Blizzard vs BnetD Consumers’ Rights at Stake in Eighth Circuit Videogame Case

[Via EFF: Breaking News]

St. Louis, MO – On Monday, June 20, the 8th Circuit Court of Appeals will hear oral arguments in Blizzard v. BnetD, a case that could dramatically impact consumers’ ability to customize software and electronic devices and to obtain customized tools created by others.

Along with co-counsel Paul Grewal of Day Casebeer, the Electronic Frontier Foundation (EFF) is representing three open source software engineers who reverse-engineered an aspect of Blizzard’s Battlenet game server in order to create a free software game server called BnetD that works with lawfully purchased Blizzard games. The BnetD server lets gamers have a wider range of options when playing online. The lower court held that the reverse-engineering of the games needed to create this new option for consumers was illegal.

The 8th Circuit Court of Appeals will determine whether the three software programmers were in violation of the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) and Blizzard Games’ end user license agreement (EULA). EFF will argue that the DMCA expressly protects the programming and distributing of programs such as BnetD and this protection cannot be undercut by general state contract law as applied to EULAs.

EFF took the case to stand up for consumer choice in the marketplace. Reverse engineering is often the only way to craft a new product that works with older ones. Congress expressly recognized this when it created an exception to the DMCA for reverse engineering. Whether it’s allowing gamers to choose a better server for Internet play, or allowing a printer owner to purchase from a range of printer cartridge replacements, reverse engineering is a critical part of innovation in a world where more and more devices need to talk to each other in order to operate correctly.

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More on the background of Blizzard vs BnetD here.

I remember when waiting for Warcraft 3 to come out, a leaked beta was posted on the P2P networks, and you could play ‘online’ via a BnetD server. This in no way ditracted from the fact that I was gonna buy the game.. I mean.. there was simply no issue there, I had already ordered my Collectors Edition box.

I have absolutely no doubt that BnetD was and is used more with pirated versions of Blizzard games (patched versions of course), than to play legally purchased versions at a lan party with a local server, to name a example “legal” useage-case of BnetD.

So what? If people are gonna pirate the game, they are gonna pirate the game, there is in the end, very little Blizzard or anyone else can do about that. Does Bnetd contribute to the spread of illegal copies of Blizzard games? I am pretty sure it does, in a small amount. But I would expect it to be a small amount indeed.

And this is the thing that bugs me. On the scope of all Blizzard sales of all the games that work with Bnetd, what exactly has Bnetd detracted from those profits? What exactly is the damage it does or has done. As far as I know, it still an unproved point that pirating of games ditracts from sales , and if you considder the overwhealming success of Blizzard games, does it really matter in the end?

Of course it doesn’t. This entire case is based on a matter of principle.

One should weigh the potential benifits to legitimate users against the negative impact it might have to the business at large. Can anyone reasonably argue that Blizzard was damaged in any meaningfull way in this case?

Now take note of the fact that I am not weighing the negative impact agaisnt the positive impact of this tool itself. The sum total of that equation is I think obvious.. like I stated: I believe Bnetd is used more in the pirate sense, than it is in the legal sense.

But guess what, the same is true for every P2P network, Bittorrent, CD-Burners, .. to name a few examples. Could not BnetD as a tool fall under the same provisions? I am of course talking about the Betamax case, which I will not elaborate on here, but I can quote the crux of what I feel also encompases the use of a tool like BnetD: “Reasonable Possibility of Substantial Noninfringing Uses”

To name a few:

– The ability to play Battlenet games on a local lan where no Internet connection is present.
– The ability to play Battlenet games 50 years from now when Blizzards support for those games has long since evapporated
– The ablilty to play Battlenet games on a patch version that is no longer supported by Battlenet

I would be very dissapointed if Blizzard won out on this case. But more than that, the very arguement of reverse-engineering to motivate innovation is crucial to how we move forward.