September 1, 2005 | By Donna Wentworth

Courts on DMCA: You Can Repair Products, But You Can't Improve Them

Just last week the StorageTek decision had copyfighters everywhere rejoicing that companies can't use the Digital Millennium Copyright Act (DMCA) to bar third-party repairs. Sadly, the same can't be said about third-party innovation.

Today the Eighth Circuit Court of Appeals in St. Louis, MO, issued a terrible decision [PDF] in Blizzard v. BnetD, the case in which three open-source software programmers are being sued by a videogame company because they created a program to improve and extend the gaming experience for people who legitimately purchased the games. In short, the court ruled that the DMCA prohibited the reverse engineering needed to create the program and that "click-wrap" and "browse-wrap" licenses are enforceable to prevent reverse engineering.

As the EFF press release explains, the program, called BnetD, allowed people who own Blizzard videogames to set up their own multiplayer games on the Internet and enjoy dozens of additional features instead of being locked into Blizzard's proprietary game service. The programmers reverse-engineered to make their product work with the service, not to violate copyright. The DMCA, which is supposed to protect copyright without harming innovation, has a clause specifically exempting reverse engineering. But as today's ruling proves, it's far too narrow and weak to protect third-party innovators.

A few weeks ago over at the Picker MobBlog, copyright scholar Julie Cohen observed that while the DMCA may be a failure at controlling the "darknet," industry players find it useful for other purposes -- like "marginaliz[ing] the open source movement (at least in the consumer market) by erecting insuperable obstacles to the development of interoperable entertainment platforms."

Prescient, no?

People should be able to choose where, when, and how they want to use the products they buy. The DMCA gives Blizzard the ability to force people to use their servers whether they want to or not. But copyright law was meant to spur competition and creativity, not crush it. It's time for reform.

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