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Blizzard/Vivendi 2, bnetd 0 538

Posted by CowboyNeal from the shot-down-twice dept.
wiggles writes "It appears that the 8th Circuit Court of Appeals has sided with Blizzard/Vivendi (pdf link) in the ongoing bnetd case. According to the PDF of the opinion posted today, 'Appellants failed to establish a genuine issue of material fact as to the applicability of the interoperability exception [of the DMCA]. The district court properly granted summary judgement in favor of Blizzard and Vivendi on the operability exception. Summary judgement in favor of Blizzard and Vivendi is affirmed.' No word yet on the EFF's website as to what their next move will be."
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Blizzard/Vivendi 2, bnetd 0 More

Blizzard/Vivendi 2, bnetd 0

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  • My move is still (Score:5, Insightful)

    by eddy ( 18759 ) on Thursday September 01, 2005 @05:45PM (#13459234) Homepage Journal

    to not buy Blizzard products (yes, this includes WoW), but that's just me.

    • Re:My move is still (Score:5, Funny)

      by geekoid ( 135745 ) <{moc.oohay} {ta} {dnaltropnidad}> on Thursday September 01, 2005 @05:46PM (#13459244) Homepage Journal
      Based on WOW's popularity across demographic lines, yes, yes it is just you.

      • Re:My move is still (Score:5, Insightful)

        by PhiberOptix ( 182584 ) on Thursday September 01, 2005 @05:54PM (#13459296)
        Whatever you do will be insignificant, but it is very important that you do it.

        Mahatma Gandhi [quotationspage.com]

        • Ghandi was talking to the goat herders (Score:5, Insightful)

          by typical ( 886006 ) on Thursday September 01, 2005 @08:14PM (#13460187) Journal
          There is an understood proviso there, that Ghandi's statement applies to the masses. He wasn't talking to a group of smart, dedicated, but ultimately limited-in-population geeks.

          The OSS/geek world is powerful because it has the ability to release disruptive technologies (and has consistently done so, sending waves through the tech community, especially in the past few years). Its buying power may not be tiny, but it is still insignificant compared to that of the Joe Sixpack market.

          And Blizzard has busily sealed off the main way that the OSS world can bring in disruptive technologies -- write software compatible with Blizzard software, and you get sued.

          The only real remaining way would be to sit down and write a better version of whatever Blizzard produces, but Blizzard (unlike, say, Microsoft) produces products that have relatively little code and lots of content (audio, artwork, etc). The OSS world is rich in coders, and exceedingly poor in skilled people willing to donate talent on audio and graphics. So, yes, I can design and implement an WCIII-type RTS engine -- it still won't impact Blizzard's bottom line, because they have masses of artists and sound engineers that I *can't* get. Sure, there are open-source people busily producing [worldforge.org] RTS code, but as long as their audio and graphics aren't comparable to Blizzard's, Blizzard can easily shrug them off.

          And as long as the DMCA sits around, as long as there are restrictions on reverse-engineering and producing interoperable software, the open source world is hamstrung in many ways.

          • Is this just possibly Copyright doing its job? (Score:4, Interesting)

            by splateagle ( 557203 ) on Friday September 02, 2005 @06:30AM (#13462816)
            it still won't impact Blizzard's bottom line, because they have masses of artists and sound engineers that I *can't* get

            I can't help wondering if you've hit on the uncomfortable core of this whole argument here: vile though the DMCA is, and massively multinational though Vivendi are, Is it not possible that this isn't plain and simple evil coporate badness? maybe what's being protected here is the work of those masses of artists? in which case isn't that exactly what copyright law is supposed to be about?

            The masses of (frankly, incredibly talented) artists at Blizzard aren't there as slaves to the man, they're getting paid for doing what they love (and are really good at): collaboratively producing a finished product that's then protected under copyright law, so that there's still a market for their susequent work.

