The court also rejected the Section 1201(f)(1) defense because it found that the
defendants’ actions constituted more than enabling interoperability, since the emulator did not
check the validity of the CD Key code passed from the game to the emulator, thereby allowing
unauthorized copies of the Blizzard games to play on bnetd servers.^1007
The plaintiffs also asserted that by distributing the bnetd software, the defendants had
violated Section 1201(a)(2) by trafficking in devices whose only purpose was to circumvent their
secret handshake and allow access to Battle.net mode. The defendants did not dispute the
plaintiffs’ factual assertions, but instead asserted the defense of Sections 1201(f)(2)-(3) on the
ground that those sections entitled them to distribute software to others for the purpose of
enabling interoperability with the Blizzard games.^1008 The court rejected the defenses on two
grounds. First, the court ruled that the defendants’ purpose in distributing their software was not
solely to enable interoperability, but rather to “avoid the restricted access to Battle.net.”^1009 In
addition, the court reiterated its conclusion that the development and distribution of the bnetd
software was infringing, and “persons who commit copyright infringement cannot benefit from
the exemptions of § 1201(f).”^1010 Accordingly, the court granted the plaintiffs’ motion for
summary judgment on their anti-circumvention and trafficking in anti-circumvention technology
claims.^1011
On appeal, the Eight Circuit affirmed in an opinion that is even more terse and difficult to
understand than the district court’s opinion. The court found a violation of Section 1201(a)(1)
merely because unauthorized copies of Blizzard games were allowed to play through the bnetd
server, even though the circumvention of the secret handshake did not cause the illegal copy of
the Blizzard games to be made in the first place:
Blizzard games, through Battle.net, employed a technological measure, a software
“secret handshake” (CD key), to control access to its copyrighted games. The
bnetd.org emulator developed by Appellants allowed the Blizzard game to access
Battle.net mode features without a valid or unique CD key. As a result,
unauthorized copies of the Blizzard games were played on bnetd.org servers.^1012(^1007) 334 F. Supp. 2d at 1185.
(^1008) Id. at 1185-86.
(^1009) Id. at 1186.
(^1010) Id. at 1187.
(^1011) Id.
(^1012) Davidson & Assocs. v. Jung, 422 F.3d 630, 640 (8th Cir. 2005). The Eighth Circuit distinguished the Lexmark
decision by noting that in Lexmark, the Sixth Circuit had found Lexmark’s authentication sequence did not
effectively control access to the Toner Loading Program and Printer Engine Program at issue, because it was
not Lexmark’s authentication sequence that controlled access to such programs, but rather the purchase of a
Lexmark printer that allowed access to the programs. “Here, Battle.net’s control measure was not freely
available. Appellants could not have obtained a copy of Battle.net or made use of the literal elements of
Battle.net mode without acts of reverse engineering, which allowed for a circumvention of Battle.net and
Battle.net mode. Unlike in Lexmark Int’l, Inc., Battle.net mode codes were not accessible by simply purchasing
a Blizzard game or logging onto Battle.net, nor could data from the program be translated into readable source