Blizzard versus bnetd: A looming ice age for free software development?

Cornell Law Review

Volumn 92, Issue 5, 2007, Pages 1043-1064

  Hwang, Kenneth ^a  

^a MIT Sloan School of Management

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EID: 34547828934     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (144)

1. PWC: Video Game Industry to Drive Entertainment Sector, BUSINESSWEEK ONLINE, Oct. 7, 2005, http://www.businessweek.com/innovate/content/oct2005/id20051007_999151. htm.
2. See id.
3. Many argue that advances in video game design drive advances in computer design as well. New games often require the most powerful hardware to run. If such games become popular, consumers will buy high-power computer systems spurring hardware manufacturers to release more powerful products to satisfy this increasingly important market segment. Recent examples of superior hardware for gaming applications include Intel's Extreme Edition processors, Nvidia's 3D accelerator cards, and IBM's Cell and Xenon processors.
4. Robert Workman, Gaming Through the Ages: Take a Look at Evolutions in Gaming over the Past Few Decades, BUSINESSWEEK ONLINE, Oct. 9, 2006, http://www.businessweek.com/ innovate/content/ oct2006/id20061009_924541.htm;
5. see also James Brightman, Report: PC Gaming on the Rise, BUSINESSWEEK ONLINE, Feb. 28, 2006, http://www.businessweek.com/innovate/content/feb2006/id20060228_545385.htm (finding 53% of computer-owning households use personal computers (PCs) for games and 60% of PC gamers play online).
6. Alfred Hermida, Software Piracy "Seen as Normal, " BBC NEWS, Jun. 23, 2005, http://news.bbc.co.uk/2/hi/technology/4122624.stm.
7. See, e.g., Sony Computer Entm't, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993); Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832 (Fed. Cir. 1992).
8. See Elizabeth Knefel, StarCraft Lawsuit: Privacy and Piracy, CNN INTERACTTVE, May 4, 1998, http://www.cnn.com/TECH/ computing/9805/04/privacy_piracy/index.html.
9. But see Id Software: Technology Downloads, http://www.idsoftware. com/business/techdownloads/ (last visited Mar. 15, 2007) (revealing how some game companies, rather than implementing protective measures, will in fact release their game engines to the public in order to encourage open-source development).
10. 17 U.S.C. §§ 101-804 (2000).
11. Pub. L. No. 105-304, 112 Stat. 2860 (codified as amended in scattered sections of 17 U.S.C).
12. S. REP. NO. 105-190, at 2 (1998).
13. See 422 F.3d 630, 641 (8th Cir. 2005). Section 1201(a) of the Digital Millennium Copyright Act (DMCA) prohibits any person from "circumvent[ing] a technological measure that effectively controls access to a work protected under this tide." 17 U.S.C. § 1201(a) (2000). Circumvention under § 1201 means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." Id. § 1201 (a) (3) (A). A technological measure is anything that "'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." Id. § 1201(a)(3)(B).
14. See Jung, 422 F.3d at 636.
15. See id. ("[U]nlike Battle.net, [Bnetd.org] does not determine whether the CD Key is valid or currently in use by another player.").
16. Free On-Line Dictionary of Computing defines "interoperability" as "[t]he ability of software and hardware on multiple machines from multiple vendors to communicate." Interoperability from FOLDOC, http://foldoc.org/index.cgi?query=interoperability&action=Search (last visited Mar.7, 2007).
17. See Jacqueline Lipton, The Law of Unintended Consequences: The Digital Millennium Copyright Act and Interoperability, 62 WASH. & LEE L. REV. 487, 489 (2005).
18. See id. at 490.
19. See Matthew Kirdahy, Investors Play Electronic Arts, Forbes.com, Feb. 20, 2007, http://www.forbes.com/markets/2007/02/20/electronic- arts-games-equity-markets-cx_mk_0220markets35.html.
20. See Standard & Poor's, Indices S&P 500, http://www2.standardandpoors.com/portal/site/sp/en/us/page.topic/indices_500/2, 3,2,2,00,2,14,2007,69,0,3,0,0,0,0,0.html (last visited Apr. 24, 2007).
21. See Forbes.com, The Forbes Global 2000, http://www.forbes.com/ 2005/03/30/05 f20001and.html (follow "Sort List By Rank" hyperlink; then select range 801-900 under "Search Results") (last visited Apr. 24, 2007);
22. see also ELEC. ARTS INC., EA 2006 PROXY STATEMENT AND ANNUAL REPORT 31 (2006), http://media.corporate-ir.net/media_files/irol/88/88189/reports/ AnnualReportProxy2006.pdf (reporting $2.951 billion in net revenue for 2006).
