Advanced Copyright Law on the Internet

maximum statutory damages award of $46,540,000 ($2500 per phone sold) and entered a
permanent injunction against the defendants. Any violation of the injunction would incur
liquidated damages in the amount of the greater of $1,000,000 or $5,000 for each TracFone
handset purchased, sold, unlocked, reflashed, altered, rekitted, advertised, solicited and/or
shipped in violation of the injunction.^827

(ii) Epic Games v. Altmeyer

In this case, the court issued a TRO enjoining the defendant from offering services to
modify Microsoft’s Xbox 360 to play pirated copies of the plaintiff’s video game Gears of War
2. The Xbox contained the capability to allow users to play the game live online, and to do so,
players were required to connect through an official web site. The software involved in playing
live was programmed to detect modifications to the Xbox and to recognize pirated games. If
modification or piracy was detected, the user would be banned from playing live. The defendant
offered a service to modify the Xbox to that neither the system itself nor the live software could
recognize pirated games or any modification. The court found a likelihood of establishing that
the offered services violated Section 1201(a)(2), and issued a TRO enjoining the defendant from
performing, advertising, marketing, distributing, or selling game console modification
services.^828

(iii) Facebook v. Power Ventures

In this case, the defendants operated an Internet service called Power.com that collected
user information from Facebook’s web site outside of the “Facebook Connect” application
programmer’s interface (API). After a user provided his or her user names and passwords, the
Power.com service used the access information to scrape user data from those accounts.
Facebook’s Terms of Use broadly prohibited the downloading, scraping, or distributing of any
content on the web site, except that a user was permitted to download his or her own user
content. Facebook alleged that it had implemented specific technical measures to block access
by Power.com after the defendants informed Facebook that they intended to continue their
service without using Facebook Connect, and that the defendants then attempted to circumvent
those technological measures in violation of the anti-circumvention provisions of the DMCA.
The defendants brought a motion to dismiss the DMCA claims, arguing that the unauthorized use
requirement of a Section 1201(a)(1) claim was not met because it was the users who were
controlling access (via Power.com) to their own content on the Facebook web site. The court
denied the motion, in view of the fact that the defendants’ argument relied on an assumption that
Facebook users were authorized to use Power.com or similar services to access their user
accounts, and the Terms of Use barred users from using automated programs to access the
Facebook web site.^829

(^827) TracFone Wireless, Inc. v. Bequator Corp., 2011 U.S. Dist. LEXIS 42314 at 32-35, 41-44 (S.D. Fla. Apr. 13,
2011).
(^828) Epic Games, Inc. v. Altmeyer, 2008 U.S. Dist. LEXIS 89758 at 3-4, 9-10 & 19 (S.D. Ill. Nov. 5, 2008).
(^829) Facebook, Inc. v. Power Ventures, Inc., 2009 U.S. Dist. LEXIS 42367 at 1-2, 9-10 & 13-14 (N.D. Cal. May
11, 2009).