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A ruling in the bnetd DMCA case

[Posted October 2, 2004 by corbet]

The judge has ruled on several motions in the bnetd DMCA case, where Blizzard Entertainment sued the developers of bnetd - which lets users of Blizzard's games play against each other without using Blizzard's servers - for DMCA violations. The developers lost on all counts; creating an interoperable game server is a DMCA violation. Among other things, the judge ruled that, since the bnetd software was released under a free license, it had "limited commercial purpose" and thus lacked non-infringing uses. Ed Felten has made the full ruling (in PDF format) available.

See also: the EFF's release on the ruling, this report on Corante, and Seth Finkelstein's selected quotes.

to post comments

Limited commercial use?

Posted Oct 2, 2004 18:11 UTC (Sat) by mrshiny (guest, #4266) [Link]

I'm shocked that a judge could say that Free software has limited
commercial purpose, and is thus copyright infringement. If this ruling is
upheld, this could be a bad precedent for OpenOffice or any other program
that duplicates functionality of a commercial product.

A ruling in the bnetd DMCA case

Posted Oct 2, 2004 21:27 UTC (Sat) by dps (guest, #5725) [Link] (7 responses)

IANAL but last time I heard about the legal angle, there is an abolutle right to reverse engineer for compability purposes in the EU. Also nothing like the DMCA applies here. AFIAK the coders would be safe anywhere *except" "the land of the free".

If you want to sue on people for reverse engineering the EU you presumably need to show the reverse engineering was to compete with your products. This could be a challenge for things like bnetd (and warcraft clients for unsupported platforms).

I might be wrong, but think that any legal language which attempts to deny you rights is legally void world wide. Legally void language in EULAs is common---M$ saying their software only works for 90 days is a clearly illegal.

A ruling in the bnetd DMCA case

Posted Oct 2, 2004 22:33 UTC (Sat) by jeroen (guest, #12372) [Link]

We've got the EUCD here. It indeed allows reverse engineering for interoperability purposes, but it also has some anti-circumvention clauses, just like the DMCA.

A ruling in the bnetd DMCA case

Posted Oct 3, 2004 8:50 UTC (Sun) by job (guest, #670) [Link] (5 responses)

Ianal, but I understand the DMCA also allows for some limited "reverse
engineering" (how I hate that term). But in this case, the software had
an EULA that explicitly forbids it. That's the problem. I'm not so sure
it the court would have done better in Europe. Probably depends on the
local interpretation on the EUCD. Generally it's not as socially
acceptable to buy politicians and courts in Europe, so the
interpretations aren't that often so bad for the small person. But EU
people shouldn't feel any safer.

The judge has apparently ruled the EULA to be valid

Posted Oct 4, 2004 4:44 UTC (Mon) by leonbrooks (guest, #1494) [Link]

Was it a click-through or shrink-wrap? In which case:
Bad judge, no doughnut!

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 11:51 UTC (Mon) by dps (guest, #5725) [Link] (2 responses)

I am still not a lwayer, but generally rights are things you keep anyway. You can claim in an EULA that my rights under the sale of goods and services act do not apply. If I demand my rights under the act, this clause will not help you---those rights can not be eliminated.

If the EUCD says reverse engineering, for the satted purposes, is a right then you probably can ignore any language that says it is not allowed. Legal advice in Which? consistently if that you can ignore the "by openning this envelope" language, because it has no legal force whatsoever.

I suspect that consumer protection legislation in the US gives you rights that no EULA can remove too. Whether or not you can override the DMCA "limited reverse engineering" section with contract law is not something I am in a position to say,

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 13:45 UTC (Mon) by job (guest, #670) [Link]

So what happens with licenses that tries to nullify my rights? Are the
licenses completely invalid, in which case what right to I have to use
the software at all? Or is there a "default license" in copyright law
that overrides it?

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 15:22 UTC (Mon) by mmarsh (subscriber, #17029) [Link]

Unalienable rights can't be given away. Other rights can, such as the right to refuse to testify against yourself. That's a pretty fundamental right, but it's alienable. The right to reverse-engineer isn't nearly as fundamental, however important we feel it is. Even freedom of speech is alienable, as NDAs demonstrate.

Some jurisdictions have specific laws that nullify certain contract or license provisions that would otherwise give away "consumer" rights (I really hate that term). Whether reverse-engineering is so covered is another issue, and one about which I have no knowledge.

Uniform Commercial Code

Posted Oct 5, 2004 14:02 UTC (Tue) by ncm (guest, #165) [Link]

The key word in connection with shrink-wrap licenses and the like is "UCC". In the US, the Uniform Commercial Code provides that vendors cannot impose extra conditions on the buyer after money has already changed hands.