23. See Press Release, Vivendi, Vivendi Full Year 2006 Revenues Reach €20 Billion 5 (Jan. 31, 2007), available at http://www.vivendi.com/ ir/download/pdf/CA%202006%20 anglais.pdf.
24. See Blizzard Entertainment, http://www.blizzard.com (select menu link for "games") (last visited Apr. 24, 2007).
25. See Press Release, Blizzard Entertainment, Blizzard Entertainment Unveils Key New Starcraft: Ghost Features at E3 (May 18, 2005), http://www.gamespot.com/ps2/action/starcraftghost/news.html?sid=6126716.
26. "Massively multiplayer online games," known as MMOGs or MMOs, differ from traditional video games in a number of ways: MMOGs are inherently multiplayer and almost exclusively internet-based; they generally support thousands or tens of thousands of simultaneous players interacting with and against each other in the same "game world"; MMOG game worlds are often "persistent" environments, meaning that the game world and other gamers continue to play as others log on or off; game developers operate large central servers to connect players to these persistent game environments; and players typically pay a monthly or bimonthly fee to access the MMOGs. See Constance A. Steinkuehler, Massively Multiplayer Online Video Gaming as Participation in a Discourse, 13:1 MIND, CULTURE & ACTIVITY 38, 40 (2006), available at http://website.education. wisc.edu/steinkuehler/papers/steinkuehlerMCA2006.pdf; Wikipedia.org, Massively Multiplayer Online Game, http://en.wikipedia.org/wiki/MMOG (last visited Feb. 28, 2007).
27. See Press Release, Blizzard Entertainment, World of Warcraft Surpasses 8 Million Subscribers Worldwide (Jan. 11, 2007), http://www.blizzard. com/press/070111.shtml.
28. See Wikipedia.org, Real-Time Strategy, http://en.wikipedia.org/ wiki/Real_time_strategy_game (last visited Jan. 25, 2007).
29. See id.; see also Bruce Geryk, A History of Real-Time Strategy Games, Part I: 1989-1998, GAMESPOT, http://www.gamespot.com/ gamespot/features/all/real_time/ (last visited Apr. 24, 2007) (discussing the development of the RTS genre of games).
30. See John E. Laird & Michael van Lent, Human-Level AI's Killer Application: Interactive Computer Games, AI MAG., Summer 2001, at 16, available at http://www.kddresearch.org/Groups/AI-CBR/ Papers/Interactive-computer-games-AIMag22-02-003.pdf;
31. see also John Breeden, Siege the Day!, GAME INDUS. NEWS, http://www.gameindustry.com/review/item.asp?id= 451 (last visited Apr. 24, 2007) (explaining that gamers prefer multiplayer gameplay due to flaws in artificial intelligence (AI) technology).
32. See Blizzard.com, Blizzard Entertainment: Technical Support Site (Null Modem Serial Cable), http://www.blizzard.com/support/?id=asc0193p (last visited Apr. 24, 2007).
33. LAN connections communicate through various protocols, and Starcraft supports LAN multiplayer via two available protocols, Internetwork Packet Exchange (IPX) and User Datagram Protocol (UDP). See Blizzard.com, Blizzard Entertainment: Technical Support Site (IPX Network), http://www.blizzard.com/support/?id=asc0128p (last visited Apr. 24, 2007).
34. See Battle.net, Home Page, http://www.battle.net/ (last visited Mar. 14, 2007). Note that World of Warcraft, as an MMOG, is not played through the same Battle.net system as are Blizzard's other games.
35. See Davidson & Assocs, v. Jung, 422 F.3d 630, 633 (8th Cir. 2005).
36. SeeBattle.net, Battle.net Info, http://www.battie.net/news/0611. shtml (last visited Mar. 14, 2007); Wikipedia.org, Battle.net, http://en.wikipedia.org/wiki/Battle.net (last visited Mar. 1, 2007).
37. See Posting of Ernest Miller to http://research.yale.edu/lawmeme/ modules.php?name=News&file=article&sid=149 (Feb. 26, 2002, 22:07:21 EST) [hereinafter Posting of Ernest Miller].
