A profoundly stupid case about video game cheating could transform adblocking into a copyright infringement
I'm coming to DEFCON! On Aug 9, I'm emceeing the EFF POKER TOURNAMENT (noon at the Horseshoe Poker Room), and appearing on the BRICKED AND ABANDONED panel (5PM, LVCC - L1 - HW1–11–01). On Aug 10, I'm giving a keynote called "DISENSHITTIFY OR DIE! How hackers can seize the means of computation and build a new, good internet that is hardened against our asshole bosses' insatiable horniness for enshittification" (noon, LVCC - L1 - HW1–11–01).
Here's a weird consequence of our societal shift from capitalism (where riches come from profits) to feudalism (where riches come from rents): increasingly, your rights to your actual property (the physical stuff you own) are trumped by corporations' metaphorical "intellectual property" claims.
That's a lot to unpack! Let's start with a quick primer on profits and rents. Capitalists invest money in buying equipment, then they pay workers wages to use that equipment to produce goods and services. Profit is the sum a capitalist takes home from this arrangement: money made from paying workers to do productive things.
Now, rents: "rent" is the money a rentier makes by owning a "factor of production": something the capitalist needs in order to make profits. Capitalists risk their capital to get profits, but rents are heavily insulated from risk.
For example: a coffee shop owner buys espresso machines, hires baristas, and rents a storefront. If they do well, the landlord can raise their rent, denying them profits and increasing rents. But! If a great new cafe opens across the street and the coffee shop owner goes broke, the landlord is in great shape, because they now have a vacant storefront they can rent, and they can charge extra for a prime location across the street from the hottest new coffee shop in town.
The "moral philosophers" that today's self-described capitalists claim to worship – Adam Smith, David Ricardo – hated rents. For them, profits were the moral way to get rich, because when capitalists chase profits, they necessarily chase the production of things that people want.
When rentiers chase rents, they do so at the expense of profits. Every dollar a capitalist pays in rent – licenses for IP, rent for a building, etc – is a dollar that can't be extracted in profit, and then reinvested in the production of more goods and services that society desires.
The "free markets" of Adam Smith weren't free from regulation, they were free from rents.
The moral philosophers' hatred of rents was really a hatred of feudalism. The industrial revolution wasn't merely (or even primarily) the triumph of new machines: rather, it was the triumph of profits over rent. For the industrial revolution to succeed, the feudal arrangement had to end. Capitalism is incompatible with hereditary lords receiving guaranteed rents from hereditary serfs who are legally obliged to work for them. Capitalism triumphed over feudalism when the serfs were turned off of the land (becoming the "free labor" who went to work in the textile mills) and the land itself was given over to sheep grazing (providing the wool for those same mills).
But that doesn't mean that the industrial revolution invented profits. Profits were to be found in feudal societies, wherever a wealthy person increased their wealth by investing in machines and hiring workers to use them. The thing that made feudalism feudal was how conflicts between rents and profits cashed out. For so long as the legal system elevated the claims of rentiers over the claims of capitalists, the society was feudal. Once the legal system gave priority to profit over rent, it became capitalist.
Capitalists hate capitalism. The engine of capitalism is insecurity. The successful capitalist is like the fastest gun in the old west: there's always a young gun out there looking to "disrupt" their fortune with a new invention, product, or organizational strategy that "creatively destroys" the successful businesses of the day and replaces them with new ones:
That's a hard way to live, with your every success serving as a blinking KICK ME sign visible to every ambitious person in the world. Precarity makes people miserable and nuts:
So capitalists universally aspire to become rentiers and investors seek out companies that have a plan to extract rent. This is why Warren Buffett is so priapatic for companies with "moats and walls" – legal privileges and market structures that protect the business from competition and disruption:
Feudal rents were mostly derived from land, but even in the feudal era, the king was known to reward loyal lickspittles with rents over ideas. The "patents royal" were the legally protected right to decide who could make or do certain things: for example, you might have a patent royal over the production of silver ribbon, and anyone who wanted to make a silver ribbon would have to pay for your permission. If you chose to grant that permission exclusively to one manufacturer, then no one else could make it, and you could charge a license fee to the manufacturer that accounted for nearly all their profit.
Today, rentiers are also interested in land. Bill Gates is the country's number one landowner, and in many towns, private equity landlords are snappinig up every single family home that hits the market and converting it to a badly maintained slum:
But the 21st Century's defining source of rent is "IP" – a controversial term that I use here to mean, "Any law or policy that allows a company to exert legal control over its competitors, critics and customers":
https://locusmag.com/2020/09/cory-doctorow-ip/
IP is in irreconcilable conflict with real property rights. Think of HP selling you a printer and wanting to decide which ink you use, or John Deere selling you a tractor and wanting to tell you who can fix it. Or, for that matter, Apple selling you a phone and dictating which software you are allowed to install on it.
