Reverse Engineering and Overriding Access Codes of Game Violated License Agreement, Copyright and DMCA

Case: Davidson & Assoc. v. Internet Gateway (8th Cir. 9/01/05 - No. 04-3654).

The One Sentence Summary: Establishing an alternate network for playing a popular Internet multiplayer game through reverse engineering and overriding an access code control system was a violation of the license agreement and a violation of copyright and DMCA provisions.


What They Were Fighting About: Plaintiffs were the owners of Battle.Net, a multi-player game played over the Internet. Battle.net included an End User License Agreement (EULA) on the software and Terms of Use (TOU) on the web site which required that the player agree not to reverse engineer the software. The software also provided an encryption system that verified that each copy of the software was authorized and not already in use before allowing it access to the multiplayer website at battle.net. The defendants reverse engineered Battle.Net to allow it to play on an alternate network, bnet.org, without use of a valid encryption key. Plaintiffs sued defendants on multiple grounds including breach of contract, copyright infringement and violation of the Digital Millenium Copyright Act (DMCA) restrictions on circumvention of anti-copying restrictions. The district court granted summary judgment for plaintiffs. The Eighth Circuit affirmed.


Eighth Circuit Holdings:

• The federal Copyright Act did not preempt plaintiffs' state law breach of contract claims because plaintiffs freely waived their fair use defense by accepting the EULA and TOU: "Appellants contractually accepted restrictions on their ability to reverse engineer by their agreement to the terms of the TOU and EULA. "[P]rivate parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act[,]" Bowers v. Baystate Techs, Inc., 320 F.3d 1317, 1325–26 (Fed. Cir. 2003), and "a state can permit parties to contract away a fair use defense or to agree not to engage in uses of copyrighted material that are permitted by the copyright law if the contract is freely negotiated." Id. at 1337 (Dyk, J., dissenting). See also Nat'l Car Rental Sys., Inc., 991 F.2d at 434 (holding that the Copyright Act does not preempt a breach of contract action based on prohibited use of software contained in a license agreement). While Bowers and Nat'l Car Rental were express preemption cases rather than conflict preemption, their reasoning applies here with equal force. By signing the TOUs and EULAs, Appellants expressly relinquished their rights to reverse engineer."


• By circumventing the "secret handshake" CD Key system, defendants violated the DMCA anti-access provisions of 17 U.S.C. § 1201(3)(A): "Section 1201(a)(1) provides that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title." The term "circumvent a technological measure" "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." 17 U.S.C. § 1201(3)(A)."


• Defendants violated 17 U.S.C. § 1201(a)(2) by trafficking in the bnet.org emulator which had only the limited commercial purpose of circumventing access controls to battle.net.


• The interoperability exception to the DMCA did not apply. 17 U.S.C. § 1201(f).