Author: Jay Lyman
In upholding a lower court ruling, the court held the Digital Millennium Copyright Act — which has previously been the basis of protecting a degree of reverse engineering in software — prohibited the reverse engineering BnetD developers required to create their software. In addition, the ruling held that so-called click-wrap, browse-wrap, or handshake licenses may also prohibit the reverse engineering. The court disagreed with arguments presented by the Electonic Frontier Foundation (EFF), which asserted that reverse engineering was permissible based on fair use, interoperability, and reverse engineering rights granted in the US Copyright Act and, ironically, the DMCA. Developers and their supporters worry the case may have broader implications for add-on innovation and development, and may mark a significant loss of right to reverse engineer legitimately.
Beyond the chill of Blizzard
Although BnetD developer Ross Combs was on the losing end of the ruling with a couple fellow gamers — who were also contributors to BnetD — he fears the ruling has implications beyond Blizzard’s Battle.net game network, and knows of other projects under threat from the company, which has been emboldened by the ruling.
“I believe there are a number of ways this ruling is detrimental to creators of add-ons, replacement parts, and other interoperating technologies,” said Combs, who was banned from further distribution of BnetD.
He explained the most direct impact of the ruling would be the enforceability and “freely negotiated nature” of EULA provisions that prevent the use of reverse engineering, granted by the Copyright Act. Combs pointed to the 1985 Vault v. Quaid Software case, for example, where a state contract law which allowed such license provisions was preempted by federal copyright law, according to the courts.
“It seems strange to me that such a provision would be enforceable in light of that, but that is what the appeals court has found,” Combs said. “As a practical matter, this means that most software products and some hardware products cannot be reverse engineered in this judicial circuit. That obviously has a detrimental effect on innovation, and is likely to allow vendors to lock users to their products, resulting in higher prices.”
Combs, credited among gamers for dramatically improving online play of Blizzard’s games with BnetD, also warned the ruling was a dangerous precedent by finding that the exemptions for reverse engineering and interoperability outlined in the DMCA do not apply as widely as was apparent.
Combs also referred to Blizzard’s other efforts against developers and Web sites hosting software that interacts with their games and servers, something that has gone on “for a number of years,” according to the developer, who was engaged in the legal fight over BnetD for three and a half years.
“Mostly they go after sites with ‘mods’ or ‘cheats,’ like DiabloWorld.com,” Combs said. “There are also groups like the Freecraft project, which created its own [real-time strategy] game engine which could read Blizzard’s map and item files. I believe that Blizzard threatened legal action and the project was scrapped (later a similar project with another name was started in another country).”
Will add-ons get subtracted?
EFF staff attorney Jason Schultz said the ruling casts a cloud over what was previously viewed as solid ground for software development because of copyright law and prior rulings on reverse engineering. Schultz said add-ons to Firefox, Google Maps, Craigslist, instant messaging clients, and other applications are among the software that could be impacted.
“The implications are that we won’t see any growth in the area of add-on innovation when it comes to software, especially Web software,” he said. “Open APIs, add-ons, complimentary products to build and compile a Web site — all of that is potentially compromised by this. A lot of innovation is coming off of this secondary level of application architecture.”
Schultz — who indicated Blizzard is bringing the ruling down on other developers of similar add-on technology — said the combination of the DMCA interpretation and EULA enforcement were used to circumvent copyright protection and DMCA-based defense of reverse engineering.
Schultz said his organization was hoping the Blizzard case would mark a major clarification of the DMCA, but it did the exact opposite. Nevertheless, he said the EFF is actively on watch for cases that could further test DMCA, licensing, and reverse engineering rights.
Phil Albert, an IP attorney and partner with the San Francisco offices of Townsend and Townsend and Crew, agreed the ruling marked an extension of intellectual property protection via the DMCA and license agreement.
“It’s entirely possible to use the DMCA in combination with licensing terms to create exclusivity beyond what copyright law would provide them,” he said. “It’s not clear whether the intent of the DMCA was to protect against copyright infringement or go beyond that to create new kinds of protections. It’s kind of using the DMCA in an unintended way.”
More to come
Combs said he believes Blizzard saw BnetD as a threat as it moved its product lines toward massively multiplayer online role-playing games (MMORPG).
“In the past, their game server was not a revenue center and could be freely used by anyone on the Internet,” he said. “But with the subscription model, they did not want to risk the ability of game owners to play on another server and thus avoid the monthly fees.”
Although he expressed “deep disappointment” over the ruling, Combs stressed the need for perseverance against corporate and government efforts to close down competition through legitimate reverse engineering in the name of copyright protection and the fight against piracy.
“I hope this case doesn’t discourage others from pursuing their interests or make them self-censor when a free software project runs up against the wishes of a commercial entity,” he said. “The decision is only in one circuit and it isn’t set in stone. The legislature and courts are doing everything in their power to make war on piracy today, and at some point I believe the excesses will be recognized for the damage they are doing to legitimate users and third parties. Tools like WINE, Samba, PVR software, and Microsoft Word import/export plugins are all important tools which have to cooperate with products and use protocols or formats designed by another party which likely wishes the tool didn’t exist. It’s important to recognize that they aren’t just a nicety, but a requirement for a healthy marketplace.”
For its part, Blizzard has called the ruling in its favor “a major victory against software piracy,” according to a statement from president and co-founder Mike Morhaime.
Ric Hirsch, senior vice president of intellectual property enforcement for the Entertainment Software Association, which filed an amicus brief in the case, said the Circuit Court judges “did a very good job in their analysis of the legal issues,” adding the ruling “helps communicate that software publishers and the games software industry is serious about going after piracy of their products.”
Hirsch said the ruling will reinforce the use of the DMCA to prevent “IP abuse and theft. The court’s ruling reinforces the value of creativity and innovation in the games industry — it protects developers’ creations through the use of security technologies. People will be more inclined to innovate if they think their creations can be effectively protected from unauthorized uses.”
Albert, who pointed out that both sides made arguments in favor of innovation in the case, said it is unclear how far the convoluted DMCA-EULA protection could go. However, he said he expects more debate on the matter, both inside and outside the courtroom.
“I think this is going to be an increasingly fertile issue for disputes,” he said. “It’s not entirely resolved as to where the boundaries are in terms of what is permissible and what is not permissible under the DMCA.
“On one side, people are saying we need all the protections we can get,” Albert said. “On the flip side, the people who build on the product or interface to it say, ‘We need to be able to provide the features and functionality that the original producer isn’t.’ This comes up in a lot of places. Ultimately, fortunately, what makes sense wins out in the long run. Eventually, we’ll be to a place where it does make sense to reverse engineer and make things better.”
Category:
- Legal
