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Gesmer Updegrove Client Advisory - Blizzard v. Jung

Gesmer Updegrove Client Advisory - Blizzard v. Jung

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Gesmer Updegrove Client Advisory - Blizzard v. Jung - DMCA
Gesmer Updegrove Client Advisory - Blizzard v. Jung - DMCA

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Published by: gesmer on Nov 27, 2013
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12/24/2013

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Court Prevents Gamers From CreatingCompatible Internet Environment
Court’s holding may providesome optimism for softwaredevelopers trying to keep cus-tomers from using competingservices.
This month, the Eight Circuit Court of Appeals issued a decision in
 Davidson & Assoc. (d/b/a Blizzard Entertainment, Inc.) v. Jung.
 This is the latest in a grow-ing line of cases dealing with attempts touse the Digital Millennium Copyright Act(DMCA) to prevent competition throughinteroperability. In
 Blizzard 
, the plaintiff was a developer of computer games. Thegames were intended to connect to Bliz-zard’s own network on the Internet,allowing far-flung players to competeagainst each other online. The companysued the defendants, who had developed acompeting, alternative network designed to be compatible with Blizzard’s games.The creation of this competing network involved sleuthing on the part of thedefendants. To discourage piracy, Bliz-zard’s games require entry of an authenti-cationkeybeforeplayingthegameonline.Only if the company’s “Battle.net”network verifies the authenticity of thekey is online play enabled. Or at leastthat was the intent. By reverse engineer-ing the Blizzard games, the defendantslearned how to bypass the authentication protocol. The defendantscompeting“bnetd.org” network ignored the user’sauthentication key, and allowed any user of a Blizzard game to compete online.Blizzard advanced two main arguments.The first of these was that the games’click-wrap “terms of use” and licenseagreements expressly prohibited thereverse engineering performed by thedefendants. Here, the court sided withBlizzard by applying a straightforward reading of the contract terms. The defen-dants argued that the Copyright Actexpressly permits reverse engineering inorder to achieve “interoperability,” but thecourt concluded that they had waived thatright by agreeing to those contracts.Blizzard’s second argument was that theDMCA –which prohibits the circumven-tion of a “technological measure” used to
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