Slashdot Mirror
Legal Analysis Critical of Blizzard v Bnetd
anewsome writes "As reported previously
several times,
Blizzard has sent a cease and desist letter to the ISP of bnetd (which develops an open source
Battle.net emulator). Lawmeme.org (from the Yale Law School) has
published a long piece with lots of background and legal analysis on the
case. Conclusion: Blizzard has an uphill legal battle."
The Real URL for this story is:
http://research.yale.edu/lawmeme/modules.php?name= News&file=article&sid=149
--Azaroth (KW)
The article.
The Correct URL
Bnetd didn't reverse engineer any of Blizzard's software to create their server, so what right does Blizzard have to stop any of this? Sure you can make the case that bnetd allows software pirates to play their illegal copies of Blizzard's games more easily, but bnetd should be treated as a completely independent software developer.
I think the link should be http://research.yale.edu/lawmeme/modules.php?name= News&file=article&sid=149
... for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
Here's the important stuff...
Does BNETD Violate Blizzard Copyrights?
Unlikely, although it must be stated that Vivendi/Blizzard has yet to claim which exclusive rights are infringed by which programs hosted by bnetd, so this analysis is based on speculation as to likely complaints.
In general, copyright infringement consists in copying or distributing another's work without authorization. In this case, the bnetd server is the original work of its various developers (BNETD Project Credits ). The developers have never had access to Battle.net software, so it would be impossible for them to have copied it. As there is no copying there is no infringement. Indeed, Blizzard's FAQ on the case admits as much since it is called the Emulation FAQ . In computer science, emulators are software designed to imitate the same function as another piece of software. They are not copies. If it was a copy, it would not be "imitating" the function of another piece of software, it would be the same software.
In order to create a Battle.net emulator, the bnetd developers engaged in a combination of reverse and value engineering. Their method of reverse engineering did not require any decompiling or disassembly of the code of the client (again, they could not have deassembled or decompiled the Battle.net code since they did not have access to it). It is decompiling of code that frequently gets reverse engineers in copyright trouble -- that is not a problem for bnetd since it was not required. Bnetd was able to reverse engineer by simply looking at the traffic between server (Battle.net) and client (game player). For example, a player would start a game as one type of character on Battle.net in Diablo II (e.g., a Necromancer) capture the packets, then start a game as a different character (e.g., a Barbarian) and capture the packets. By comparing the two packet dumps, one of the bnetd developers would be able to determine which packets identified specific elements of the game. The developer would then make changes to the bnetd server and check his work by performing the same test with client on the bnetd server. Through trial and error, the bnetd server improved.
To my knowledge there is no law that holds that reverse engineering a protocol through packet dumping implicates copyright in any way.
Vivendi might claim that special programs to assist users of bnetd to edit their Windows registry violated copyright. As mentioned above, the Windows registry consists of configuration files that can be modified by the user using regedit.exe which is part of every version of Windows. It is not at all clear how provision of a program to make editing certain portions of the registry easier would violate an exclusive right of the copyright holder. Moreover, it is not clear whether a user who alters the registry is violating copyright. They may be violating the EULA (more below), but that is not a violation of copyright.
Does BNETD Violate Section 1201 of the DMCA?
Unlikely, but the statute in question is quite complicated and the law has not yet been clarified by the courts. It must also be made clear that simply because something may facilitate piracy does not mean it violates section 1201 of the DMCA.
The first issue is whether or not the CD-Key authorization mechanism is an access control device under section 1201(a). Section 1201(a) states that a device controls access to a work, "if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." One significant question is access to what work? Bnetd does not facilitate unauthorized access to Battle.net, it is a substitute. Bnetd does not facilitate access to the single player version of the game. Bnetd does not faciliate access to the LAN multiplayer aspects of the game. Bnetd does not facilitate access to Internet multiplayer, since that is accomplished through LAN emulators such as Kali. At worst, bnetd facilitates access to Internet multiplayer using the client's Battle.net interface. It is questionable whether access to a particular interface counts as "access to the work." It is questionable whether enabling certain functionality is "access to the work." Even granting that the interface or functionality is a work that can be improperly accessed, does accessing it require tha application of information, or a process or a treatment to gain such access? For every Blizzard game prior to the Warcraft III beta, clearly not. Bnetd servers don't send any "access" information to a client, they simply do not bar a client from accessing them.
This is made clear by the definition of circumvention in 1201(a)(3)(B), which "means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." Bnetd does not descramble, decrypt, remove or deactivate anything. It does not avoid, bypass or impair, it ignores. Ignoring is not circumventing. Indeed, section 1201(c)(3) states that, "nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure." The reason for this is to prevent copyright holders from forcing copy protection measures onto computer and consumer electronics manufacturers. An example would be a music publisher who releases a CD that has watermarking in the music. The watermark states, "do not rip into MP3 format." There is no obligation for CD manufacturers to build in a system that can detect and obey that watermark.
