S:\Townsend\Hiaring\Copyright

ESSAY (QUESTION

60 points

BlastOut! is a computer software game where players explore virtual space, find and destroy the enemy and move to the next level. BlastOut! has several versions, but also includes a PlayerMap that allows authorized buyers of the BlastOut! games to modify the games and create their own versions and levels. However, PlayerMap has a software lock that prevents up-loading the player-created games onto the Internet or copying them onto CD-ROMs or floppies.

BeFree is a software company with a mission to make software free for all fans, although of course it charges for its own products. BeFree is devoted to compiling player versions of games , a type of vanity publishing for computer game fans ( "PIayFree"), as well as creating software products that allow up-loading and down-loading of computer games onto the Internet ("WebFree") , and products that allow game players to unlock locked computer games ("LockFree").

BeFree distributes its products over its web site. Its web site also has a chat room for players, and further, capabilities that allow players to transmit their customized versions of games to the web site and also access other player's versions ("FreeSiteExchange"). BeFree charges for FreeSiteExchange services, although the chat room is free.

BeFree states in its advertising that PlayFree software is especially made for BlastOut! fans who want to have copies of their own versions of the BlastOut! game. Webfree is also advertised as built to transmit BlastOut! games. Finally LockFree is advertised as capable of unlocking any game - but that it should be used only by authorized purchasers.

In its web site and advertising for ail of its products BeFree also uses graphic images from BlastOut! and other computer games and puts these images on the packaging for its software that it mails to customers.

BlastOut! has just seen the BeFree products and is unhappy with all of them. BlastOut! would prefer to have all BlastOut! player chat rooms be official chat rooms sponsored by it. It particularly dislikes images from its games appearing on unauthorized sites.

Furthermore, it does not want player-modified versions of its game on the Internet or exchanged for free, much less sold among players. Finally, BlastOut! is furious that computer programs which can unlock their games are available and wants to stop the process.
BlastOut! comes to you and asks if it could win an action against BeFree for copyright infringement, and if so, which products and practices could be held infringing . BIastOut! also wants to know if individual players could be sued. BlastOut! has heard about fair use, but thinks things have gone too far.

You are to advise BlastOut! what copyright infringement theories, if any, exist against BeFree and the game players and what the likely outcome of any litigation will be. Be sure to consider such topics as what formalities need to be taken care of, if any, costs and attorneys fees, possible damages and whether BlastOut! can recover them, as well as the possibility of obtaining preliminary relief and like issues.