## Facts

- Blizzard (with Vivendi) sold popular PC games that connect to an online multiplayer service, Battle.net, available only to game purchasers.
- Each game copy included a unique CD-Key, and Battle.net used an authentication sequence (“secret handshake”) to verify authorized copies and control access.
- Defendants (programmers and an ISP operator) developed and distributed “bnetd,” alternative server software intended to emulate Battle.net so users could play online without Blizzard’s servers.
- To connect Blizzard games to bnetd servers, users modified a file containing the Battle.net server address.
- bnetd did not replicate Blizzard’s CD-Key verification in a way that enforced Blizzard’s access controls, which allowed users with unauthorized copies to play online.
- Blizzard’s End User License Agreement (EULA) and Battle.net Terms of Use (TOU) required assent and prohibited reverse engineering and related modifications.
- Blizzard and Vivendi sued for breach of contract and for DMCA anti-circumvention and anti-trafficking violations; the district court granted summary judgment for plaintiffs, and defendants appealed.

## Issues

1. Whether the EULA and TOU were valid, enforceable contracts, and whether their anti–reverse engineering restrictions were preempted by federal copyright law.
2. Whether defendants could invoke fair use notwithstanding contractual terms prohibiting the challenged conduct.
3. Whether Blizzard’s contractual and technical restrictions constituted copyright misuse.
4. Whether creating and distributing bnetd unlawfully circumvented Blizzard’s access-control measures and constituted trafficking in circumvention technology under the DMCA.

## Decision

- The Eighth Circuit affirmed summary judgment for Blizzard and Vivendi.
- The court upheld the EULA and TOU as enforceable contracts and held the breach of contract claims were not preempted by the Copyright Act.
- The court held defendants’ assent to the EULA/TOU waived reliance on a fair use defense for conduct the agreements prohibited.
- The court rejected the copyright misuse defense.
- The court held bnetd violated the DMCA’s anti-circumvention and anti-trafficking provisions by bypassing Blizzard’s authentication/access controls and distributing technology designed to enable that bypass.

## Legal Principles

- State-law contract claims based on assent to license terms contain an “extra element” (a promise) and are generally not preempted merely because the subject matter relates to copyrighted software.
- Restrictions in a software license and online-service terms (including prohibitions on reverse engineering) may be enforced as contractual conditions on access and use.
- A party may contractually waive defenses otherwise available under copyright doctrine, including fair use, where access is conditioned on compliance with agreed terms.
- Copyright misuse requires an improper attempt to extend control beyond the legitimate scope of the copyright; enforcing EULA/TOU restrictions and access controls, without more, does not establish misuse.
- Under the DMCA, bypassing an effective technological measure that controls access to a copyrighted work can constitute unlawful circumvention, and distributing technology primarily designed to enable such bypass can constitute unlawful trafficking.

## Conclusion

The Eighth Circuit held that Blizzard’s click-through agreements restricting reverse engineering were enforceable and not preempted, that defendants’ fair use and misuse defenses failed, and that the bnetd server emulator unlawfully circumvented and trafficked in circumvention of Blizzard’s Battle.net authentication measures in violation of the DMCA.


Davidson & Assocs., Inc. v. Jung, 422 F.3d 630 (8th Cir. 2005)