Moreover, even bnetd did circumvent an access anti-circumvention measure, it would still be legal to distribute it so long as:
* It was not primarily designed or produced for the purpose of circumvention. A very good case can be made that the primary purpose of producing bnetd was to provide an alternative to the drawbacks and limitations of Battle.net (About the BNETD Project). One quote from a Review of Diablo II on MacGamer.com will provide some idea of the frustrations many feel with regard to Battle.net: "Provided that Battlenet doesn't make you want to pry your eyes out with a grapefruit spoon, you will find that you can go online and play your character in the Diablo Battlenet Realms." Even Blizzard's Senior Director, Bill Roper, admits that Battle.net's stability left something to be desired in an interview with Eurogamer , "There was certainly a period of time in the history of Battle.net where the team was constantly playing catch-up. They work on stability, they work on how many people could be online, they work on access and bandwidth issues, they get all those things fixed, and then we get another 25,000 people online concurrently and all [the] new stuff will break."
* It has more than limited commercially significant purpose. Again, a very good case can be made that bnetd does have significant commercial purposes. Bnetd currently supports a number of features that Battle.net does not, such as the ability to connect with IRC, create custom ladder games and tournaments, and send broadcast messages.
* Is not marketed for use in circumventing a technological measure that effectively controls access to a work protected under this title. Although, as an open source project, bnetd has little control over how some individuals may promote it -- the bnetd and Warforge developers have never promoted piracy of Blizzard's games. Indeed, the developers of bnetd are some of Blizzard's biggest supporters and fans.
The next issue is whether bnetd violates section 1201(b) which prohibits distribution of devices which "effectively protects a right of a copyright owner under" the Copyright Act. To qualify as technological protection measure under section 1201(b), a device must in the ordinary course of its operation, prevent, restrict, or otherwise limit the exercise of a right of a copyright owner." The only right at issue would seem to be the right to copy. But it is difficult to claim that bnetd undermines this as one must already have a copy of a Blizzard game (legitimate or illegitimate) in order to use bnetd. In other words, any copying occurs prior to use of bnetd. It may be that the availability of bnetd encourages some to make illicit copies who wouldn't have without bnetd, but that is not a violation of the DMCA.
It is also strange to claim that the CD-Key system prevents copying since a valid CD-Key is not necessary to connect to Battle.net and download the latest patches for a warez copy of the game. Using a warez copy one logs into Battle.net. Prior to CD-Key validation, Blizzard conveniently provides the latest patches for the warez copy. Patches are also available via public ftp (http://ftp.blizzard.com/pub/war3/patches/beta/ ). It is hard to claim that the CD-Key system effectively prevents copying when Blizzard itself updates warez copies of its games to the latest version. Most bnetd servers are set up by owners of legitimate copies and the server ensures that those joining have the same version of the game. If Blizzard were truly concerned about piracy they would at least try to make it more difficult to get the latest patches.
Furthermore, under section 1201(f)(2):
Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure
It seems pretty clear that even if bnetd is a circumvention device, then it clearly falls under the exemption of 1201(f)(2), since any circumvention is only for the purpose of achieving interoperability between bnetd and the Blizzard game. Such interoperability does not constitute infringement, since it does not violate sections 106-118 or 602.
unfinished: (adj.)
Paste, from here
Ok not many of you may know, but I am the host and admin for the bnetd.org
server. I am also an ISP and the one who hosts the server here at no cost to
anyone. I also have been known from time to time to help with development and
ideas on the bnetd server, but I am not even close to one of the main
developers. I have also been know from time to time to hack on the web pages for
the site as well.
I have talked with the lawyers at EFF. They are interested in taking on the
case, both for us as a small local/rural ISP and to help defend the developers
as well. So for now the web site is sort of closed down to keep Vivendi/Blizzard
lawyers from suing us as a small ISP and to help prevent them from suing each of
the developers. They could still sue both of us, and say that they will at least
sue the developers and owners of the website (which I guess would techincally be
me personally).
I and I believe most of the developers plan on fighting this as much as we can
given the support that we are able to get from EFF and others. It remains to be
seen what kind of legal advice we get in the next few days and up comming week
as to when the site will return. The site was taken down in its current form by
concensus amoung all the developers that could be reached at the given time that
action was required. I, as an ISP, did not force anyone to do anything. As an
ISP I plan to fight this as much as I can, as a developer (the little developing
that I have done) plan to fight this as well.
I plan to fight this and return the site back to its "normal state" (whatever
that may be), it is just a question of when and how long at this point.
