Back to 'In The News' Duplicators Liable Under DMCA

Blizzard Entertainment has frozen out of the Internet game war.

The Eighth Circuit has affirmed a trial court decision that several programmers and the hosting site Internet Gateway violated both the terms of use agreement and the Digital Millennium Copyright Act (DMCA)’s anti-trafficking provisions.

Blizzard Entertainment owns the copyright for several games including “StarCraft,” “StarCraft: Brood War,” “WarCraft II: Battlenet. Edition” and “Diablo.” In order to play the games on the Internet, the player must load a program onto the computer and enter an CD key. When the person logs onto the site to play the game with other users, the site authenticates the program.

The defendants in the case, Tim Jung and Rob Crittenden were part of a group of developers who formed a group called “bnetd project” to emulate the service and allows users to play online without the use of Blizzard sued for breach of contract and violations of the DMCA. The trial court granted an injunction against the defendants and they appealed.

The Eighth Circuit found that by agreeing to the terms of use (TOU) and end users license agreement (EULA), the defendants agreed not to reverse engineer the program. In order to emulate the program, the defendants by necessity reverse engineered the program. The defendants argued that the TOU and EULA were preempted by the U.S. Copyright Act.

The court found otherwise. “By signing the TOUs and EULAs, Appellants expressly relinquished their rights to reverse engineer,” the court found. As to the DMCA violations, the appellate court also agreed with the trial court. Under the DMCA, a person is prohibited from circumventing a technology measure that effectively controls access to w work protected by copyright. It also is a violation to traffic in the circumvention measure. The court found that Blizzard’s anti-circumvention measures were not readily available. “Appellants could not have obtained a copy of or made use of the literal elements of mode without acts of reverse engineering, which allowed for a circumvention of and mode,” the court wrote. By making the measure available for others to use, the defendants engaged in trafficking, also a violation of the DMCA.

Davidson and Associates dba Blizzard Entertainment, Inc.; Vivendi Universal, Inc. v. Tim Jung and Rob Crittenden, Eighth Cir. No. 04-3654, Sept. 1, 2005.