Advanced Copyright Law on the Internet

The court also ruled that the anti-trafficking provisions of Section 1201(a)(2) had been violated
because the bnetd.org emulator had as its sole purpose “to avoid the limitations of Battle.net.”^1013

With respect to the Section 1201(f) defense asserted by the defendants, the Eighth Circuit
generalized all subsections of Section 1201(f) into one set of requirements as follows:

To successfully provide the interoperability defense under § 1201(f), Appellants

must show: (1) they lawfully obtained the right to use a copy of a computer

program; (2) the information gathered as a result of the reverse engineering was

not previously readily available to the person engaging in the circumvention; (3)

the sole purpose of the reverse engineering was to identify and analyze those

elements of the program that were necessary to achieve interoperability of an

independently created computer program with other programs; and (4) the alleged

circumvention did not constitute infringement.^1014

In a very confusing portion of its opinion, the court then ruled that the exemption of
Section 1201(f) was not available to the defendants because their circumvention constituted
infringement. Precisely what that “infringement” was is unclear, although the court seems to
base its holding on the fact that infringement by third parties was encouraged because pirated
copies of Blizzard games could be played in multi-player mode through the bnetd server (even
though the circumvention at issue did not cause or allow the pirated copies of the Blizzard games
to be made in the first instance):

As detailed earlier, Blizzard’s secret handshake between Blizzard games and

Battle.net effectively controlled access to Battle.net mode within its games. The

purpose of the bnetd.org project was to provide matchmaking services for users of

Blizzard games who wanted to play in a multi-player environment without using

Battle.net. The bnetd.org emulator enabled users of Blizzard games to access

Battle.net mode features without a valid or unique CD key to enter Battle.net.

The bnetd.org emulator did not determine whether the CD key was valid or

currently in use by another player. As a result, unauthorized copies of the

Blizzard games were freely played on bnetd.org servers. Appellants failed to

establish a genuine issue of material fact as to the applicability of the

interoperability exception.^1015

code after which copies were freely available without some type of circumvention.” Id. at 641. Although the

preceding passage is confusing, it seems to imply (by the reference to “literal elements of Battle.net mode”) that

the secret handshake controlled access to some Battle.net code within the Blizzard game itself. The Court’s

reference to “Battle.net” seems to be referring to the Battle.net server software.

(^1013) Id.
(^1014) Id. at 641-42.
(^1015) Id. at 642.