Wed, 06 Oct 2004

DMCA, Blizzard vs bnetd, Open Source in Australia

I am not a lawyer. However, I have read various summaries, and the actual results of Blizzard vs bnetd. Blizzard (owned by Vivendi, an old hand at aggressive copyright litigation) create various games which they sell; these games can be played online on the official Blizzard "" servers. bnetd is an Open Source equivalent to these servers. This case has relevance for Australia, as the recent Australia-US Free Trade Agreement contains an obligation to implement similar restrictions to the US DMCA.

Judge Shaw found for Blizzard on two counts: (1) that the bnetd developers had broken the click-through license agreement (EULA) which prohibited reverse engineering, and (2) that they had broken the Digital Millennium Copyright Act (DMCA) by "circumventing" the "secret handshake" used by the game to talk to the server.

The EULA issue is clearly important: you should not be able to prohibit compatible products just by slapping a click-through license on something. Several academics and studies in Australia believe you should not be able to "contract out" of copyright exceptions on principle. To quote the Dee report commissioned by the Senate Australia-US FTA enquiry:

AUSFTA requires Australia to allow copyright holders to transfer such right by contract. The US Trade Advisory Group sees this as meaning that contracts will prevail over exceptions such as 'fair use'. While it is debatable whether the clause achieves this, it would contradict a recommendation of the Commonwealth Law Reform Commission that parties should not be allowed to contract out of exceptions.

But my main concern is the DMCA finding. Judge Shaw:

See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 444 (2nd Cir. 2001) (court rejects argument that because DVD buyer has authority to view DVD, buyer has authority of copyright owner to view DVD in a competing platform; court finds that argument misreads 1201(a)(3) because the provision exempts from liability those who would "decrypt"--not "use"-- an encrypted DVD with the authority of copyright owner). The defendants did not have the right to access mode using the bnetd emulator. Therefore, defendants' access was without the authority of the copyright owner.

Here we see the legacy of the deCSS ban (Universal vs Reimerdes): you don't have implied "authority" for anything other than exactly what the author intended (ie. you don't have implied authority to play a DVD on any platform you want). Therefore, it's "unauthorized circumvention." The debate now, is whether the defendants can use the exception for reverse-engineering for interoperability which is in the DMCA (mirrored in the AUSFTA), under 1201(f)(1):

Notwithstanding the provisions of subsection (a)(1)(a), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

Here's how Judge Shaw rejects the use of that exception:

It is undisputed that defendants circumvented Blizzard's technological measure, the "secret handshake" between Blizzard games and, that effectively controlled access to mode. It is true the defendants lawfully obtained the right to use a copy of the computer programs when they agreed to the EULAs and TOU. The statute, however, only exempts those who obtained permission to circumvent the technological measure, not everyone who obtained permission to use the games and

I do not understand the sentence "The statute, however, only exempts those who obtained permission to circumvent the technological measure, not everyone who obtained permission to use the games and", because the DMCA exemption, like the FTA, says nothing about requiring permission to circumvent. A requirement that you ask permission to create interoperable products is, frankly, absurdly anti-competitive. We must not allow such an interpretation here in Australia.

The judge also finds that bnetd was not an independently created computer program, despite the fact that it was a completely independent implementation. This stands strongly against years of copyright law precedent, and I believe reflects the judge's disregard for Open Source (as we'll see explicitly later):

Finally, the defendants did not create an independently created computer program. The bnetd program was intended as a functional alternative to the service. Once game play starts there are no differences between and the bnetd emulator from the standpoint of a user who is actually playing the game. Based on these facts, defendants' actions extended into the realm of copyright infringement and they cannot assert the defenses under 1201(f)(1).

It also seems, that by offering features which the official servers didn't, bnetd stepped outside the "sole purpose" of achieving interoperability:

The defendants admit that the bnetd project was to provide matchmaking services for users of Blizzard games who want to play in a multi-player environment without using The Court finds that the defendants' actions constituted more than enabling interoperability.

One of the nastiest charges is that bnetd was "trafficking" in circumvention devices. Under the AUSFTA (and presumably the DMCA) this carries criminal charges. The wording of the "trafficking" statute has three tests, one of which is that the program "has only limited commercially significant purpose or use other than to circumvent a technological measure". The judge found that an Open Source program, being freely available, meets that test:

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

What remains?

This decision, if it stands, effectively guts the DMCA exception for interoperability. If anything which effective replaces part of a system is not an "independently created work" for the purposes of the exception, then it's hard to see how any independent development can occur. If your replacement program allows anything the original vendor did not (the bnetd didn't check the authorization keys, as they didn't know how, and also provided a matchmaking service), your purpose "more than enabling interoperability" and the exception doesn't apply. The judge also noted that the existence of (Open Source) bnetd had spawned derived works which might do other things: this seems also to be "more than enabling interoperability". Finally, creating and distributing any Open Source program which circumvents anything is automatically a violation of 17 U.S.C. 1201(a)(2), as it has limited commercial purpose.

If nothing else convinces you that we need legislators to be explicitly aware of the importance of Open Source/Free Software when drafting legislation, this should.

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