RE: [dvd-discuss] Blizzard v Bnetd

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- microlenz@earthlink.net wrote:
> > I assume the "H" word is "Hacker".
> 
> Yes
> 
> > 
> > Q: does "Hacker" have a definition under the law?  That is,
> > it is an acknowledged legal term?
> > 
> 
> Did Kaplan even consider this...No. WRT to Intellectual property we all know 
> that the "H"s are out to rape pillage an plunder the sacred intellectual 
> property of generation and that it is the legal profession to preserver this 
> sacred flower.

I think one key point to make is to personalize the act of developing a game
server and to discuss the very robust history of both open source game server
development (there are literally thousands of MUD's out there) and to also
bring up the history of interoperability in the context of games. The DMCA
argument here is that this is the exact situation that 1201(f) was explicitly
designed to protect. As I recall, there is legislative history siting either
the Connectix or the Accolade case as the motivation of the law -- IIRC those
were both cases that covered games.

I think a good analysis into the "no mandates" clause, 1201(c)(3), and the
technical implications of ignoring it would be helpful to the court. Blizzard
claims that Bnetd is infringing because they didn't implement the CD key stuff.
Of course the main reason they didn't is because Blizzard refused to help them
by giving them the information they would need to authenticate the CD's.

Another key technical point will be to make the judge understand that when you
log onto the Bnetd server using the Blizzard client, that you aren't accessing
Blizzard's copyright work. You are accessing Bnetd's work and you do so with
the permission of its copyrightholder. Blizzard is essentially reading the DMCA
to say you can't access somebody else's material without their permission.

I think there is also something to be said from the consumer's point of view
(especially technically inclined consumers) about EULA's that restrict first
sale rights and fair use with no countervailing benefit to consumers. The court
should here consumers who identify with open source programmers  say why that
is unfair and the negative effect it has.

So basically, I could see a brief explaining these four points being a valuable
thing to come from us.

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