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Bad News for Fair Use

Ed Felten has posted the district court’s opinion in the 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 game copy and the authorized server software. The “secret handshake” protects the multi-player “ mode”:

It is undisputed that defendants circumvented Blizzard’s technological measure, the “secret handshake” between Blizzard games and, that effectively controlled access to 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. “mode” isn’t defined in the opinion, but I take it to be a feature set that characterizes the online gaming environment, on both the server and gamer sides. I’ll try really hard to figure out a way to characterize “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 on “Bad News for Fair Use”

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