Whatever it says on the outside of the box is precisely what you get, and you have an absolute right to do whatever it takes to get the full use of what you paid for. (Therefore, owning and running DeCSS is permitted; it is only delivering it to somebody else that the the DMCA forbids.) EULAs packed in the box are waste paper. Likewise, a sticker that says "by breaking this seal, you agree...". Likewise, a pop-up window in the installer that says "by clicking this button you agree...". Don't read them, just rip through them and go about your business. The same applies to printing on the back of a theatre ticket that says "no refunds": you already paid, so they are obliged to either deliver, or refund your money, regardless of attempts at magical incantation after the fact.

In court, the defense is the same in all cases: "I didn't read it. I had already paid my money. They can't impose extra conditions after the sale."

Warning: In the Second Circuit an unfortunate decision may be interpreted to override the UCC. Also, I am not a lawyer, so the above ain't legal advice.

A ruling in the bnetd DMCA case

Posted Oct 2, 2004 21:55 UTC (Sat) by ccchips (subscriber, #3222) [Link] (5 responses)

This ruling needs to be appealed. It is about the dumbest, most arrogant ruling I have ever seen in my entire life, WRT software developement.

That bit about the work being "of limited commercial use," has exactly *what* to do with infringement of copyright?

You don't even have to be a lawyer to see that any law based on that criterion is absolutely *wrong*.

A ruling in the bnetd DMCA case

Posted Oct 2, 2004 22:39 UTC (Sat) by jvotaw (subscriber, #3678) [Link]

> It is about the dumbest, most arrogant ruling I have ever seen in my entire life, WRT software developement.

I agree. Of all the possible outcomes of this case, I would never have imagined one as egregious as this. Time to write a check to the EFF...

-Joel

Appeals

Posted Oct 3, 2004 5:04 UTC (Sun) by Ross (guest, #4065) [Link] (1 responses)

We fully intend to do so. Thanks for the support everyone. The comments
here, on the linked blogs by Ernest Miller and others, and even the
comments on Slashdot have been very supportive. It's comforting to see
that there are so many people who understand the negative aspects of this
decision. The level of awareness is much higher than it was a few years
ago when we decided to fight it in court rather than let Blizzard stop us
with a DMCA takedown notice.

Possible response to "limited commercial use" decision

Posted Oct 7, 2004 2:32 UTC (Thu) by pjm (guest, #2080) [Link]

Should we conclude that a country's schools, roads, hospitals or judiciary system has "limited commercial purpose or use" if they are provided to a person free of charge (e.g. even if the person pays no taxes, or in some cases even if the person isn't a citizen of the country) ?

Could we not conclude that they have even greater use & value by being provided free of charge, by making them more accessible?

One way of forcing a rethink about what constitutes a circumvention device would be to [suggest hypothetically] suing the judge for providing his ruling to the public. His ruling has "limited commercial purpose or use", so is strictly speaking a circumvention device under the current wording of the law (see "relevance of commercial use" post).

A slightly less frivolous approach is to take something that can in fact be used for circumventing a control device (more precisely "a technological measure that effectively controls access to a work protected under this [DMCA/copyright] title"). Possibly the judge's ruling can still be used as such a circumvention device, e.g. via buffer overflow causing a separate checking process to crash, where the invoker treats crashing the same as it would treat an indication of successful authentication. Or using the printed copy of the ruling as a masking device similar to how marker pens were famously able to circumvent a certain CD protection scheme.

Ideally the protected work in question should be a brief poem that makes a point similar to the first two paragraphs of this post, perhaps rhyming "free of charge" with "access to the community at large".

The suggestions in this post probably shouldn't be taken too seriously, but they could form a part of a verbal argument presented to a judge as to why the law should be changed/reinterpreted.

A ruling in the bnetd DMCA case

Posted Oct 3, 2004 8:52 UTC (Sun) by job (guest, #670) [Link]

I'm glad to see other people don't understand that part either. Can
somebody more well versed in law please explain?

relevance of commercial use

Posted Oct 6, 2004 7:33 UTC (Wed) by pjm (guest, #2080) [Link]

From memory, it is not about copyright infringement per se, but about the DMCA. I believe the DMCA tries to say something about products that can be used for bypassing a technical measure to enforce copyright, and that also has non-infringing uses. (By analogy, it tries to say whether or not it's OK to have a crowbar or baseball bat, given that they can be used for breaking the law.)

