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Reports from the Blizzard v. BnetD Hearing
Monday, June 20 2005 @ 06:24 PM EDT

Groklaw received reports from two volunteers who attended the hearing this morning to listen to the oral arguments in the Blizzard v. BnetD case, and here is what they tell us. First, there is a recording available on the court's website at Just click on Oral Argument, and you can form your own impressions. It's also now available as an MP3. Our first eyewitness, Scott McKellar, shares his:

To me the best sign was that Paul Grewal (pronounced "gray wall") of Day Casebeer kept pounding on the law, while opposing counsel Stephan H. Rovak kept pounding on the table, summoning the dread spectres of piracy (the defendants all had legal copies of the Blizzard game software) and copyright violation (all copyright claims were dismissed with prejudice in the lower court).

By the way, Day Casebeer represented Sun Microsystems in the wars against Microsoft, and if you'd like to read a fascinating account about the patent peace and how it was hammered out, they have an article on their website that I found fascinating. Of course, I'm an addict for this stuff. The talks went on for nine months. And you thought the IBM case was slow.

And now, here are some impressions of today's hearing from AllParadox, a retired attorney.


At 10:46 AM, the case of Davidson and Associates, etc. et al. v. Tim Jung, etc., et al. was called for hearing by Division II of the United States Court of Appeals, Eighth Circuit.

The hearing was in the Southeast Courtroom on the 27th floor of the Thomas F. Eagleton courthouse in St. Louis, Missouri.

This reporter is a bit deaf, so the excellent accoustics were much appreciated.

For this hearing, Division II was a three judge panel, consisting of judges Kermit E. Bye, Diana E. Murphy, and Lavenski R. Smith.

Presenting the argument for appellants was Paul Grewal.

Presenting the argument for respondents was Stephen Rovak.

The Thomas F. Eagleton courthouse is new, and still smells of newness: new carpets, new paint, newly oiled and varnished walnut features. The Eighth floor, for example, is still unoccupied and under construction.

There were a large number of attorneys sitting in the audience, listening to the arguments, perhaps a dozen or so. Then there was myself and the other Open Source reporter to round out the party. We compared notes afterward.

I introduced myself to the attorneys for the parties. The attorneys for the appellants all said that they read Groklaw. The attorneys for the respondent seemed not to have heard of it.

Judges Bye and Smith tended to lean forward, and to cup their chins with their hands. Judge Murphy tended to lean back, and bore a faintly exhasperated expression. Her expression was not directed at anyone in particular, it may just be how she approaches the world. All three judges took copious notes. All three of them were scribbling furiously throughout the entire hearing. All three of them were obviously listening very carefully to what was being said.

Mr. Grewal began, because appellants go first. Mr. Rovak made a response, and Mr. Grewal had four minutes for a rebuttal.

For the first part of his argument, Mr. Grewal focused on the overarching question as to whether the U.S. Congress, in enacting U.S.C. 1201 (under its' regulatory powers through the Commerce Clause of the U.S. Constitution) had pre-empted State Court law and legislation relating to contracts of adhesion, specifically shrinkwrap and "clickwrap" licenses.

Judge Murphy wanted to know what was left after Circuit Judge Shaw's rulings and the parties stipulations. She asked if this was merely a theoretical exercise.

Comment: Under the English Common Law, judges do not engage in theoretical exercises. Any case presented that is a theoretical exercise must be dismissed.

Mr. Grewal spoke quickly. Obviously brilliant and well-founded on both the case law and the facts, he still rushed through, as if trying to get as much on the record as possible.

He pointed out that the use made of the programs by the Defendants/Appellants was that directly contemplated by Congress in drafting Section 1201. A careful and effective touch was to point out the citation to the Congressional record to prove that was indeed the intent of Congress.

Judge Smith asked a few questions that seemed to me to indicate that he was not quite sure of the issues. He wanted to know if Grewal was arguing that Federal Law had pre-empted the contracts covered by State Law. Mr. Grewal had said that was the "overarching question", so, of course, he had.

Judge Murphy seemed to be a bit more up on the issues. She wanted to know what Defendants/Appellants product offered that was not in the Plaintiff/Respondent's product. The answer bears on the issue of newness, though in my opinion, it is not dispositive. Judge Smith asked the usual "new" question. Judges ask appellants if they are suggesting that the Court do something new. The correct answer is always "No". Mr. Grewal fielded it quite nicely, responding "No", and stating that this is simply an obvious extension of the "Vault" decision.

