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Feature: Legal

Bnetd reverse engineering ruling may stifle innovation

By Jay Lyman on October 17, 2005 (8:00:00 AM)

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Blizzard Entertainment, maker of the popular Warcraft and Diablo videogame titles, handed opponents of reverse engineering perhaps their most potent weapon to date last month when the US 8th Circuit Court of Appeals ruled in its case against open source software developers who had created BnetD, an application that emulated Blizzard's Battle.Net and let gamers connect with each other outside of the company's servers.

In upholding a lower court ruling, the court held the Digital Millennium Copyright Act -- which has previously been the basis of protecting a degree of reverse engineering in software -- prohibited the reverse engineering BnetD developers required to create their software. In addition, the ruling held that so-called click-wrap, browse-wrap, or handshake licenses may also prohibit the reverse engineering. The court disagreed with arguments presented by the Electonic Frontier Foundation (EFF), which asserted that reverse engineering was permissible based on fair use, interoperability, and reverse engineering rights granted in the US Copyright Act and, ironically, the DMCA. Developers and their supporters worry the case may have broader implications for add-on innovation and development, and may mark a significant loss of right to reverse engineer legitimately.

Beyond the chill of Blizzard

Although BnetD developer Ross Combs was on the losing end of the ruling with a couple fellow gamers -- who were also contributors to BnetD -- he fears the ruling has implications beyond Blizzard's Battle.net game network, and knows of other projects under threat from the company, which has been emboldened by the ruling.

"I believe there are a number of ways this ruling is detrimental to creators of add-ons, replacement parts, and other interoperating technologies," said Combs, who was banned from further distribution of BnetD.

He explained the most direct impact of the ruling would be the enforceability and "freely negotiated nature" of EULA provisions that prevent the use of reverse engineering, granted by the Copyright Act. Combs pointed to the 1985 Vault v. Quaid Software case, for example, where a state contract law which allowed such license provisions was preempted by federal copyright law, according to the courts.

"It seems strange to me that such a provision would be enforceable in light of that, but that is what the appeals court has found," Combs said. "As a practical matter, this means that most software products and some hardware products cannot be reverse engineered in this judicial circuit. That obviously has a detrimental effect on innovation, and is likely to allow vendors to lock users to their products, resulting in higher prices."

Combs, credited among gamers for dramatically improving online play of Blizzard's games with BnetD, also warned the ruling was a dangerous precedent by finding that the exemptions for reverse engineering and interoperability outlined in the DMCA do not apply as widely as was apparent.

Combs also referred to Blizzard's other efforts against developers and Web sites hosting software that interacts with their games and servers, something that has gone on "for a number of years," according to the developer, who was engaged in the legal fight over BnetD for three and a half years.

"Mostly they go after sites with 'mods' or 'cheats,' like DiabloWorld.com," Combs said. "There are also groups like the Freecraft project, which created its own [real-time strategy] game engine which could read Blizzard's map and item files. I believe that Blizzard threatened legal action and the project was scrapped (later a similar project with another name was started in another country)."

Will add-ons get subtracted?

EFF staff attorney Jason Schultz said the ruling casts a cloud over what was previously viewed as solid ground for software development because of copyright law and prior rulings on reverse engineering. Schultz said add-ons to Firefox, Google Maps, Craigslist, instant messaging clients, and other applications are among the software that could be impacted.

"The implications are that we won't see any growth in the area of add-on innovation when it comes to software, especially Web software," he said. "Open APIs, add-ons, complimentary products to build and compile a Web site -- all of that is potentially compromised by this. A lot of innovation is coming off of this secondary level of application architecture."

Schultz -- who indicated Blizzard is bringing the ruling down on other developers of similar add-on technology -- said the combination of the DMCA interpretation and EULA enforcement were used to circumvent copyright protection and DMCA-based defense of reverse engineering.

Schultz said his organization was hoping the Blizzard case would mark a major clarification of the DMCA, but it did the exact opposite. Nevertheless, he said the EFF is actively on watch for cases that could further test DMCA, licensing, and reverse engineering rights.

