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In Blizzard v. BnetD, Consumers Union and Public Knowledge teamed up to protect consumers who install software that demands consumers click through an "End User License Agreement" (EULA).  The case will be argued in the U.S. Appeals Court, Eighth District, in St. Louis, MO.  

At stake is the ability of a company to limit how consumers can use their lawfully purchased games—and whether companies are allowed to make consumers trade away specific legally-protected rights just to install software.  If the courts allow companies to use the Digital Millennium Copyright Act (DMCA) to require that consumers agree to strict EULAs—it could stifle legitimate competition, and consumers could lose out.

Case at Hand

In this case, Blizzard, a large software publisher, released games that could be played on consumers’ computers without ever going online.  In newer versions of certain games, Blizzard added the option to play the games online at Battle.net.

In response to widespread complaints about service outages and cheating on Battle.net, three programmers created their own server software in order to play Blizzard’s games. To achieve this, in part, they had to reverse engineer the official Blizzard product.  Blizzard sued the writers of the program for violating existing law (DMCA) and violating the EULA agreements that come with the software.  Blizzard won in the District Court and the programmers, represented by the Electronic Frontier Foundation (EFF), appealed. EFF's website has briefs filed by other parties and more information about the case.

Consumers Union and Public Knowledge filed an amicus brief in the case, siding with the BnetD programmers. The brief, co-authored by the Samuelson Law, Technology & Public Policy Clinic at Boalt Hall School of Law at the University of California – Berkeley, along with the Intellectual Property Clinic at the University of Southern California Law School, made two key points: 

• First, the groups argued that consumers sign away “important public rights as they rip and click through one-sided, non-negotiated shrink-and click-wrap contracts.”

These contracts, which can forbid otherwise legal activities such as reverse engineering, are contained in the opening screens of a program when the user usually clicks “I Agree,” generally without reading the terms.

In this case, some of Blizzard’s EULA’s terms “take away rights that, although exercised by individuals, are designed to protect the public at large.”

• Second, Consumers Union and Public Knowledge said that there are benefits to reverse engineering, in developing new and better products--often with lower prices and better features. 

Specifically, the brief argued that “The prohibitions on …reverse engineering found in this contract comprise nothing more than a covert attack on competition. By limiting the method in which purchasers can use their lawfully purchased games—insisting that they use Blizzard’s service to identify gaming partners and engage in matched play and purportedly disallowing reverse engineering—Blizzard is engaging in anticompetitive actions that harm consumers of multi-player platforms.”

To learn more about copyrights and creator rights see what’s at stake. Or read the Consumers Union and Public Knowledge amicus brief in Blizzard v. BnetD (PDF).