            If I were one of these guys I think I'd want the suits to persue this case with extreme prejudice. After all if Vivendi lost, and the courts rules it was fair use to bolt my artwork onto any old OSS RTS project, then who'd be paying for new art in a couple of years? Say what you like about Blizzard but over the years they've significantly raised the bar for the artistic standard of games.

            OK, so bnetd itself is just a means to play Blizzard's games online without going through battle.net, but in legal terms that's the thin end of the wedge. Looked at in those terms, just maybe they're right to be stomping on it hard.

            If we want OSS RTS gaming to flourish as competition to the big corps, we've got to do it entirely sepparately from commercial projects, and that means finding tallented digital artists who are as commited to the OSS idea as the coders are...
            • It's not reasonable to suggest that bnetd being legal would in any way threaten Blizzard's copyright. It should be legal to write software to speak any over the wire protocol I want. If I want replace a proprietary server with my own that I wrote, that should be legal. If it's legal for SAMBA [samba.org], why isn't it legal for bnetd?
    • Wasn't Vivendi the company that made Valve create the Steam authentication software? I, too, wouldn't buy stuff from them if HL2 wasn't so damn good :(
      • Actually, no. Vivendi took Valve to court [gameplanet.co.nz] over Steam, as it allowed Valve to distribute their software without the publisher (Vivendi) taking a cut. Blame for Steam lies solely with Valve...
        • That, I didn't know. More power to Valve then (kidding)!

        • Re:Steam (Score:3, Insightful)

          by GryMor ( 88799 )
          Really, Steam isn't a problem, at least for people who bought the game via steam and weren't crippled by the outdated CD locking junk Vivendi required in the retail version.
    • Yeah, because you can't play it for free ;)

      Come on, why you need bnetd if not to play an "illegal copy" anyway?
    • you have never played WOW, then you couldn't have agreed to the EULA.

      SO what is to stop YOU, from creating a server?

      Maybe you should get some programmers together and write an bnet equivilent.

  • The case (Score:4, Insightful)

    by reality-bytes ( 119275 ) on Thursday September 01, 2005 @05:47PM (#13459247) Homepage
    Is it the case that the non-violation of the DMCA through interoperability was so blindingly obvious here that the court simply had to get it wrong?

    I really do wonder how the US legal system works; do they ever find someone technically knowledgable to assist in this sort of case? Or do they just defer to whichever side provides the most fluent jargon?

    • Re:The case (Score:5, Informative)

      by sangreal66 ( 740295 ) on Thursday September 01, 2005 @06:05PM (#13459369)
      Is it the case that the non-violation of the DMCA through interoperability was so blindingly obvious here that the court simply had to get it wrong?
      The court didn't say their actions weren't covered by the interoperability exemption. The court ruled that appelants waived the exemption when they agreed to Blizzard's EULA.
      Appellants contractually accepted restrictions on their ability to reverse engineer by their agreement to the terms of the TOU and EULA. "[P]rivate parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act[,]" Bowers v. Baystate Techs, Inc., 320 F.3d 1317, 1325-26 (Fed. Cir. 2003), and "a state can permit parties to contract away a fair use defense or to agree not to engage in uses of copyrighted material that are permitted by the copyright law if the contract is freely negotiated."
      Of course, I wouldn't call a EULA "freely negotiated."

      • Re:The case (Score:5, Insightful)

        by ScrewMaster ( 602015 ) on Thursday September 01, 2005 @06:13PM (#13459417)
        Of course, I wouldn't call a EULA "freely negotiated."

        Absolutely, and if the legitimacy of those things had been properly struck down in previous cases this case would probably never have made it to court.
      • In Australia we have the right to reverse engineer for interoperability, regardless of whether or not we have entered into a contract that says we won't.

        • Re:The case (Score:5, Funny)

          by cortana ( 588495 ) <sam@robots.orRASPg.uk minus berry> on Thursday September 01, 2005 @06:48PM (#13459646) Homepage
          Fear not, consumer! It is only a matter of time before your outmoded laws are harmonised with those of America.

      • Re:The case (Score:3, Insightful)

        by Straker Skunk ( 16970 )
        So the DMCA's interoperability exception isn't a statutory right. You're free to sign it away in the terms of a contract.

