EULA upheld in DMCA hacker case
A recent case reflects the continued trend of validating online click-thru agreements. In Davidson & Associates v. Internet Gateway, which was decided last fall, a group of hackers who created an interoperable version of an online video game, were found by a federal district court in Missouri to have breached the terms of use of the online gaming site and violated the DMCA in doing so.
Davidson & Associates, which does business as Blizzard, is owned by Vivendi and sells PC games. Blizzard also offers an online gaming service called Battle.net, which enables purchasers of its games to play them through their PCs over the Internet against other players.
For authentication purposes, to ensure that the user has a validly licensed copy of a Blizzard game, the game initiates an authentication sequence of "secret handshake" between the game and the Battle.net server. In addition, to install the software and access the Battle.net site, users are required to click-thru an end user license agreement (EULA) and a terms of use for the web site (TOU).
The defendants were Battle.net enthusiasts who participated in a non-profit group called the "bnetd project". The project was focused on developing a server that could emulate the Battle.net service. In order to do so, the server needed to be compatible with Blizzard's software, and therefore use the same protocol used in the Blizzard software's "secret handshake". To develop the bnetd server, the defendants reverse engineered the software and protocols.
The court upheld the EULA and TOU as enforceable contracts, rejecting various arguments by defendant that a contract was not formed through the click-thru process. Even though the EULAs and TOU were not on the physical packaging for the PC game, the court found that the terms were disclosed before installation to the games and access to Battle.net were granted, and express assent was obtained through the click-thru process. The court also held that the defendants' waived their fair use right to reverse engineer by entering into the license agreement, and rejected the notion that this contractual waiver constituted copyright misuse.
The court also held that the defendants violated the DMCA's prohibition on circumvention of technological measures that control access to a copyrighted work. While the DMCA has a limited exception for reverse engineering to achieve interoperability, the court concluded that the defendants' conducted involved more than just enabling interoperability in creating a competing version of the Battle.net service. In the same vein, the court concluded that the defendants had trafficked in circumvention devices in violation of the DMCA.
Cathy Kirkman is a partner at Wilson Sonsini Goodrich & Rosati in Palo Alto, California. Her practice focuses on intellectual