EFF: Federal Court Slams Door on Add-On Innovation

[David Farber <dave () farber net>]

Begin forwarded message:

From: Donna Wentworth <donna () eff org>
Date: September 1, 2005 4:30:12 PM EDT
To: presslist () eff org
Subject: [E-B] EFF: Federal Court Slams Door on Add-On Innovation
Reply-To: press () eff org


Electronic Frontier Foundation Media Release

For Immediate Release: Thursday, September 01, 2005

Contact:

Jason Schultz
   Staff Attorney
   Electronic Frontier Foundation
   jason () eff org
   +1 415 436-9333 x112

Federal Court Slams Door on Add-On Innovation

Shuts Down Open Source Videogame Server Project

St. Louis, MO - In a decision with dangerous implications
for competition, consumer choice, reverse engineering, and
innovation, the 8th Circuit Court of Appeals today ruled
against three software programmers who created a free,
open-source program to allow gamers to play games they
purchased with others on the platform of their choice. The
court held that the Digital Millennium Copyright Act (DMCA)
prohibited the reverse engineering needed to create the
program and that "click-wrap" and "browse-wrap" licenses
are enforceable to prevent reverse engineering.

The software program, called BnetD, allowed legitimate
Blizzard videogame owners to set up their own multiplayer
games on the Internet and enjoy dozens of additional
features instead of being locked into Blizzard's
proprietary Battle.net game service. The Electronic
Frontier Foundation (EFF), co-counsel for the programmers,
took the case to defend the fair-use right to
reverse-engineer software and create new programs that
interoperate with older ones.

"This ruling is bad for gamers, but it could also be
terrible for the software industry," said EFF Staff
Attorney Jason Schultz. "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."

The court ruled that Congress' explicit protections for
reverse engineering and add-on innovation in the highly
controversial DMCA are too narrow and weak to protect
innovators from lawsuits when the software they create is
used for illegal copying, even if the copying occurs
without the knowledge or participation of the program's
creators. The court also ruled that clicking on a EULA's "I
Agree" button, common when installing almost any software
product purchased today, can be used to force both
consumers and competitors out of the marketplace for add-on
innovation.

"Those who have been claiming that the DMCA does not
threaten reverse engineering are plainly wrong," added
Schultz. "The DMCA has become a powerful anticompetitive
tool, and that means consumers will see fewer innovative
products in the marketplace."

For the ruling:
http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20050901_decision.pdf

Background in the case:
http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/

For this release:
http://www.eff.org/news/archives/2005_09.php#003949

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


     -end-


--
Donna Wentworth
Web Writer/Activist
Electronic Frontier Foundation
<http://www.eff.org>

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