Outcome of BnetD Case Could Eliminate Software that Extends the Gaming Experience

Eighth Circuit - Yesterday the Electronic Frontier Foundation (EFF) filed a brief in the Eighth Circuit Court of Appeals arguing that federal law forbids videogame corporation Blizzard from interfering with gamers' ability to create new products to enhance their game experience. EFF is co-counsel for the defendants in Davidson v. Internet Gateway, a case on appeal from a district court in St. Louis. The district court held that an open-source software gaming server called BnetD was unlawful because its makers had violated Blizzard's End User License Agreement (EULA) and portions of the Digital Millennium Copyright Act (DMCA).

BnetD lets gamers play popular Blizzard titles like Warcraft with other gamers on servers outside of Blizzard's Battle.net service. To create BnetD, a group of volunteer programmers reverse-engineered a protocol in Battle.net, using the information to give players access to the BnetD server. Blizzard argues that this act violated a clause in its EULA that forbids reverse-engineering. In its brief, EFF argues that federal copyright law, which allows reverse-engineering in cases of fair use, trumps Blizzard's EULA. Because the BnetD programmers created a product that is interoperable with Blizzard games, their actions fall squarely within the definition of fair use. EFF also argues that the DMCA specifically allows for fair use reverse-engineering.

If it stands, the lower court's decision would make it unlawful in most cases to reverse-engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own.

"The Eighth Circuit's decision will strongly impact the health of the videogame industry," said Jason Schultz, an EFF staff attorney working on the case. "If companies are able to use EULAs and the DMCA to eliminate competition in the marketplace, videogame consumers will suffer, as will consumers of electronics in other industries affected by this ruling."

Along with EFF, Paul Grewal and Richard Lin of Day Casebeer Madrid &amp Batchelder LLP are serving as pro bono co-counsel to the BnetD programmers. Counsel has asked the Eighth Circuit to hear oral arguments in the case, but the court has yet to decide if it will hear them.

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org