Think of Unity, a company that makes tools for video-game makers, demanding a royalty from every game that is eventually sold, calling this "shared success":
Every time one of these conflicts ends with IP's triumph over real property rights, that is a notch in favor of calling the world we live in now "technofeudalist" rather than "technocapitalist":
Once you start to think of "IP" as "laws that let me control how other people use their real property," a lot of the seemingly incoherent fights over IP snap into place. This also goes a long way to explaining how otherwise sensible people can agree on expansions of IP to achieve some short-term goal, irrespective of the spillover harms from such a move. Hard cases make bad law, and hard IP cases make terrible law.
Five years ago, some anti-fascist counterdemonstrators hit on the clever idea of blaring top 40 music during neo-Nazi marches, on the theory that this would prevent Nazis from uploading videos of their marches to Youtube and other platforms, whose filters would block any footage that included copyrighted music:
Thankfully, this didn't work, but not for lack of trying. And it might still work, if calls for beefing up video copyright filters are heeded. Cops all over the place are already blaring Taylor Swift songs and Disney tunes to prevent their interactions with the public from being uploaded:
The same thinking that causes progressives to recklessly argue in favor of upload filters also causes them to demand that web scraping be treated as a copyright crime. They think they're creating a world where AI companies can't rip off their creation to train a model; they're actually creating a world where the Internet Archive can't capture JD Vance's embarrassing old podcast appearances or newspaper editorial boards' advocacy for positions they now recant:
It's not that Nazi marches are good, or that scraping can't be bad – it's just that advocating for the use of IP to address either is a cure that's not just worse than the disease – it's also not a cure.
A problem can be real, and still not be solvable with IP. I have enormous sympathy for gamers who rail against cheaters who use aftermarket hacks to improve their aim, see through buildings, or command other unfair advantages.
If you want to tell a stranger how they must configure their PC or console, IP ("any law that lets you control your competitors, critics or customers") is an obvious answer. But – as with other attempts to solve real problems with IP – this is a cure that is both worse than the disease, and also not a cure after all.
Back in 2002, Blizzard sued some hobbyists over a program called "bnetd." Bnetd was a program that provided a game-server you could connect to with the Blizzard games that you'd bought. It was created as an alternative to Battlenet, Blizzard's notoriously unreliable game-server software that left gamers frustrated and furious due to frequent outages:
https://www.eff.org/cases/blizzard-v-bnetd
To the public, Blizzard made several arguments against bnetd. They claimed that it encouraged piracy, because – unlike the official Battlenet servers – it didn't check whether the copies of Blizzard software that connected to it had a valid license key. Gamers didn't really care about that, but they did respond to another argument: that bnetd lacked the anti-cheat checking of Battlenet.
But that wasn't what Blizzard took to the court: in court, they argued that the hobbyists who made bnetd violated copyright law. Specifically, Section 1201 of the Digital Millennium Copyright Act, which bans "circumvention of access controls to copyrighted works." Basically, Blizzard argued that bnetd's authors violated the law because they used debuggers to examine the software they'd paid for, while it ran on their own computers, to figure out how to make a game server of their own.
Blizzard didn't sue bnetd's authors for pirating Blizzard software (they didn't – they'd paid for their copies). They didn't sue them for abetting other gamers' piracy. They certainly didn't sue them for making a cheat-friendly game-server.
Blizzard sued them for analyzing software they'd paid for, while it was running on their own computers.
Imagine if Walmart – one of the biggest book-retailers in America – had a policy that said that you could only shelve the books you bought at Walmart on shelves that you also bought at Walmart. Now imagine that Walmart successfully argued that measuring the books you bought from them and using those measurements to create your own compatible book-case violated their IP rights!
This is an outrageous triumph of IP rights over real property rights, and yet gamers vocally backed Blizzard in the early noughts, because gamers hate cheaters and because IP law is (correctly) understood as "the law that lets a company tell you how you can use your own real, physical property." Hard cases make bad law, hard IP cases make batshit law.
It's more than 20 years since bnetd, and cheating continues to serve as a Trojan horse to smuggle in batshit new IP laws. In Germany, Sony is suing the cheat-device maker Datel:
Sony argues that the Datel device – which rewrites the contents of a player's device's RAM, at the direction of that player – infringes copyright. Sony claims that the values that its programs write to your device's RAM chips are copyrighted works that it has created, and that altering that copyrighted work makes an unauthorized derivative work, which infringes its copyright.
