Intellectual Property

Davidson & Associates v. Internet Gateway, Inc. in Eighth Circuit

Type: Brief
Year: 2005

The Samuelson Clinic filed a brief amicus curiae before the United States Court of Appeals for the 8th Circuit in Davidson & Associates v. Internet Gateway, Inc. The case is better known as Blizzard v. Bnetd. The brief was filed on behalf of both Consumers Union, the non-profit publisher of Consumer Reports, and Public Knowledge, a non-profit Washington DC based advocacy group working to defend the rights of individuals in our emerging digital culture.

This case involved individuals who enjoyed playing video games made by Blizzard Games, but who did not enjoy the difficulties they encountered using Blizzard’s free servers that enabled online play against other game owners. The defendants here solved their problem by writing their own server software, called bnetd, and by running their own free servers to better enjoy the internet-enabled game play of their lawfully-purchased games. Blizzard sued their own customers alleging, among other things, copyright infringement, violations of the Digital Millennium Copyright Act (DMCA), and breach of contract. The defendants are represented by the Electronic Frontier Foundation (EFF).

In this appeal of the lower court’s ruling for Blizzard the parties have narrowed the issue primarily to the allegation that the defendants’ reverse engineering of Blizzard’s games in order to write their own interoperable software was unlawful under the DMCA, despite the DMCA’s reverse engineering exception at 17 U.S.C. 1201(f) and precedent making clear that reverse engineering is both lawful and an important check on the breadth of copyright. The lower court ruling also discussed the enforceability of the click-wrap software licenses on Blizzard’s games which sought to deny game owners the right to reverse engineer or to provide services that allowed game owners to play against one another online.

The Samuelson Clinic’s amicus brief argues that click-wrap licenses that divest consumers of rights designed to benefit the public, including the rights to engage in reverse engineering and lawful competition, contravene public policy and warrant special scrutiny. The brief argues that private parties may not contract away these public benefits, since the primary goal of the reverse engineering exception is to benefit the public through increased creativity, innovation, and competition. The brief also argues that the lower court’s analysis of the click-wrap license agreement was flawed and that the agreement was both unconscionable and contrary to public policy.

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