Phil Albert, an IP attorney and partner with the San Francisco offices of Townsend and Townsend and Crew, agreed the ruling marked an extension of intellectual property protection via the DMCA and license agreement.

"It's entirely possible to use the DMCA in combination with licensing terms to create exclusivity beyond what copyright law would provide them," he said. "It's not clear whether the intent of the DMCA was to protect against copyright infringement or go beyond that to create new kinds of protections. It's kind of using the DMCA in an unintended way."

More to come

Combs said he believes Blizzard saw BnetD as a threat as it moved its product lines toward massively multiplayer online role-playing games (MMORPG).

"In the past, their game server was not a revenue center and could be freely used by anyone on the Internet," he said. "But with the subscription model, they did not want to risk the ability of game owners to play on another server and thus avoid the monthly fees."

Although he expressed "deep disappointment" over the ruling, Combs stressed the need for perseverance against corporate and government efforts to close down competition through legitimate reverse engineering in the name of copyright protection and the fight against piracy.

"I hope this case doesn't discourage others from pursuing their interests or make them self-censor when a free software project runs up against the wishes of a commercial entity," he said. "The decision is only in one circuit and it isn't set in stone. The legislature and courts are doing everything in their power to make war on piracy today, and at some point I believe the excesses will be recognized for the damage they are doing to legitimate users and third parties. Tools like WINE, Samba, PVR software, and Microsoft Word import/export plugins are all important tools which have to cooperate with products and use protocols or formats designed by another party which likely wishes the tool didn't exist. It's important to recognize that they aren't just a nicety, but a requirement for a healthy marketplace."

For its part, Blizzard has called the ruling in its favor "a major victory against software piracy," according to a statement from president and co-founder Mike Morhaime.

Ric Hirsch, senior vice president of intellectual property enforcement for the Entertainment Software Association, which filed an amicus brief in the case, said the Circuit Court judges "did a very good job in their analysis of the legal issues," adding the ruling "helps communicate that software publishers and the games software industry is serious about going after piracy of their products."

Hirsch said the ruling will reinforce the use of the DMCA to prevent "IP abuse and theft. The court's ruling reinforces the value of creativity and innovation in the games industry -- it protects developers' creations through the use of security technologies. People will be more inclined to innovate if they think their creations can be effectively protected from unauthorized uses."

Albert, who pointed out that both sides made arguments in favor of innovation in the case, said it is unclear how far the convoluted DMCA-EULA protection could go. However, he said he expects more debate on the matter, both inside and outside the courtroom.

"I think this is going to be an increasingly fertile issue for disputes," he said. "It's not entirely resolved as to where the boundaries are in terms of what is permissible and what is not permissible under the DMCA.

"On one side, people are saying we need all the protections we can get," Albert said. "On the flip side, the people who build on the product or interface to it say, 'We need to be able to provide the features and functionality that the original producer isn't.' This comes up in a lot of places. Ultimately, fortunately, what makes sense wins out in the long run. Eventually, we'll be to a place where it does make sense to reverse engineer and make things better."

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on Bnetd reverse engineering ruling may stifle innovation

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Re-implementing abandoned games

Posted by: Tony G on October 17, 2005 09:53 PM
Reverse-engineering of games should in particular be allowed on software that has reached its End of Life, in my view, games that no longer are supported by the original creator of the game in question. As a nice gesture, all code that they are legally allowed themselves to open up to the world, they should distribute for interested developers to pick up.

Look at what happened to Decent, for instance. The game company released all the code they legally could for that game as open source and so got more popularity and re-created a demand for the game again. You still have to have the original data files in order to play the game, though.


I myself had really wanted <a href="http://www.mobygames.com/browse/games/cyber-corporation/list-games/" title="mobygames.com"> Cyber Corporation</a mobygames.com> to release their code for <a href="http://www.abandonia.com/games/105/PizzaTycoon" title="abandonia.com">Pizza Tycoon</a abandonia.com>, since I myself was a big fan of that and eventually founded a successful project (in terms of vast interest shown) where the goal always was to give the open source community something similar to that game.