Yes, this is batshit, and thankfully, Sony has been thwarted in court to date, but it is steaming ahead to the EU's highest court. If it succeeds, then it will open up every tool that modifies your computer at your direction to this kind of claim.
How bad can it be? Well, get this: the German publishing giant Axel Springer (owned by a monomaniacal Trumpist and Israel hardliner who has ordered journalists in his US news outlets to go easy on both) is suing Eyeo, makers of Adblock Plus, on the grounds that changing HTML to block an ad creates a "derivative work" of Axel Springer's web-pages:
Axel Springer's filings cite the Sony/Datel case, using it to argue that their IP rights trump your property rights, and that you can only configure your web-browser, running on your computer, which you own, in ways that it approves of.
Axel Springer's war on browsers is a particularly pernicious maneuver, because browsers are the best example we have of internet software that serves as a "user agent." "User agent" is an old-timey engineering synonym for "browser" that reflects the browser's role: to go out onto the web on your behalf and bring back things for you, which it displays in the way you prefer:
Want to block flickering GIFs to forestall photosensitive epileptic servers? Ask your user agent to find and delete them. Want to shift colors into a gamut that accounts for your color-blindness? Ask your user-agent:
https://dankaminsky.com/2010/12/15/dankam/
Want to goose the font size and contrast so you can read the sadistic grey-on-white type that young designers use in the mistaken belief that black-on-white type is "hard on the eyes"? That's what Reader Mode is for:
The foundation of any good digital relationship is a device that works for you, not for the people who own the servers you connect to. Even if they don't plan on screwing you over by directing your user agent to attack you on their behalf right now, the very existence of a facility in your technology that causes it to betray you, by design, is a moral hazard that inevitably results in your victimization:
"IP" ("a law that lets me control how you use your own property") is a tempting solution to every problem, but ultimately, IP ends up magnifying the power of the already powerful, in contests where your only hope of victory is having a user agent whose only loyalty is to you.
The monotonic, dangerous expansion of IP reflects the growing victory of rents over profits – income from owning things, rather than income from doing things. Everyday people may argue for IP in the belief that it will solve their immediate problems – with AI, or Nazis, or in-game cheats – but ultimately, the expansion of a law that limits how you can use your property (including your capital) to uses that don't threaten neofeudalists will doom you to technoserfdom.
Support me this summer on the Clarion Write-A-Thon and help raise money for the Clarion Science Fiction and Fantasy Writers' Workshop!
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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The EFF Petition for the Abandoned Video Games exemption seeks to allow circumvention of a specific kind of technological protection measure: “communication with servers.” How do we know that this is true bona fide protection measure under the DMCA? Two court cases are provided, both involving Blizzard. It should be noted that both of these cases involve some form of multiplayer server and neither involves simple authentication checks. However, given that an authentication check is clearly a measure that “controls access” as required under 1201(a), I can understand the focus on simple interoperability with non-publisher multiplayer servers where it has not been permitted. Certainly, Blizzard is very known for not permitting users to do things.
Both cases involve Blizzard, but at different times.
DAVIDSON & ASSOCIATES v. JUNGÂ 422 F.3d 630
In 2005, the 8th Circuit Court of Appeals decided a case involving Blizzard/Vivendi (”Davidson & Associates”) and several individuals (”Jung” et al.) who had been responsible for the creation of a service called bnetd which acted as an alternative to Battle.net. At the time of Blizzard’s original filing, this means that the games concerned were StarCraft, Brood War, WarCraft II: Battle.net Edition, Diablo, and Diablo II: Lord of Destruction. “bnetd” acted as a full alternative to Battle.net including discussion forums, matchmaking services, and other multiplayer functions.Â
“bnetd” was created through reverse engineering. Many of the amicus briefs (legal briefs filed by third parties, usually supporting one party or the other and providing information they believe will be useful to the court) that were in support of the creators of “bnetd” stressed the importance of preserving the right to reverse engineering and the importance of doing so. It should be noted that while the “bnetd” server did receive the player’s CD Key, it did not verify that the CD Key was a proper one. Hence, many players who used the alternative “bnetd” service were running pirated versions of the games.
The discussion of copyright preemption here is beyond the scope of my interest in this series of blog posts. Instead, we’re focused on the DMCA claims that Blizzard has made against the creators of “bnetd.”
On 639-640, the 8th Circuit discusses their take on the 1201(a)(2) and (b)(1) provisions of the DMCA. As it comes up in the later 9th Cir. decision in MDY v. Blizzard, the Court of Appeals for the Federal Circuit (CAFC) has a weird take on the distinction between these provisions. My discussion of the DMCA will comport with the 8th Cir. and 9th Cir. even if CAFC has some persuasive policy reaons.
