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Putting the DMCA on trial

CNET News.com's Declan McCullagh says the Digital Millennium Copyright Act will be put to the test in an important case opening Monday.

The U.S. Supreme Court could release its decision on Monday in the much-anticipated Grokster case, which will determine whether file-swapping networks are legal to operate.

Yet another, unrelated lawsuit before a federal appeals court taking place on the same day promises to be just as important.

The 8th Circuit Court of Appeals in St. Louis is set to hear arguments Monday in a case that may decide how the Digital Millennium Copyright Act, or DMCA, applies to computer software and the important practice of reverse engineering.

The text of the law is hardly clear, but it seems reasonable to conclude that...the DMCA should not apply.

At issue is what a band of merry programmers did when analyzing video games published by Blizzard Entertainment in a successful bid to make the games work with servers other than Blizzard's official Battle.net. Affected games published by Blizzard, a division of Vivendi Universal, include titles in its "Diablo," "Starcraft" and "Warcraft" lines.

The reasons for the effort include the usual hacker love of tinkering, coupled with the desire to eliminate some of the problems with Battle.net (primarily response time). Eventually the authors, Ross Combs and Rob Crittenden, found their "BnetD" software turning into a SourceForge project, and it's been mirrored in the United Kingdom.

Blizzard won the high score before U.S. District Judge Charles Shaw, who ruled last September that the programmers violated the Digital Millennium Copyright Act and a "click-wrap" license that barred mimicking Battle.net protocols. (A click-wrap agreement is the sort that appears when a user attempts to download or install software; generally the user is shown a page with various restrictions and has to click on a button that says "I agree" or something similar.)

"The users of the Battle.net service have occasionally experienced difficulties with the service," Shaw wrote. "Blizzard has also received complaints about user profanity and users who cheated to win games by modifying Blizzard's software. Although Blizzard has taken actions to correct these difficulties with its Battle.net service, including adding additional server capacity, banning cheaters, and providing for private channels and games, defendants were frustrated by the difficulties."

Still, Shaw concluded, inconvenience and a desire to tinker did not make it legal to develop BnetD: "The court finds that the defendants' actions constitute a circumvention of copyright under the DMCA."

Now that the case is before the 8th Circuit, the ideological divide highlighted in the Grokster lawsuit is repeating itself. Lined up on one side is the Electronic Frontier Foundation (which is also providing free legal assistance), the Institute of Electrical and Electronics Engineers, the Consumers Union, Public Knowledge, and some law professors. On the other: the Entertainment Software Association, the Recording Industry Association of America, the Motion Picture Association of America, and law professors.

Copyright buffs, of course, may remember that the DMCA includes limited protections for reverse engineering.

The text of the law is hardly clear, but it seems reasonable to conclude that Shaw was wrong and the DMCA should not apply. BnetD was invented to offer people who had bought legal copies of Blizzard games new ways to enjoy them. Besides, any reverse engineering seems to have been done primarily by packet-sniffing rather than more intrusive techniques, and courts have permitted even complete chip disassembly before (see Sega v. Accolade).

Defending Blizzard?
A more difficult question centers on the click-wrap license to which Combs and Crittenden agreed when installing Blizzard's software. It explicitly forbids reverse engineering or doing anything to "emulate or redirect the communication protocols used by Blizzard as part of Battle.net."

The Electronic Frontier Foundation and its ideological allies argue that this kind of license is invalid and unenforceable because of a "fair use" right to reverse engineer. I'm not so sure about that, though.

The real question should be: Would a reasonable person expect to find that kind of restriction in a software license agreement? If the answer is yes, it's a legal contract. (Courts have properly ruled that unexpected fine print in a standard contract, such as a no-alcohol-at-all clause in a car rental agreement, is unenforceable.)

Nobody is forcing Blizzard customers to click "I agree." In fact, they can return the software for a full refund if they don't like the fine print. Or they can continue the reverse-engineering process without the benefit of having the software installed normally--a more difficult task, but not impossible.

That doesn't mean Blizzard is wise to file this lawsuit. Its energy could have been better spent in improving Battle.net or, better yet, offering legal ways for its customers to create their own servers. Suing your customers, especially devoted fans of your games, is rarely the wisest business strategy.

Still, corporations have the right to make mistakes--and, hopefully, learn from them. Just don't be surprised if the 8th Circuit chooses tried-and-true contract law over the hacker ethic.