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Oct 01, 2004



Although the EULA-breaking part of this ruling does seem to apply in this case, what would have happened if the programmers doing the reverse engineering etc. had not themselves signed the EULA but had been given access to the software by someone else who had signed it? Sure, the person who gave them it would have broken the EULA, but would that have made the programmers accountable?

I ask because I seem to recall that the makers of MU Online sued Itembay for dealing in virtual goods in violation of their EULA, but failed because Itembay hadn't signed the EULA. Players were breaching it, but not Itembay.

This was in Korea. I was wondering whether the US courts would likely be tougher (taking the attitude that because someone was breaking an EULA then "independent" parties shouldn't be able to benefit from it) or whether they'd follow Korea's lead and say it was OK (but presumably allow the suing of the individuals who did break the EULA, should they be caught). My inexpert reading of the Blizzard case gives me the impression that the US might be tougher about such things, although I realise the principle hasn't been tested stand-alone here.



I think there is a key difference between the MU Online vs Itembay and the case of a software developer getting access to the software from another end user.

Itembay may have been able to deal in the items without access to the software, so were able to keep their hands clean, but a software developer building a compatible product would be using the software to do so. If this developer denies agreeing to the EULA, they are admitting to using the software without a license, which the court may consider was illegal. It may be possible for the developer to avoid this connection by working in a clean room style process, where information about how to interoperate with the game software was provided by a third party who add legitimate access to the software. This might leave the developer clean, but would probably still leave the third party liable for violating the EULA. In a parallel case to bnetd the developer might still be liable under the DMCA for building a circumvention device.

Laws like the DMCA are not yet common outside the US, but they are spreading fast.

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