Reverse Engineering and the Protection of Technological Measures

On September 1, 2005, the US Court of Appeals for the Eighth Circuit ruled (Blizzard Entertainment Inc v Jung et al, No 04-3654) on the "fair use" right to reverse engineer software and create programs that are interoperable with older ones. The plaintiffs (Blizzard) were the owners of the copyright in certain computer game software and online gaming service software for games used over its 24-hour online gaming service called "Battle.net". Battle.net users experienced frustrations with the software and service and banded together to form a group of non-profit volunteer game hobbyists called "bnetd", who used a server location with the URL . Bnetd had used reverse engineering software to create its own multiplayer online gaming community, to emulate Blizzard's Battle.net. By so doing, bnetd was held to have circumvented the CD key contained on Blizzard games designed to prevent unauthorized use. The Court held that bnetd had violated the anti-circumvention and anti-trafficking of technological measures provisions of the Digital Millennium Copyright Act (DMCA), specifically, sections 1201 (a)(1) and (2). Although it was argued that the circumvention was required to obtain interoperability between bntd.org and Blizzard's games, the Court ruled that bnetd had not successfully proven the interoperability defense (Section 1201 F of the DMCA) because it had infringed Blizzard's copyright. (bnetd.org allowed unauthorized versions of Blizzard games to be played on bnetd.org). The US DMCA limits the availability of fair use defenses. The anti-circumvention provisions capture all circumvention regardless of infringement, unless the requirements of the interoperability defense are met. However, the actions of bnetd would have been caught under copyright law as well, because reverse engineering as a fair use defense cannot be invoked if there has been copyright infringement. Some commentators have held that this ruling essentially shuts down any competitor's add-on innovation that could be enjoyed with legitimately purchased products. However, the DMCA interoperability defense does permit circumvention of technological measures as long as the alleged circumvention did not constitute infringement and the other requirements of the defense have been met. The Government of Canada has introduced Bill C-60 (originally tabled March 24, 2005) which would amend the Copyright Act to implement the provisions of the 1996 World Intellectual Property Organization (WIPO) Treaties, as did the US via its enactment of the DMCA. Bill C-60 will differ from the DMCA in two ways. First, Bill C-60 targets only circumvention for the purpose of infringing copyright; the DMCA prohibits circumvention whether or not there is an infringing purpose. Second, Bill C-60 targets only the act of circumvention and circumvention "services", whereas the DMCA targets makers and distributors of circumvention devices. For the Blizzard Entertainment Inc v Jung et al decision, see: http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20050901_decision.pdf For a news release and summary of Bill C-60, visit: http://makeashorterlink.com/?U5B722FDB For the text of Bill C-60, see: http://makeashorterlink.com/?C24732FDB Summary by: Katharine McGinnis