Advanced Copyright Issues on the Internet - Fenwick & West LLP

check the validity of the CD Key code passed from the game to the emulator, thereby allowingunauthorized copies of the Blizzard games to play on bnetd servers. 644The plaintiffs also asserted that by distributing the bnetd software, the defendants hadviolated Section 1201(a)(2) by trafficking in devices whose only purpose was to circumvent theirsecret handshake and allow access to Battle.net mode. The defendants did not dispute theplaintiffs’ factual assertions, but instead asserted the defense of Sections 1201(f)(2)-(3) on theground that those sections entitled them to distribute software to others for the purpose ofenabling interoperability with the Blizzard games. 645 The court rejected the defenses on twogrounds. First, the court ruled that the defendants’ purpose in distributing their software was notsolely to enable interoperability, but rather to “avoid the restricted access to Battle.net.” 646 Inaddition, the court reiterated its conclusion that the development and distribution of the bnetdsoftware was infringing, and “persons who commit copyright infringement cannot benefit fromthe exemptions of § 1201(f).” 647 Accordingly, the court granted the plaintiffs’ motion forsummary judgment on their anti-circumvention and trafficking in anti-circumvention technologyclaims. 648On appeal, the Eight Circuit affirmed in an opinion that is even more terse and difficult tounderstand than the district court’s opinion. The court found a violation of Section 1201(a)(1)merely because unauthorized copies of Blizzard games were allowed to play through the bnetdserver, even though the circumvention of the secret handshake did not cause the illegal copy ofthe Blizzard games to be made in the first place:Blizzard games, through Battle.net, employed a technological measure, a software“secret handshake” (CD key), to control access to its copyrighted games. Thebnetd.org emulator developed by Appellants allowed the Blizzard game to accessBattle.net mode features without a valid or unique CD key. As a result,unauthorized copies of the Blizzard games were played on bnetd.org servers. 649644645646647648649334 F. Supp. 2d at 1185.Id. at 1185-86.Id. at 1186.Id. at 1187.Id.Davidson & Assocs. v. Jung, 422 F.3d 630, 640 (8 th Cir. 2005). The Eighth Circuit distinguished the Lexmarkdecision by noting that in Lexmark, the Sixth Circuit had found Lexmark’s authentication sequence did noteffectively control access to the Toner Loading Program and Printer Engine Program at issue, because it wasnot Lexmark’s authentication sequence that controlled access to such programs, but rather the purchase of aLexmark printer that allowed access to the programs. “Here, Battle.net’s control measure was not freelyavailable. Appellants could not have obtained a copy of Battle.net or made use of the literal elements ofBattle.net mode without acts of reverse engineering, which allowed for a circumvention of Battle.net andBattle.net mode. Unlike in Lexmark Int’l, Inc., Battle.net mode codes were not accessible by simply purchasinga Blizzard game or logging onto Battle.net, nor could data from the program be translated into readable sourcecode after which copies were freely available without some type of circumvention.” Id. at 641. Although thepreceding passage is confusing, it seems to imply (by the reference to “literal elements of Battle.net mode”) that- 155 -