38. Blizzard's support web site maintains a list of changes made in each version of Warcraft II. In version v1.2, Blizzard included its "WAR2KALI" program as well as a full shareware version of the Kali software suite. See Blizzard Entertainment: Technical Support Site, Warcraft II, Changes in Version v1.2, http://www.blizzard.com/support/?id=nwt0496p (last visited Apr. 24, 2007).
39. Although Battie.net is a free service for players who have purchased Blizzard games, by moving players away from third-party online services, Blizzard was able to introduce its own in-game features, such as ladder systems, tournaments, and player skill matchmaking. This change also allowed Blizzard to sell Internet banner advertising within the Battie.net interface. See Battle.net, Advertising, http://www.battle.net/advertising/ (last visited Mar. 1, 2007).
40. On February 3, 1976, Bill Gates wrote an angry "Open Letter to Hobbyists" regarding what he perceived as rampant piracy of the BASIC compiler program Microsoft developed for the Altair PC. See William Henry Gates III, General Partner, Micro-Soft, An Open Letter to Hobbyists (Feb. 3, 1976), available at http://www.digibarn.com/collections/news-letters/ homebrew/V2_01/homebrew_V2_01_p2.jpg. Gates claimed that the free sharing of his company's program amounted to stealing and deprived software developers of deserved royalties. See id. Many view Gates' letter as the first documented case of widespread software piracy.
41. See Adam Goode, Intellectual Property 3-4 (Dec. 6, 2000) (unpublished manuscript, on file with Rennselear Polytechnic Institute Department of Computer Science), available at http://www.cs.rpi.edu/ courses/fall00/ethics/papers/goodea.pdf. Interestingly, the main mode of transmission of the copied software was not over a network such as the Internet or magnetic media such as floppy disks, but rather on "paper tape," an old form of data storage consisting of strips of paper punched with holes that a computer can read mechanically.
42. See Computer History Museum, Altair BASIC Paper Tape (1976), http://www.computerhistory.org/exhibits/highlights/basic.shtml (last visited Apr. 24, 2007).
43. See SOFTWARE & INFO. INDUS. ASS'N, SIIA'S REPORT ON GLOBAL SOFTWARE PIRACY 2000 (2000), available at http://www.siia.net/estore/GPR- 00.pdf.
44. See Ent. Software Ass'n, Anti Piracy FAQ, http://www.theesa.com/ ip/ anti_piracy_faq.php (last visited Apr. 24, 2007) (attributing over $3 billion in losses to pirated entertainment software not including Internet piracy).
45. See Joanne M. Snow, CD-Rom Briefs: Must Today's High Tech Lawyers Wait Until the Playing Field is Level?, 17 J. MARSHALL J. COMPUTER & INFO. L. 615, 619 (1999) ("The CD-ROM disc, within its 4 3/4 inch diameter, has the capacity to store up to 700 megabytes of data or over 716,000,000 characters."). While the term megabyte, as commonly used to describe storage capacity, is technically a misnomer,
46. see National Institute of Standards and Technology, Definitions of the SI Units: the Binary Prefixes, http://physics.nist.gov/cuu/Units/binary. html (last visited Apr. 24, 2007), this Note will use the term to avoid unnecessary confusion.
47. The actual game data may be much larger than the capacity of the CD it ships on as most games, including Blizzard's, are compressed to fit on fewer discs for distribution and are uncompressed to their original size during the installation process. See, e.g., Tom Harris, How File Compression Works, http://computer.howstuffworks.com/file-compression.htm (last visited Mar. 14, 2007).
48. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 314 (S.D.N.Y. 2000) ("DSL lines, which increasingly are available to home and business users, offer transfer rates of 7 megabits per second. Cable modems also offer increased bandwidth. . . . Hence, transmission times ranging from there to twenty minutes to six hours . . . are readily achievable . . . ." (footnotes omitted)).