The reverse-engineering of an old DOS game was way too complex for me, so I didn't even try. Now, reading this article I somehow am lucky I stayed away from reverse-engineering...

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Re:Re-implementing abandoned games

Posted by: Anonymous Coward on October 17, 2005 10:38 PM
Reverse-engineering of games is rather useless, unless you are talking about Source, D3engine or such...

The software technology behind a game is pretty 'soft'. A few people with solid C knowledge can team up and make a 2d rts engine rather quickly.

The problem is the creative content of the game. I (for one) don't play games for their engine. I play games for their gameplay, story, etc.

And that's what's copyrighted... There's nothing stopping me from making a dune2 like rts engine, but tere are copyright laws stoping me from using *THE* Dune2 game content.

THe Q3E source is availeble for dl.. Unless you are some eyecandy junkie, you can use that engine to make (or remake) beautiful games.

Games are about gameplay, story and stuff, not about engines and source code...

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Re:Re-implementing abandoned games

Posted by: Anonymous Coward on October 18, 2005 01:50 PM
Ugh I agree with all your points except the first one. It is not useless if the product can no longer be run natively on your platform. The "easy" solution is to run it from within an emulator. You get the same experience but with a higher cpu cost (which may not be a big deal at all).
The advantage for porting the engine, is that wherever that engine runs, you can run those "copyrighted" files that the original engine uses anywhere. Often with less CPU cost, and yes eyecandy or audio extras can be added...

Examples would be scummvm, sarien, and freesci. Scummvm has high compatibility, as for sarien and sci, I run the original games in DOSBox...

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Re-implementing Abandonware.

Posted by: Anonymous Coward on October 17, 2005 10:42 PM
I've pointed out elsewere that the retro-game market is proof that old code can make a resergence. When Atari for example updated and rereleased compilations of it's old games. Assuming something's abandoned isn't a safe bet, especially when the assets of a defunt company can be bought.

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Corporations think they're entitled to profits

Posted by: Anonymous Coward on October 17, 2005 10:00 PM
"There has grown in the minds of certain groups in this country the idea that just because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with guaranteeing such a profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is supported by neither statute or common law. Neither corporations or individuals have the right to come into court and ask that the clock of history be stopped, or turned back."

- Robert Heinlein

Trying to sue competing software out of existence is like a computer manufacturer suing those who create add-ons to its hardware. Why is it that hardware competition is accepted and software competition challenged?

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Re:Corporations think they're entitled to profits

Posted by: Anonymous Coward on October 17, 2005 10:31 PM
Ummm... mosty because hardware costs money and resources to build, versus software that has virtually 0 production costs. Both have high development cost, but software has virtually 0 production cost.

If I team up with a few guys we can make a battle-net like server and piss on their (B-Lizard's) subscription...

But I can't team up and mass-produce pci-e cards that can do... some shit...

Only "big" players can enter the competition for hardware add-ons but any guy out there can make something out of virtually free software (linux+gcc, for example)...

Greedy corporations don't like cheap competition so they hide behind regulations and laws. And we all now that those with money make the laws in our wonderful FUBAR world...

(btw, you DO have to pay for rights to use certain technoilogy in hardware too)

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Re:Corporations think they're entitled to profits

Posted by: hcetrepus on October 24, 2005 09:19 PM
Question: Do you pay a monthly fee or royalty in any way to Blizzard when you use connect to servers other than battle.net to play thier games? This is what the issue uis about, for Blizzard, and for the many who cry in their milk that they cant use another server system to play without paying. I know all about server latency issues, but I make do with out looking for a cheap out.

