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Software Company Wrongfully Interfered with Sale of Guide to Popular Video Game on eBay

March 24, 2006

Software Company Wrongfully Interfered with Sale of Guide to Popular Video Game on eBay

Florida Resident’s Unofficial Guide to “World of Warcraft” Does Not Violate Copyright, Infringe Upon Video Game Maker’s Intellectual Property

WASHINGTON, D.C. – A Florida resident should be allowed to sell a guide to playing the popular online video game “World of Warcraft” because it does not infringe upon the video game maker’s copyright, trademark or other rights, Public Citizen said ina lawsuit filed late Thursday in a federal court in California.

The lawsuit, filed in U.S. District Court for the Central District of California, seeks to restore the right of Brian Kopp of Bronson, Fla., to sell the guide. He was blocked from selling it on eBay after the video game maker, Irvine, Calif.-based Blizzard Entertainment, Inc., invoked the provisions of the Digital Millennium Copyright Act (DMCA) by claiming that the guide violated its copyright in the game. The suit also seeks to prohibit Blizzard, its parent company Vivendi Universal Games Inc. of Los Angeles, and the Washington, D.C.-based Entertainment Software Association (ESA) from further interfering with the sale of the guide, and to recover damages for lost sales.

The companies also have threatened to sue Kopp for copyright infringement if he sells the guide at all, although he is still selling it on his personal Web site. If the companies’ interpretation of their copyright were allowed to prevail, it would threaten the publication of future how-to guides about any subject and a wide variety of other speech that merely comments on a copyrighted work.

“Copyright laws are designed to promote creativity and innovation, not squelch it,” said Greg Beck, the Public Citizen attorney representing Kopp. “A video game is copyrightable just like a book, and just like a book you should be able to comment on it, create new works inspired by it, teach about it in classes, write newspaper articles about it and so on. It is this kind of innovation and open discussion that the copyright laws are supposed to foster. By claiming that mere publication of a how-to book about its game infringes its copyright, Blizzard has interpreted its intellectual property rights in a way that would prohibit legitimate commentary that is protected by the First Amendment.”

Kopp wrote and published a guide to the electronic video game “World of Warcraft” – currently the most popular online game in North America – and began selling copies of the guide on eBay on Aug. 18, 2005. During the next few months, Kopp sold several hundred copies of the guide book, “The Ultimate World of Warcraft Leveling & Gold Guide.”

The guide book contains tips on how to play the game but does not contain any copyrighted text or storyline from the video game, according to Public Citizen’s lawsuit. Kopp includes disclaimers in the guide stating that it was not an official guide and clearly noting that he was not affiliated with Blizzard Entertainment, the developer and publisher of “World of Warcraft.”

After Kopp began selling his guide, Blizzard Entertainment, Vivendi, and the ESA filed several notices of claimed infringement under the DMCA, asserting that Kopp’s guide violated the video game maker’s intellectual property rights.

EBay terminated auctions for the guide as a result of the notices. EBay terminates auctions if intellectual property owners that are part of eBay’s “Verified Rights Owners” program – in this case, Blizzard, Vivendi and the ESA – file notices of claimed infringement against particular auctions in accordance with the DMCA. When a certain number of auctions are terminated – the exact number varies from person to person – eBay suspends the seller’s account.   Kopp’s account has been suspended, meaning he is unable to sell his guide on eBay and has lost profits as a result.

“Companies are increasingly using the DMCA and eBay’s Verified Rights Owner program to interfere with legitimate competition by small online retailers,” Beck said. “Overaggressive application of claimed intellectual property rights by corporations not only interferes with free speech protected by the First Amendment, but ultimately hurts consumers by reducing the choices available to them.” 

Neil Greenstein of TechMark, a California intellectual property firm, serves as local counsel for Kopp. To view the lawsuit, click here.