49. See Posting of Ernest Miller, supra note 33.
50. See id.
51. See Davidson & Assocs, v. Jung, 422 F.3d 630, 633 (8th Cir. 2005).
52. See id.
53. See Posting of Ernest Miller, supra note 33.
54. Because the CD key is generated from an algorithm, and each key must be unique for each CD shipped, the algorithm used must necessarily have enough valid combinations to account for the potentially large number of software units sold. This results in a larger pool of mathematically "valid" keys than the number of keys actually issued by the software developer. Hackers have taken advantage of this fact by creating key generators, or "keygens," which decipher the mathematical algorithm used and output a CD key value that the installer will read as valid. See JOHN F. GANTZ ET AL., IDC, WHITE PAPER: THE RISKS OF OBTAINING AND USING PIRATED SOFTWARE 2 (2006), available at http://download. microsoft.com/download/7/6/9/ 769E42E0-68C4-4826-838B-0F801DB2EFC2/IDC%20 Write%20Paper%20on%20Risks%20of%20Pirated%20Software.pdf; Wikipedia.org, Keygen, http://en.wikipedia.org/wiki/Keygen (last visited Mar. 20, 2007). That value, however, may already exist as anotfier user's CD key or, more likely, may never have been issued by the developer. The desire for a large number of potential CD keys has led to instances in which the "algorithm" employed is shockingly simple. Take, for example, the well-known and comical case of Microsoft's Windows 95 operating system, which utilized a ten-digit numeric CD key. The Windows installer authenticated any ten-digit number that summed its last seven digits to equal a multiple of seven, including "7777777."
55. See Posting of Trevor Barry, ccstb@bath.ac.uk, to supporters@bath.ac.uk (Apr. 2, 1996), available at http://www.surrey.ac. uk/eng/Intranet/ict/MISC/CDKEYS.TXT (last visited Apr. 26, 2007).
56. See Posting of Ernest Miller, supra note 33.
57. See id.
58. A player who merely connects to Battle.net does not trigger the CD key check process. In fact, Battle.net allows any installed Blizzard game to connect to Battle.net in order to download updates (known as "patches") that have been released for the game after the original CDs have been distributed. Only after each game has been patched to the latest version will Battle.net attempt to authenticate a CD key. See id.
59. See id.
60. In Blizzard's Emulation FAQ, the company asks and answers the question: "Why doesn't Blizzard provide facilities that enable these emulators to authenticate CD keys through Battle.net? [Answer:] In order for us to keep our proprietary CD-key algorithms secure, we cannot allow outside servers to query for the validity of CD keys." Battle.net, Emulation FAQ, http://www.battle.net/support/emulationfaq.shtml (last visited Apr. 26, 2007). While it is clear from this statement that Blizzard keeps its CD key authentication routines private, successfully installing the game with a mathematically correct CD key created by a keygen will nonetheless nearly always result in a denial of access from the Battle.net servers. See Wikipedia.org, supra note 47.
61. See Battle.net, supra note 52.
62. See Blizzard Entertainment: Technical Support Site, CD-Key in use by [another player], http://www.blizzard.com/support/?id=asc0641p (last visited Mar. 1, 2007).
63. Because of the overlap in this multitiered authentication scheme, anyone using a shared CD key is free to install the game, update to the latest patch, and play the single-player game or multiplayer game mode via a modem, serial, or LAN connection - that is, any game mode outside of Battle.net, including the semisupported Kali. See supra notes 33-35 and accompanying text. Further, multiple users may log onto Battle.net using the same CD key so long as none do so simultaneously. See Battle.net, CD-Key in use by [Your Name], http://www.blizzard.com/support/?id=asc0729p (last visited Apr. 26, 2007).
64. See Bnetd FAQ Why Create Bnetd when Battle.net Already Exists?, http://www.chiark.greenend.org.uk/~owend/free/bnetd-faq.html#q1.4 (last visited Apr. 26, 2007). The original Bnetd site, created and maintained by Tim Jung, the named defendant in Davidson & Associates v. Jung, has been transferred to Blizzard's control as of the court's latest decision, and all files and resources that existed there have been removed. See Former Bnetd Web Site, http://www.bnetd.org (last visited Apr. 26, 2007) (presently redirecting to Blizzard's Battle.net web site, http://www.battle.net).
65. See GNU General Public License, Version 2, June 1991, http://www.fsf.org/licensing/licenses/gpl.txt.
66. See Posting of Ernest Miller, supra note 33.
67. See id.
68. StarHack About, http://web.archive.org/web/19990219233052/starhack.ml. org/about/ (last visited Apr. 26, 2007).
69. Id.
70. Davidson & Assocs, v. Jung, 422 F.3d 630, 635 (8th Cir. 2005).
71. See id. at 635-36. Also note that Bnetd can and has been used to play Blizzard games such as Starcraft over internal LAN networks using the more common TCP/IP protocol rather than the older IPX protocol supported by Blizzard, which also allowed multiple installations of Starcraft with a single CD key and without any online authentication of the CD key over Battle.net. See Reply Brief of Defendants-Appellants at 18-22, Davidson & Assocs. v. Jung, No. 04-3654 (8th Cir. Mar. 7, 2005).
