Court Prevents Gamers From Creating Compatible Internet Environment

Courts holding may provide some optimism for software developers trying to keep customers from using competing services.
This month, the Eight Circuit Court of Appeals issued a decision in Davidson & Assoc. (d/b/a Blizzard Entertainment, Inc.) v. Jung. This is the latest in a growing line of cases dealing with attempts to use the Digital Millennium Copyright Act (DMCA) to prevent competition through interoperability. In Blizzard, the plaintiff was a developer of computer games. The games were intended to connect to Blizzards own network on the Internet, allowing far-flung players to compete against each other online. The company sued the defendants, who had developed a competing, alternative network designed to be compatible with Blizzards games. The creation of this competing network involved sleuthing on the part of the defendants. To discourage piracy, Blizzards games require entry of an authentication key before playing the game online. Only if the companys Battle.net network verifies the authenticity of the key is online play enabled. Or at least that was the intent. By reverse engineering the Blizzard games, the defendants learned how to bypass the authentication protocol. The defendants competing bnetd.org network ignored the users authentication key, and allowed any user of a Blizzard game to compete online. Blizzard advanced two main arguments. The first of these was that the games click-wrap terms of use and license agreements expressly prohibited the reverse engineering performed by the defendants. Here, the court sided with Blizzard by applying a straightforward reading of the contract terms. The defendants argued that the Copyright Act expressly permits reverse engineering in order to achieve interoperability, but the court concluded that they had waived that right by agreeing to those contracts. Blizzards second argument was that the DMCA which prohibits the circumvention of a technological measure used to
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It is unclear how the court would apply its approach in other circumstances, however. If, for example, Blizzard had used a proprietary protocol on Battle.net instead of the authorization key, would the court find the technique to be an effective technological measure or not? This question will surely arise in connection with proprietary Though offensive use of document formats, This result was less t h e D M C A t o p r o h i b i t instant messaging than certain, however, protocols, and other interoperability is still an given recent decisions similar scenarios. in which courts reject- unpredictable game, coned the DMCA as a Though offensive tool to prohibit third- tractual steps can help alle- use of the DMCA to party manufacturers viate the uncertainty. prohibit interfrom making replaceoperability is still an ment parts compatible with devices such unpredictable game, contractual steps can as laser printers (Lexmark Intl v. Static help alleviate the uncertainty. In the Control) and garage door openers Blizzard case, a simple click-wrap agree(Chamberlain Group v. Skylink Tech.). ment trumped the defendants statutory fair use right to reverse engineer. By The Blizzard court noted that, while handcuffing the publics ability to experiLexmarks scheme for verifying the pediment with a product in this way, a develgree of printer cartridges involved unprooper may impose a practical bar to third tected and unencrypted software code, the parties trying to create interoperable parts technological measure employed by or services. In these circumstances, the Blizzard involved a secret handshake reach of the DMCA may be secondary, between its games and its network that with the inquiry focusing instead on the was not publicly available. On this basis, scope and enforceability of the contractuthe court conferred DMCA protection. al prohibition against reverse engineering.

protect copyrighted content was violated by defendants bypassing of the online authentication process. The court agreed: Blizzards authentication protocol effectively restricted access to its copyrighted games, and defendants bnetd.org network circumvented that technological measure. This defined a violation under the statute.

Joseph J. Laferrera joe.laferrera@gesmer.com

Lee T. Gesmer lee.gesmer@gesmer.com

Gesmer Updegrove LLP 40 Broad Street, Boston, MA 02109 617.350.6800 www.gesmer.com

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