EULAs, DMCA Should Not Trump Right to Reverse Engineer

St. Louis, MO - The Electronic Frontier Foundation (EFF) has appealed a District Court decision in St. Louis that held that programmers are not allowed to create free software designed to work with commercial products.

The 8th Circuit Court of Appeals will determine whether three software programmers who created the open source BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA). EFF, co-counsel for the defendants, will argue that programming and distributing BnetD is a fair use and therefore violates neither Blizzard's EULA nor the DMCA's prohibitions.

As it stands, the lower court's decision makes it unlawful in most cases to reverse engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own. EFF considers this situation unacceptable and will use the appeal to explain why EULAs and the DMCA should not be allowed to trump fair use forms of reverse engineering when undertaken to create new products.

"This is a case of critical importance for the software industry," said EFF Staff Attorney Jason Schultz. "Allowing companies like Blizzard to lock out competition and complementary innovation will destroy future generations of products and services. The Internet itself is simply a collection of complementary software programs, and this ruling threatens the existence of all of them."

Fortunately, two recent courts have already recognized that it's unfair to outlaw competition under the DMCA. EFF hopes that the judges in the 8th Circuit will follow in the path of the Lexmark and Skylink cases, which held that the DMCA cannot be used to limit the aftermarket sales of printer cartridges and garage door openers.


Jason Schultz
Staff Attorney
Electronic Frontier Foundation

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