Chilling Effects
Home Weather Reports Report Receiving a Cease and Desist Notice Search the Database Topics
Sending
Topic HomeFAQsMonitoring the legal climate for Internet activity
Samuelson Law, Technology and Public Policy Clinic
 Chilling Effects Clearinghouse > Anticircumvention (DMCA) > Weather Reports > Online Gamers Feel the Chill of Blizzard's DMCA Suit Printer-friendly version
 Quick Search:
 Site Guide

Clearinghouse Topic Areas:

  • ACPA
  • Chilling Effects
  • Copyright
  • Copyright and Fair Use
  • Court Orders
  • Defamation
  • Derivative Works
  • DMCA Notices
  • DMCA Safe Harbor
  • DMCA Subpoenas
  • Documenting Your Domain Defense
  • Domain Names and Trademarks
  • E-Commerce Patents
  • Fan Fiction
  • International
  • John Doe Anonymity
  • Linking
  • No Action
  • Patent
  • Piracy or Copyright Infringement
  • Protest, Parody and Criticism Sites
  • Responses
  • Reverse Engineering
  • Right of Publicity
  • Trade Secret
  • Trademark
  • UDRP
  • Uncategorized


  • snowy

    Online Gamers Feel the Chill of Blizzard's DMCA Suit

    Aaron Burstein, January 06, 2003

    Abstract: Blizzard Entertainment, a division of Vivendi Universal Games, recently opened a new front in the battles being fought with online computer games: federal court. Blizzard has sued several individual users of Blizzard games as well as a small Midwestern ISP for writing a program, BNETD, that allows Blizzard users to compete against each other over the Internet. This legal confrontation not only raises traditional copyright and trademark claims, but may also provide a setting for a battle between the anti-circumvention and reverse engineering provisions of the Digital Millennium Copyright Act (DMCA).



    Blizzard Entertainment, a division of Vivendi Universal Games, recently opened a new front in the battles being fought with online computer games: federal court. Blizzard has sued several individual users of Blizzard games as well as a small Midwestern ISP for writing a program, BNETD, that allows Blizzard users to compete against each other over the Internet. This legal confrontation not only raises traditional copyright and trademark claims, but may also provide a setting for a battle between the anti-circumvention and reverse engineering provisions of the Digital Millennium Copyright Act (DMCA).

    In recently filed court papers, Blizzard alleges that the BNETD server program violates the DMCA's prohibition on circumventing access control measures, 17 U.S.C. § 1201(a)(1)(A), and on trafficking in devices that facilitate this circumvention, 17 U.S.C. § 1201(a)(2). Blizzard's access control measures consist of “CD Keys,” which are codes that Blizzard's online gaming service, battle.net, uses to verify the authenticity and uniqueness of a user's game. Second Amended Complaint (see below for links to relevant documents) at 13:44, 15:53—16:57, 25:103. Since BNETD effectively skipped the CD Key checks that battle.net performed, Blizzard alleges, BNETD circumvents a measure that “effectively controls access” to Blizzard games. SAC at 15:53, 25:103. Blizzard added this claim to five others, which state that the defendants infringed Blizzard's copyrights and violated their end user license agreements (EULAs) while producing BNETD, and that the BNETD service violated Blizzard's battle.net trademark. The verbose EULAs that users of such games as Diablo II and Warcraft III must accept contain sweeping, but by now familiar, prohibitions on decompilation, disassembly, and reverse engineering. SAC at 11:38. Blizzard's EULAs also prohibit “hosting” networked instances of Blizzard games as well as using unauthorized programs to emulate Blizzard's network protocols. SAC at 11:38. Finally, according to Blizzard's complaint, the BNETD service could lead users to believe that they are using Blizzard's own battle.net, and thereby infringe the battle.net trademark.

    Three individual defendants (Tim Jung, Ross Combs, and Rob Crittenden) and the defendant ISP, Internet Gateway, however, contend that Blizzard's lawsuit is an attempt to illegitimately expand its rights under copyright law. In their most recent answer to the claims against them, Jung, Combs, Crittenden and Internet Gateway assert that they acted lawfully in producing BNETD. According to their answer, federal copyright law preempts, or takes precedence over, the state laws that govern the interpretation of the highly restrictive EULAs. Answer (see below for links to relevant documents) at 14:124—125. The DMCA itself protects certain uses of copyrighted works, and the fair use doctrine protects other uses. Answer at 14:126. In particular, the DMCA itself exempts reverse engineering from the act-of-circumvention and trafficking bans, 17 U.S.C. § 1201(f). Answer at 15:135. Moreover, the DMCA purports to preserve traditional user rights under copyright law, such as fair use. 17 U.S.C. § 1201(c). Answer at 14:126, 15:135. Finally, the BNETD developers claim that their compliance with the DMCA's “safe harbor” provisions insulate them from liability from the infriging activities of Internet Gateway's users.

    The BNETD developers have even gone on the offensive, asking the court to declare that the defendants' activities do not infringe Blizzard's copyrights or trademarks, do not constitute circumvention, and that the anti-circumvention provisions in section 1201(a) are unconstitutional. Although a different court held that Congress neither overstepped the limitations on its powers nor unacceptably restricted speech by passing the section 1201(a) provisions, the BNETD developers are arguing that their case warrants another look at the law. Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 329—340 (S.D.N.Y. 2000), aff'd sub nom Universal City Studios, Inc. v. Corley, 273 F.2d 429, 443—59 (2d Cir. 2001).

    Blizzard Entertainment v. Internet Gateway, Inc. incorporates some of the deepest riddles in the DMCA. What kinds of activities are covered by the DMCA's purported protection of reverse engineering for purposes of interoperability? Can software vendors require their customers to give up their reverse engineering rights? These questions underlie the battle between Blizzard and a few of its customers.

    For more information:
    Blizzard Entertainment v. Internet Gateway, Inc. (No. 4:02CV498CAS, E.D. Mo. 2002)

    “Answer” = Defendants' Amended Answer and Counterclaims to Plaintiffs' Second Amended Complaint, available at http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20021204_counterclaims_SAC.pdf

    “SAC” = Second Amended Complaint, available at http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20021203_SAC.pdf

    Universal City Studios, Inc. v. Reimerdes, available at
    http://www.eff.org/IP/Video/MPAA_DVD_cases/20000830_ny_amended_opinion.pdf

    Universal City Studios, Inc. v. Corley, available at
    http://www.eff.org/IP/Video/MPAA_DVD_cases/20011128_ny_appeal_decision.pdf

     


    Chilling Effects Clearinghouse - www.chillingeffects.org
    disclaimer / privacy / about us & contacts