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Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005) (full-text).

Factual Background[]

In 1997 Blizzard Entertainment launched, an online gaming service that allows owners of Blizzard’s popular computer games “Starcraft,” “Warcraft” and “Diablo” to play those games against each other online. In order to prevent pirated versions of its games from being played online, Blizzard uses a CD key, which acts as a secret handshake between its games and the server.

Computer programmer Ross Combs, Rob Crittenden and Tim Jung are members of the “bnetd project” — a non-profit group organized to address game hobbyists’ frustrations with Combs, Crittenden and Jung launched an alternative to the called the “” which Gateway hosted for free. Through reverse engineering, the server allowed gamers to play pirated versions Blizzard's games online. This was not acceptable to Blizzard.

Blizzard sued the three programmers and Gateway for: breach of Blizzard’s End User License Agreement and its Terms of Use Agreement; trademark and copyright infringement; and violating the DMCA’s anti-circumvention and anti-trafficking provisions.

Trial Court Proceedings[]

After the trial court entered a consent decree giving Blizzard full and complete relief on its trademark and copyright claims, the parties filed summary judgment motions on Blizzard’s remaining claims. In response, the trial court found that under the EULA and TOU agreements, the programmers, as users of Blizzard software, relinquished their right to reverse engineer the games and they waived fair use as a defense. The trial court also ruled that the programmers had violated the DMCA's anti-circumvention and anti-trafficking provisions. The programmers and Gateway appealed.

Appellate Court Proceedings[]

In an opinion by Judge Lavenski Smith, the appellate court held that the DMCA’s “interoperability” exception for reverse engineering does not preempt the terms of the EULA and TOU. He explained that private parties are “free to contractually forego the limited ability to reverse engineer software” and that parties can “contract away a fair use defense.”

The court went on to conclude that the programmers circumvented the technological measures that Blizzard used to control access to by translating it into readable source code so that gamers with pirated versions of Blizzard’s copyrighted games could access

The judge said that what the programmers did could not have been done without acts of reverse engineering; and since reverse engineering allowed unauthorized copies of Blizzard games to be played online at, the programmers were guilty of copyright infringement and could not assert the DMCA's Interoperability Exception for reverse engineering.

The Court of Appeals therefore affirmed the summary judgment in favor of Blizzard.