Game Enhancers Head Back to Court

The creators of the BnetD server are accused of taking a part of Blizzard’s BattleNet game and retrofitting it to give online gamers more playing options. In doing so, the developers violated the DMCA and Blizzard’s end user license agreement, or EULA, a lower court ruled.

On June 20, the 8th U.S. Circuit Court of Appeals will begin hearing oral arguments in Blizzard vs. BnetD. The developers are being represented by San Francisco’s Electronic Frontier Foundation, a nonprofit group founded in 1990 “to protect individual freedom where law and technology collide.” EFF is representing the developers pro bono.

Blizzard, a division of Vivendi Universal, originally filed suit against BnetD developer Tim Jung and his partners in 2002. EFF noted at the time that Blizzard was suing its own customers, as the BnetD server was only available to licensed Blizzard users.

The BnetD server was shut down at Blizzard's demand in February 2002.

Last month a Minnesota judge dismissed similar charges against hackers’ site Ninjahacker. Ninjahacker members had reverse-engineered Tecmo’s “Dead or Alive Xtreme Beach Volleyball” with an Xbox “modchip” to make the characters appear nude. The Ninjahacker participants also were licensed owners of Tecmo’s game.

“Since the Tecmo case was dismissed, it did not create a precedent for us to stand on,” EFF analyst Annalee Newitz told XBiz. “But we can point to a Lexmark case in which a judge ruled that Lexmark could not prevent an aftermarket printer cartridge company from manufacturing a Lexmark compatible cartridge.”

The judge in the Lexmark case ruled that the aftermarket cartridge manufacturer had not “circumvented” Lexmark’s license agreement by disabling the “software handshake” that identified Lexmark cartridges to Lexmark printers. Newitz said that Lexmark reserved the right to not support the aftermarket cartridges, but couldn’t prevent their use in their printers.

Accordingly, EFF believes that the BnetD developers did not circumvent Blizzard’s EULA.