decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Blizzard v. BnetD Hearing Tomorrow Morning
Sunday, June 19 2005 @ 11:07 PM EDT

Those of you in the St. Louis, Missouri area might like to know that tomorrow there will be oral arguments at a hearing in Blizzard v. BnetD you might like to attend. The hearing starts at 9 AM, at the 8th Circuit US Court of Appeals, at the Thomas F. Eagleton Courthouse, 111 South 10th Street in St. Louis, in the Southeast Courtroom on the 27th floor.

It's another DMCA case, in this case related to videogames and a consumer's right to purchase tools that have been developed by reverse engineering. The case also involves the question of whether EULAs and the DMCA can trump fair use. Hint: beware of saying "I agree" to EULAs. The judge in the lower court ruled as follows:

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.


Here's a bit more on why the case matters:

On Monday, June 20, the 8th Circuit Court of Appeals will hear oral arguments in Blizzard v. BnetD, a case that could dramatically impact consumers' ability to customize software and electronic devices and to obtain customized tools created by others.

Along with co-counsel Paul Grewal of Day Casebeer, the Electronic Frontier Foundation (EFF) is representing three open source software engineers who reverse-engineered an aspect of Blizzard's Battlenet game server in order to create a free software game server called BnetD that works with lawfully purchased Blizzard games. The BnetD server lets gamers have a wider range of options when playing online. The lower court held that the reverse-engineering of the games needed to create this new option for consumers was illegal. . . .

EFF will argue that the DMCA expressly protects the programming and distributing of programs such as BnetD and this protection cannot be undercut by general state contract law as applied to EULAs.

The EFF page explains the issue it plans to argue:

As it stands, the lower court's decision makes it unlawful in most cases to reverse engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own. EFF considers this situation unacceptable and will use the appeal to explain why EULAs and the DMCA should not be allowed to trump fair use forms of reverse engineering when undertaken to create new products.

The lower court decision is here [PDF] and the BnetD appeals brief here [PDF]. You'll find Seth Finkelstein's Infothought Blog helpful too. And Ernest Miller wrote about it when the lower court ruling first came out:

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 andStarcraft. 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.

I hear you cynics saying that the courts let the DMCA trump everything, and in this case you may prove correct, but don't forget that the issue of the DMCA and the aftermarket was also at issue in the Lexmark and Skylink cases, and those cases worked out fine.

The case is important enough that there are amicus briefs on both sides. For Blizzard, we find:

For Bnet, we have briefs from:

They are all PDFs. Anyway, this is legal history in the making, so if you live nearby, you might enjoy listening to the oral arguments.


  


Blizzard v. BnetD Hearing Tomorrow Morning | 129 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic here please
Authored by: fudisbad on Sunday, June 19 2005 @ 11:22 PM EDT
For current events, legal filings, 3rd amended complaints, chucked out cases and
Calderaź collapses.

Please make links clickable.
Example: <a href="http://example.com">Click here</a>

---
See my bio for copyright details re: this post.
Darl McBride, show your evidence!

[ Reply to This | # ]

Corrections Here
Authored by: Anonymous on Monday, June 20 2005 @ 12:15 AM EDT
Please place any corrections here.

To start... the IEEE-USE link does not work.

[ Reply to This | # ]

Corrections here.
Authored by: Mike Steele on Monday, June 20 2005 @ 12:39 AM EDT
Please don't start a corrections or off-topic thread without logging in. Some people block anonymous comments.

---
Mikey

[ Reply to This | # ]

Blizzard v. BnetD Hearing Tomorrow Morning
Authored by: Anonymous on Monday, June 20 2005 @ 01:03 AM EDT
Does not the laws concerning EULAs and what rights can be waived vary state by
state? Or has UCITIA eliminated all this, how do things stand now?

Personally I think shrinkwrap "licence agreements" that only serve to
limit the purchasers power on items that are sold as goods are a crock. EULAs
trump laws allowing reverse engineering? Does the situation change if the
engineer never clicked yes? Or does aquiring the software automagically mean you
aggree not to reverse engineer, effectively banning it.

[ Reply to This | # ]

Blizzard v. BnetD Hearing Tomorrow Morning
Authored by: earthforce_1 on Monday, June 20 2005 @ 01:14 AM EDT
If this decision was upheld, then Microsoft could include a click though EULA
with their next security patch insisting that only MS approved software be used
under Windows, and define Firefox or Open Office as an "unauthorized
infringing derivative work".

I see it as equivalent to Ford demanding that their vehicles be serviced only at
their approved dealerships, and that end users and 3rd party mechanics are
forbidden to open the hood and install any unauthorized parts. Of course, you
find out down the road that "legally approved" replacement tires are
$500 each, and "legally approved" oil changes are $250.