72. See Jung, 422 F.3d at 636.
73. See id. at 633-35.
74. See id. at 634-35 nn.4-5.
75. See Davidson & Assocs, v. Internet Gateway, 334 F. Supp. 2d 1164, 1169 (E.D. Mo. 2004).
76. See id.
77. See id.
78. See id.
79. See id. at 1173. It may, however, have been possible for Bnetd to perform the second prong of the Battle.net authentication process - if more than one copy of the same CD key attempted to connect to the same Bnetd server, the server could conceivably detect this and refuse the connection just as Battle.net would. The record does not discuss why this concurrent "unique CD key" procedure was not implemented in Bnetd, see id., but for various reasons, without access to a list of truly legitimate CD keys, concurrent uniqueness alone is of questionable value when used as a means of authenticating clients. See Wikipedia.org, supra note 47.
80. See Blizzard Entertainment Corporate Counsel, Letter to Internet Gateway Inc. (Feb. 19, 2002), http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/ 20020219_blizzard_bnetd_letter.html.
81. See id.
82. 422 F.3d 630 (8th Cir. 2005).
83. See id. at 640-41. The Eighth Circuit also affirmed the district court's holding on conflict preemption, thus allowing parties to contract away any rights regarding reverse engineering and fair use through a valid EULA and TOU. See id. at 638-39.
84. See id. at 640-41. The anticircumvention provision is contained in 17 U.S.C. § 1201(a) (1) (A), which states that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this tide." 17 U.S.C. § 1201(a)(1)(A) (2000). The antitrafficking provision is contained in 17 U.S.C. § 1201(a)(2).
85. See Jung, 422 F.3d at 641-42.
86. See id. at 640-41.
87. Id. at 641.
88. See 17 U.S.C. § 1201(f)(1) (2000) (allowing a lawful user of a computer program to circumvent a technological measure "for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independendy created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent that any such acts of identification and analysis do not constitute infringement under this title"); Jung, 422 F.3d at 642.
89. See Jung, 422 F.3d at 642.
90. 977 F.2d 1510, 1514 (9th Cir. 1992) (holding that a programming company has a right to use a competitor's copyrighted work in order to understand the noncopyrightable, functional elements of the work).
91. See id.
92. 203 F.3d 596 (9th Cir. 2000).
93. See id. at 602-06.
94. See Sega, 977 F.2d at 1514.
95. Id. at 1522. The Sega court also noted that Accolade's purpose in reverse engineering Sega's code was nonexploitive and had limited commercial application. See id. at 1522-23. Although the Bnetd developers knew that unauthorized copies of Blizzard games were being used on Bnetd servers, the Jung court acknowledged that Bnetd's purpose was to provide an alternative to the sometimes frustratingly unreliable Battle.net service. See Davidson & Assocs, v. Jung, 422 F.3d 630, 635 (8th Cir. 2005) ("The users of Battle.net have occasionally experienced difficulties with the service. To address their frustrations with Battle.net, a group of non-profit volunteer game hobbyists, programmers, and other individuals formed a group called the 'bnetd project'").
96. See Sega, 977 F.2d at 1522.
97. See Jung, 422 F.3d at 636.
98. See 203 F.3d at 598, 606.
99. Id. at 602 (quoting Sega, 977 F.2d at 1527) (emphasis omitted).
100. See 203 F.3d at 602-08. For examples of other cases applying the § 107 fair use factors in the software context, see Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1336-37 (9th Cir. 1995); Sega, 977 F.2d at 1521-22.
101. 17 U.S.C. § 107 (2000).
102. See 203 F. 3d at 598.
103. See id. at 603-04.
104. See 203 F.3d at 599 ("Any other intermediate copies made by Connectix do not support injunctive relief, even if those copies were infringing.").
105. See supra note 89 and accompanying text.
106. See supra note 64 and accompanying text; cf. Connectix, 203 F.3d at 599-600 (explaining that certain ways of gaining information besides reverse engineering, such as reading about the program, would be ineffective in this case because Sony did not make the information available in that way).
107. See supra notes 90-91 and accompanying text.
108. See supra note 57 and accompanying text.
109. See Davidson & Assocs, v. Internet Gateway, 334 F. Supp. 2d 1164, 1172 (E.D. Mo. 2004) ("The bnetd project is a volunteer effort and the project has always offered the bnetd program for free to anyone who wants a copy of it").
