September 30, 2004

Blizzard v. BNETD (Davidson v. Internet Gateway) Fair Use/DMCA horrors

Blizzard v. BNETD (formally "Davidson & Associates v. Internet Gateway") is a case about the right to reverse-engineer and build a open-source network game emulator. A district court decision has just been issued (via Ed Felten). In sum, it's a horror on every item, and rules solidly against programmer's interests.

Some of the parade of horrors:

The quasi-Libertarian like-it-or-lump-it view of a contract of adhesion:

The parties in this case did have unequal bargaining power because Blizzard is the sole seller of its software licenses; however, the defendants had the choice to select a different video game, to agree to the terms and gain the software and access to, or to disagree and return the software for a full return of their money.

The "If you have to ask, you can't afford it" principle (that is, if you're skilled enough to reverse-engineer a program, you're presumed to understand you're forbidden to do it!)

Also, the defendants are not unwitting members of the general public as they claim. They are computer programmers and administrators familiar with the language used in the contract, and have the expertise to reverse engineer and understand source code.

You can click away your fair use rights (my emphasis):

The Federal Circuit in Bowers stated that the First Circuit recognized the contractual waiver of affirmative defenses and statutory rights, therefore, the defendants could contractually waive their fair use right to reverse engineer. Id. The Court finds the reasoning in Bowers persuasive. 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.

Open Source [Update2: or Free Software] counts against you in terms of a DMCA defense:

The bnetd emulator had limited commercial purpose because it was free and available to anyone who wanted to copy and use the program.

Interoperability exemption is narrow:

Finally, the development and distribution to others constituted copyright infringement and persons who commit copyright infringement cannot benefit from the exemptions of &sec; 1201(f). See 17 U.S.C. &sec; 1201(f)(2)-(3). "Sections 1201(f)(2) and (3) of the DMCA are not broad exceptions that can be employed to excuse any behavior that makes some device 'interoperable' with some other device." Lexmark Int'l Inc. v. Static Control Components, Inc., 253 F.Supp.2d 943, 970 (E.D. Ky. 2003).

On and on ... Read it and weep.

It's a huge burden to read through dozens of pages of a court case, and then try to figure out something original and insightful to say while a bunch of other people are trying to do the same thing. I'm inclined to stop doing it. But this one was "worth it" tonight :-(.

[Update: See also Ernest Miller's take, Major DMCA/EULA Loss - District Court Clueless in BNETD Case]

[Update2: See also the BNETD v. Blizzard netradio show, where I'm one of the guests]

By Seth Finkelstein | posted in dmca | on September 30, 2004 11:55 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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