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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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October 01, 2004
Major DMCA/EULA Loss - District Court Clueless in BNETD CaseEmail This EntryPrint This Entry
Posted by Ernest Miller

Ed Felten reports that the long-awaited decision in the BNETD case has finally been released (DMCA Ruling in BNETD Case). It is a significant loss for the BNETD defendants and clear evidence of a judge who doesn't get it.

Read the 36-page decision: Davidson & Assoc. v. Internet Gateway [PDF].

EFF press release: Dangerous Ruling Menaces Rights of Free Software Programmers.

Seth Finkelstein pulls out some of the more heinous quotes from the decision (Blizzard v. BNETD (Davidson v. Internet Gateway) Fair Use/DMCA horrors).

The basic facts are that a group of open source developers reverse engineered Blizzard's "battle.net" so that people could run their own servers to host multiplayer versions of Blizzard games, such as Diablo and Starcraft. The reason was that Blizzard's servers had many problems and didn't allow people to organize games the way they desired. Of course, such a project threatened the executives at Blizzard and so they sued with many different copyright, trademark, contract and DMCA claims. After many procedural issues, the EULA and DMCA claims were all that was left.

This case follows the reasoning of Bowers v. Baystate Technology, which upheld a clickwrap contract prohibiting reverse engineering. Bowers is one of the most reviled recent opinions in software law, and that is saying something. Basically, this decision, like Bowers, holds that clickwrap contracts against reverse engineering are binding. It is hard to believe that this bit of ridiculousness continues to be upheld by judges.

The court dismissed the copyright misuse claim because the issue was contract law, not copyright law and prohibiting competition is, apparently, not an example of copyright misuse in the first place.

The DMCA aspect of the decision is a mess and I think there will be good grounds for an appeal. In particular, the ruling completely ignores the Skylink decision:

The Court finds that the defendants' actions constitute a circumvention of copyright under the DMCA. It is undisputed that defendants circumvented Blizzard's technological measure, the "secret handshake" between Blizzard games and Battle.net, that effectively controlled access to Battle.net mode. It is true the defendants lawfully obtained the right to use a copy of the computer programs when they agreed to the EULAs and TOU. The statute, however, only exempts those who obtained permission to circumvent the technological measure, not everyone who obtained permission to use the games and Battle.net. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 444 (2nd Cir. 2001) (court rejects argument that because DVD buyer has authority to view DVD, buyer has authority of copyright owner to view DVD in a competing platform; court finds that argument misreads 1201(a)(3) because the provision exempts from liability those who would "decrypt"--not "use"-- an encrypted DVD with the authority of copyright owner). The defendants did not have the right to access Battle.net mode using the bnetd emulator. Therefore, defendants' access was without the authority of the copyright owner.
First, I'm not sure what "circumvention of copyright" is. This phrasing seems to indicate a poor understanding of the structure of the DMCA, which is about rights that aren't already covered by standard copyright law.

It is isn't clear to me that the "secret handshake" is circumvented. Blizzard games send an encrypted packet with a key. The BNETD servers ignore the key (not that they would be able to do anything with it). If that constitutes an access control device, there is not much that wouldn't.

Again, it comes down to the EULA. The EULA says you can't do something, you are prohibited from doing it. Period.

Welcome to the world of the MPAA DMCA decisions. Of course, we shouldn't put too much hope into the Skylink decision, as it basically leaves it up to judges to determine whether any particular use was what Congress meant to punish with the DMCA. Does it look sort of like copyright infringement, a Skylink court might ask.

The reverse engineering provision (supposed "exemption") of the DMCA isn't looking too healthy either. After reading the decision, I'm not really sure what you can use it for:

The Court finds that the defendants' actions constituted more than enabling interoperability. The bnetd emulator developed by the defendants always allows the Blizzard game to access Battle.net mode features even if the user does not have a valid or unique CD Key, because the bnetd emulator does not determine whether the CD Key is valid or currently in use by another player. Unauthorized copies of the Blizzard games were played on bnetd servers. Then, defendants distributed the bnetd program for free. Because the bnetd source code was freely available, others developed additional Battle.net emulators based on the bnetd source code. In addition, the defendants distributed binary versions of the bnetd program to make it more convenient for users to set up and access the emulator program. Finally, the defendants did not create an independently created computer program. The bnetd program was intended as a functional alternative to the Battle.net service. Once game play starts there are no differences between Battle.net and the bnetd emulator from the standpoint of a user who is actually playing the game. Based on these facts, defendants' actions extended into the realm of copyright infringement and they cannot assert the defenses under 1201(f)(1). See 17 U.S.C. 1201(f)(1). Therefore, the Court will grant summary judgment to Blizzard on Count II of its second amended complaint as to the anti-circumvention claim and deny defendants' motion for summary judgment on this claim.
If you reverse engineer for interoperability, in order to do the same thing as another program, apparently that extends "into the realm of copyright infringement." What that means is unclear. Why it takes away your defense under 1201(f)(1) is similarly unclear. Is the program infringing or not? If not, why don't you get the exemption?

What the heck can you use the reverse engineering exemption for under this logic? You can interoperate, but only for purposes that are entirely different? Huh?

I also like the part that open source software is more likely to violate the DMCA because it has "limited commercial purpose." You see, if you don't or can't sell it, you are even more evil according to this ruling.

Geez.




COMMENTS
Harry Brindley on October 6, 2004 02:35 AM writes...

Somebody needs to invent a form of FREEDOM money (a credit card, an online payment system, a money order) that we can subscribe to whose value is, on acceptance by the payee, irrevocably conditional on that payee accepting the payer's terms*, which should including a waiver on any and all subsequent attempts by the payee to modify terms by way of, but not limited to, packaging, wraps, online or installer click-throughs (all of which we are indeminfied from ingnoring). *These terms to be fair and standard stuff recommended by the Electronic Frontier Foundation perhaps?

Permalink to Comment


TRACKBACKS
TrackBack URL: http://www.corante.com/cgi-bin/mt/mt-pcorso.cgi/4807
Bad News for Fair Use from madisonian theory: on law, society, and technology Ed Felten has posted the district court's opinion in the Battle.net emulator lawsuit, Davidson & Associates v. Internet Gateway. It's a disaster of an opinion, from the court's uncritical acceptance of Bowers v. Baystate as authority for enforcing a... [Read More]

Tracked on October 1, 2004 03:08 PM

The Key to a Good (Fair Use) Defense from Copyfight ...is a good offense. That's the message of Fred von Lohmann's latest column at Law.com, which urges ISPs and online publishers to take advantage of the recent ruling in OPG v. Diebold to level the playing field with copyright holders... [Read More]

Tracked on October 27, 2004 03:35 PM




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