110. See id.
111. See Sony Computer Entm't, Inc. v. Connectix Corp., 203 F.3d 596, 603 (9th Cir. 2000) (quoting Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir.1992)).
112. See Posting of Ernest Miller, supra note 33 (noting that the actual Bnetd code did not contain any of Blizzard's copyrighted code).
113. Battle.net itself is a free service to which Blizzard allows access to any Internet-playable Blizzard game. See Davidson & Assocs, v. Jung, 422 F.3d 630, 633 (8th Cir 2005). Blizzard's potential concerns about unauthorized copies of Blizzard games gaining access to Bnetd servers do have merit here, but as the Connectix court stressed, no single factor listed in 17 U.S.C. § 107 is dispositive in analyzing fair use.
114. See Connectix, 203 F.3d at 608 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994)).
115. Connectix, 203 F.3d at 603 (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1983)).
116. Davidson & Assocs, v. Internet Gateway, 334 F. Supp. 2d 1164, 1172 (E.D. Mo. 2004).
117. See S. REP. NO. 105-190, at 2 (1998);
118. see also Lipton, supra note 15, at 490 ("In passing the DMCA, Congress intended to protect copyright holders against digital piracy in copyright works.").
119. See Chris Sprigman, Copyright Versus Consumers' Rights: How Companies Are Using the Digital Millennium Copyright Act to Thwart Competition, FINDLAW'S WRIT, Mar. 25, 2003, http://writ.findlaw.com/commentary/20030325_sprigman.html.
120. See, e.g., Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) (finding a violation of the DMCA's antitrafficking provisions in providing and posting Internet links to proprietary DVD decryption software and algorithms that violated the DMCA).
121. See, e.g., Lexmark Int'l v. Static Control Components, 387 F.3d 522 (6th Cir. 2004) (finding that the plaintiff failed to show the merits of a DMCA claim against a competitor that reverse engineered the plaintiffs printer toner code to create a compatible product); Chamberlain Group, Inc. v. Skylink Tech., Inc., 381 F.3d 1178 (Fed. Cir. 2004) (finding that the reverse engineering of the plaintiffs proprietary garage door opener codes in the development and sale of a universal transmitter did not violate the DMCA's anticircumvention provision).
122. See, e.g., Lipton, supra note 15, at 487 ("DMCA liability should not arise in situations where copyright infringement is not a central commercial concern of the plaintiff."); Jennifer M. Urban & Laura Quilter, Efficient Process or "Chilling Effects"? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act, 22 SANTA CLARA COMPUTER & HIGH TECH. L.J. 621, 623 (2006) (analyzing data from over 900 DMCA related takedown notices and concluding the provision yields "little benefit to some of the constituencies it was intended to support");
123. Derek J. Schaffner, Note, The Digital Millennium Copyright Act: Overextension of Copyright Protection and the Unintended Chilling Effects on Fair Use, Free Speech, and Innovation, 14 CORNELL J.L. & PUB. POL'Y 145, 147 (2004) ("[T]he DMCA is not justifiable public policy because it grants too much power to the copyright holder and thus creates a chilling effect on fair use, free speech, future innovation, and competition.").
124. See Lipton, supra note 15, at 490 (advocating a presumption against DMCA liability when a copyright holder claims a competitor is infringing by manufacturing and distributing competing tangible goods and the copyright issue is merely incidental).
125. See Lexmark, 387 F.3d at 531; Chamberlain, 381 F.3d at 1185.
126. See Davidson & Assocs, v. Jung, 422 F.3d 630, 635 (8th Cir. 2005) (describing Bnetd as "a functional alternative to Battle.net").
127. There are several notable "holes" in the copy protection scheme Blizzard uses to control the spread of unauthorized copies of its games. First, Blizzard does not check the true validity of CD keys upon installation. See supra notes 47-52 and accompanying text. Second, though it has the means and opportunity to do so through Battle.net, Blizzard does not prevent unauthorized installation or patching of games when a client first connects to Battle.net.