        Of course, then, every single software maker adds to their EULA boilerplate that "You disclaim any and all right to reverse-engineer the Product for interoperability purposes under the DMCA...."
      • "[P]rivate parties are free to contractually forego (...) exemptions of the Copyright Act" "parties [can] contract away a fair use defense"

        ....there *is* no fair use in the USA anymore. Why on earth would any copyright holder give away anything freely? Fair use rights are supposed to be rights the copyright holder shouldn't be allowed to withhold, like the right of first sale. Though I suppose by the "usage restrictions over DRM" protected by the DMCA you have no control over your own use anyway. Let me d
    • Is it the case that the non-violation of the DMCA through interoperability was so blindingly obvious here that the court simply had to get it wrong?

      Well, no.

      Summary Judgement means that even when everything is read in your favor, nothing remains in dispute that is worth the time and expense of a trial.

      To the court, you are a waste of space just standing there.

      Put a fork in it. This turkey is done.

  • Corporations win again (Score:4, Insightful)

    by dotslashdot ( 694478 ) on Thursday September 01, 2005 @05:49PM (#13459262)
    Surprise surprise. The DMCA was written by big corporations to protect them from competition (especially open source.) Now, if you write a program that works with another commercial program, good luck, especially if that program threatens a coveted corporate market with competition.
    • "Surprise surprise. The DMCA was written by big corporations to protect them from competition (especially open source.) Now, if you write a program that works with another commercial program, good luck, especially if that program threatens a coveted corporate market with competition."

      Surprise, surprise. A /.er blaming evil corporations because they've cracked down on piracy, instead of blaming the software pirates who caused the mess in the 1st place. This has nothing to do with competition. They offer onli
      • Trying to crack down on piracy in this manner ignores the legitimate use of bnetd. That's the problem. They're not going after piracy - they're going after legitimate applications that they don't like.

  • A simple summary: (Score:5, Funny)

    by geekoid ( 135745 ) <{moc.oohay} {ta} {dnaltropnidad}> on Thursday September 01, 2005 @05:50PM (#13459270) Homepage Journal
    here [penny-arcade.com]

  • The scary part: (Score:4, Interesting)

    by koko775 ( 617640 ) on Thursday September 01, 2005 @05:54PM (#13459300)
    "(1) Blizzard's software end-user license and terms of usage agreements were enforceable contracts; (2) Appellants waived any "fair use" defense; (3) the agreements did not constitute misuse of copyright; and (4) Appellants violated the anti-circumvention and anti-trafficking provisions of the Digital Millennium Copyright Act ("DMCA")."

    Enforcable EULAs, sacrifice of fair use...I shake my head in disgust. Law and justice just aren't keeping up with the times.
    • In this case the "fair use" associated with bnetd was basically playing on B.Net using stolen CD keys. This equates to getting the software from Blizzard for free illegally, which equates to stealing, which is beyond any possible definition of fair use. The "appellants waived any fair use defense" b/c no such defense existed.
    • Do you think EULAs should not be enforceable? If not, then the GPL becomes unenforceable. If the courts see EULAs as enforceable contracts, this strengthens the GPL (and similar licenses) significantly.
      • For the 1,000,0001st time: The GPL allows you to copy, modify and distribute content, there are no conditions for use.

      • Re:The scary part: (Score:3, Informative)

        by Anonymous Coward
        The GPL is not an EULA. An EULA is by defenition a contract because there is an agreement made, the GPL on the other hand is a pure license where no agreement is made between two parties. This simple distinction means that there are different laws at work protecting a product by the GPL than by an EULA.

        Note: the part about the GPL being a pure license is somewhat debatable.

        If you want more info about the differences between regular EULAs and the GPL and how the GPL works you should look for articles writt
      • enforce EULA's.

        Which, BTW, has NOTHING TO DO WITH THE GPL.

        GPL is a copyright agreement, not a EULA.
        • GPL is a copyright agreement, not a EULA.