Judge Murphy asked about pirated versions and made a comment about the difficulty of dividing out the benefits for the manufacturers. Mr. Grewal's time was up, and it was Mr. Rovak's turn.

Mr. Rovak had obviously had more experience arguing in similar venues. He was much more relaxed, and sure of himself. He spoke more slowly than Mr. Grewal, his sentences were shorter, and he was much easier to understand.

The gist of his presentation was "Piracy, Piracy, Piracy". Through the emphasis in his voice, and the timing of his words, he wanted this court to understand that this was all about stealing. This was about the Defendant/Appellants taking something that did not belong to them. The overall sense of it was that he was trying to scare the judges and paint the Defendants/Appellants as being in the same group as the hackers and scam artists taking over people's machines with viruses and worms. He pointedly observed that Defendants/Appellants had used fifty icons from the Plaintiff/Respondents server application to make their own product.

He spent time going through the elements of U.S.C. 1201 (f) and arguing how Mr. Grewal and appellants had not focused on this, even though Mr. Grewal claimed it was the center of the case. He also countered Mr. Grewal's comments about the "Bowers" case, and suggested that the "Bowers" court was well aware of the relevant issues.

Mr. Rovak also denied that Mr. Grewal was correct when discussing the Congressional history of the DMCA, and that Congress was well aware of these issues when it was drafted.

Judge Murphy asked Mr. Rovak to cite the relevant Congressional Record. The response was classic: he said he didn't have it right now, but was sure that it exists. Points to Mr. Grewal for getting it very right in the first place. Never, never, never say anything you cannot back up on the spot. I do not know how Judge Murphy knew to ask the question. Perhaps it was something in the way that Mr. Rovak held his face, because it did not come through in his voice. Mr. Grewal came back for his second part, four minutes, and although he still spoke very quickly, he completely made up for any deficiencies in his first part.

He pointed out that shrinkwrap and clickwrap issues were not a part of the appeal, because they had been resolved by stipulation at the trial level. Most of Mr. Rovak's arguments about clickwrap/shrinkwrap issues were a waste of very valuable time. Judge Smith asked pointed questions about what BnetD offered that the Petitioner/Respondents did not, and Mr. Grewa said that they were intended to be identical. I felt this response was a little weak.

In law school, you are taught about primacy/recency. When making an argument, the first thing you say, and the last thing you say are the most likely to be remembered.

Mr. Grewal nailed this next point, and it was one of the finest nailings I have ever seen in appellate court. He said that Judge Shaw, the trial judge, had dismissed all the copyright claims with prejudice at the trial level. Mr. Grewal went on a bit about it, pointedly observing that Judge Shaw had heard evidence, that analyzed the evidence, and found absolutely no copyright infringements, and had dismissed all the copyright infringement counts with prejudice. By implication, this was the meat of the case at the trial court level, and the settlement of issues by the parties had just tied up loose ends.

By direct implication, this appeal was not, and never was, about piracy. Nobody infringed anybody's copyrights, and a Federal District Judge had so found, and so ruled.

Federal Appellate judges do not like stealing. They dislike even more being misled about the nature of an argument.


Reports from the Blizzard v. BnetD Hearing | 168 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: IRJustman on Monday, June 20 2005 @ 06:50 PM EDT
Post 'em if ya got 'em!

[ Reply to This | # ]

O/T, links, and other neat stuff here, please...
Authored by: jbeadle on Monday, June 20 2005 @ 06:53 PM EDT
Oops - I blew it the first time...

You know the drill. If not, instructions are on the Reply page...


[ Reply to This | # ]

Reports from the Blizzard v. BnetD Hearing
Authored by: Anonymous on Monday, June 20 2005 @ 07:01 PM EDT
Couple of points.


The reporter left the "l" off of Grewal.


The fifty icon issue was dealt with in the lower court ... and it was actually 8
icons in a single file called icons.bni which was not actually part of the
software itself but was separately included in the install file. The icons were
tiny, something like 25x15 pixels, logos for the games.