128. See supra note 50 and accompanying text. Third, Battle.net does not validate CD keys between gateways. See Davidson & Assocs, v. Internet Gateway, 334 F. Supp. 2d 1164, 1169 (E.D. Mo. 2004). Finally, the record does not indicate that Battle.net checks for multiple, nonconcurrent unauthorized copies of the same CD key in Battle.net mode. See Jung, 422 F.3d at 633, 636. Instead, Battle.net's only concern is if a single valid CD key is concurrently in use simultaneously within the same gateway. See id. Thus, numerous unauthorized copies of Blizzard's games can be played over Battle.net as long as a recognized CD key is used and no two copies of the same CD key are simultaneously connected to the same gateway in Battle.net mode. That this occurs in practice can be inferred from Blizzard's help file, which details steps a user can take if his or her CD key is being used - either cooperatively or not - by other players. See Blizzard.com, CD-Key in use by [another player], http://www.blizzard.com/support/?id=AAll0641p (last visited Jan. 28, 2006).
129. See Internet Gateway, 334 F. Supp. 2d at 1173.
130. See Reply Brief of Defendants-Appellants, supra note 63, at 17 ("If the simple act of developing a key to bypass an authentication system made a section 1201(f) defense unavailable, then no defendant would ever qualify under section 1201(f) because it provides an affirmative defense to this very act of circumvention . . . .").
131. See ELECTRONIC FRONTIER FOUNDATION, UNINTENDED CONSEQUENCES: FIVE YEARS UNDER THE DMCA 1 (2003), http://www.eff.org/IP/DMCA/ unintended_consequences. pdf ("[The anticircumvention provision] grants to copyright owners the power to unilaterally eliminate the public's fair use rights.").
132. See Jung, 422 F.3d at 641.
133. The court's rationale for Bnetd's "'limited commercially significant purpose'" also implicates fair use. Id. (quoting 17 U.S.C. § 1201(a) (2) (2000)). In concluding that Bnetd had "limited commercial purpose because its sole purpose was to avoid the limitations of Battle.net," id., the court ignored the fact that software developers often create and release "free" software with source code availability for future development and educational purposes and not as a commercial product, see StarHack About, supra note 60, and that Battle.net itself is a free service that complements the purchase of Blizzard's games, see Jung, 422 F.3d at 633.
134. 17 U.S.C. § 1201(a)(1)(C) (2000) ("[D]uring each succeeding 3-year period, the Librarian of Congress . . . shall make the determination in a rulemaking proceeding . . . of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by [the anticircumvention provision] in their ability to make noninfringing uses . . . of copyrighted works.").
135. See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 70 Fed. Reg. 57526 (Oct. 3, 2005) ("This notice requests written comments from all interested parties, including . . . education institutions, libraries and archives, scholars, researchers, and members of the public. . . .").
136. See Operations of the U.S. Copyright Office: Hearing Before the Subcomm. on Courts, the Internet and Intellectual Property of the H. Comm. on the Judiciary, 108th Cong. 9 (2004) (statement of Marybeth Peters, Register of Copyrights), available at http://frwebgate.access.gpo. gov/cgi-bin/getdoc.cgi?dbname=108_house_hearings&docid=f:94033.wais.pdf ("The fears of copyright owner abuse of section 1201 have not become a reality in any significant respect").
137. See FRED VON LOHMANN & GWEN HINZE, ELECTRONIC FRONTIER FOUNDATION, DMCA TRIENNIAL RULEMAKING: FAILING THE DIGITAL CONSUMER 1 (2005), http://www.eff.org/IP/ DMCA/copyrightoffice/ DMCA_rulemaking_broken.pdf; Fred von Lohmann, DMCA Triennial Rulemaking: Failing Consumers Completely, http://www.eff.org/deeplinks/ archives/004212.php (Nov. 30, 2005, 06:33 AM) ("EFF has participated in each of the two prior rulemakings . . . . This year, we are not submitting any proposals. Where consumer interests are concerned, the rulemaking process is simply too broken.").
138. The rulemaking proceedings resulted in exemptions for six classes of copyrighted works, including one for computer programs and video games released in obsolete formats. Interestingly, computer and video games are specifically discussed in five proposed exemptions, highlighting the growing visibility and concerns of the games industry. See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. pt 201 (2006).
139. See Lipton, supra note 15, at 487.
140. See supra note 108.
141. See, e.g., Sony Computer Entm't, Inc. v. Connectix Corp., 203 F.3d 596, 602-03 (9th Cir. 2000); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527-28 (9th Cir. 1993).
142. See supra notes 82-85.
143. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004).
144. See 17 U.S.C. § 1201(a)(1)(C) (2000).