DMCA's Fair Use Provision Narrowed By Appeal Court Ruling

by Glen Shapiro, LawAndTax-News.com, New York

14 September 2005

Ruling earlier this month, the US Court of Appeals for the Eighth Circuit narrowed the 'fair use' provision of the Digital Millennium Copyright Act (DMCA) still further.

The court was ruling on an appeal filed by the Electronic Frontier Foundation regarding a September 2004 St Louis District Court decision, which held that in certain circumstances programmers are not allowed to create free software designed to work with copyrighted commercial products.

The appeals court stated that three software programmers who created the open source BnetD game server - which interoperates with Blizzard video games online - were in violation of the DMCA and Blizzard Games' end user license agreement (EULA).

It explained that the software was in violation of the federal legislation and license agreement because it contained no provision for requesting the Blizzard authentication code, meaning that players using pirated games could gain access to multiplayer events.

"As a result, unauthorized copies of the Blizzard games were freely played on bnetd.org servers," the Eighth Circuit ruling stated.

The EFF and defendants had hoped that the court would find that Section 1201 F of the DMCA, which exempts reverse engineering from the definition of circumventing technology for liability purposes, offered them protection.

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