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‘Agree-button’ less arbitrary: Blizzard v. BnetD (2002)

 :: Posted by Randel Reiss on 07-09-2015

MST3K'ing battle.net

First a disclaimer. I am an opponent of this case ruling. Which is surprising since I’m actually good friends with the former lead legal counsel on the winning plaintiff side of this case. The case makes a sword strike against passionate fans of a game property – fans that take the drastic step of engineering alternate game experiences – alternate experiences for public use of the property. This is one of those modern cases that every game developer and intellectual property attorney needs to be aware of.

Takeaways:

  • Agree or not, the EULA (End User License Agreement) has been strengthened by this case and those choosing to violate the EULA, even if it is with proper reverse-engineering process and procedure should be cautious.
  • Caution again, as in-house corporate legal departments tend to be very supportive of this case ruling and dismissive of colleagues opposing it.
  • It will probably be a long time before the EFF, or an alternate legal entity, does a more appropriate job on a future case to pull teeth out of the EULA that this ruling sharpened.

The Gate

The gate to entry to Blizzards online multiplayer service, Battle.NET, for their successful lines of game products is with Keys supplied on the product CDs. That is, at the time of the lawsuit, roughly 2002 through 2008, the game products themselves did not force strict piracy protection at installation or play of the game – in limited single player mode. Instead Blizzard chose to enforce the piracy protection at the time of online multiplayer activation. Blizzard understood both their product features and the product market’s desire.

Internet Gateway, mostly comprised of network experts and avid fans of Blizzard’s products, reversed engineered Battle.NET and created the bnetd service – an open, free, completely compatible alternative to Blizzard’s Battle.NET online multiplayer service – but without the crucial gate keeping feature of checking anti-piracy CD Keys.

Two Arguments

Blizzard’s claim focused on copyright infringement and unauthorized modification of their software. The distribution of this derivative software was in direct violation of the 1976 DMCA (Digital Millennium Copyright Act).

The EFF, arguing on behalf of Internet Gateway, countered the claim with details of clean reverse-engineering and non-commercial open source distribution practices. And it is this argument that many analyst feel that was the downfall for the case to the court. Over time, the courts have demonstrated less and less concern as to whether or not proper reverse-engineering occurred – or even whether reverse engineering has an impact on settling copyright infringement disputes.

The court rejected the EFF’s argument and reaffirmed an injunction against Internet Gateway’s use of the bnetd technology under the claim of copyright infringement, among others infringements, in breach of the EULA and copyright-protection circumvention violation of the DMCA

Controversy

So why is the game community so upset about this case? On the face of it the case law helps strengthen the authority of the EULA. That is that lengthy page of legalize on your computer screen that momentarily blocks the installation of your desired product – that nearly everyone ignores and just hits the “Accept-button.”

Another reason is that Blizzard’s Battle.net service is a match making service that supports ad-hoc peer-to-peer online multiplayer play. What that means is that the main key feature of Battle.net is to allow one or more players to merely find each other to play,. That is, after the contact between the players, the “session” of multiplayer online play is then exclusive between the game players with the burden of computing and network bandwidth strictly between the players, their copies of the game, their computer hardware, and their internet services – with no dependency or technology enhancement from Battle.net.

And finally the history. Originally Blizzard released their products with minimal multiplayer support that was limited only to LAN, or rather close proximity play, between players. Blizzard for a number of years relied on a public third party product, Kali, to allow players to play from around the world. The Kali software emulated the Blizzard LAN connectivity with the added benefit of using custom technology to allow players from far away play together as if they were in close proximity on the same LAN. Kali software was such a strong value add that Blizzard for a long while included the third party Kali product on the distribution of the Blizzard game product CDs. This eventually led to Blizzard creating their own proprietary match-making service Battle.net to replace Kali.

On a final note, one reason commercial game publishers taught the case law win is as a validation that they, as the property owners, should control the “user experience” for their products – as the best practice for the benefit of the consumer and the revenue potential for the property. The ESA (Entertainment Software Associate) taught the case law win as a strike against software piracy.

