Blizzard Takedown Demand and Lawsuit
In February 2002, Blizzard filed a DMCA safe harbor takedown demand against bnetd with their Internet service provider (ISP). Blizzard subsequently filed suit against the developers of bnetd and their ISP in the United States District Court for the Eastern District of Missouri. The lawsuit alleged copyright infringement, trademark infringement, and violations of their games' End User License Agreement (sometimes referred to as a clickwrap license) and DMCA anti-circumvention prohibitions, in what would become an important test case for portions of that law. The Electronic Frontier Foundation mounted a defense, in which defendants denied copying any portion of battle.net or Blizzard games, denied the validity of the battle.net trademark, denied that CD keys are an anti-piracy measure, and denied that bnetd is a circumvention tool.
In September 2004, the court disagreed and granted summary judgement to Blizzard. On appeal, defendants argued that federal copyright law, which permits reverse engineering, preempts California state contract law, upon which the EULA's prohibition on reverse engineering is grounded.
In September 2005, the Eighth Circuit Court of Appeals rejected the defendants' argument and affirmed the lower court's decision. "Appellants failed to establish a genuine issue of material fact as to the applicability of the interoperability exception . The district court properly granted summary judgement in favor of Blizzard and Vivendi on the operability exception." The appeals court further ruled that bnetd circumvents copy protection in violation of the DMCA.
bnetd developer Ross Combs and EFF staff attorney Jason Schultz criticized the appeals court ruling, claiming the ruling means software and hardware vendors can use a DMCA-EULA combination to prevent otherwise lawful reverse engineering and chill the development of interoperable systems. Blizzard co-founder Mike Morhaime called the ruling "a major victory against software piracy." An Entertainment Software Association representative also supported the ruling, claiming it reinforces the DMCA's ability to prevent "IP abuse and theft."
As a result of the litigation, the bnetd.org domain was transferred to Blizzard's control pursuant to the consent decree entered during the trial. The domain is now offline but still registered by Blizzard. Although Blizzard won the case, the lawsuit did not stop the continued distribution of bnetd's open source code, nor of derivative projects such as PvPGN. Other hosts were quickly set up by third parties in countries where no anti-circumvention legislation equivalent to the DMCA exists.
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