Difference between and BnetD. I'm not sure why they didn't say
something more meaningful here. There are a number of differences which are
obvious and have nothing even to do with the software: if you run your own
server on your own equipment you get to make all the administrative decisions,
it runs faster (fewer users, closer on the network), etc. Not to mention that
bnetd had features allowing people to join from IRC, send mail to each other,

Thanks for the report!

[ Reply to This | # ]

Thanks, Folks...
Authored by: Anonymous on Monday, June 20 2005 @ 07:08 PM EDT
Thanks to both Scott and AllParadox for the time spent and information you've
provided us. And especially thanks to AllParadox for his very detailed summary
and insights -- courtroom experience shows through very strongly.

Larry N.

[ Reply to This | # ]

Reports from the Blizzard v. BnetD Hearing
Authored by: tknarr on Monday, June 20 2005 @ 07:15 PM EDT

I find it interesting that, when companies like Blizzard claim that the DMCA anti-circumvention provisions trump fair use and other aspects of copyright law, defendants don't simply quote back USC Title 17 1201(c)(1): "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.". It seems to me that holding that USC 1201's provisions trump fair use requires ignoring the plain letter of 1201(c)(1).

[ Reply to This | # ]

What questions to ask
Authored by: Anonymous on Monday, June 20 2005 @ 07:24 PM EDT
Many of my projects have been subjected to stringent QA inspections. I have
also conducted such inspections. Beyond the obvious, I have no idea of how one
decides what questions to ask. Somehow, the right questions usually get asked
and something gets turned up. It probably has a lot to do with experience and
the ability to recognize patterns. Somehow the pattern looks wrong.

In this case, you have two people arguing about the Congressional record. One
of them has already cited chapter and verse and the other hasn't; it seems only
fair to give the latter person the chance to do so. (extracts tongue from
cheek). In any event, the fact that the judge asked the question seems like
good news. It may show where the judge's sympathies are.

[ Reply to This | # ]

Possible ramifications.....
Authored by: GrueMaster on Monday, June 20 2005 @ 07:26 PM EDT
I just thought about some of the ramifications if open source loses this.
Samba, Evolution's exchange connector, Wine/Cedega, ant lots of other apps stand
to lose really big if Blizzard wins, although I can kind of understand their
reasoning (to a point). This whole thing came about when Warcraft III came out.
The bnet folks had it working with their server almost immediately, thus
circumventing Blizzards cd key authentication requirements.

If Blizzard were smart, they would have made a linux dedicated server that could
be downloaded and installed. The cd-key is an encrypted key that can be decoded
on the fly, it's not in a lookup database.

But if they (blizzard) win, Microsoft can then come down hard on all the open
source tool developers that reverse engineer Microsofts protocols.

Ok, I'm officially scared again. Time for a revolution.

You've entered a dark place. You are likely to be eaten by a Grue!

[ Reply to This | # ]

Reports from the Blizzard v. BnetD Hearing
Authored by: inode_buddha on Monday, June 20 2005 @ 07:56 PM EDT
Wow, great reporting!


Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

Clarity in reporting: AllParadox
Authored by: bbaston on Monday, June 20 2005 @ 09:01 PM EDT
Impressively, feels as if I was there and I understood what happened.

Incredible clarity in your report, AllParadox, thank you.

Quoted from your report,
"The gist of his presentation was "Piracy, Piracy, Piracy". Through the emphasis in his voice, and the timing of his words, he wanted this court to understand that this was all about stealing."

The effectiveness of certain "approaches" fall by the wayside under exposure. It seems to me that the first set of lawyers screaming "thief" without facts, initially got them some mileage because open source projects were thought to be done by antisocietal maniacs or worse.

With the rising visibility of foolishness from such as the BSA, I sense - for the first time - the tide turning. Being from BSA no longer garners respect or an expectation of justice. Reminds me of a certain US Presidential candidate who protested in too shrill and loud a voice against issues that may or may not have been valid. His candidacy disintegrated overnight.

AllParadox accomplished moving a mountain today, in my opinion, simply by communicating clearly the tenor of the arguments going forth. Now, we should make sure that many read his report.

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold
Have you donated to Groklaw this month?

[ Reply to This | # ]

Thanks to AllParadox
Authored by: rsteinmetz70112 on Monday, June 20 2005 @ 11:19 PM EDT
For a great and incisive report and for an explanation of a case I had not been
following before now.

The decision will be important for the future no matter how it comes down.


