June 21, 2005

Blizzard v Bnetd Oral Argument

I listened to the oral argument for the Blizzard v BnetD case. The following are my impressions about the hearing (see also Groklaw, via Copyfight). Note for background and my perspective, I devoted the time to listen to it all, because it's necessary knowledge for my estimating the risks that I might someday be sued (I've abandoned censorware decryption research), and how such a case might evolve.

A quick summary of the issues being appealed: The programmers (of the BnetD software in the case title) violated DMCA 1201(a)(1) and DMCA 1201(a)(2) anti-circumvention provisions, the DMCA 1201(f) reverse-engineering exemption doesn't apply, shrinkwrap license prohibitions can override reverse-engineering rights.

Some people think that in complicated technical cases, the judges are idiots. But in much of the material I've read, the judges seem to have a good sense the technical background. The problem isn't that they're stupid (which feeds into the idea that if we could just explain it all to them, they'd agree with civil-libertarians). Rather, it's often that they're not favorable. As was said in another case:

"As soon as the judge says 'hacker,' you know you've lost," University of Minnesota law Professor Dan Burk said. "There is an attempt to paint defendants as unsympathetic, low-priority, on the fringe--to make it seem like nobody respectable is going to be harmed except for weird hacker types."

And that was the subtext I perceived in the oral argument here. The judges didn't say 'hacker', though, but they seemed to be trying to make up their minds as to whether anybody respectable was going to be harmed. The legal conflict expressing that social determination boiled down to whether "public policy" supports allowing reverse-engineering against an obvious mass-license "contract" forbidding it, and whether the DMCA's reverse-engineering exemption should be interpreted broadly or narrowly.

In two sentences, the argument was:

Company lawyer: If you allow this reverse-engineering, "piracy!" will be rampant.
Progammer's lawyer: Reverse-engineering is necessary for innovation, these programmers didn't pirate anything.

And as I heard it, the judges clearly understood that was the argument.

The programmer's legal team had a tough task getting out from under the many precedents that appeared to go against their position - the DeCSS cases, Bowers v. Baystate (shrinkwrap against reverse-engineering). They did a valiant jobs, in my view (while the opposition spent a notable amount of time praising those precedents as exactly applicable to this case). But I think at the end it's just going to come down to whether the judges believe public policy should support such reverse-engineering rights or not. And the track-record for that sort of determination is not good.

By Seth Finkelstein | posted in dmca | on June 21, 2005 12:42 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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