Ed Felten has posted the district court’s opinion in the Battle.net emulator lawsuit, Davidson & Associates v. Internet Gateway. It’s a disaster of an opinion, from the court’s uncritical acceptance of Bowers v. Baystate as authority for enforcing a “no reverse engineering” shrinkwrap license, to the court’s whimsical application of the DMCA’s anti-circumvention rules to the so-called “secret handshake” between each Battle.net game copy and the authorized Battle.net server software. The “secret handshake” protects the multi-player “Battle.net mode”:

It is undisputed that defendants circumvented Blizzard’s technological measure, the “secret handshake” between Blizzard games and Battle.net, that effectively controlled access to Battle.net 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.

Battle.net “mode” isn’t defined in the opinion, but I take it to be a feature set that characterizes the online Battle.net gaming environment, on both the server and gamer sides. I’ll try really hard to figure out a way to characterize Battle.net “mode” as a work protected by copyright law, but I know that I’ll get hung up on section 102(b) and Lotus v. Borland, neither of which are cited in the opinion. Were they argued? When this case was filed a couple of years ago, I used it in an Electronic Commerce course as an example of the DMCA run amuck, specifically because of the 102(b) problems.

The case seems to be a pretty clear instance of an uninformed court running away with a metaphor. The defendants stole the plaintiff’s secret handshake!

Ernest Miller has more analysis, all of it good.

3 Thoughts to “Bad News for Fair Use”

  1. Click Here to Lose Your Fair Use Rights
    Ernie has a great post gathering commentary & analysis of yesterday’s crushing defeat for fair use/reverse engineering/open-source programming in the BnetD case. He also offers his own .02, highlighting the decision’s oddities: If you reverse enginee…

  2. […] I blogged earlier on the district court’s decision in Davidson, characterizing it as “a disaster of an opinion.” The affirmance by the Eighth Circuit is little better. It is discouraging to see the text of an opinion reflect such little critical thought about what are unquestionably very, very close issues. The court’s logic amounts to agreeing with the plaintiff that its gaming business relies on a “Secret Handshake” embedded in its games and its computer network; the defendants reverse engineered that Secret Handshake in order to play games with one another on a different computer network; and when the defendants acquired their copies of the games, they “agreed,” in an EULA, that they wouldn’t do this. See Bowers v. Baystate, from the Federal Circuit. QED. […]

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