Garwulf’s Corner #39: The Lawsuits of April - Diabloii.Net

Garwulf’s Corner #39: The Lawsuits of April


The Guns of August, a book about the beginning of World War I, has just made it onto my summer reading list.

As I begin writing, it is only a couple of days after the announcement that Vivendi/Blizzard had apparently committed the absolutely baffling action of suing their own customers by filing suit against the Bnetd project. Looking over the information at hand, my mind keeps slipping back to two events:

The start of World War I in 1914, and the Cuban Missile Crisis in 1962.

(Yes, I know it once again sounds like I’ve lost it. But bear with me here.)

The Cuban Missile Crisis is probably the most relevant event here. For those who don’t remember it, or haven’t read about it in the history books, the world came within twelve hours of a third world war in 1962 over nuclear missile deployments in Cuba. The Soviet Union had placed missiles in Cuba that could strike the eastern coast with less than five minutes warning. The United States government, understandably worried, was torn between an air strike on the missiles before they became operational and a naval blockade and international pressure.

Happily for the world, they chose the latter. But it was still tense, and the world came to the brink of nuclear war, partly for the same reason that it is so difficult to work out the hows and whys of the current issue with Bnetd.

In 1914, the world had changed; none of the generals had workable information on the situation, and all of their instincts were based on tactical and strategic models that were decades out of date. They made the wrong decision, and tens of millions died for it.

In 1962, the world had changed again, and none of the key players had ever seen a situation even close to the Cuban Missile Crisis. Happily, both sides realized this, and were able to muddle their way through it all.

It is now 2002, and once again the world has changed. The intellectual rights issues associated with the Internet have been coming to a head in a variety of cases: the record companies against Napster, Harlan Ellison against AOL and RemarQ, and now Vivendi/Blizzard against Bnetd. The common thread in all of them is that there is no precedent to fall back on; in every case it is a new situation.

It is also a haven for columnists on both sides, who obscure the issues by transforming one side or the other into heroes fighting some great and just cause. The Bnetd team becomes crusaders against corporate corruption and bullying on one side, while the other depicts them as evil pirates. And with no precedent to fall back on, there is little or nothing to provide perspective. It is terra incognita, and thus the entire issue has become a free-for-all.

Time to take a step back and take a deep look at the real issues. No more buying into the rhetoric from both sides. The Bnetd team aren’t trying to crusade against corporate tactics, any more than Vivendi is trying to ruthlessly crush all opposition. The only crusaders here seem to be the Electronic Frontier Foundation (EFF). I’ve taken a long look, not only at the complaint filed, but also at the Blizzard documentation and the pro-Bnetd material, and I think I finally have a full picture of what has happened here.

It’s rather sad, actually; rather than crusaders and corporate villains, all I see are people trying to protect what they see as their own.

First of all: Vivendi/Blizzard. They make these games, and provide a multi-player service for them, alongside a couple of other multiplayer options, allowing a game to independently take place on a LAN or over a TCP/IP network, such as the Internet. Along with each game comes an End-User License Agreement (EULA), which expressly forbids reverse-engineering, capturing packets, and providing a hosting service for games. For computer game bars, a separate license is available, allowing the games to be played quite legally. Is the EULA wrong to forbid reverse-engineering? Legally, a tricky issue; there is such a thing as legal reverse-engineering, but this isn’t a microchip or operating system we are talking about. It’s a game. Essentially the EULA exists to keep other people from taking apart a Blizzard product to reproduce what Blizzard spent millions of dollars creating.

Next: Bnetd. Here we have a group of maverick programmers who love Blizzard games, but are frustrated by the drawbacks of Battle.net. I can’t say I blame them; rampant cheating is what came close to killing Diablo II a little while ago. No doubt there are thousands of people who would still be playing on Battle.net if it hadn’t been for cheaters and hacks. Did the Bnetd team mean well? Absolutely; as far as good intentions go, they are a credit to the human race. Did they break the EULA intentionally? Now, that is a different question.

I’ve installed and watched the installations of what has to amount to hundreds of programs by now. And not once have I ever seen anybody actually take the time to read the EULA that is displayed at the beginning of installation (for that matter, I think of all the programs on my computer, I’ve read two EULAs). I’ve seen people skim through them so quickly an android couldn’t read them, ignore them completely, grumble about them, but never read them. So, it is quite possible that the programmers of Bnetd made an honest mistake; if they hadn’t read the Blizzard EULA, they wouldn’t have known that by installing the program they were agreeing under contract not to reverse-engineer it or Battle.net.

