On Wednesday, Los Angeles Superior Court Judge R Gary Klausner
dismissed more than half the claims brought against developer
Cryptic Studios and publisher NCsoft, according to the two firms.
But some important copyright claims survived the purge.
City of Heroes is set in the aftermath of an alien invasion on a
virtual world known as Paragon City, where villains and mutants
battle users in the guise of superheroes – guises that they design
themselves from a huge array of features, costumes, characteristics
and skills.
Marvel Enterprises, the force behind Spider-Man, The Incredible
Hulk and The X-Men, is concerned that this design feature allows
subscribers to copy its comic book characters, thus infringing its
copyright and trade marks, and potentially affecting its ability to
license the characters into other video games.
It sued in November, seeking damages and an injunction, on the
grounds that the characters, while developed by subscribers to the
game, are created on servers run by both NCSoft and Cryptic
Studios.
However, according to the two defendants, Judge Klausner last
week agreed that some of Marvel's allegations and exhibits should
be dismissed as "false and sham" because certain allegedly
infringing works depicted in Marvel's pleadings were created not by
users, but by Marvel itself.
The judge dismissed more than half of Marvel's claims against
NCsoft and Cryptic Studios, including claims that the two firms
directly infringed Marvel's registered trade marks and are liable
for purported infringement of Marvel's trade marks by City of
Heroes' users.
In addition, NCsoft and Cryptic Studios said the judge dismissed
Marvel's claim for a judicial declaration that defendants are not
an on-line service provider under the Digital Millennium Copyright
Act.
All these claims were dismissed without leave to amend, meaning
that they cannot be re-filed.
However, according to news site GameSpy.com, Marvel's most serious
allegations, relating to copyright infringement, have survived.
"We're very happy with the judge's ruling because he upheld
every one of our copyright infringement claims," said Marvel's
general counsel, John Turitzin.
But NCsoft and Cryptic Studios say that they are pleased with
the result so far and say they are confident of victory.
The judge has apparently already cited a Supreme Court ruling in
a case over Sony's Betamax video recorder, which in the early 1980s
was said to infringe on the copyrights of TV and movie studios.
Sony won that case because the machine also had significant
non-infringing uses.
According to NCsoft and Cryptic Studios, Judge Klausner noted,
"it is uncontested that defendants' game has a substantial
non-infringing use. Generally the sale of products with substantial
non-infringing uses does not evoke liability for contributory
copyright infringement."
The judge said there is only contributory infringement "where a
computer system operator is aware of specific infringing material
on the computer system, and fails to remove it".
