Letter to Editor: Response to Florian Mueller's Release re: "Anti-IP"

The attorney can take on any case and use just any legally permissible argument. The NGO, however, must carefully pick the cases that it chooses to provide (directly or indirectly) funding to, and must accept that the points it makes in the case can be held against the NGO politically. That fact certainly puts the NGO at a potential disadvantage, which is why someone who has the money should always prefer the services of a regular attorney.

In my opinion, the EFF should have been realistic that IPRs are held in high regard by politicians, and that one can only work effectively against the counterproductive protuberances of the IPR regime if wholeheartedly supporting the basic notion that those who write software (which I think the EFF itself doesn't do) deserve IP protection and a major (not just an adequate) opportunity to commercialize their creations. Some may argue that the U.S. Constitution doesn't contain that notion, but this is just part of promoting the progress of science and the useful arts in my opinion, and even the founding father hadn't viewed it that way, it's the prevailing view and interpretation today.

My opinion is that all those IPRs upon which one can, realistically speaking, only infringe by acts of will (copying code from someone) or gross negligence (not checking on the legality of code that is contributed), are acceptable and should be as far-reaching as possible, while those that can restrict the freedom of everyone (even the most honest developer who never steals anything) to innovate must be fought against.

Theoretically, one can infringe upon copyright by writing a long piece of code that someone else also happened to write, but it's easier to win the lottery for a year in a row. Also, one might be sloppy in incorporating third-party code into his own code without a license, nor not properly define the licensing terms from, and warranties and representations of, a contributor, but that is gross negligence.

Copyright stands on a very high moral ground. An NGO that wants to stand on the same high moral ground must not contribute resources to a fight that would in the end have caused serious harm to the legitimate interests of a copyright holder in commercially exploiting his creations.

Sure, some say, and even I agree, that the respective damage was not the primary objective of bnetd as the EFF fought for interoperability and viewed the court-validated negative effect of bnetd on copyright protection as "collateral damage" that was justified by a higher principle. However, "collateral damage" logic is dangerous as we all know. I believe it's disreputable to consider a major negative effect on a company's business model, for so-called "hack value" as the bnetd developers call it, "collateral damage" that has to be taken into account. There's absolutely no reasonable proportion between benefit and the collateral damage from the perspective of someone like me (gamer, games marketeer, and game developer).

The other distasteful proportion is that the EFF sided with hackers who wrote a fairly small and simple piece of code, and fought against Blizzard, which holds intellectual property that is literally hundreds of times more expensive to develop and zillions of times more commercially valuable. I'm not just speaking of the IP that Blizzard owns as a whole but specifically of that which played a role in this case. On the one hand, you have a company that has made huge investments and developed some of the most popular games in the history of industry, and on the other hand, a group of individuals who have done something that is not completely trivial either, but trivial in comparison to the intellectual achievements that Blizzard wanted to protect.

Basically, bnetd piggybacked on that much greater intellectual property and could have caused severe damage to it, like an insect that sucks blood out of a larger body and infects it with a potentially deadly virus.

It's still my position that it's an unlawful attitude to support bnetd against Blizzard. Now I will also stop commenting on this HTML page.

The bnetd case as a whole is "against copyright" because, as the courts also concluded, bnetd can be, and has actually been, used to "circumvent copyright protection". That is the basis on which I called bnetd a "piracy-enabler" and made my statement in the press release that it looks like being "against copyright", not based on the details of the arguments that the EFF brought forward.

In the client-server software that I'm currently developing, a lot of code (it's .NET on both ends) is used on both sides. The client checks for certain permissions only to give the user the fastest possible feedback (or disallow certain actions in the first place), but it's just for convenience. The server has the final say and performs the same checks again. Typically the server has enhanced versions of the respective objects (by way of inheritance) so that the client code doesn't give away too much information that can be used to search for loopholes.