October 03, 2004

Blizzard v. BNETD circumvention, permission, and reverse-engineering

At Copyfight, Donna Wentworth notes concerning the Blizzard v. BNETD case and reverse-engineering:

A reader over @ Freedom-to-Tinker observes that "This ruling even implies that the only way to do it is to ask the copyright holder for explicit permission. I'd love to see that: 'Mr. Software developer, I'd like your permission to become your competitor.'" Me too. And pigs growing wings.

Just to clarify people's understanding, that's mixing up two parts of the decision. It's confusing, because the discussion is interleaved, switching back and forth between circumvention itself and the reverse-engineering defense. The relevant passage (my notes in brackets):

The Court finds that the defendants' actions constitute a circumvention of [a work protected by] copyright under the DMCA. 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. The statute, however, only exempts those who obtained permission to circumvent [i.e. allowed to decrypt] the technological measure, not everyone who obtained permission to use the games and Battle.net. See Universal City Studios, Inc. v. Corley, [...] (court rejects argument that because DVD buyer has authority to view DVD, buyer has authority of copyright owner to view DVD in a competing platform; court finds that argument misreads - 1201(a)(3) because the provision exempts from liability those who would "decrypt" -- not "use" -- an encrypted DVD with the authority of copyright owner). The defendants did not have the right to access Battle.net mode using the bnetd emulator. Therefore, defendants' access was without the authority of the copyright owner.

A rough translation of the above is "Just like unauthorized Linux DVD players violate the DMCA despite a buyer having a right to view a DVD, unauthorized game emulators violate the DMCA despite a buyer having a right to use a game" (n.b., I am paraphrasing, not agreeing).

This is all concerned with saying that the BNETD emulator is indeed a DMCA circumvention violation, before even discussing reverse-engineering. The "permission" refers to the fact that to be a circumvention violation, the decryption must be "without the authority of the copyright owner". One argument in defense of the legality of independent Linux DVD players, or here, open-source emulators, is that by purchasing the DVD or the game, that purchase is a grant of authority of the copyright owner to decrypt the DVD or game in order to use it (otherwise, what are you buying?). But the courts have so far said that this argument is wrong. You buy the ability to use the DVD or game, but not to decrypt it. The new decryption-right remains with copyright-owner, who can license that right separately. So if you buy a DVD, and want to view it on a Linux machine, but there are no authorized Linux players, tough luck. In essence, for encrypted copyright material, you've subject both to copyright AND the new decryption right ('paracopyright"), which are different sets of laws.

The reverse-engineering is a horror, but it's a different horror.

Disclaimer: I am a programmer, not a lawyer. I just study the DMCA with great personal interest (as in, I don't want to get sued, personally).

By Seth Finkelstein | posted in dmca | on October 03, 2004 08:30 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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If the situation can be read the way you say it: There is a Right to Copy and a Right to Decrypt, then we can have the Right to Decrypt sued out of line as inconstitutional.
A recent case, I think it was the garage opener one, said that if something worked as a copyright tool, then it fell under Copyright laws, never mind if it was a contract or whatever. Therefore, if the Right to Decrypt works a a copyright tool, we indeed can sue to declare it inconstitutional because it grants perpetual copyrights and perpetual copyrights are forbidden by the Constitution.
Like in Grokster, even if the original game producer went belly up, the encripted content will remain encripted, contrary to the copyright statute.

Posted by: Javier Perez at October 3, 2004 09:25 PM

Seth, wrong place to contact you, but couldn't find an email link.

Thank you for your comment at Jay Rosen's thread on Nick Coleman. I think my trolls made my point quite well, but given our recent back and forth at Dan Gillmor's blog I thought it was very courteous of you to step in.

You are clearly a scholar, but more important, a gentleman as well.

Posted by: Mark Gisleson at October 3, 2004 11:12 PM