Advanced Copyright Issues on the Internet - Fenwick & West LLP

The plaintiffs alleged two violations of the anti-circumvention provisions of the DMCA.First, they alleged that the defendants had violated Section 1201(a)(1)(A) in the course ofdevelopment of the bnetd emulator by circumventing Blizzard’s technological measures (thesecret handshake) to gain access to Battle.net mode in the course of their reverse engineering. 639Although not clear from the court’s opinion, the copyrighted work that the defendant’s gainedaccess to via their circumvention was apparently the code in the Blizzard games that allowedthem to operate in Battle.net mode and to communicate with the Battle.net service.The defendants argued that their circumvention in the course of reverse engineering waspermitted by Section 1201(f)(1) because it was done for the sole purpose of creating anddistributing interoperable computer programs such as the bnetd server. They also argued thatthey had authority to access the Battle.net mode because they lawfully purchased the Blizzardsoftware they reverse engineered.The district court rejected these defenses. First, it ruled that it was “undisputed thatdefendants circumvented Blizzard’s technological measure, the ‘secret handshake,’ betweenBlizzard games and Battle.net, that effectively control access to Battle.net mode.” 640 By itsreference to “Battle.net mode,” the court was again presumably referring to the code in theBlizzard games that allowed them to operate in Battle.net mode. The court rejected thedefendants’ reliance on Section 1201(f)(1), because the defendants had not developed anindependently created computer program. The court noted that the defendants’ actions indeveloping the bnetd server “extended into the realm of copyright infringement” because oncegame play started, “there are no differences between Battle.net and the bnetd emulator from thestandpoint of a user who is actually playing the game.” 641 It is unclear from this languageprecisely what the basis was on which the court found copyright infringement. Perhaps the courtbelieved that the defendants had copied code from the Battle.net server into the bnetd server, forearlier in the opinion the court noted that the plaintiffs contended “that the defendants not onlycopied code that would achieve interoperability, but also copied elements that would preserveplayer account information, display of icons, and presentation of ad banners.” 642 However, theopinion on appeal suggests that there was no copying of battle.net server code into the bnetdserver. 643The court also rejected the Section 1201(f)(1) defense because it found that thedefendants’ actions constituted more than enabling interoperability, since the emulator did not639640641642643Id. at 1183.Id. at 1184-85.Id. at 1185.Id. at 1184.Davidson & Assocs. v. Jung, 422 F.3d 630, 636 (8 th Cir. 2005) (“By necessity, Appellants used reverseengineering to learn Blizzard’s protocol language and to ensure that bnetd.org worked with Blizzard games.Combs used reverse engineering to develop the bnetd.org server, including a program called ‘tcpdump’ to logcommunications between Blizzard games and the Battle.net server.”).- 154 -