[ Reply to This | # ]

Shrink warp licenses legal status
Authored by: Anonymous on Monday, June 20 2005 @ 02:46 AM EDT
IANAL lawyer but I would hav ethought that shrink wrapped license agreements
have a very shaky legal status. The normal sequence of events is that a consumer
walks into a shop and buys some software at this stage there is no mention of
licensing terms and certainly no detailled description of license restrictions.
Money is exchanged in return for the software. Only after the goods are opened
as part of the installation procedure is the license displayed to the user. I
would have thought that at the point that money was exchanged for the software
there was a contract of sale between the purchaser and the vendor and that the
subsequent attempt to restrict oridinary ownership rights after the sale was
simply invalid. If you bought any other goods or service and after the purchase
there was an attempt to redefine the purchase as something else it would simply
not be accepted. There are further problems, quite plausibly I could buy some
software and then ask someone else perhaps my son and daughter to install the
software so I as a purchaser never even clicked through the license. It is
surely impossible to be suject to a license 'agreement' you have never even
seen.

IANAL lawyer but surely the concept of EULAs which are only shown after purchase
is against the basic principles of contract and consumer law (at least in the
UK). What do the legal experts say?

[ Reply to This | # ]

No meeting of minds.
Authored by: darkonc on Monday, June 20 2005 @ 02:46 AM EDT
Lets presume that you drive 200 miles to buy a car. On the way home, you're starting to run low on the (partial) tank that the dealer provided you. You stop at the nearest gas station and you lift the cover to fill the tank to find the following blocking access to the gas cap:
By removing this tag, you signify that you agree to the following license:
You do not own this car. You simply own the wheels on which it travels. You may not make modifications to this car other than those which are allowed by obvious controls. You agree that you will not look under the hood, modify or tinker with the engine, suspension or other internals of this car. You agree that you will only have this car repaired at a GM-authorized mechanic with GM-authorized parts.
You agree that, no matter how many apparent seats this car may have, you will not operate it with more than one passenger, unless you have obtained an 'extra seats' license from GM. Neither will you allow anybody other than yourself operate this vehicle.

You further agree that, should this vehicle malfunction, you, your heirs and assigns will hold GM harmless from any liability, even if the malfunction was the result of GM negligence and even if GM has been informed of the possibility of such a malfunction.

If you disagree with this license, then do not fill the gas tank, but instead return this vehicle to the dealer from which you purchased it.

My question is: how is this different than a shrink-wrap license?

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

The EULA Problem
Authored by: BitOBear on Monday, June 20 2005 @ 07:05 AM EDT
In my humble, and agregiously lay, opinion, the "I Agree" button,
check-box, or other visual control has no weight.

The choices are typically labeled "I Agree" and "I Do Not
Agree" but they serve a radically different purpose than what is labeled.

The "I Agree" button is actually the "usefully install what I
bought" button.

The "I Do Not Agree" button is the "don't install anything, and
exit the installer" button.

In order for the "I Agree" button to have any meaning there would have
to be a triplet of buttons.

"I Agree" agrees to the terms of the EULA and installs the software.

"I Do Not Agree" doesn't agree to the terms of the EULA and performs
the identical install as "I Agree" does, but under the provisions of
"give me what I already paid for without all these post-sale
conditions".

Finally, the third button would be labeled "Cancel Install" and would
exit the installer without performing any action.

Until there is a way to install the software I bought expressly under the terms
of that sale that acompany the sales-slip, I consider all the buttions and
controls to be improperly labeled and therfore meaningless.

I put the world on notice, If any software supplier out there thinks they have
come to a "meeting of the minds" with me because of a mis-labeled
control that says anything like "I agree", they are mistaken. All I
see is "install now" and "do not install now", all other
intreptetations are flawed because the options ostensibly provided in the GUI
each-and-all atempt to revise the already complete business transaction.

Further, that complete business transaction invariably occured between myself
and some retailer or wholesaler. When I go to Frys/BetsBuy/CompUSA/Wall*mart or
whatever, I give them money and they give me product. I didn't conduct business
with Blizzard or Microsoft, I conducted business with the seller. Somewhere up
the line, that box-and-disk was sold to someone other than me, and the product
may have changed hands several times after that (e.g. manufacturer to
distributor to wholesaller to retailer to me).

The doctrine of first-sale was exhausted long before I bought the box. IF the
manufacturer feels that there was some licensing transaction instead of sale,
then they should take that up with the various parties to the first sale. If
the manufacturer cannot provide me a consistent and spesific chain-of-license
for my package that has been duly executed at each changing of hands, I don't
see any grounds for the manufacturer to come after _me_ no matter what
picture-button they displayed on the screen.

