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 article.
Don't get me wrong. I'm a huge fan of open source, bnetd, yada yada, and I agree that the official Bnet has tons of issues (ranging from lag to dealing with people whom I'd at least rather not deal with).
However, to my understanding they're doing this largely as a reaction to the WC3 beta. It was cracked within days of release, using bnetd and other "fake" bnet networks that don't check cd keys. This is allowing many people who shouldn't be playing the beta to play the beta.
"Big deal" you say. And part of me is inclined to agree, as it doesn't hurt Blizzard to have a few extra thousand people playing the beta.
Well, I'm a beta tester, and I can tell you that the "official" beta network is sorely underused. Of the 5000 beta testers there are probably only 30-60 games going at any given time. I know, you might think that is a lot, but it's basically the same people over and over. From the buzz I've heard, a lot of legit beta testers have even been going to the bnetd networks, just because there are more people there (easier to find big 3v3 and 4v4 games, etc.).
So yes, DMCA bad. Making reverse engineering bad. Open source good, bnetd good. But Blizzard still does have a point, and perhaps some sort of compromise needs to be reached...
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.)
If they allowed bnetd to pass-through authentication to battle.net, they might have a better point. They've specifically ruled that out. (Presumably because their crypto is lousy.)
And it isn't the bnetd group that even enabled Warcraft III support.
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.
So how, exactly, will shutting down the main bnetd site keep cracked copies of their games from being distributed? I seem to recall that there are many no-cd cracks (even some that let you play on battle.net) for Diablo II and its expansion pack.
If that means harassing some people with questionable lawsuits to stall for their software, so be it. I feel that we worry too much on Slashdot about legalisms and not enough about common decency.
Common decency should apply to Blizzard also. Is it considered common decency to threaten loyal gamers who created a tool so they could play without connecting to the cheater-ridden, laggy, and resetting battle.net?
Besides, do you really think that all of the beta testers who already have bnetd are going to go play it on battle.net? They already have it! Maybe Blizzard should have contacted the authors of bnetd and said "Hey, here's how you can detect the WC3 beta, can you have the server pop up a request to go play on battle.net?" or even have it not allow WC3beta to play. Sure, it wouldn't catch everyone, but at least they would have a reminder that they are supposed to be testing the game on battle.net so Blizzard can improve the game. Maybe even the warez kiddies who copied/cracked it would load battle.net a little more and give them a scaled test..
Ripping off a company that puts out products you love is poor form.
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.
Of course, this argument implies that the same people griping about how horrible shutting down bnetd is now won't turn around and say "Ohh! New Shiny!" when WC3 is actually released..
There are two kinds of people: 1) those that need closure
If you love Blizzard games, show some respect and let them launch their games as they desire.
This is so backwards.
I like Blizzard games. I've purchased and enjoyed them since Warcraft.
But I love my rights. I love your rights, and those of the bnetd developers. Anyone who values Blizzard software more than our rights under the law and constitution of the US, or your respective country, has some seriously skewed priorities.
You're saying that if I like Blizzard's games, I should be willing to forgive a little legal threatening, some innocent trampling of my rights.
I say the reverse: Because of Blizzard's actions here, I won't be buying any more of their games, enojoyable though they may be.
Suppose you have a software package, and the CD KEY is used to allow you to install the software. Presumably, it takes some encrypted form and mutates it into a useful version. Alternately, such a code might be used to alter program logic to affect software behavior -- whatever. The point here is that the CD KEY is a protection mechanism at the client end.
Like the rest of the /. majority, I too find the DCMA an example of knee-jerk legislation produced by the uninformed and easily lobbied. But in this, suppose you even agree with it...
According to Tim Jung's post the gripe expressed was that the bnetd.org server does not do CD KEY checking. My point -- it shouldn't have to.
It appears that the design of this product is such that invalid CD KEY prevents people from stealing battle.net server resources. Apparently, that is working; good for Blizzard.
As I understand it, people aren't forging false CD KEYs and inappropriately using battle.net server's resources -- doing so would make the case more plausible. Yet in this case, it would an individual service hijacking player who should be the focus of legal attention.
So what was designed and built by Blizzard is something that actually says "show me your receipt and I'll let you use our systems." Rather than forge CD KEYs to do something illegal like steal Blizzard's service, the user community has provided their own resources, built their own software, and opted not to check for a "receipt" to use those services. Technically, it's not duplicated Blizzard's server then either, since it's a subset.
True, this does let people try an approximation. However, it isn't the actual golden master -- by definition it's build with low confidence, and possibly broken with missing features. Blizzard wasn't passing out free copies of a production game, it passed out something else with the expectations of comments.
About the only real complaint Blizzard has is that they aren't getting as much beta feedback as they could had they expanded the beta base. However, if Blizzard's servers are locked out via a CD KEY except to only a few, then they weren't going after that data because they wouldn't be getting that data anyhow -- so there's no loss, other than potential they forgot to go after. That was a business mistake.
Blizzard's true error then is not designing the software to require something only their servers could provide.
However, I can tell you as a software consumer, if I purchase a product that depends on someone's website being up and around, I get jittery about them going out of business or no longer supporting it and wouldn't make the purchase.
I suspect if Blizzard kindly asked for it, anonymous beta testers would happily provide feedback. Feedback that would make the game much better, improving overall sales. Blizzard actually has a very positive opportunity here, if they can get past the shortsightedness.
If bnetd did not exist, then the hacked copies of WC3b would not be playable - bottom line
--online that is. And if RW-CD burners didn't exist, then WC3b couldn't be burned to them and passed around. And if phones didn't exist, people couldn't call up their friends and tell them how to get the w3cb...
bnetd wasn't created to hack wc3b, and that's not it's primary purpose or use, so your point is moot.
When in doubt, have a man come through a door with a gun in his hand.