Save reverse engineering: form a Coalition for Competitive Innovation

by Andy Oram

The recent

court decision on Blizzard Entertainment's Battle.net

(also
reported by Slashdot)
does not deal a death blow to reverse engineering by any means. But it
resembles the

June ruling on Grokster

in that it weakens an important right of technologists.



Just as the Grokster case made it harder to develop technologies that
carry audio, video, etc., without directly outlawing those
technologies, so the Blizzard case insidiously eats away at the right
to do reverse engineering, without directly attacking the legal
foundation that protects reverse engineering.



So this case marks not, perhaps, a major precendent, but another
inch-long drift of the continental shelf in American law toward making
established companies harder to challenge, and making both competition
and innovation less likely.



Those two words--competition and innovation--are the
shibboleths of the free market proponents, even if they are more often
honored in the breach. For instance, Microsoft always tried to wriggle
out of compliance with government anti-trust measures by touting its
"innovation," even though its genius is in creating a mass market for
innovations done by others, and it rarely can point to anything
innovative of its own.



Competition was also the watchword of Michael Powell at the FCC as he
removed requirements from incumbent phone companies to share their
lines. His idea of competition was Bell company versus cable company.
But who was he fooling? The incumbent phone companies and the cable
companies aren't competing. They have separate lines, and they have
already built out their networks as far as they were willing to go.



Now for reverse engineering. Every software license you see (except
for open source ones) is sure to contain ridiculous clauses that
nobody pays attention to. These include a clause enjoining you not do
reverse engineering. But technologists have ignored these for years.



Reverse engineering is to new products like line sharing is to phone
service: it lets new products reach a market by making them feasible
for use by the customers of established companies. It's absurd to
expect a new phone company to duplicate the network that was built up
for over a century under monopoly conditions--and it's almost as
absurd to expect OpenOffice.org (to pick one example) to be adopted if
users can't open Microsoft Office documents with it. Reverse
engineering is the battery that kicks off the engine; the catalyst
that starts crystallization.



If the free software programmers who reverse engineered Battle.net had
done it just to create a competing service, they might have been
protected by the DMCA. The way I read the

court ruling

(as a non-lawyer), the programmers left themselves open to prosecution
because players could run unauthorized copies of Blizzard's own
Battle.net software.



So the court presented anyone who wants to do reverse engineering with
a dilemma: they're protected legally to do reverse engineering so
long as it accomplishes nothing except what the law allows
. The
law specifies reverse engineering to achieve "interoperability," and
therefore interoperability is all that can be achieved. Otherwise,
people doing reverse engineering are subject to a doom like that
handed out by one of the most famous legal wrigglers of all time,
Shakespeare's Portia in the Merchant of Venice (act 4, scene
I):



Therefore prepare thee to cut off the flesh.

Shed thou no blood, nor cut thou less nor more

But just a pound of flesh: if thou cut'st more

Or less than a just pound, be it but so much

As makes it light or heavy in the substance,

Or the division of the twentieth part

Of one poor scruple, nay, if the scale do turn

But in the estimation of a hair,

Thou diest and all thy goods are confiscate.




This case was robustly defended; the Consumers Union and the IEEE were
among those who submitted briefs for the defendants, who created the
knock-off bnetd game site. Nor were the motives of Blizzard--the one
bringing the complaint--entirely without merit. I sympathize with a
company's desire to bring a consistent and secure experience to their
customers.



But competition and innovation are on the defensive. So I'd like to
see the defenders of upstart companies and free software hackers form
a Coalition for Competitive Innovation. The name's corny,
exploitative, and shrill, but something like that is needed. The scope
should be narrow, at least to start with. The coalition can simply
defend the right granted by the DMCA, and ask for clarification of the
law by Congress. Otherwise, the country's long, slow technological
decline will continue.


1 Comments

jwenting
2005-09-06 23:25:45
wrong reasons...
The Battle.NET crack was specifically created to allow users of pirated Blizzard software to use that software in a multiplayer environment, something that Blizzard's own Battle.NET prevents by locking out any known pirated serial numbers and preventing login from multiple accounts that use the same serial number.


The infringement therefore was not the act of creating a means to improve gameplay but the act of providing a means to work around anti-piracy protection systems and therefore providing a means to engage in illegal activity.