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Pathetic

Posted by: Fletch on October 17, 2005 10:36 PM
You know, I have bought my share of Blizzard titles, and I utilized bnetd so that I could host games without having to connect to the specific battle.net servers and their fluxuating latency (which is fixed now I presume). I think its interesting that they canned this effort in the aim of piracy, which battle.net is not what I purchased, but the games however are. If they wanted a major victory against piracy, they should instead go after people "committing" piracy, which would be the individuals who use their software without paying for it, and thus without a valid license. I find this comparable to doctors giving prescriptions to treat symptoms rather than the cause of the problem (as its typical laziness in this case when one doesn't have the time to do the research). Much in this scenario, Blizzard is too lazy to pursue the individuals who pirate their software, but rather punish anyone by association of a product that may or may not be used in the manner that they are claiming.
I think products can sell themselves, and I certainly think that good companies cause much sales. Noting that I play most of my games on the Linux platform, there isn't too much reason for me to purchase Blizzard games (and no, that doesn't mean I pirate them either). I'm not a huge fan of emulation, but I do currently use emulation to play some of my older games. (Which makes me wonder, does that mean that Blizzard should go after emulators if I can play a pirated title of theirs? I would think not, as I can play it in Windows over the same manner.) If Blizzard would be interested in porting some of their older titles to Linux, I would be obviously interested in checking that out, and there again, I would be interested in some of their titles.
I guess to sum this up without continuing my rambling and bitterness, I will have to say this: If bnetd was arriving at a state to allow gamers to play on it instead of battle.net for World of Warcraft, then I would understand their decision, but if it wasn't, then I think it is rediculous.

haz

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Re:Pathetic

Posted by: Anonymous Coward on October 17, 2005 10:45 PM
World of Warcraft is a concept...

With the amazing leaps that OSS has done lately, soon we'll have oss mmorpgs (I mean quality ones)...

The *concept of WoW* is attracting, not the source code of WoW game client or bnet server...

Once OSS communities will yield some solid quality software base for mmorpgs, sky's the limit and all these greedy money-first "entretainmetn" corporations (like EA) will eat their own bushshit...

Games are a form of art and I'm certain there's a forest of artists out there. They just need the right tools availeble to start their work.

Just wait and see... Once OSS makes a few quality engines availeble we'll finally have some quality driven games, versus the status quo of today's "financial target of this semester" driven games...

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Re:Pathetic

Posted by: Anonymous Coward on October 18, 2005 01:26 AM
Just watch, someone will try to patent the MMORPG concept. Sure, there's lots of prior art, but when has that stopped anyone?

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Blizzard curse

Posted by: SarsSmarz on October 17, 2005 10:43 PM
May a thousand SCO-fleas climb up the nostrils of their camel!

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Why is this a bad thing?

Posted by: Anonymous Coward on October 17, 2005 11:02 PM
If you can't abide by the terms specified by the licensor, then don't buy/use the product. Why is it any more complicated than that? No one's forcing you to play their games.

Everyone I know ignores the click-through EULA. I get weird looks when I suggest maybe they should read those things once in a while. Maybe if they had to take it seriously, there would be that much more interest in products (like FLOSS) that don't have such crappy licenses.

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 18, 2005 12:27 AM
I'm in violent agreement. You want people to respect the GPL, then you should respect Blizzard's license. If the license prohibits reverse engineering then so be it. You have the choice not to buy Blizzard's products, just as I have the choice not to run/use GPL products (I run BSD licensed products).

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 18, 2005 04:00 AM
Just because something is in a license doesn't mean it is or should be acceptable. There are good reasons why you can't actually sign away an arm, a leg, or your firstborn child. I'll also note that it is fashionable these days to attach abusive licenses and contracts to EVERYTHING. For all that the current crowd in charge likes to crow in favor of capitalism, they sure get antsy at the thought that anybody else might get to own something.

If I have a bill of sale for a game or anything else then I'm going to make ANY freaking use of it that suits my hearts desire. No, I won't give copies away but if I want to connect to third party servers or run the copy of OS X in emulation then the respective vendors are invited to clean unmentionable parts of my anatomy with their tongues.

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 19, 2005 05:07 AM
And what are people who think like this going to do when all of the car manufacturers start including eulas that prevent resale?

If you don't agree, don't buy their cars right?

all the best,

drew

<a href="http://www.ourmedia.org/user/17145" title="ourmedia.org">http://www.ourmedia.org/user/17145</a ourmedia.org>

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Re:Why is this a bad thing?