Vivendi/Blizzard's main complaint, as was voice to me in an hour long call with
them yelling and threating me, the ISP to hurry and take it down "why do you
need to wait and figure all this out?" was that the bnetd program/server does
not impliment the online CD-KEY checking and thus allowed pirate copies to play
online, and that the true battle.net server have this code as an anti-piracy
protection. Since bnetd doesn't have this feature, it was circumventing the
piracy/copy protection and thus was in violation of the DMCA. It was at this
point that Vivendi/Blizzard just wanted me, the ISP, to shut the whole site
down, not remove the offending files but shut the whole site down or risk having
them sue me along with the "owners" of bnetd.org. They were very unhappy that I
want to talk with a lawyer to see what my options were, and said if they didn't
hear back from me by the next day one way or they other they would start
proceedings to sue me and the "owners" of bnetd.org who were refusing to respond
to their messages. Now who they were contacting as the "owner" of bnetd.org is
beyond me, and the lawyers were unable to tell me who they tried to contact and
said "its beside the point anyway", which happens to seem to be their favorite
phrase.
If you want to support this fight, I suggest you email Blizzard and Vivendi
letting them know how displeased you are that they didn't even contact us first
or try to work anything out, but rather just hammered us with legal threats and
the DMCA. I also suggest that you get an EFF membership to help them fight cases
like this. If you want to donate to a defense fund for our court costs I would
assume that you could contact EFF and they could work something out.
If you have any other questions let me know. I will try to answer them as best I
can.
Tim Jung
System Admin
Internet Gateway Inc.
Maybe I am missing something but this isn't a EULA issue. They aren't going after you for violation of the EULA. They are going after BNetD because, in their opinion, they are developing a device for the circumvention of copyright protection under the DCMA.
Generally, 'legal analysis' implies that there is some...well, legal analysis. This article from Yale has none. It is just a statement of portions of the DMCA and the author's opinion on how the courts should find.
Phrases such as "to my knowledge" have no place in a 'legal analysis'. It either is, or it isn't. If you don't know for sure, you look it up and quote the source.
My favorite portion of the 'analysis' was at the end:
This 'analyst' conveniently omits a reference to 1201(f)(1) (which requires the circumventor have a legally obtained copy of the circumvented program). Additionally, 1201(f)(2) clearly states that the circumvention program falls under the exception if it is necessary to achieve such interoperability.
This does not mean that it falls under the exception if it can be used for interoperability, it means that there must be no other means.
Pissing off most of your existing customer base by getting rid of a useful and legal product because of a product you haven't released yet (and those pissed off customers won't buy) is in poor form.
I'm going to take an excerpt from the WC3 beta EULA I have here (yes, I know this is of dubious legal value and EULAs are evil monsters at
Responsibilities of Beta Tester
C. You are entitled to use the program for your own use, but you are not entitled to:
(I) sell, auction or grant a security interest in or transfer reproductions of the Program to other parties in any way, nor to rent, lease or license the Program to others without the prior written consent of Blizzard; and
(II) exploit the Program or any of its parts for any commercial purpose including, but not limited to, use at a cyber cafe, computer gaming center or any other location-based site without the prior written consent of Blizzard; and
(III) host or provide matchmaking services for the Program or emulate or redirect the communications protocols used by Blizzard in the network feature of the Program, through protocol emulation, tunneling, modifying or adding components to the Program, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks without prior written consent of Blizzard;
Warcraft III will have single player mode. Look at the faq [blizzard.com]. Now it's possible (I don't have the beta) that single player mode was crippled to only test online play -- do you have the beta?
The betas purpose is purely for testing the playability and is only available for online play. I do not have the beta, but have friends who do. It is only multiplayer.
Just because something can be used to aid unauthorized copying doesn't mean it's illegal.
You said I was wrong. That's bullshit, because your first paragraph totally obliterated any and all hope for you to change your stance and be right. The whole and entire reason (according to blizzard) that bnetd is being shutdown is because they do not have the CD-auth mechanism in place. This is happening because the war3b crack allowing you to play it on bnetd servers. The cd-auth mechanism would have to be opened up or a published API for bnetd servers to talk and even so, it's an open source application so people can remove that code and still play the game.
Besides, go read my original post and you will see that I really didn't bring up any other issues, other than that war3b crack is only playable on bnetd, not on valid bnet servers. And as a seperate argument I posted that Blizzard did not "piss all over" the bnetd authors as the parent to my post submitted.
Because you did not know that the single player mode was crippled in war3b shows that you don't understand what the originating issue about the war3b crack was. So, don't call me wrong when you are still misinformed.
Dacels Jewelers can't be trusted.
Blizzard really should have known this was coming. All of their games have huge buzz (as opposed to hype) surrounding them, and always with good reason. They knew there was a server out there that emulated their existing server, and they knew people would try to crack the wc3 beta to distribute it.
so.. why the hell did they not do anything about this technically? They could have easily changed part of the protocol, had wc3 use a version two of battle.net. Work _with_ bnetd to make sure it is not emulated within days. Perhaps use public key cryptography to distribute the key to unlock code present on the disk (or even perhaps code itself - they could have sent a single floppy per user as an unlock key if this is not feasable for size restrictions).
Even if they do not use such copy protections in the release, its still the old rule - if you do not allow consumers a way to get something they desire, they will find a way anyways. Being that they don't want this to happen (as it is a beta and not a release, they are testing instead of selling) - they should have taken extra precautions.