Blizzard vs bnetd

[DeTaiLs]

http://yro.slashdot.org/yro/05/09/01/223258.shtml?tid=123&tid=210&tid=209&tid=17

The district court properly granted summary judgement in favor of Blizzard and Vivendi on the operability exception. Summary judgement in favor of Blizzard and Vivendi is affirmed.

At issue in this case is 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.

[MyndFyre]

Well....  If they're at the circuit court of appeals, there's only one step up the ladder in the food chain.

[Ban]

Yeah, unfortunatly its highly likely the Supreme Court wont take this case up, although it would be nice to have some kind of limit put on the DMCA...

[quasi-modo]

digital millenium is a little bit too powerful IMO too.

[MyndFyre]

Yeah, unfortunatly its highly likely the Supreme Court wont take this case up, although it would be nice to have some kind of limit put on the DMCA...

Actually I would be surprised if they did not.  A *lot* of people and businesses have interests riding on "fair use," and being that "fair use" is a VERY broad concept, it would be exactly the kind of case the high court would take.

Although I side with BnetD, my actual analysis (if I were a law arbitrator) would be, "Guess what numbnuts.  You clicked away your rights to disassemble/decompile/reverse engineer when you clicked "Accept."  You willfully and knowingly entered into the agreement.  The rest of us have our hands tied."

Kinda sucks.

[K]

I think part of the issue here is whether or not a click-through EULA is binding.

As read on slashdot:

Appellants contractually accepted restrictions on their ability to reverse engineer by their agreement to the terms of the TOU and EULA. "[P]rivate parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act[,]" Bowers v. Baystate Techs, Inc., 320 F.3d 1317, 1325-26 (Fed. Cir. 2003), and "a state can permit parties to contract away a fair use defense or to agree not to engage in uses of copyrighted material that are permitted by the copyright law if the contract is freely negotiated."

Of course, I wouldn't call a EULA "freely negotiated."

[MyndFyre]

I think part of the issue here is whether or not a click-through EULA is binding.

You're right of course.  However, the court will no doubt find cause to rule on issues including the following:
* Fair use
* EULA and click-through
* Reverse-engineering of software products
* Deliberate circumvention of anti-piracy measures

That means it could have impacts on the recording and movie industry, and of course software licensing and whatnot.

Unfortunately, I think with the immediate huge use of click-through EULAs will help Blizzard's position, though.  The other problem we'd face is that it seems to me an arguable position that the contract takes place when you exchange the money for the product, not at click-time.  The licenses state that if they are not accepted, you should return the product for a refund.  Thus, if you do not accept your license, you are not losing money -- that is when you "negotiate" the contract.

Believe me when I say I want BnetD to win.  I just think we're in trouble if they do not.

[Forged]

The licenses state that if they are not accepted, you should return the product for a refund.

You can't do that though.  Once you open the game you can no longer refund it.

[hismajesty]

Why doesn't the prosecution need to prove that they themselves clicked it? They could have gotten information elsewhere, or had someone else click "Accept" on the agreement...

[nslay]

As far as I can see in the deal with FSGS and BnetD are that they allow pirated/banned keys to play online.  The Reverse Engineering section of the TOS is a little much, particularly when it applies to the game's chat communication protocols (which have nothing to do with game play).  I would say that had BnetD been designed using the game chat protocols only (so bots/games can connect and only chat), that nothing has been violated.  When it comes to internet protocols of any sort, I don't believe there is any right to intellectual property as a protocol is not even tangible, it is a means to communicate, much like a language (does anyone own English?  How about Japanese?  Do you have to pay to speak a language?).

Blizzard is right in its case against BnetD, but I think there need be laws implimented to prevent any company asserting ownership over concepts (ie. protocols, formats, etc...I don't see WinZip suing Windows implimenting support for its zip format, I don't see them suing the creators of Unix/Linux's unzip).

[Arta]

I'm not sure an EULA should be enforceable at all.

Here, for a contract to be valid, there has to be an offer and an acceptence, and the acceptence has to be communicated to the offerer. I'm not sure if EULAs have been tested in court yet, but it wouldn't surprise me at all to find that they're essentially meaningless. I'm sure a good case could also be made that anti-reverse engineering clauses in EULAs are unreasonable even if they are valid - the law here specifically recognises that reverse engineering for interoperability is fine when you need information that is unavailable elsewhere, as long as you own the software in question.

These, btw, are the some of the reasons why I'm not terribly worried about legal action because of TestBNCS. IANAL, though, so who knows.

[R.a.B.B.i.T]

Blizzard's EULAs are superceded by Federal Law which states that reverse engineering for educational purposes is 100% legal.  AFAIK neither BnetD nor FSGS were commercial.  Also, I think you're right Arta; I do believe EULAs apply only to users of the software, not owners of similar software.

[MyndFyre]

Blizzard's EULAs are superceded by Federal Law which states that reverse engineering for educational purposes is 100% legal.  AFAIK neither BnetD nor FSGS were commercial.  Also, I think you're right Arta; I do believe EULAs apply only to users of the software, not owners of similar software.

When you enter into a contract you can explicitly give up a right, such as a right to fair use.

[R.a.B.B.i.T]

Contract: An oral or written agreement between two or more parties which is enforceable by law.

A series of bytes is not "written" technically

[Ban]

Thats auctually an interesting point, but that definition probably needs to be updated for today's age where a large portion of data is merely a series of bytes.