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EFF Press Release Archives

Press Releases: March 2002

March 18, 2002

ICANN Broke Law, Refused to Disclose Documents

Los Angeles - The Electronic Frontier Foundation today helped a member of the ICANN Board of Directors file a lawsuit forcing ICANN management to grant him some reasonable access to corporate records.

Karl Auerbach, the North American Elected Director of the Internet Corporation for Assigned Names and Numbers (ICANN) began asking for corporate records in December 2000, shortly after he was elected to the Board. ICANN management dragged its feet for nine months, then issued a new "policy" -- never brought before the Board for discussion or vote -- requiring Auerbach to sign a non-disclosure agreement that placed Auerbach's ability to discuss the records at the discretion of ICANN management.

"California nonprofit law requires a corporation to provide its directors the information required to make informed and intelligent decisions," said Auerbach. "ICANN management has denied me the tools I need to exercise independent judgment and fulfill my duties as a director."

"Directors, not management, have the ultimate responsibility and authority to oversee the operations of a corporation like ICANN," explained Auerbach's attorney James Tyre. "ICANN staff's arbitrary and changing policy regarding access to corporate records is not only disturbing, but unlawful in the state of California."

"The Electronic Frontier Foundation finds ICANN management's apparent abuse of power disturbing," added EFF Legal Director Cindy Cohn. "The Internet community relies on well-informed ICANN directors like Mr. Auerbach to administer the corporation appropriately."

Because ICANN is a non-profit California corporation, the organization must comply with a California statute giving any director of the corporation an "absolute right" to inspect and copy corporate records.

In addition, ICANN's bylaws provide that: "Every Director shall have the right at any reasonable time to inspect and copy all books, records and documents of every kind, and to inspect the physical properties of the Corporation. The Corporation shall establish reasonable procedures to protect against the inappropriate disclosure of confidential information."

The case, entitled Auerbach v. ICANN, case no. BS074771, was filed in California Superior Court, Los Angeles County.

Contact:

Cindy
Cohn
Executive Director
March 12, 2002

EFF Condemns Copyright Abuse

San Francisco - The Electronic Frontier Foundation (EFF) today chided media conglomerate Vivendi Universal Publishing for threatening gamers who created their own multiplayer gaming community.

On behalf of its Blizzard Entertainment division, Vivendi sent a "cease and desist" letter to Internet Gateway Inc., the Internet Service Provider (ISP) host of a free software project called "bnetd" that emulates Blizzard's Battle.net gaming service. Blizzard game purchasers can meet online or on a local area network to chat, find competition, and start multiplayer games using the bnetd software.

Vivendi demanded that the ISP disable the website hosting the bnetd software, claiming it violates copyright law and the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA).

EFF responded to Vivendi's letter, explaining that its claims were unfounded and stating that the bnetd software, which was removed upon receipt of the demand, would be reposted in 10 days.

"A group of volunteers decided to write a server for Blizzard games because the Blizzard servers were undependable and we wanted increased functionality," explained Tim Jung, owner of Internet Gateway, based in St. Louis. "Vivendi claims that the server violates the law because it does not implement checking the game's CD-KEY, designed to prevent the use of illegal copies of their games. We asked them to give us the information we needed to do the checking, but they refused."

"This is yet another example of misuse of the DMCA and copyright law," noted EFF Legal Director Cindy Cohn. "Bnetd developers engaged in legal reverse engineering without circumvention or any illegal activity."

The DMCA has no requirement that one must include every feature of a program or system like CD-KEYS; in fact, the DMCA's "no mandate" provision states that developers of interoperable programs do not have to respond to CD-KEYS and similar technology.

"Corporations have wielded the DMCA to censor magazines, academic researchers, and competitors," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Now Vivendi is using the DMCA to threaten customers who simply want to improve the gaming environment for a product they've purchased legitimately."

Links:


Cease and desist letter sent by Vivendi Universal:

  http://www.eff.org/sc/bnetd/20020219_blizzard_bnetd_letter.html


EFF reply to cease and desist letter:

  http://www.eff.org/sc/bnetd/20020312_eff_blizzard_letter.html


Bnetd website:

  http://www.bnetd.org/


Blizzard's explanation:

  http://www.battle.net/support/emulationfaq.shtml


Media coverage and websites related to the case:

  http://www.bnetd.org/news_links.php

  http://www.infoworld.com/articles/op/xml/02/03/11/020311opsource.xml

  http://www.boycottblizzard.org/

  http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=149


A Penny Arcade comic about the case:

  http://www.penny-arcade.com/view.php3?date=2002-03-04

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