Court Prevents Gamers From Creating
Compatible Internet Environment

This month, the Eight Circuit Court of Appeals issued a decision in Davidson & Assoc. (d/b/a Blizzard Entertainment, Inc.) v. Jung. This is the latest in a growing line of cases dealing with attempts to use the Digital Millennium Copyright Act (DMCA) to prevent competition through interoperability. In Blizzard, the plaintiff was a developer of computer games. The games were intended to connect to Blizzard’s own network on the Internet, allowing far-flung players to compete against each other online. The company sued the defendants, who had developed a competing, alternative network designed to be compatible with Blizzard’s games.

The creation of this competing network involved sleuthing on the part of the defendants. To discourage piracy, Blizzard’s games require entry of an authentication key before playing the game online. Only if the company’s “Battle.net” network verifies the authenticity of the key is online play enabled. Or at least that was the intent. By reverse engineering the Blizzard games, the defendants learned how to bypass the authentication protocol. The defendants’ competing “bnetd.org” network ignored the user’s authentication key, and allowed any user of a Blizzard game to compete online.

Blizzard advanced two main arguments. The first of these was that the games’ click-wrap “terms of use” and license agreements expressly prohibited the reverse engineering performed by the defendants. Here, the court sided with Blizzard by applying a straightforward reading of the contract terms. The defendants argued that the Copyright Act expressly permits reverse engineering in order to achieve “interoperability,” but the court concluded that they had waived that right by agreeing to those contracts.

Blizzard’s second argument was that the DMCA – which prohibits the circumvention of a “technological measure” used to protect copyrighted content – was violated by defendants’ bypassing of the online authentication process. The court agreed: Blizzard’s authentication protocol effectively restricted access to its copyrighted games, and defendants’ “bnetd.org” network circumvented that technological measure. This defined a violation under the statute.

This result was less than certain, however, given recent decisions in which courts rejected the DMCA as a tool to prohibit third-party manufacturers from making replacement parts compatible with devices such as laser printers (Lexmark Int’l v. Static Control ) and garage door opener s (Chamberlain Group v. Skylink Tech.).

The Blizzard court noted that, while Lexmark’s scheme for verifying the pedigree of printer cartridges involved unprotected and unencrypted software code, the “technological measure” employed by Blizzard involved a “secret handshake” between its games and its network that was not publicly available. On this basis, the court conferred DMCA protection.

It is unclear how the court would apply its approach in other circumstances, however. If, for example, Blizzard had used a proprietary protocol on Battle.net instead of the authorization key, would the court find the technique to be an “effective technological measure” or not? This question will surely arise in connection with proprietary document formats, instant messaging protocols, and other similar scenarios.

Though offensive use of the DMCA to prohibit inter-operability is still an unpredictable game, contractual steps can help alleviate the uncertainty. In the Blizzard case, a simple click-wrap agreement trumped the defendants’ statutory “fair use” right to reverse engineer. By handcuffing the public’s ability to experiment with a product in this way, a developer may impose a practical bar to third parties trying to create interoperable parts or services. In these circumstances, the reach of the DMCA may be secondary, with the inquiry focusing instead on the scope and enforceability of the contractual prohibition against reverse engineering.