          Wrong. it's a license, hence the L in GPL, that explicetely states what can be done with copyrighted works. The GPL is more of a what you can do with the work as long as you follow these rules and EULAs are more of a what you cannot do with these works but if you have the courts make EULAs unenforceable (not going to happen) than the GPL is no longre enforceable.
          • apples to oranges.

            EULA's apply to how the purchaser of the software may use the software AND whether or not the purchaser may redistribute the software. You may only use the software in the fashion that the "owner" decries. You can't redistribute it legally at all.

            GPL applies to how the "purchaser" may redistribute the software only. GPL makes no claims about use. You may use GPL software in any fashion you wish. You may redistribute it under the terms of the GPL.

            Distribution of Copyrighted material

  • The Next Step is not in the Courts (Score:4, Insightful)

    by Laven ( 102436 ) on Thursday September 01, 2005 @05:54PM (#13459301)
    Our side may have already lost because it is unlikely that the Supreme Court will take this case under reconsideration. The next step of this battle would be to change the laws themselves at the Congressional level. It will be a long and hard battle, but one that we must fight.

  • I really hate Blizzard (Score:5, Interesting)

    by typical ( 886006 ) on Thursday September 01, 2005 @05:57PM (#13459312) Journal
    They're one of the few publishers that doesn't even bother with "We'll see if the market supports it" when asked about Linux support for their software -- they just say "no". They sue open-source developers. They had a habit of using infamously exploitable network designs in their games. Blizzard is right up their with Microsoft in my "People What Are Evil" book -- they just have the virtue of writing more entertaining software and having managed to get Tycho and Gabe to constantly advertise for them.

    Think of the applications of a law that allows a software publisher to make *illegal* any reverse-engineered interoperable software. That's quite a find.
    • Just FYI, Blizzard games run nearly flawlessly in Cedega. Just because they don't want to dedicate dev's to a linux port doesn't mean they are blocking it. If you want to see a company against linux, check out Macromedia, Adobe, and of course, Microsoft. All of which make software which SPECIFICALLY checks the OS and will refuse to install if it detects non-MS OS's. No matter that the program may actually run under Cedega or CrossOver Office, they go out of their way to block it. Blizzard, on the other
    • I've been boycotting Vivendi since Tribes: Vengeance. The game sold horribly, and so they dropped support for it. That's not the reason for the boycott, it makes sense.

      Rather, it is that they persisted telling the community that (despite sales) a patch that would fix many of the more annoying issues would be released. They continued this up until a week before the cancellation announcement. Now I, and others, are beyond the 90 days of their refund policy :/

      Maybe a bad decision on my part to not return it so
    • If you really hate Blizzard like you say you do, you'll do this:
      1. Got to your local Best Buy and purchase WoW
      2. Leave the store and open the box and the CD
      3. Go back in and demand a refund because you don't agree to the EULA (which you couldn't read before you opened the CD)
      4. If they balk, point out the terms which say you are allowed a full refund of the game
      5. Repeat this procedure until there are no unopened boxes of WoW on the shelves
      6. Go to your local Circuit City store...

  • More imporant: The Trademark Act (Score:5, Informative)

    by tyroneking ( 258793 ) on Thursday September 01, 2005 @06:02PM (#13459344)
    Check out the eff site to lobby your senator against something more important than the case in this story (http://action.eff.org/site/Advocacy?id=113 [eff.org]). Boy, if all the /.'ers in the US did this it might actually make an impact...

  • Boycott is the greatest power (Score:5, Insightful)

    by PhatKat ( 78180 ) on Thursday September 01, 2005 @06:05PM (#13459364) Homepage
    When this conflict first came up I emailed blizzard to tell them I would never buy one of their products again and I've kept my word. I suggest if you care about this issue that you do the same. Oh, and tell your friends.
    • As always, the problem is that the majority of users of any entertainment software are utterly clueless and wouldn't grasp the larger significance of this issue. And probably wouldn't care if they did.