There are three operative provisions for creating causes of action: 1201(a)(1), 1201(a)(2), and 1201(b)(1). 1201(a)(1) forbids the use of circumvention technology that controls access to a protected work. 1201(a)(2) forbids trafficking in the means to accomplish 1201(a)(1). 1201(b) forbids trafficking in means to circumvent protection measures designed to protect rights of a rights owner. The difference is this: bypassing a CD Key for a computer game violates 1201(a)(1) because it is circumventing technology designed to prevent access, giving someone a keygen program violates 1201(a)(2) because it is trafficking in means to circumvent technology designed to prevent access, and providing technology to crack and copy a computer game violates 1201(b) because the crack program violates the rights owner’s right to control reproduction of the computer program.
The 8th Circuit finds that the defendant creators of “bnetd” violated the first two provisions, 1201(a)(1) and (a)(2). The technological protection measure that was circumvented was the CD Key. Ordinarily, the CD Key would be used as part of a secret handshake between the Battle.net server and the client program.
The 8th Circuit’s discussion of the violation of 1201(a)(1) on 640-641 is confusing at best and betrays a misunderstanding of the computer program at worst. 1201(a)(1) requires that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.” The 8th Circuit reasons that because the control measure (i.e., the secret handshake in Blizzard’s Battle.net server code) was not freely available and had to be reverse engineered, it follows that the use of the “literal elements of Battle.net mode” constituted “a circumvention of Battle.net and Battle.net mode.”
What confuses me here is what exactly the “work” is that is being accessed. If the circumvention were to allow a player to cheat the CD Key check but still log on to Blizzard’s Battle.net, I would be on board. In this case, I believe “bnetd” likely made use of some of the copyrightable assets of Battle.net. Were these assets limited to those reverse engineered so as to be a functional alternative to Battle.net or did they go beyond that usage? Is the issue here that “bnetd” was imitating Battle.net or merely that it was an alternative to Battle.net?
“bnetd” was an open source program that was made freely available. If you believe the creators of “bnetd” violated 1201(a)(1) then, given that it was open source, 1201(a)(2) follows naturally.
The last important discussion here concerns DMCA 1201(f) aka the interoperability exception. 8th Cir. says there are four requirements to meet the language of 1201(f):
they lawfully obtained the right to use a copy of a computer program;Â
the information gathered as a result of the reverse engineering was not previously readily available to the person engaging in the circumvention;Â
the sole purpose of the reverse engineering was to identify and analyze those elements of the program that were necessary to achieve interoperability of an independently created computer program with other programs; andÂ
the alleged circumvention did not constitute infringement.Â
The 8th Cir. found that the defendants failed the last point. The reasoning is that because it was possible for other people who had pirated the game to play on the “bnetd” servers, which had no real check for valid CD Keys, the defendants had committed infringement. There were no facts established that the defendants had made copies of game code except in making “bnetd.”
Yes, let that reasoning sink in. Because other people pirated the game and used pirated copies to play on your open source multiplayer server, you yourself committed infringement.
While the facts did establish that the creators of “bnetd” were aware of this issue, the facts did not establish if they had tried to “solve” it. I would be very curious to know that, if completely reverse engineered, a valid CD Key check would have gotten the creators off the hook because then they would not even be enabling “more successful” infringement by those who had pirated the game.
The 8th Cir. opinion gives the impression that the presiding judge was unhappy that “bnetd” allowed for some software pirates to access online multiplayer and that correct statutory interpretation was no bar to finding the creators in violation of various provisions of 1201.
MDY v. BLIZZARDÂ 629 F.3d 928
In 2010, the 9th Circuit Court of Appeals decided a case involving Blizzard and MDY Industries. Blizzard had previously threatened to bring suit against MDY and, in response, MDY filed suit for a declaratory judgment that it did not infringe Blizzard’s rights.
MDY was the business of Michael Donnelly, who had created a World of Warcraft bot called Glider. The function of Glider was to automate certain tedious tasks for the player, especially early game tasks, such that the player was able to advance to later levels sooner. When Glider was initially sold and made available in 2005, Blizzard had neither forbidden their use in any ToU/EULA nor put in place any technological protection measures to defeat their use. Blizzard later introduced explicit language and also, by the end of 2005, launched their Warden software which identified users with bots and banned them accordingly.
Again, there are some interesting copyright discussions that will not be discussed here. Sorry. There is discussion about “contractual covenants vs. license conditions” which is mildly confusing to someone who just finished courses in property law and contract law.