The EFF maintains an archive of court documents at:

https://www.eff.org/cases/blizzard-v-bnetd

A nice detailed analysis of Blizzard v. Bnetd is at the Corenell University School of Law:

http://www.lawschool.cornell.edu/research/cornell-law-review/upload/CRN504Hwang.pdf

An excellent slide presentation from UCSD on the case and its surrounding issues:

http://cseweb.ucsd.edu/classes/sp02/cse190_A/BlizzardvsBnetD.ppt

Below is anti-DMCA activist Tim Neu’s rebuttal to Blizzard’s Battle.net FAQ on the case:

Tim_Neu_02_22_2002

No privacy protection for infringers: Sega v. MAPHIA (1994)

 :: Posted by Randel Reiss on 10-08-2013

4_in_1

Game industry disputes touch nearly every aspect of law.  Sega v. MAPHIA makes a significant contribution to the fast moving, and very current, privacy laws – specifically the Electronics Communications Privacy Act of 1986.  At first glance the case appears to be a straight forward, and typical, dispute between a major content publisher, Sega Enterprises, and a for-profit online pirate distribution service, MAPHIA.  But in the case is a court clarification on legal evidence gathering that will cite Sega v. MAPHIA on privacy dispute court filings, such as DoubleClick, for decades to come.

Takeaways

  • Privacy laws will not protect against evidence gathering of online material accessible by the public.
  • Public use of login, anonymous or pseudonym, is not an exception to the above.

Activity

Sega’s copyrighted video games were available on MAPHIA’s bulletin board by users who uploaded the games. A user of the system was created by a typical forward facing public registration feature.  The user of the service could upload a game, which then became available to an unlimited number of potential subscribers to the site. The defendants charged fees for the service.

Evidence Gathering

An employee of Sega gained access to MAPHIA’s bulletin board service using a pseudonym supplied by an already registered user acting as an informant.  The Sega employee then obtained copyright violation evidence from the bulletin board service.

From the court opionion:

39. Sega undertook to collect evidence of the above activities by having a Sega employee gain access the MAPHIA bulletin board under a pseudonym, as individuals generally do on the bulletin board, using information supplied by an authorized user who was an informant. Yang Decl. PP 11-13.

Privacy Protection Claim

Using the 1986 Electronic Communication Privacy Act, defendant, MAPHIA sought protection.  MAPHIA claimed that the personal and private data of the service and its registered users had been violated in acquiring the evidence.  The defendant claimed hat the login registration process re-enforced that protection.

From the court opinion:

40. Defendants allege that Sega’s access to the MAPHIA bulletin board through use of a pseudonym constituted a violation of the Electronic Communications and Transactional Records Act, and maintains that the Seizure Order was thereby inappropriate. The Electronic Communications and Transactional Records Act makes it illegal to “intentionally access without authorization a facility through which an electronic communication service is provided.” 18 U.S.C. Section 2701(a).

Protection Overruled

The court found Sega did not violate the ECPA because Sega was, either directly or indirectly, an authorized user.  The court then authorized the collection and seizure of the evidence as issued by a preliminary injunction prohibiting the unlawful activities of the online service.

From the court opinion:

41. Because the MAPHIA bulletin board is open to the public, and normally accessed by use of an alias or pseudonym, it would appear that Sega’s employee’s pseudonymous access was authorized. Furthermore, the Act contains an exception for access which is authorized by a user of an electronic service with respect to a communication for that user. 18 U.S.C. 2701(c)(2). The Sega employee’s access appears to have been authorized directly or indirectly by a MAPHIA user whose authorized status is not disputed. Therefore, no violation of 18 U.S.C. Section 2701(a) took place.

42. Moreover, the fact that a plaintiff’s employee, in the course of investigating a copyright or trademark infringement, fails to identify herself as such to the defendant does not provide a defense to the infringement when such identification would have defeated the investigation. Reebok International Ltd. v. Jemmett, 6 USPQ2d 1715, 1988 WL 106933 (S.D.Cal. 1988); Olan Mills, Inc. v. Linn Photo Co., 795 F.Supp. 1423 (N.D.Iowa 1991).

The above clarification, although not unique to this case, is also useful to realize.  If declaring your intentions or your employer during a lawful investigation would risk compromising your access to the evidence – failure to state who you are will not be used to disqualify the evidence.

The entire court opinion on Sega v. MAPHIA in its entirety can be found here:

Sega_Enterprises_v_MAPHIA_1994

A nice detailed analysis of Sega v. MAPHIA is at PatentArcade.com:

http://www.patentarcade.com/2011/07/case-analysis-sega-v-maphia.html

 Sega-16.com also has a nice description of the circumstances of Sega v. MAPHIA:

http://www.sega-16.com/2006/11/genesis-firsts-sega-vs-maphia/