Posted by: hcetrepus on October 24, 2005 09:26 PM
>

You are exactly right. Don't pretned to accept it then by clicking yes. Instead, eat whatever you spent or give it away to someone who can handle the EULA. Duh

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 19, 2005 01:38 AM
There's a MASSIVE difference: the GPL grants *extra* rights; these EULAs are trying to *remove* rights. The first is a valid application of Copyright and Contract law: you get a consideration (the right to distribute copies and derivative products in exchange for the cost of providing a copy of the source. You do *NOT* need to accept the GPL in order to use the software. The EULA attempts to circumvent Contract law: you already paid for the software, so you should have the right to use it, but the EULA says that you can't even use the software YOU PAID FOR unless you grant the company *additional* consideration.

How is requiring *additional* consideration to use a product **AFTER** you paid for a product legal?

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 18, 2005 01:28 AM
Because the licensor is being an asshat and forbidding something that really should be fair use. I mean, you're not permitted (AFAIK) to make more than one copy of a song on a CD - but who obeys that? It's not like making more copies (for personal use, of course) actually hurts the copyright holder.

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 18, 2005 10:14 AM
That's your personal opinion, it has nothing to do with the law. Maybe some people who violate the GPL think those terms are unreasonable and that the FSF are "asshats" for enforcing them, even though they (the violators) might've considered themselves "benefactors of open source" using some logic of their own invention.

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 18, 2005 05:41 PM
Oups, sorry... The law is made by the rich/wealthy.

Really great exaples of the mighty capitalist *law* in action:

Roche - the producer of Tamiflu (the only drug known to slow down avian flu) sais it won't release the "source code" of the drug so any company can manufacture it because it contains (quote) "sensitive commercial information".

And guess what? The law, as you cite it, stands 100% behind this.

So it is LAWFUL, but is it MORAL? Those fascist fucks put millions of human lives behind petty corporate profits.

I ask you, anonymus reader above, who makes "the law" God(s)? Uber-intelligent aliens? All-knowing beings?

Nope...

Newsflash: the law is made by the rich. If the law was based on moral/human principles this would've been a completly different world.

As for the bullshit of "no one is forcing you to buy their X"... gee... I guss nobody is forcing me to buy gasoline, or crappy operating systems or crap...

The "licenses" are made to slave you, drain every bit of money out of people. They don't care about jack shit BUT profits. Plus, that guy didn't pirate jack shit. He MADE a program. He didn't steal anything.

In fact, he used his talent, knowledge and intelligence to CREATE something. But that, of course, is in conflict with some MBA degree-d f-ks in charge somewhere that only care about cache.

No one's forcing you do do anything, right? That's why you can die infected by some mutated bird flu firus rather than play the piss poor corporate game of capitalism and it's "laws" that protect the "intellectual property" of Roche.

By the same "laws" B-Lizard should be sued to hell for literally copying whole concepts and ideeas from LOTR. The whole Warcraft series is just a copy-cat of LOTR. What exactly is the "intellectual" creation of B-Lizard?

The "laws" are made to protect those who make them. That's why 99.99999999999999% work people overtime (to say the least) and still pay them the "negociated" 8h work pay.

In US the unions were virtually wiped out demonizing them as "commnnists" (with the old communism == totallitarism routine) and crap so now workers (wether a construction worker or programmer) have jack shit rghts and corporations have all the rights.

How can you quote the "law" when the "law" allows corporations to send hundreds of it's citizens into unenployment (again, in any working field) by giving corporations the "lawful" right to move their production to cheap labour countries?

That's whay US is in the deep-shit situation where people who payed thousands of dollars on universitary studies are forced to take up piss poor teaching jobs in highschools?

Who's winning? At home people are unemployed, over seas, indians, chineese or whatever are worked in slavery like conditions with minimal pay while most of the profits go into the belies of the "ruling staff".

Really great, this "law" of yours...

As for personal opinions... nah... we live in plutocracies. Ordinary people don't count...

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 19, 2005 01:41 AM
Wait... if I don't agree with the EULA, which I can't read until *AFTER* I buy the product, I shouldn't buy the product? Hunh??

