The BNetD case

Prof. Picker has a post analyzing the copyright issues involved in last year’s BNetD case. In a nutshell, Blizzard makes popular games like Warcraft, Starcraft, and Diablo. They have an online matchmaking service called Battle.net for those games. One of the benefits of Battle.net (from Blizzard’s perspective) is that it checks your CD key and verifies that it’s (1) legitimate and (2) not already in use on Battle.net. This prevents someone from giving a single copy of the CD to 7 friends and then having an 8-way game on Battle.net.

But along comes the BNetD team, which creates server software that mimicks the functionality of Battle.net. BNetD fails to perform the CD key check that Battle.net performs, meaning that those without valid CD keys and those sharing CD keys can log on to a BNetD server. Blizzard sued the creators of the game, arguing that the program was an illegal circumvention device under the DMCA, as well as a violation of the software’s license agreement. Last year, Blizzard prevailed before the Eighth Circuit.

Here’s Picker’s take on the case:

In this case, the link between the online and the offline–the online gaming environment and the physical CDs–operates as a way of policing impermissible offline copying of the CDs. A competitor in the online gaming market will have no incentive to respect the copyrights in the games, indeed, just the opposite, as it can offer the illegitimate copy holder a place to play.

We have choices. We can bar the reverse engineering and thereby prevent entry of a competitive online gaming environment for WarCraft (or, more precisely, entry without Blizzard’s permission). That was the result in the Eighth Circuit which upheld a contract that waived the right to reverse engineer. Alternatively, we can allow reverse engineering and lose the copy control check that Blizzard created. We might order a series of forced transactions by requiring Blizzard to unbundle copy authentication from the online environment and by forcing entrants to buy authentication services from Blizzard (at what price?).

I should start off by acknowledging that this is a hard case. The BNetD team did not make especially sympathetic defendants, as they didn’t appear to make any attempts to limit the use of their software for copyright infringement. In addition, there is both a contract and a DMCA issue here, and Blizzard probably would have prevailed on the contracts question even without the DMCA on the books.

But it seems to me that with a little imagination, we can expand on Prof. Picker’s three options. Indeed, it seems to me that the Sony/Grokster line of cases provides us with an obvious alternative: instead of asking whether BNetD circumvents a DRM scheme, we should be asking whether this technology has a non-infringing use and whether there’s evidence that its creators actively encouraged copyright infringement with their tool. I think there’s at least a plausible argument to be made for a “no” answer to the first question (because the functionality of BNetD is virtually identical to Battle.net) and a “yes” answer to the second (because they made no effort to take even trivial steps to discourage piracy). And taken together, these two considerations could conceivably lead to a finding for Blizzard.

But there’s actually an even easier way to deal with the issue. A bit of a reality check: this is not a tool that the average high school kid can just download and use. You’ve got to have a Unix computer, and you have to know how to compile software from source (or how to install an RPM file if you’re running Red Hat). Moreover, the people with the technical sophistication to install and run BNetD on their Linux computers likely have easier ways to circumvent Blizzard’s copy control regime. So the mere development of this software didn’t pose any practical threat to Blizzard’s anti-piracy efforts.

What does pose a threat is someone running a BNetD server and publicizing it for use by the general public. But here Grokster is even more obviously relevant. Moreover, suing the guy running the server makes the decision of the court easier, because they don’t have to speculate in the abstract on how the software is likely to be used, they can observe how it’s actually promoted and used in practice.

The fundamental point here is that the DMCA’s circumvention ban is unnecessarily broad. The tests that the Supreme Court laid out in Sony and Grokster are much narrower and much more focused on what we really care about: is this technology primarily used for piracy, or does it have significant legitimate uses.

I also think Prof. Picker’s analysis fails to acknowledge that software like BNetD could actually have legitimate uses. I don’t think BNetD itself does, because Blizzard’s games tend to be designed with all the work being done by the client. But there are many client-server games in which the server does more work, and a blanket rule effectively banning unauthorized game servers is likely to stifle the creation of software that could add value for legitimate users of network-based games.

I’m not sure what the value of such software is, but it’s obviously not zero. And given that banning BNetD likely had a trivial impact on Blizzard’s anti-piracy efforts (the vast majority of users have probably never even heard of BNetD, to say nothing of having the technical know-how to run it), I think we need to make some attempt to weigh the costs against the benefits.

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