Information Technology and the Law

Near the end of class on Wednesday, several students expressed their concern over how the seemingly legitimate, voluntary concession of rights required by EULAs has the serious potential to chill innovation: by providing a legal precedent under which contract law may supercede the previously determined precedent of fair use protection for reverse engineering, hardware and software developers may be deprived of this extremely useful (and, as was pointed out in a previous post, historically significant) technique. There is, however, a larger issue at stake, one that in part rests upon the outcome of this case - the appearance of legal authority over small, independent development teams gained by corporate software studios in cases such as Davidson & Associates v. Internet Gateway may indirectly discourage the type of grassroots efforts from which many original works spring.

The bnetd team is not the only group of developers to be targeted by Blizzard’s legal department. In 2003, the Freecraft project was issued a cease and desist order by Blizzard (presumably on claims of Trademark infringement and certain concepts contained in the game being too similar to those in Blizzard’s software - the original order does not seem to be available, so there is no way to be sure). According to a Wikipedia article, Freecraft was distributed with its own media (music, graphics, etc.) with which users could play the game, but it also allowed owners of one of Blizzard’s games to play a nearly identical version using the media from their legally obtained Blizzard CD. The article also states that Freecraft …was written from scratch and no Blizzard code was used. However, when Blizzard issued their cease and desist order to the Freecraft group, Freecraft folded without going to court. Regardless whether the name Freecraft did or did not in fact infringe on Blizzard’s trademarks, the Freecraft group complied with the order, forgoing a trial in favor of acquiescing to the demands of a company to whose product their software potentially added value (the Freecraft engine apparently ran on more platforms than did the Blizzard games which were playable using Freecraft). Fortunately, the Freecraft developers picked up what pieces they could from the project, renamed and relocated their project, and started working again, though this time with what seems to be a much lower profile; nevertheless, a large software company was able to close an independent project (thereby precluding any innovation that might have come from the project as it was), with the mere threat of legal action.

I don’t dispute that the outcome of a case arising from Blizzard’s claims is not immediately evident. The similarity between the function of the Freecraft engine and some of Blizzard’s games is somewhat striking, and the name Freecraft can be considered a reference to the titles of several of Blizzard’s programs. However, Freecraft is not listed as a registered trademark on Blizzard’s copyright web page (not linked), and the goal of the Freecraft group was not likely to have been the generation of confusion among consumers; in these respects, Freecraft does not appear to have posed a threat to Blizzard’s reputation, either in a positive (offering services not provided by Blizzard) or negative (attributing inferior products to Blizzard) sense. Beyond the issue of trademark, Freecraft might have been faced with a case similar to that of bnetd, which, had the suit been filed, would have undoubtedly placed a financial burden on the Freecraft team.

This is not the only situation in which this has happened - there have been other (in some cases very promising) projects that have halted development (whether in whole or in part) because of similar cease and desist orders (more can be found at chillingeffects.org). By giving an apparent legal prerogative to these companies through cases such as Davidson & Associates v. Internet Gateway, are such corporations gaining control over more than just their own products? Does the protection given to copyright holders, which has been written to directly prevent the restriction of other authors’ creative efforts, indirectly chill innovation when applied to parties on substantially unequal financial footing?

More concerning is the lack of an obvious solution to this problem. If participating in a lawsuit to protect one’s rights to (or against) a copyright or trademark claim would cause one to go bankrupt, then how can we state with any confidence that copyright law does indeed functionally protect the rights of authors? (If you lose in court, you lose; if you don’t take legal action, you lose; if you run out of money while trying to protect your rights, is that not also a loss?) Davidson & Associates v. Internet Gateway and cases like it may, through indirect dissuasion, end up having even more damaging ramifications on innovation than we originally thought.

It is quite possible that this analysis is greatly exaggerating the situation due to the lack of information about the circumstances surrounding Freecraft at the time the order was served. What do the readers think about this issue? Do you believe that cases such as Davidson & Associates v. Internet Gateway will indirectly chill innovation, or will it make little difference in this respect if any?

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