individuals generally do on the bulletin board, using information supplied by an authorized user who was an informant. Yang Decl. PP 11-13.
Privacy Protection Claim
Using the 1986 Electronic Communication Privacy Act, defendant, MAPHIA sought protection. MAPHIA claimed that the personal and private data of the service and its registered users had been violated in acquiring the evidence. The defendant claimed hat the login registration process re-enforced that protection.
From the court opinion:
40. Defendants allege that Sega’s access to the MAPHIA bulletin board through use of a pseudonym constituted a violation of the Electronic Communications and Transactional Records Act, and maintains that the Seizure Order was thereby inappropriate. The Electronic Communications and Transactional Records Act makes it illegal to “intentionally access without authorization a facility through which an electronic communication service is provided.” 18 U.S.C. Section 2701(a).
Protection Overruled
The court found Sega did not violate the ECPA because Sega was, either directly or indirectly, an authorized user. The court then authorized the collection and seizure of the evidence as issued by a preliminary injunction prohibiting the unlawful activities of the online service.
From the court opinion:
41. Because the MAPHIA bulletin board is open to the public, and normally accessed by use of an alias or pseudonym, it would appear that Sega’s employee’s pseudonymous access was authorized. Furthermore, the Act contains an exception for access which is authorized by a user of an electronic service with respect to a communication for that user. 18 U.S.C. 2701(c)(2). The Sega employee’s access appears to have been authorized directly or indirectly by a MAPHIA user whose authorized status is not disputed. Therefore, no violation of 18 U.S.C. Section 2701(a) took place.
42. Moreover, the fact that a plaintiff’s employee, in the course of investigating a copyright or trademark infringement, fails to identify herself as such to the defendant does not provide a defense to the infringement when such identification would have defeated the investigation. Reebok International Ltd. v. Jemmett, 6 USPQ2d 1715, 1988 WL 106933 (S.D.Cal. 1988); Olan Mills, Inc. v. Linn Photo Co., 795 F.Supp. 1423 (N.D.Iowa 1991).
The above clarification, although not unique to this case, is also useful to realize. If declaring your intentions or your employer during a lawful investigation would risk compromising your access to the evidence – failure to state who you are will not be used to disqualify the evidence.
The entire court opinion on Sega v. MAPHIA in its entirety can be found here:
Sega_Enterprises_v_MAPHIA_1994
A nice detailed analysis of Sega v. MAPHIA is at PatentArcade.com:
http://www.patentarcade.com/2011/07/case-analysis-sega-v-maphia.html
Sega-16.com also has a nice description of the circumstances of Sega v. MAPHIA:
http://www.sega-16.com/2006/11/genesis-firsts-sega-vs-maphia/
