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October 1, 2004
Click Here to Lose Your Fair Use Rights
Ernie has a great post gathering commentary & analysis of yesterday's crushing defeat for fair use/reverse engineering/open-source programming in the BnetD case. He also offers his own .02, highlighting the decision's oddities:
If you reverse engineer for interoperability, in order to do the same thing as another program, apparently that extends "into the realm of copyright infringement." What that means is unclear. Why it takes away your defense under § 1201(f)(1) is similarly unclear. Is the program infringing or not? If not, why don't you get the exemption?
What the heck can you use the reverse engineering exemption for under this logic? You can interoperate, but only for purposes that are entirely different? Huh?
I also like the part that open source software is more likely to violate the DMCA because it has "limited commercial purpose." You see, if you don't or can't sell it, you are even more evil according to this ruling.
Madisonian Theory, meanwhile, manages to capture
all of its wrongness in a single sentence: "It's a disaster of an opinion, from the court's uncritical acceptance of Bowers v. Baystate as authority for enforcing a 'no reverse engineering' shrinkwrap license, to the court's whimsical application of the DMCA's anti-circumvention rules to the so-called 'secret handshake' between each Battle.net game copy and the authorized Battle.net server software."
It seems to me that most unfortunate thing about this ruling is the power it gives companies to crush the competition. What copyright giveth (fair use, reverse engineering for interoperability), contract via clickwrap buttressed by the DMCA taketh away. A reader over @ Freedom-to-Tinker observes that "This ruling even implies that the only way to do it is to ask the copyright holder for explicit permission. I'd love to see that: 'Mr. Software developer, I'd like your permission to become your competitor.'" Me too. And pigs growing wings.
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