In determining whether MDY violated 1201(a)(2) and 1201(b)(1), the 9th Cir. looks at the district court’s decision, especially as it relates to how to define the protected work. The district court defined three types of components of WoW:
The game’s code stored on the client machine was called the software’s “literal elements.”
The visual and audible components that make up the game were called the software’s “individual non-literal elements.”
The real-time experience of playing WoW was called the software’s “dynamic real-time experience.”
The district court had reasoned the Warden software protected access to the “dynamic real-time experience” of playing WoW, but not the other elements and so MDY had violated 1201(a)(2). Before getting into their feelings about this, the 9th Cir. conducts an in-depth explanation of the construction of these provisions. I already went over these above in the previous case. The 9th Cir. spends some time making fun of the CAFC for their decision in Chamberlain, but further construction of 1201 is outside the scope of the discussion here.
The 9th Cir., after arriving at their construction of the relevant 1201 provisions, finds that MDY violated 1201(a)(2) because they trafficked in a program designed to circumvent Warden, Warden being a technological protection measure preventing access to the “dynamic real-time experience” of playing WoW. Given their construction, I find this result much more agreeable than the 1201(f) analysis performed by the 8th Cir.
HOW DOES THIS RELATE TO THE ABANDONED VIDEO GAMES EXEMPTION
Davidson applies fairly directly to the aims of the proposed exemption. Users seek to connect their computer game programs to third party servers, often reverse engineered, once the publisher game servers have gone offline. While Battle.net was clearly alive and kicking at the time (and is still alive and kicking right now), creating server software for abandoned video games would likely be a risky proposition, especially if living in the 8th Cir.Â
MDY does not seem to apply here and I am unsure why it is cited. The exemption proposal explicitly states that “this exemption would not apply to massive multiplayer online role-playing games such as World of Warcraft or Wildstar.” The finding in MDY hinges on the fact that it is access to the “dynamic real-time experience” that is controlled rather than access to the literal elements on the user’s hard drive. Without any “dynamic real-time experience” it is doubtful that the holding of MDY would apply and instead it is more likely that the holding of the 6th Circuit in Lexmark International would apply (387 F.3d 522).
Growing up in the 90′s I grew to love older Blizzard games like Warcraft II, StarCraft, and Diablo.  I also loved playing Diablo II during college.  But it was apparently to me well before WoW that this was a company that I would avoid - and I’ve managed it since the Diablo II expansion.  I’m not even sure if any of the original developers still work there.  Blizzard seems to be a giant corporate shell that publishes treadmill-style MMOs more than the clever game developer of yore.
And Blizzard has a history of wanting total control of their gaming properties.  They always seem to program in an online component to their games (which started really with StarCraft).  You may have heard of bnetd - something put together by fans.  Bnetd was released on April 28, 1998 under the name StarHack and provided near-complete emulation of the original online multiplayer gaming service network.  Blizzard sued the developers and won the case in 2002 - which set a legal milestone of terms and services vs. reverse-engineering.  Despite the developers not using any of Blizzard’s source code, they did write something that would connect with their software.  I personally think the developers were in the right and that it’s ridiculous to think that I couldn’t reverse-engineer the protocol by experimentation to use with a piece of used software picked up at a second-hand store. Â
Now, more recently, Blizzard went after Nostalrius - a fan-created reverse-engineered Word of Warcraft server.  This might remind you of bnetd - and it should.. it’s really the same sort of thing.  Engineers and fans built their own private server to use with already-purchased WoW software and Blizzard went out of their way to shut them down.  I never played Nostalrius and I don’t have any friends that played on it to speak of.  But I just find this behavior unacceptable and against what software should be.  You should have the right to preserve and play software you purchased any way you want.  It should be yours after you buy it to do what you want with.  That’s the idea of property.  This notion of terms and conditions applying 10 or 20 years later when you bought a physical game from a used book store is just ludicrous.  It really should be none of Blizzard’s business what I do with an old WoW game.
Yes legally Blizzard is in the right; the courts have spoken.  The law is on their side and they currently have the money to pay lawyers to do their bidding.  But you have the right to not spend your money on a Blizzard product.  Let’s see them pay for lawyers when they’re bankrupt.. that’s my take on it.  And maybe they will never go broke and will continue to exist the rest of my life.  That’s fine.. but I don’t have to help them out either.  And it’s not like you’re going to miss out on a whole lot with their current franchises.  Also, there are a ton of great games out there from other companies.  And it’s true that some of them act (heck most of them) just as egregious as Blizzard.  That’s fine.. just don’t buy their products if you find their terms ridiculous.  Or wait until the next generation of young adults grow into power and change these terrible IP laws to be more fan/hacker-friendly.
