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Bnetd Attacks DMCA's Constitutionality
Posted by Paul Szynol on Thursday, December 05 @ 15:29:02 EST Digital Millennium Copyright Act
In its answer and counterclaims against Blizzard Games and Vivendi Universal Games, Bnetd claims that the DMCA is unconstitutional, and that Bnetd developers did not violate the statute when they created its multi-player gaming server.

Fourteenth Affirmative Defense (from the counterclaims):

Defendants actions are lawful because Title 17, Section 1201(a) is unconstitutional on its face and as applied under the First Amendment and/or the Copyright Clause of the United States Constitution and because passing Section 1201(a) is not a valid exercise of Congress' enumerated powers.

More documents are here. Ernest Miller's past coverage of the Bnetd case is here and here.

 
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"User's Login" | Login/Create an Account | 3 comments | Search Discussion
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Re: Bnetd Attacks DMCA's Constitutionality (Score: 1)
by techlawadvisor on Thursday, December 05 @ 15:40:01 EST
(User Info | Send a Message) http://techlawadvisor.blogspot.com
In May 2001, I wrote a paper [lawfirm.techlawbasics.com] for Professor Marci Hamilton's Copyright and the Constitution class arguing this position. I look forward to finally seeing the outcome.


[ Reply to This ]

Much More (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, December 05 @ 21:54:35 EST
They are also seeking a counterclaim that the EULA is unenforcable on Federal preemption grounds, and on copyright misuse grounds. This could very likely be an important case.

An interesting idea is to argue that 1201(f) creates a software developer's right that preempts state contract law. For example 1201(f)(1) provides:
Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.


Since this is federal law it is the "Supreme Law of the Land". One should read the "extent" clause at the end to be the entire criteria. State law that sought to place additional restrictions would be preempted. Thus a contract cannot remove this reverse engineering right without also removing the 1201(a) cause of action. In some sense, the preemption and the misuse arguments will get at the same ideas here.


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  • Re: Much More by TomWiles on Thursday, December 05 @ 22:37:34 EST

Leges humanae nascuntur, vivunt, moriuntur
Human laws are born, live, and die

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