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 Chilling Effects Clearinghouse > Anticircumvention (DMCA) > Weather Reports > Blizzard Entertainment, Inc. Freezes On-Line Gamers with an Eight Circuit Court Victory Printer-friendly version
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    Blizzard Entertainment, Inc. Freezes On-Line Gamers with an Eight Circuit Court Victory

    Amy Keating, Samuelson Law, Technology, and Public Policy Clinic, September 19, 2005

    Abstract: On September 5, 2005, in Davidson & Associates v. Jung, 2005 U.S. App. LEXIS 18973 (8th Cir. 2005), the Eight Circuit upheld a district court ruling that three men illegally bypassed anti-piracy controls when they developed free technology to let computer users play games against each other online without using the gamemaker's own system. Specifically, the defendants violated the Digital Millennium Copyright Act as well as software license agreements by helping people bypass Blizzard's system for playing multiplayer games such as Diablo and StarCraft online.



    September 5, 2005 was a cold day for online gamers. On that day, the Eighth Circuit ruled against three software programmers who created free open-source software to allow greater access to online gaming. The court held three defendants illegally bypassed anti-piracy controls when they developed the free technology allowing computer users to play some games against each other online without using the gamemaker's own system. Specifically, the defendants violated the 1998 Digital Millennium Copyright Act as well as software license agreements by helping people bypass Blizzard's system for playing multiplayer games like Diablo and StarCraft online. This decision has negative implications beyond the gaming world, as well, due to its potential impact on consumer choice and innovation.

    Blizzard’s product is Battle.net, a 24-hour online-gaming service available exclusively to purchasers of its computer games. Battle.net mode allows users to create and join multi-player games that can be accessed across the Internet, to chat with other potential players, to record wins and losses and save advancements in an individual password-protected game account, and to participate with others in tournament play featuring elimination rounds. The online-gaming service, created with copyrighted software, was available only to buyers of its copyrighted computer games. Blizzard requires game buyers to accept an end user licence agreement (EULA) and terms of use (TOU), which both banned reverse engineering.

    At issue in the litigation is a program created by the defendants called BnetD. BnetD is an open source program allowing gamers to play popular Blizzard Entertainment, Inc. titles like Warcraft with other gamers on servers that not belonging to Blizzard's Battle.net service. Created using reverse engineering, the publically available BnetD system allowed for greater public access to the online games.

    The Eight Circuit decision followed years of litigation. In 2002, Blizzard Entertainment, Inc., a division of Vivendi Universal, Inc., first filed suit against the defendants alleging breach of contract, circumvention of a copyright protection system, and trafficking in circumvention technology. The district court granted summary judgment in favor of Blizzard and Vivendi, holding that: (1) Blizzard's software end-user license and terms of usage agreements were enforceable contracts; (2) Defendants waived any "fair use" defense (3) the agreements did not constitute misuse of copyright; and (4) Defendants violated the anti-circumvention and anti-trafficking provisions of the Digital Millennium Copyright Act ("DMCA"). The Eight Circuit affirmed all of the district court holdings. The Court explained that as state contract law neither conflicted with the DMCA's interoperability exception, 17 U.S.C.S. § 1201(f), nor restricted rights given under federal law, Blizzard's breach of contract claim was not preempted by the Copyright Act. Therefore, the defendant's reverse engineering violated § 1201(a)(1) and (2), and the interoperability exception did not apply.

    The Electronic Frontier Foundation (EFF) served as co-counsel for BnetD to help protect the defendants' right to reverse engineer software for creation of interoperable programs. A ruling in favor of the defendants would have supported the principle that End User License Agreements (EULAs) and the DMCA should not be allowed to prohibit fair use forms of reverse engineering when such engineering is done to create a new product. The Eight Circuit's holding will chill the innovation of add-on programming, harming the consumers that desire such innovation to enhance existing products and programs.

    Links to the court's decision and the parties' briefs are available at http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/.

     


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