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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 "" 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.

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