IMHO the box makes promises, and if you look at the shelves the and the receipts
and all the other elements of my act-of-possession, it is identical to the
occasions that I buy a book, computer, snack, power-strip, wrist-rest,
floppy-disk, box of paper, or any of the hundreds of items that these resellers
offer for sale.

There is a box, there is a price-tag, there I fork over cash or suitable tender,
they give me the box and the receipt and I take my thing and do with it as I
please.

It's mine.

If they are supposed to be getting me to exercise an extension of the license
_they_ bought from someone, then they are not doing their job.

Lather, Rinse, Repeat...

[ Reply to This | # ]

Adhesion contract can be a sueful legal tool
Authored by: edumarest on Monday, June 20 2005 @ 08:25 AM EDT
for us little people. Googled from law.com

"adhesion contract
n.(contract of adhesion) a contract (often a signed form) so imbalanced in favor
of one party over the other that there is a strong implication it was not freely
bargained. Example: a rich landlord dealing with a poor tenant who has no choice
and must accept all terms of a lease, no matter how restrictive or burdensome,
since the tenant cannot afford to move. An adhesion contract can give the little
guy the opportunity to claim in court that the contract with the big shot is
invalid. This doctrine should be used and applied more often, but the same big
guy-little guy inequity may apply in the ability to afford a trial or find and
pay a resourceful lawyer."

---
A generation which ignores history has no past and no future.
Robert Heinlein (1907 - 1988), The Notebooks of Lazurus Long

[ Reply to This | # ]

Reed Elsevier, Inc
Authored by: Anonymous on Monday, June 20 2005 @ 12:32 PM EDT
For those who don't know, Reed Elsevier is the main publisher of academic
journals. The ones that average over $5000 USD for a year subscription. These
journals help decide who gets awarded degrees, who gets hired at a university,
who gets tenure, and who gets promoted. In short, they have a virtual monopoly
position within academic disciplines.

Reed Elsevier is also complaining bitterly about papers being published on the
web. The sounds are like one of those legal templates that you can buy from an
office supply store, where you just fill in the blanks. They are using the same
form as M$.

-- Alma

[ Reply to This | # ]

Limits of Physical Property
Authored by: Anonymous on Monday, June 20 2005 @ 12:46 PM EDT
This Intellecutal Property is just like physical property analogy is stretched
well past its point of silliness.

Consider, If I buy a parcel of land with a magnificent view, I do not own the
object of the view, it is too large, do I need a license to look out my window?
Can I sue those it rains on because some of that rain evaporated from my
property? I paid for the water, I own it and they are using it without my
permission or paying me. I could go on, but you get the idea.

Can we drive the point home for the judges by back applying the IP claims to
regualr property? We got into this mess by applying regular property claims to
IP.

-- Alma

[ Reply to This | # ]

Coming soon!
Authored by: J.F. on Monday, June 20 2005 @ 06:03 PM EDT
After reading a review of --------, I rushed out to my local bookstore. I even
paid extra to get the hardbound special edition. I was a little perplexed at
first - the book came wrapped in shrink wrap, the first such book I had ever
seen sold this way unless it came with a CD or DVD. I shrugged - probably just
don't want people reading them in the bookstore.

I forked over $20 and headed home, eager to launch into the latest exploits of
---------. Imagine my surprise when I unwrapped the book to find all the pages
stuck together!! Surely just some strange printing mishap... then I noticed this
on the INSIDE of the book cover.

Notice: to read this book, you must apply one drop of water to the indicated
spot on the first page. This will start a chemical reaction which will allow the
pages to be peeled apart. By doing so, you agree to the following license: 1)
you may not discuss the contents of this book with anyone; 2) you may not read
this book aloud; 3) you may not use any phrase from any part of this book in any
manner, written, spoken, or otherwise; 4) you may not express any opinion about
the contents of the book without express written permission of the author and
publisher -

I quit reading at that point and stormed back to the bookstore.

"What's with this 'license' agreement?"

"You didn't buy the story, sir. You just bought the book the story is
printed on. You have to agree to the further license the AUTHOR requires to
actually read it."

"If I agree to the contract in this book, I'd never work again. I edit news
articles for a living."

"There are other things you could do with the book - put it under the short
leg of your table - hold down papers on your desk. Why, you have the large
hardbound edition. Your kids could use it as home plate when playing ball
outside."

"I DEMAND my money back!"

"I'm sorry, you've already unwrapped the book. We cannot accept it back in
such a condition. You'll have to try to get the publisher to refund your money -
minus our mark-up of course."

I suddenly noticed how many books were now shrink wrapped. It was the last book
I ever bought.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )