March 11, 2002

VIA E-MAIL AND REGULAR MAIL

Mr. Rod Rigole
Corporate Counsel
Vivendi/Univeral
6080 Center Drive, 10th Floor
Los Angeles, California 90045
Piracy@Blizzard.com

Re: Cease and Desist Letter Concerning http://www.bnetd.org/

Dear Mr. Rigole:

Please be advised that the Electronic Frontier Foundation represents Internet Gateway, Inc. concerning the claims made in your e-mail of February 19, 2002. Please direct all future correspondence on this matter to us. As you know, immediately upon receipt of your letter our clients disabled access to the website as you requested.

The bnetd.org website hosted by Internet Gateway, Inc. hosts server software that allows others to maintain servers that provide a virtual meeting place for players of Blizzard games. The bnetd server software allows players to chat, challenge opponents and initiate multiplayer games. The website has hosted the software since March 21, 1999 and the software has itself been in existence since April 28, 1998. The executable software and its associated source code are made available for free pursuant to a "free software" license. The software was developed by a group of volunteers to address difficulties in using Blizzard's own servers and to provide additional functionality desired by the game players.

In demanding the removal of the software by Internet Gateway, you state: "[T]he aforementioned site either hosts or distributes software which illegally modifies and/or alters Blizzard Entertainment copyrighted software or bypasses anti-circumvention technology, thereby infringing upon Blizzard Entertainment copyrights." Although this allegation does not contain a great degree of specificity, based upon our investigation, we believe it to be untrue.

First, you claim that the software "illegally modifies and/or alters" Blizzard's software. The bnetd software was created through legal reverse engineering techniques, specifically, by viewing the packets of information sent between the Blizzard Battle.net servers and Blizzard games. As you know, most of these packets are not encrypted; they are available for inspection by any Blizzard game owner. The packets relied upon to create the server were not encrypted. Importantly, it appears that the creation of the bnetd server software involved no illegal copying or circumvention of any protection measures contained in Blizzard servers or Blizzard games, much less any illegal modifications or alterations to the software. Similarly, it appears that when the bnetd server runs no illegal copying of Blizzard games or the Blizzard server occurs.[1]

Next, you claim that the bnetd server software infringes Blizzard's copyrights by "bypassing anti-circumvention technology." We believe you are referring to 17 U.S.C. §1201(a)(2), which makes it illegal to traffic in anti-circumvention devices. Internet Gateway is not in violation of §1201, however, because the server software available at bnetd.org does not fall within the scope of the law.

Although your letter does not specify the "anticircumvention technology" you claim is bypassed by bnetd server software, in your telephone conversation with the owner of Internet Gateway, you stated that you were referring to the fact that the bnetd server software does not implement the "CD-KEYS" system included in Blizzard game software. As we understand it, this system verifies whether the key used by a particular game is legitimate and is not simultaneously in use by another player.[2] Thus, your claim appears to be that the failure of the bnetd server software to implement this "keys" system somehow makes the software a "circumvention tool" under §1201.

This is simply untrue. As an initial matter, it does not appear that Blizzard's CD-KEYS system controls access or copying within the meaning of §1201. Even assuming that Blizzard's CD-KEY system meets the requirements of the statute, §1201(c)(3) contains an unequivocal "no mandate" provision that ensures that no person is required to design software so that it responds to Blizzard's technological protection measures. It provides:

Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).

This provision means that bnetd is not required to design its server software to implement your "key" system or other any other technological measures you might choose to place on Blizzard games.

Accordingly, we believe that the claims made in your letter are unfounded. If you wish to provide us with further information about your claims to clarify them, or if you believe our analysis is in error, we invite you to respond. You may telephone me at (415) 436-9333 x 108, fax to (415) 436-9993 or send e-mail to Cindy@eff.org.

Additionally, as noted above, our clients remain willing to work with you to try to prevent the use of pirated versions of Blizzard games through the bnetd server software. If we do not receive a response from you within ten days of the date of this letter, however, we will assume that you agree with our analysis and will advise our clients to repost the bnetd server software to the bnetd.org website.

Sincerely,

ELECTRONIC FRONTIER FOUNDATION

CINDY A. COHN

cc: Internet Gateway, Inc.

[1] Even if some copying of Blizzard's copyrighted works had been done as part of the development or use of the bnetd server software, such copying would be plainly protected as fair use reverse engineering. See, e.g. Sega v. Accolade, Inc., 977 F2d 1510 (9th Cir. 1992).

[2] Of course the bnetd server software cannot implement the CD-KEYS because the information about legitimate keys is maintained only by Blizzard. However, as my client made clear to you on the telephone, he is willing to take reasonable steps to ensure that bnetd servers prevent pirated copies of the Blizzard games from being played through them. We understand that you refused this offer on the telephone, but we urge you to reconsider.