[DMCA-Activists] Blizzard v. BNETD Disaster

[Seth Johnson]

> http://sethf.com/infothought/blog/archives/000708.html


Blizzard v. BNETD (Davidson v. Internet Gateway) Fair Use/DMCA
horrors

September 30, 2004


Blizzard v. BNETD (formally "Davidson & Associates v. Internet
Gateway") (http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/) is
a case about the right to reverse-engineer and build a
open-source network game emulator. A district court decision has
just been issued (via Ed Felten
[http://www.freedom-to-tinker.com/archives/000692.html]
[(http://www.freedom-to-tinker.com/doc/2004/bnetd_30sep.pdf)]).
In sum, it's a horror on every item, and rules solidly against
programmer's interests.

Some of the parade of horrors:

The quasi-Libertarian like-it-or-lump-it view of a contract of
adhesion:

The parties in this case did have unequal bargaining power
because Blizzard is the sole seller of its software licenses;
however, the defendants had the choice to select a different
video game, to agree to the terms and gain the software and
access to Battle.net, or to disagree and return the software for
a full return of their money.

The "If you have to ask, you can't afford it" principle (that is,
if you're skilled enough to reverse-engineer a program, you're
presumed to understand you're forbidden to do it!)

Also, the defendants are not unwitting members of the general
public as they claim. They are computer programmers and
administrators familiar with the language used in the contract,
and have the expertise to reverse engineer and understand source
code.

You can click away your fair use rights (my emphasis):

The Federal Circuit in Bowers stated that the First Circuit
recognized the contractual waiver of affirmative defenses and
statutory rights, therefore, the defendants could contractually
waive their fair use right to reverse engineer. Id. The Court
finds the reasoning in Bowers persuasive. The defendants in this
case waived their "fair use" right to reverse engineer by
agreeing to the licensing agreement. Parties may waive their
statutory rights under law in a contract.

Open Source counts against you in terms of a DMCA defense:

The bnetd emulator had limited commercial purpose because it was
free and available to anyone who wanted to copy and use the
program.

Interoperability exemption is narrow:

Finally, the development and distribution to others constituted
copyright infringement and persons who commit copyright
infringement cannot benefit from the exemptions of &sec; 1201(f).
See 17 U.S.C. &sec; 1201(f)(2)-(3). "Sections 1201(f)(2) and (3)
of the DMCA are not broad exceptions that can be employed to
excuse any behavior that makes some device 'interoperable' with
some other device." Lexmark Int'l Inc. v. Static Control
Components, Inc., 253 F.Supp.2d 943, 970 (E.D. Ky. 2003).

On and on ... Read it and weep.

It's a huge burden to read through dozens of pages of a court
case, and then try to figure out something original and
insightful to say while a bunch of other people are trying to do
the same thing. I'm inclined to stop doing it. But this one was
"worth it" tonight :-(.

---

> http://www.corante.com/importance/archives/026273.php


Major DMCA/EULA Loss - District Court Clueless in BNETD Case-
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
(http://www.eff.org/news/archives/2004_09.php#001962).

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.

---

> http://www.eff.org/news/archives/2004_09.php#001962


Dangerous Ruling Menaces Rights of Free Software Programmers

Contract and Copyright Trump Fair Use and Competition in BnetD
Case

September 30, 2004


St. Louis - Fair use was dealt a harsh blow today in a Federal
Court decision that held that programmers are not allowed to
create free software designed to work with commercial products.
At issue in the case was whether three software programmers who
created the BnetD game server -- which interoperates with
Blizzard video games online -- were in violation of the Digital
Millennium Copyright Act (DMCA) and Blizzard Games' end user
license agreement (EULA).

BnetD is an open source program that lets gamers play popular
Blizzard titles like Warcraft with other gamers on servers that
don't belong to Blizzard's Battle.net service. Blizzard argued
that the programmers who wrote BnetD violated the DMCA's
anti-circumvention provisions and that the programmers also
violated several parts of Blizzard's EULA, including a section on
reverse engineering.

The Electronic Frontier Foundation (EFF), co-counsel for the
defendants, argued that programming and distributing BnetD was
fair use. The programmers reverse-engineered Battle.net purely to
make their free product work with it, not to violate copyright.

EFF Staff Attorney Jason Schultz said, "Consumers have a right to
choose where and when they want to use the products they buy.
This ruling gives Blizzard the ability to force you to use their
servers whether you want to or not. Copyright law was meant to
promote competition and creative alternatives, not suppress
them."

EFF will appeal the case, challenging the court's ruling that
creating alternative platforms for legitimately purchased content
can be outlawed.

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
address@hidden

Posted at 06:12 PM