"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

A Great Sig
Authored by: converted on Monday, June 20 2005 @ 11:21 PM EDT
This is the perfect place to leave a sig that I saw when reading the IE Mozilla
battles that PJ referenced in an earlier article. I LMAO:

Microsoft Windows:
32-bit extension and graphical shell to a
16-bit patch to an
8-bit operating system originally coded for a
4-bit microprocessor which was written by a
2-bit company that can't stand
one bit of competition

[ Reply to This | # ]

  • OOOppps - Authored by: converted on Monday, June 20 2005 @ 11:23 PM EDT
    • re: OOOppps - Authored by: jbeadle on Tuesday, June 21 2005 @ 09:44 AM EDT
      • re: OOOppps - Authored by: Anonymous on Wednesday, June 22 2005 @ 11:37 PM EDT
My sincere apologies to Mr. Paul Grewal
Authored by: AllParadox on Tuesday, June 21 2005 @ 12:00 AM EDT
I very consistently misspelled Mr. Grewal's name throughout my report (Grewa,
instead of Grewal).

I mis-heard it when he introduced himself, and submitted the report without
bothering to cross-reference the briefs and court documents available through

This is a stupid newbie reporter stunt, I will be more careful in the future.

To Mr. Grewal: You did a very fine job today. Few appellate attorneys could
deliver such a coherent and well prepared presentation.

You deserved better from me.

I would feel very badly if my inadvertent misspelling of your name caused you
the least bit of disappointment.

PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

a little help to mr. Grewall
Authored by: Anonymous on Tuesday, June 21 2005 @ 02:43 AM EDT
What did BNetD offer what Blizzard didn't?

They offered alternative servers which were not overloaded, they effectively
created a bigger market for clients sold only by Blizzard.

[ Reply to This | # ]

Useful legal resource
Authored by: Anonymous on Tuesday, June 21 2005 @ 07:54 AM EDT
From the WIPO - a search engine of IP related laws etc from a varienty of countries. Typing "patents" returns 50+ pages of laws, rulings etc




[ Reply to This | # ]

Time guesses
Authored by: Kalak on Tuesday, June 21 2005 @ 10:31 AM EDT
Any guesses as to when this panel may rule? I know different courts work at
different speeds, and I've gotten the feel for Utah (slow) and Michigan (fast),
etc. but no ide with this court panel. Anyone know where this panel falls under
the spectrum?

Kalak: I am, and always will be, an idiot.
Also, I stayed at a Holiday Inn Express last night.

[ Reply to This | # ]

Authored by: vrimj on Tuesday, June 21 2005 @ 02:33 PM EDT
  1. The games at issue and the servers are two diffent products right? In the argument it seems like one side wanted to seperate them and the other wanted to lump them together.
  2. Is "look and feel" still something that can be protected? I heard a lot of arguments that sounded almost like a "look and feel" infringement agrument but never quite went there.
  3. Does differance really matter? Would it be unfair to reverese enginner a program designed to work on platfrom X so that it would work on platform Y even if platform X and Y were essentally identical? I did not understand this issue.

    [ Reply to This | # ]

  • Questions - Authored by: pooky on Tuesday, June 21 2005 @ 03:27 PM EDT
    • Questions - Authored by: vrimj on Wednesday, June 22 2005 @ 05:15 AM EDT
A bit disappointed
Authored by: overshoot on Tuesday, June 21 2005 @ 03:50 PM EDT
I was surprised that the "is there anything new" question was handled so poorly. I know that the Appellants were under a lot of time pressure, but why couldn't they have responded with something like:
Yes, Your Honor, there are many novel features that were covered at length in the trial record.

[ Reply to This | # ]

stop me if I'm wrong...
Authored by: Anonymous on Tuesday, June 21 2005 @ 10:08 PM EDT
It seems to me, as I listen to the audio, that Mr. Grewal implies through
caselaw that one *cannot* waive a right granted under US Code when the exercise
of that right is in the public interest, contractual agreements nonwithstanding.

Is this one of those shining elegant moments where US Code giveth, and no man
taketh away? Users are legally incapable of surrendering a right guaranteed
them on invocation of the public interest in the perpetuity of that right? Is
fair use a Right guaranteed to Us, The People? Am I being too idealistic?

[ Reply to This | # ]

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