      I've been playing Half Life for some time, and while Valve is just as monomaniacal about keeping illegal copies of the game off of their network, their own freely-downloadable dedicated server package (for both Windows and Linux) works just great for private LAN parties, or as an open server for anyone to u

  • Lets take a moment to consider (Score:5, Insightful)

    by jsmoonrider ( 716754 ) on Thursday September 01, 2005 @06:17PM (#13459444) Homepage
    Let's look at the ramifications of this ruling to some of the most popular OSS. OpenOffice: Interoperability with Microsoft product by... reverse engineering GAIM: interoperability with Microsoft/Yahoo/AOL product by... reverse engineering Two huge players that could never be produced if this ruling is upheld. Anyone else scared?

  • What's the big deal? (Score:3, Insightful)

    by DroopyStonx ( 683090 ) on Thursday September 01, 2005 @06:26PM (#13459509)
    Continue developing it anyway and release it over p2p networks.

    Problem solved.
  • They could have based their ruling simply on the DMCA and still schilled out an adequate though bought decision to their corporate masters without damaging individual liberty. I want to know where my part in negotiating a eula is "active". I don't get to change the terms, I don't get to talk with anyone in the company regarding it, I don't get to remove any of the add-on software they often push with their crap. And don't give me that "you choose no" garbage, I can't play realplayer files on my computer

  • Is open source above our laws? (Score:3, Insightful)

    by biraneto2 ( 910162 ) on Thursday September 01, 2005 @06:45PM (#13459622)
    Ok... it's is open source and we are in slashdot. But I don't see why that should allow them not to follow rules. Does it suck to be unable to create a private server? Yes it does... but that is not enough reason to anyone to start breaking laws... even if it is open source.
  • circumvention of copyright protection system,

    I've heard of circumvention of copy protection system, but never of a copyright protection system.

  • This is just the US (Score:3, Insightful)

    by earthforce_1 ( 454968 ) <earthforce_1@yaho[ ]om ['o.c' in gap]> on Thursday September 01, 2005 @07:23PM (#13459882) Journal
    What if somebody rehosts BNET.d on a non-US server? There are plenty of non US develpers who wouldn't mind sharpening their skills while having fun working on this. Perhaps it is just time for the original development team to pass the torch.

  • kinda reminds me... (Score:3, Insightful)

    by KillShill ( 877105 ) on Thursday September 01, 2005 @07:51PM (#13460068)
    of apple forbidding people buying osx and using it on anything other than what hardware they choose.

    even though no one expects support for unofficial configurations, they go out of their way, and soon with osx86, using the DMCA to prevent bought copies of it being used.

    funny though, you don't hear a lot of calls for boycotts.

    arguing for property rights on /. is a losing proposition but if some people don't, others will think it's ok if companies do things like this and even believe it's for their own good.

    stand up for all the rights of customers, not just when it's your pet company or if it doesn't involve you at this moment. i guarantee it WILL involve you sooner or later.

    i had a lot more hope for the geek community to prevent abuses... but i've been disappointed.

    we're no longer the x or y generation, we're the DRM and DMCA gen (P.A.T.R.I.O.T comes to mind). hope you guys like the world we're building.

  • So, what happened to Internet Gateway? (Score:3, Interesting)

    by King_TJ ( 85913 ) on Thursday September 01, 2005 @08:32PM (#13460298) Journal
    I've had an interest in following the outcome of this particular case, maybe more than some people, because I used to know Tim Jung, the owner of the Internet Gateway ISP and defendant.

    I assume he's not really allowed/able to discuss any specifics of the case, since it's still going on .... but I know a lot of people in the St. Louis area who wonder what ever happened to him. (It seems the www.igateway.net web site is still up, but the contact numbers are disconnected and many things look like they haven't been changed/edited in years. So it's more of a "placeholder site" at this point.)

    I'm not sure if the ISP was sold off voluntarily, in an action totally unrelated to the Vivendi/Blizzard suit, or if it had to be done to cover some legal expenses? (Hopefully, it was the former!)

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