However, whether or not this is an honest mistake probably won’t be a deciding factor in this case (I may, however, be wrong…it has happened before). So let’s look at the rest of the issues here.

Copyright infringement. This is a tricky one, due to the lack of precedent. As I mentioned earlier, were are on terra incognita. This may very well be the landmark case regarding how computer game copyrights are dealt with in regards to the Internet. The big question is whether or not Bnetd used code from Battle.net. This right now amounts to Bnetd’s word against Blizzard’s, and it would be premature to take an opinion on who to trust until all the evidence is on the table. As far as using images from Blizzard games on the Bnetd website, there is an argument for fair use, but it will depend on how the images were credited and what they were used for.

Trademark infringement. As I understand it, this is in regards to the name “Bnetd”, which is very similar to “Bnet”, the short form used for Battle.net. In one light, this is splitting hairs, but it can be considered a valid complaint. The two names are close enough to cause confusion, regardless of the intent of the programmers. If Bnetd has caused confusion, it might very well have diluted the Battle.net name.

Encouraging piracy. Another tricky issue. On one hand, without proper CD authentication, somebody with a pirated game can play on Bnetd where they wouldn’t be able to play on Battle.net. On the other hand, they’d have to know about Bnetd first.

I hate to say it, but I had never heard of Bnetd until the first rumblings of the case popped up, and I try to stay as well informed about Blizzard games and issues as possible. If I hadn’t heard about it, how many other people were left wondering what Bnetd was when the first announcement about the case was released? To my knowledge, Bnetd was an obscure game client hosted on a small ISP. In the here and now, they are about as much a threat to Blizzard as an ant is to a mountain.

So why is Blizzard pursuing the lawsuit? I see two main reasons. Firstly, they are defending what is theirs. Blizzard is notorious for delaying releases until the game is just right, something many other game companies don’t do. They see what appears to be a group of people stealing what they spent millions creating. The logic there for pressing the suit is sound.

Secondly, I think Blizzard may be concerned about what Bnetd could become. Bnetd is an open source project; the code is available for anybody with an Internet connection to see. If it caught on, or if Bnetd ever managed to work out the Blizzard CD key authentication system, any chance Blizzard had at preventing piracy would be tossed out the window. They may not be a serious threat now, but in the future, if left alone, they might become one.

And as for Bnetd, what of them? Are they being unfairly prosecuted? Part of Blizzard’s complaint does mention “unfair competition”, but the context is linked to the EULA violation. And, the Bnetd team DID violate the EULA. Unfortunately, there is no way that either side can have the complete picture of what is happening here until the end of the court case. Blizzard is moving forward based on the evidence at its fingertips, and the same with the EFF and Bnetd. As far as Blizzard knows, they have suffered noticeable damage from this. As far as the Bnetd team is concerned, they were doing nothing wrong. At this point in time, it is impossible to determine if either side has been unjustly treated. Once the lawsuit has had its day in court, then we’ll know for certain.

The greatest irony, however, is how this entire situation has been blown out of proportion. Bnetd isn’t a rival computer game company, or an online gaming service a la Kali. Bnetd is a product from group of hobbyists who may have mis-stepped in the terra incognita of the Internet and gotten noticed. And, a large chunk of the computer gaming community is now up in arms about this. Will this affect us gamers? I very much doubt it, unless most players want to reverse-engineer online gaming servers. Will this effect the way we play? Again, I severely doubt it. We’ll still be playing games with our friends over the modem, or at the local computer game parlor, or online on Battle.net or in closed TCP/IP games. How we play will be determined by the design of the game, just as it always has been.

A major legal issue will be settled in regards to creator’s rights and EULAs on the Internet, however, and that will be a good thing. It is a clarity that the industry needs, but relatively little of this will trickle down to the layperson. In the end, the impact on most of the players watching this case will be minimal at best.

Well, perhaps there will be one major impact: we might all actually start READING End-User License Agreements when they pop up on our screens…

Next installment: The Future of the Genre?, in which the author examines where fantasy CRPGs may be going.

Tagged As: | Categories: Retired Columns

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