Blizzard Entertainment has successfully used the DMCA's anti-reverse engineering provisions (as well as contract terms in the battle.net EULA) to get a declaratory judgement shutting down BnetD. The latter, run by the ISP Internet Gateway on behalf of three individuals (Ross Combs and Rob Crittenden, and a systems administrator, Jim Jung) was a hacked version of Blizzard's battle.net servers that allowed players to connect their games to the server and face off as they do on battle.net servers themselves.

The EFF, which had provided counsel for the defendants, argued that the open-source BnetD was covered under fair use provisions and that the EULA and ToU of battle.net were invalid and that legitimate purchasers of games should be permitted to seek alternative ways of meeting up. An appeal is planned, they say.

Decision:http://www.freedom-to-tinker.com...

Coverage:http://www.gamespot.com...

Blizzard's PR:http://home.businesswire.com...

EFF Objections:http://p2pnet.net/story/2601

On the other hand, a California-based Federal judge has ruled that Diebold overstepped its bounds in attempting to use the DMCA. Specifically, Diebold Election Systems has been ruled to have attempted to use the DMCA to stifle legitimate free speech.

The story begins about a year ago when, you may remember, a group of Swarthmore College students posted about 13,000 internal Diebold memos. The memos suggested that the company was aware of security flaws in its voting system, flaws it continues to deny publicly. Diebold responded with a series of cease-and-desist letters threatening DMCA litigation and ordering that the memos be taken down. Once again the EFF stepped in onthe defense and after enough bad press Diebold backed down and withdrew its threats.

However, the students then counter-sued and that is the suit that was settled here. The judge ruled that Diebold "knowingly materially misrepresented" (that's "lied" in plain English) its position. The students had not infringed Diebold's copyright, Diebold knew it, and went ahead anyway.

Now what's interesting about this to me is two things. First, this is the only time I know of where the threaten-and-withdraw tactics that the Cartel has made so much use of have been successfully challenged. It's aparticularly vicious form of bait-and-switch that has a potentially very chilling effect on speech if you think you might get sued for doing something like whistleblowing.

Second, the students used a provision of the DMCA itself (known as section 512(f)) in pursuing their claim. 512(f) makes it a crime to use DMCA takedown threats in a known false way. Wendy Seltzer, the EFF attorney, has her eye squarely on the ball when she says:

    "We were out to crack down on the misuse of copyright threats."

Go Wendy! http://www.wired.com...