Blizzard runs Battle.net, a site where customers of its WarCraft, Diablo and StarCraft titles can chat and initiate multiplayer games at no cost. But the servers were initially slow, unstable and blocked access to anyone behind a firewall. Out of frustration, a collection of gamers started the bnetd project in 1998.
These individuals did not seek a profit; instead, they made it easier for anyone with a copy of a supported Blizzard game to connect to bnetd.org to enjoy the benefits that Battle.net was failing to deliver.
Lead developers Ross Combs, Rob Crittenden and Jim Jung used reverse engineering to learn Blizzard's protocol language and to ensure that their renegade service worked with Blizzard games.
Blizzard was unhappy. Its Battle.net site takes steps to exclude those with pirated versions of Blizzard games. Each version of a Blizzard game comes with a CD key – the alphanumeric code found on a sticker attached to a CD case. Upon installing a game, the CD key must be entered and access to Battle.net is denied unless the visiting computer has a valid key installed.
Bnetd did check for a key; but it did not determine whether it was a valid key or one currently in use by another player. In fact the only anti-piracy measure at bnetd.org was a statement that it did "not condone the use of illegally duplicated games being used to play on bnetd servers."
Bnetd published its source code as an open source application, meaning that others were free to copy and distribute it with or without their own modifications. As a result, others developed Battle.net emulators. This upset Blizzard even more.
In 2002, Internet Gateway, the ISP that hosted bnetd.org, received a cease and desist letter from Vivendi Universal, Blizzard’s parent company. It demanded that the ISP disable the website hosting the bnetd software.
Vivendi then sued, claiming that the programmers behind bnetd violated the anti-circumvention provisions of the Digital Millenium Copyright Act (DMCA), the End User License Agreements (EULAs) that accompany the games, and the Terms of Use (TOU) at Battle.net.
The Electronic Frontier Foundation represented the defendants, arguing that writing and distributing bnetd was permitted because it amounted to fair use. The programmers reverse-engineered Battle.net only to make their free product work with it, not to violate copyright, said the EFF.
However, Judge Charles Shaw of the District Court for the Eastern District of Missouri disagreed. He ruled in October 2004 that the ISP and programmers behind bnetd were bound to the terms of Blizzard's EULAs and Battle.net's Terms of Use, and that by reverse engineering Blizzard software, creating servers that emulated Battle.net, and providing matchmaking services for users of Blizzard software, they were in violation of those terms.
The judge also ruled that, because the bnetd servers created a functional alternative to Battle.net and were used to bypass Blizzard's anti-piracy technology, "the defendants' actions constitute a circumvention of copyright under the DMCA".
Combs, Crittenden, Jung and Internet Gateway appealed to the US Court of Appeals for the Eighth Circuit. But in a ruling filed last Thursday (1st September), the appeal was dismissed and the lower court's decision upheld.
Circuit Judge Lavenski R Smith noted the appellants had clicked "I agree" to Battle.net's Terms of Use and the games' EULAs which prohibit reverse engineering. He wrote: “By signing the TOUs and EULAs, Appellants expressly relinquished their rights to reverse engineer.”
They also breached the DMCA. This Act prohibits the circumvention of a technological measure that exists to control access. There is an exception, where the technology is used "for the sole purpose" of trying to achieve interoperability of computer programs through reverse engineering. But the court felt the appellants had failed to establish this, noting among other things that the emulator did not check for a valid CD key.
Blizzard Entertainment welcomed the decision.
“By again ruling in our favour on every count, the court is reiterating the message that creating unauthorised servers which emulate Blizzard’s Battle.net servers is without question illegal,” Blizzard’s CEO, Paul Sams, told Gamespot.com.
EFF Staff Attorney Jason Schultz said, "This ruling is bad for gamers, but it could also be terrible for the software industry.”
He explained: "It essentially shuts down any competitor's add-on innovation that customers could enjoy with their legitimately purchased products. Add-on innovation is one of the hottest areas of creativity and economic growth right now in software, and this decision will slow investment and development in that field."
