A Federal Court in Missouri has ruled on the BNETD case, which involves contract and DMCA claims, and issues of reverse engineering and interoperability. Because I played a role in the litigation (as an expert), I won’t comment on the court’s ruling. The rest of you are welcome to discuss it.
DMCA Ruling in BNETD Case
September 30, 2004 by
Joe –
I agree. If you wanted to pursue the strategy I’m talking about, you’d really have to sniff someone’s session that you don’t know — they couldn’t give you permission. Then you’d be breaking other laws… and I still think they’d try to use the DMCA to come after you somehow.
Rob, the issue is, you can sign a contract to waive your free-speech rights – that’s a Non-Disclosure Agreement (NDA).
How far does this extend? We’re finding out 🙁
See my latest blog post for some analysis of the “permission” point
Blizzard v. BNETD circumvention, permission, and reverse-engineering
http://sethf.com/infothought/blog/archives/000710.html
Click Here to Allow Unlawful Restraint of Trade
John T. Mitchell, who writes beautifully about the damage that code + law (PDF) can do to the public’s side of the copyright bargain, has a short-but-powerful response to the BNetD decision (PDF) over @ Freedom-to-Tinker: When a copyright owner…
Sorry – meant to ask this to John! My apologies!
Seth? You said “if the copyright owner can get the public to agree to give them up as payment for access to the works”. These “them”? Is that “the limitations Congress placed upon copyrights”? Or their ordinary legal rights?
I’m no lawman but within The Netherlands it’s illegal to agree on something that’s against the law. I always assumed this to be a worldwide truism. But your remark puts me in doubt. Woould you mind clarifying that, please?
Click Here to Allow Unlawful Restraint of Trade
John T. Mitchell, who writes beautifully about the damage that code + law (PDF) can do to the public’s side of the copyright bargain, has a powerful response to the BNetD decision (PDF) over @ Freedom-to-Tinker: When a copyright owner…
Brian St. Pierre,
You said “This decision would have been different if one of these guys had agreed to the EULA, installed it on his computer, and run it over a network where another
member of the group could sniff the protocol.”
I don’t think so. The EULA in question prohibited sniffing the traffic or reverse engineering the protocol.
Someone who participated in that would be in violation of the EULA. It’s true that only one of the developers
would have a problem at that point because only one would have agreed to the EULA, but that’s not much of an
improvement.
You also say “Even then, they may still have run afoul of the DMCA ”
The DMCA claim was separate. I don’t think it would have played out any differently.
Basically the court said that none of the DMCA defenses could be used because it isn’t
a commercial product and because it was to create a work-alike server. I can see where
the first distinction is outlined in the text of the statute (though I think Congress
meant something different by commercial), but the latter distinction is entirely of the
court’s own making.
What’s scariest about this ruling is that the judge seems to have found that in order to rely on the DMCA’s interoperability defense, you have to get permission from the copyright holder before you create the interoperable product! I can’t believe that’s what Congress had in mind (even acknowledging their lack of understanding).
According to this logic, employers everywhere should have prospective employees sign a EULA (perhaps an “Employee Unprotected Labor Agreement”) saying that the employee gives up any rights to the statutory provisions under federal and state labor laws, including anti-discrimination, workplace safety, and so on. Judge Shaw clearly failed to recall one of the first law school lessons — that some agreements are so fundamentally against public policy that no court should stoop so low as to enforce them. (He thought it not unconscionable as between the parties, but the agreement of the parties served to diminish the benefits non-parties would have derived from the defendant’s use.)
You can’t, for example, “waive your fair use rights” (as Judge Shaw found) any more than you can waive your right to be free from race-based discrimiation or payment of the minimum wage. We, the people, have concluded that certain minimum wages are good for society, so private parties can’t agree to set aside the minimum.
When a copyright owner uses the copyright monopoly as leverage to extract an enlargement of its rights even further by conditioning the license upon a waiver of rights granted by law, it thumbs its nose at Congress and enters an agreement in restraint of trade.
In effect, Judge Shaw has ruled that none of the limitations Congress placed upon copyrights (Sections 107-122) are worth the paper they are written on if the copyright owner can get the public to agree to give them up as payment for access to the works.
A travesty, and one that must be appealed.
Click Here to Lose Your Fair Use Rights
Ernie has a great post gathering commentary & analysis of yesterday’s crushing defeat for fair use/reverse engineering/open-source programming in the BnetD case. He also offers his own .02, highlighting the decision’s oddities: If you reverse engineer …
I have a question? Has anyone ever succesfully mounted a 1201(f) defense? Between the Lexmark ruling and this, the courts don’t seem to allow any access to copyrighted works, even when the only solution is to reverse engineer.
This ruling even implies that the only way to do it is to ask the copyright holder for explicit permission. I’d love to see that: “Mr. Software developer, I’d like your permission to become your competitor”.
Major DMCA/EULA Loss – District Court Clueless in BNETD Case
Ed Felten reports that the long-awaited decision in the BNETD case has finally been released (DMCA Ruling in BNETD Case). It is a significant loss for the BNETD defendants and clear evidence of a judge who doesn’t get it. Read…
As a layman, the biggest takeaway I got from the ruling is that — like Jonathan said above — you should stay away from contract law. If you want to reverse engineer something, stay within the bounds of copyright law, which sounds like it is somewhat more permissive. To me that means don’t click through the EULA, don’t agree to a TOS.
This decision would have been different if one of these guys had agreed to the EULA, installed it on his computer, and run it over a network where another member of the group could sniff the protocol. (Though I’m not sure if this would put enough distance between members of the group — would plaintiffs have alleged some kind of conspiracy?) Even then, they may still have run afoul of the DMCA — I don’t really know how that would play out.
THE HORROR! THE HORROR!
I just read through the whole thing.
I find it difficult to imagine a worse decision.
I’ll write up some specifics for my own blog.
I skimmed it. In a nutshell, the court says if you click “I agree” to an EULA that says “thou shalt not reverse engineer,” and you reverse engineer it anyway, you’re hosed.