Various courts in the U.S. have handed down a set of decisions in the last
week which have strong implications for the free software community. Here
is a quick rundown of what the courts have been saying.
The developers of bnetd
had a straightforward goal: they wanted to be able to engage in networked
gameplay, using their legally-purchased Blizzard games, without dealing
with Blizzard's Battle.net servers. So they reverse-engineered the
protocol used by Blizzard's games to talk to the server and implemented
bnetd, which provides the same functionality. bnetd is licensed under the
Blizzard did not like bnetd. The provision of alternative servers took
players of Blizzard's games out of the company's control; it was no longer
possible to throw advertisements at players. The Battle.net servers also
check the registration key provided by the game client; if the key turns
out not to be valid, or if multiple players attempt to use the same key,
access to the server will be denied. The bnetd developers never quite got
around to implementing the key checks; free software developers have little
patience with that sort of thing, and, in any case, Blizzard provides no
way for third parties to check the validity of registration keys.
Blizzard's response was to send takedown notices, then file suit with a
number of copyright infringement and contract claims. On
September 30, a U.S. District Court in Missouri agreed with Blizzard,
finding the bnetd developers guilty of breach of contract and violation of
the anti-circumvention clauses of the Digital Millennium Copyright Act.
The full ruling is available in PDF
The contracts in question are the license agreement for the games and the
reverse engineering of the software and running services that compete with
Battle.net. The court found that the EULA and TOU were binding in all
respects. Among other things, a license agreement can forbid reverse
engineering in all cases and that is just fine with the court.
With regard to the DMCA charges, the court concluded that, by reverse
engineering the handshake used to control access to the games' "Battle.net
mode," the bnetd developers did circumvent an access control mechanism. In
their defense, the developers stated that they fell within the DMCA's
exemption for those trying to achieve interoperability. The court
The Court find that the defendants' actions constituted more than
enabling interoperability. The bnetd emulator developed by the
defendants always allows the Blizzard game to access Battle.net
mode features even if the user does not have a valid or unique CD
Key, because the bnetd emulator does not determine whether the CD
Key is valid or currently in use by another player. Unauthorized
copies of the Blizzard games were played on bnetd servers. Then,
defendants distributed the bnetd program for free. Because the
bnetd source code was freely available, others developed
additional Battle.net emulators based on the bnetd source code....
Finally, the defendants did not create an independently created
computer program. The bnetd program was intended as a functional
alternative to the Battle.net service. Once game play starts there
are no differences between Battle.net and the bnetd emulator from
the standpoint of a user who is actually playing the game.
It is hard to know how to read this reasoning. Interoperability, it seems,
is only a defense if the resulting program does not do anything
interesting, and if it is not distributed as free software.
The court also found that the developers had violated the DMCA's provisions
regarding trafficking in anti-circumvention devices:
The defendants' purpose in developing the bnetd server was to avoid
the anti-circumvention restrictions of the game and to avoid the
restricted access to Battle.net. Thus, the sole purpose of the
bnetd emulator was not to enable interoperability. The bnetd
emulator had limited commercial purpose because it was free and
available to anyone who wanted to copy and use the program.
This language contradicts the court's statement of the "undisputed facts"
in the first part of the ruling:
The users of the Battle.net service have occasionally experienced
difficulties with the service. Blizzard has also received
complaints about user profanity and users who cheated to win games
by modifying Blizzard's software ("client hacks")... To address
their frustrations with Battle.net, the defendants joined a group
of non-profit volunteer game hobbyists, programmers, and other
individuals called the "bnet project."
The above is, remember, an undisputed fact. The court chose, however, to
ignore that fact and recast the purpose of bnetd to suit its reasoning. On
top of that, the idea that bnetd is a circumvention device because it
carries a free license is truly chilling.
The end result is that Blizzard is able to place strong restrictions on the
users of its games, preventing them from communicating via any sort of
alternative service. Free software developers have been restricted in the
sort of code they can develop, and the value of Blizzard's games for its
own customers has been reduced.
There are certainly problems with the DMCA which
allow this sort of thing to happen. This is, however, also a problem with
proprietary software; free software users do not have to cope with
restrictions of this type. Unfortunately, it may be a long time before we
see free games which offer the sort of experience provided by the best of
today's proprietary offerings.
The Diebold case was the source of another
important ruling (PDF)
. In this case, Diebold attempted to use the
DMCA to shut down distribution of leaked internal messages between its
employees regarding problems with Diebold's electronic voting systems. The
core of the ruling was that Diebold misused the DMCA by attempting to force
a takedown of material which was not copyrightable.
The purpose, character, nature of the use, and the effect of the
use upon the potential market for or value of the copyrighted work
all indicate that at least part of the email archive is not
protected by copyright law. The email archive was posted or
hyperlinked to for the purpose of informing the public about the
problems associated with Diebold's electronic voting machines. It
is hard to imagine a subject the discussion of which could be more
in the public interest.
The Diebold ruling may not affect free software developers directly, but it
should serve to put some limits on the use of DMCA takedown notices.
A court in Rochester, NY (Kodak's home town) has found that Sun has
infringed upon three of Kodak's patents. Kodak claims that Sun should owe
it just over $1 billion for its crime. Intellectual property suits,
it seems, are increasingly the strategy of choice for businesses in
The patents (numbers 5,421,012,
all read about the same; they would appear to describe any of a number of
object request brokers or remote procedure call mechanisms. If they are
upheld, Kodak can be expected to begin shaking down technology companies
across the U.S.; they would be unlikely to limit themselves to those
working with Java.
This looks like a case with a reasonably high likelihood of being reversed
on appeal. In the mean time, it serves as yet another reminder of what
software patents are doing to the computing industry in the U.S. Until the
U.S. patent system is reformed, these lawsuits will be a constant threat.
One can only hope that the parts of the world which do not, yet, recognize
software patents are paying attention.
The SCO group had a minor setback in the IBM case when Judge Kimball denied
two of the company's motions regarding scheduling. The
is up on Groklaw. The judge had little sympathy for SCO's
However, there is nothing in the Amended Scheduling Order that
precludes IBM from filing motions for summary judgment, and there
is nothing in the Scheduling Order that relieves SCO from
responding to such motions. Thus, it is puzzling that SCO seeks to
"enforce" the Amended Scheduling Order when there is nothing in
that Order to justify SCO's request for a significant delay in
filing its responses.
The big ruling - on IBM's motion for a summary judgment on its tenth
counterclaim (stating that its Linux work does not infringe SCO's
copyrights) - is still pending. (What is also pending, incidentally, is
the agreement with SCO's lawyers on putting a cap on SCO's legal costs.
SCO may have encountered some difficulties in closing that deal.)
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