If I buy a product, doesn't the Right Of First Sale give me the right to **USE** the product?

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on October 19, 2005 10:02 AM
That would be true if you actually bought the software. However, you don't buy the software, you buy the license to use it.

Which you can't read until after you install it...

I'm surprised no one has sued to get EULA's displayed on the exterior packaging of software.

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Re:Why is this a bad thing?

Posted by: Anonymous Coward on November 18, 2005 02:32 AM
No, I don't buy a license to use software. I go to the store, pick up a copy of the software, take it to the register and pay for it. (aka: I buy a copy of the software.) The EULA, which I can't see until after I've already bought a copy of the software purports to change the terms of purchase after the fact.

When I buy software, I am bound by the terms of Law, which includes copyright. I am not bound by a contract which I cannot see until after the purchase has been completed.

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Re:Why is this a bad thing?

Posted by: hcetrepus on October 24, 2005 09:31 PM
Yes, to use the product within the right the EULA gives you,

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fine

Posted by: Anonymous Coward on October 18, 2005 03:47 AM
I was going to buy worlds of crapcraft, but now I'm not.

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blizzard's quality

Posted by: Anonymous Coward on October 18, 2005 03:50 AM
maybe if blizzard actually fixed their product and made it work better...people wouldn't try to reverse engineer it.

i play world of warcraft, and pay the ~$15 a month for the service...which crashes, goes offline or simply fails at least twice a week.

maybe they should care more about their quality of service than if some kid in his garage wants to write an add-on or mod.

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Re:blizzard's quality

Posted by: Anonymous Coward on October 18, 2005 04:25 AM
What would you bet that Blizzard's service WILL improve after they incorporate the improvements that bnetd made? And, since their code is binary who will be able to prove that the bnetd GPL source that gets added wasn't theirs and not bnetd's?

The depth of corruption shown by almost all corporations is disgusting. Enron and United Airlines is only a small tip of a very big iceberg.

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you pay how much for that quality???

Posted by: Anonymous Coward on October 21, 2005 05:20 AM
There is only one way to describe you: sucker.

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Mistake

Posted by: Jeremy Hogan on October 19, 2005 02:23 AM
I know Blizzard charges for their service. But the service is shoddy, and so customers route around it.At least they were still buying CDs and licenses. Blizzard will now suffer from users abandoning WoW (and the associated boxed product sales) and will join extensible gaming environments. And the users dumb enough to go and pay $15 a month to get frozen out of the game will only add to the traffic and make it worse for everyone.



They should have borrowed a chapter from Half-Life. Valve/Steam access is free if you've bought a game. So they gain users buying titles to get in, and also gain new variants of titles in the form of Counter-Strike and Day of Defeat.



When you get kicked off of a free server, you don't complain about the $15 nor want your money back on the software license.

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Re:Mistake

Posted by: Anonymous Coward on October 20, 2005 02:50 AM
BnetD is (was) an alternative to Blizzard's FREE server, that supported games like the diablo series, warcraft series and starcraft. In it's current state it was not a threat to Blizzard's (now owned by Vivendi Universal) Pay-To-Play server for World Of Warcraft.

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Re:Mistake

Posted by: hcetrepus on October 24, 2005 09:43 PM
I played Wow consistently for 5 months. Yes the game would hang up now and then, but I never had to wait an eternity for them to come back up. 98% of the time I was connecting to battle.net I had no issues at all.
The only reason, as it has been shown in other games, like EQ1 and 2, who's servers also have donwtime,that people will leave a game is becasue it is no longer fun to play.

While I have not connected to the other servers mentioned in the article, I can say I have connected to such like servers for other games. While it was reasoned and argued that theirs hadmore stability, etc. Everyone knows that the real reason was to plug in cheats that ruined the original product anyway.

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The only way to send a message....

Posted by: Anonymous Coward on October 20, 2005 07:24 AM
The only way to send a message to the greedy companies that want to stiffel "innovation" is simple - quit buying their products! If people just stopped buying the products of the companies playing these games (pardon the pun) they may get the message by way of thier pocket book!

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