EULA Ruling Threatens Innovation

A recent federal court ruling on end-user license agreements will unreasonably tie developers' hands.

Sir? Yes, you—the one creating the Web services. Please step away from the computer and place your hands behind your head. And you three using the EAI system to tie together your business applications, Im going to have to take you down to the station.

Why is this happening? Its because all of you developers and businesses that think you can just build Web services, service-oriented architectures and other systems to integrate applications, data and services are all terrible, terrible lawbreakers. And right after were done with you, were going to go bust all those other criminals—open-source developers.

You think Im joking? I wish I were. But earlier this month, under the radar of many in the technology media, a federal court in Missouri handed down a ruling that could have devastating effects on software innovation and integration.

The ruling in question came down in a case that at first glance might not seem to have a lot to do with IT and software development. Video game maker Blizzard brought charges against open-source developers who had created BnetD, a free application that lets owners of Blizzard games play against one another using their own multiplayer servers rather than Blizzards service.

The ruling in the case centered on two issues: that the BnetD developers violated the Blizzard games EULA (end-user license agreement), which the developers had agreed to by clicking "I agree" when installing the games, and (surprise, surprise) that they violated the Digital Millennium Copyright Act.

/zimages/5/28571.gifJim Rapoza says legislation that tweaks the DMCA is worthy of IT support. Click here to read more.

And, like most DMCA-related cases, the judges ruling in this case made little sense. It basically boiled down to this: By ignoring an authentication request from the Blizzard game, BnetD developers circumvented a copyright protection.

But much worse was the judges ruling in the EULA portion of the case. Given what Ive written in the past about the tyranny and lack of responsibility behind most EULAs, just the fact that a judge upheld a EULA is bad enough.

But the judge went well beyond this, ruling that if one agrees to a EULA, then the EULA can legally remove rights.

If youve ever read a software EULA and could actually understand it, you would know that the restrictions it contains are often insanely broad.

/zimages/5/28571.gifClick here for more on how EULAs violate user rights and common sense.

Most software vendors would agree that allowing interoperability for users is permissible, whether its to tie together different applications or to deliver application data to a portal or via a Web service.

But whether Im a software vendor who wants to integrate my products with other key products or a business doing EAI, Ill likely need to do some form of reverse-engineering to determine how to connect things. Often, this can be done by doing something as simple as sniffing a network connection or opening XML files.

But the Blizzard EULA specifically prohibits reverse engineering, so the judge ruled that BnetD developers had violated a legal agreement, even if their actions werent a violation of traditional copyright law. And that simple act of the judge means that all bets are now off when it comes to software development and innovation.

Dont believe me? Take a look at the EULAs for all the software your company uses. Id be surprised if you found more than a few that dont prohibit reverse engineering (plus a whole lot of other things you do with the product).

Some will say that Im overreacting and that things such as Web services and EAI arent at risk from this ruling. But the DMCA has taught us that these kinds of decisions can reach well beyond what people might initially imagine. And lawsuits dont need to be successful to chill innovation and research.

We all have to hope against hope that the appeal that is being brought in this decision will be successful and that the judge hearing the appeal will have a better understanding of software and technology than the federal judge in Missouri.

And if I were a Blizzard executive, I wouldnt be too excited about this decision. Because, unless Blizzard employs the most unique and exceptional software developers of all time, theres a good chance that they themselves have reverse-engineered other software applications.

Blizzard executives might have to hire a second set of lawyers to protect themselves against their own legal victory.

Labs Director Jim Rapoza can be reached at

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