Unfortunately, the criterion it offers apparently needs some debugging. Section 1201 says "No person shall ... provide ... any technology ... that [EITHER]:

  • is primarily designed or produced [to circumvent];
  • has only limited commercially significant purpose or use other than [to circumvent]; OR
  • is marketed ... for use in [circumvention].”

In particular, it appears to mean that everything with limited commercially significant purpose or use is considered a circumvention device whether or not it can in fact be used for circumvention!

However, there are one or two ambiguities:

  • Does the adjectival phrase “commercially significant” modify just “purpose” or does it modify “use” as well? I.e. does it mean “has only limited use or commercially significant purpose other than ...” or does it mean “commercially significant purpose or commercially significant use” ? (The judge appears to have taken the latter view.)
  • Does “not useful other than for X” have the “mathematician's interpretation” (not exist use U s.t. U ≠ X) or does it also require that there exist commercially significant purpose or use for circumvention? (The judge appears to have taken the simple “mathematician's” view.)

IANAL.

Logically void

Posted Oct 3, 2004 14:46 UTC (Sun) by ncm (guest, #165) [Link]

Never mind the disputable facts ("limited commercial" etc.) The decision is logically inconsistent on its own terms. In particular, it relies on a circular argument: reverse-engineering is disallowed when used for copyright violation; it's a copyright violation because they reverse-engineered it, in violation of copyright...

A ruling in the bnetd DMCA case

Posted Oct 3, 2004 19:47 UTC (Sun) by dvrabel (guest, #9500) [Link] (8 responses)

Presumably bnetd does none of the CD key verification that the official Battle.net servers do?

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 3:53 UTC (Mon) by dvdeug (subscriber, #10998) [Link] (7 responses)

They can't; Blizzard wouldn't tell them how.

Oh, well, time to play a different game

Posted Oct 4, 2004 4:46 UTC (Mon) by leonbrooks (guest, #1494) [Link] (1 responses)

Vote with your dollars, maybe then they'll lighten up.

Oh, well, time to play a different game

Posted Oct 6, 2004 3:58 UTC (Wed) by rusty (guest, #26) [Link]

> Vote with your dollars, maybe then they'll lighten up.

I don't think so: they're owned by Vivendi. Vivendi would happily bury Blizzard if it strengthened the DMCA.

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 13:08 UTC (Mon) by arafel (subscriber, #18557) [Link] (4 responses)

Which is actually not that surprising - including code to verify CD keys would be a help for people mass-generating keys...

(Note that this doesn't mean I think the ruling is any less moronic.)

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 14:23 UTC (Mon) by French_Guest (guest, #16946) [Link] (2 responses)

Wrong. Did you ever hear of assymetric encryption (RSA, etc...) ? A CD key could be implemented as a digital document signature, for example.

But with source, the server owner could simply change the code and recompile it to disable such checks... ;-)

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 17:58 UTC (Mon) by flewellyn (subscriber, #5047) [Link]

Yes, but you're assuming that they did anything that sane. Remember the Elcomsoft case? The encryption that Adobe went to court to defend was a piss-poor implementation of the Caesar shift cypher.

Basically, we're seeing companies use the courts to do the job that should go to real cryptographers.

A ruling in the bnetd DMCA case

Posted Oct 5, 2004 8:24 UTC (Tue) by khim (subscriber, #9252) [Link]

Unfortunatelly you can not create short activation code this way (short here is 12-24 characters i.e. 72-144bits: enough for symmertic encryption, way too small for assymetric).

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 17:12 UTC (Mon) by arafel (subscriber, #18557) [Link]

It could be - but did they? :-) If it's just done as a simple checksum, or XOR/checksum etc. then it becomes much much faster to find valid keys. It depends how they did it in the first place.

And, as you said - with the source code available people would just remove it anyway. So it's kind of moot anyway.

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 15:13 UTC (Mon) by forlel (guest, #11028) [Link] (1 responses)

IANAL
I don't think the decison would withstand an appeal.

One fun thing to do would be to strip out the compatibility with blizzard's software and hook it into a GPL realtime strategy game. Possibly using crystal space as the 3d engine. If it is decent enough it could cut into blizzards market a bit(or a lot) and cut of their air supply. It could be marketed as the first real time strategy game created out of anger.

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 17:40 UTC (Mon) by jvotaw (subscriber, #3678) [Link]

As I understand it, Blizzard games are mostly peer-to-peer. Battle.net and bnetd are more like match-making services than anything else (certainly they're not like dedicated Quake servers). At least, I think this was the case several years ago.

Still, working on a libre competitor to Blizzard's games sounds like a very good idea to me.

-Joel


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