WASHINGTON - June 9 - In response to a lawsuit filed by Public Citizen, the video game maker of “World of Warcraft,” Calif.-based Blizzard Entertainment Inc. and other defendants today agreed to allow a Florida man to continue to sell his video game guide on eBay.
The lawsuit, filed in March in the U.S. District Court for the Central District of California by Public Citizen on behalf of Brian Kopp, was an attempt to restore Kopp’s right to sell the guide. He was blocked from selling it on eBay after the video game maker invoked the provisions of the Digital Millennium Copyright Act (DMCA) by claiming that the guide violated its copyright in the game. The suit also sought 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.
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 and screen shots, but does not contain any copyrighted text or storyline from the video game. Kopp includes disclaimers in the guide stating that it is not an official guide and clearly noting that he is 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” (or VeRO) program – in this case, Blizzard, Vivendi and the ESA – file notices of infringement against particular auctions in accordance with the DMCA. Although Kopp filed a counter notice with eBay, a procedure under the DMCA allowing targeted users to contest a claimed infringement, the companies continued to terminate Kopp’s auctions. 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 has been unable to sell his guide on eBay and has lost profits as a result.
Today’s settlement states that the companies will withdraw their previous notices of infringement, allowing Kopp to once again sell his guide on eBay, and drop their claims of copyright and trademark infringement. The companies also agreed that they would not file future notices of infringement against Kopp regarding items for which he has already filed a counter notice. Kopp agreed to continue to keep a disclaimer of not being an official guide and to not include links or instructions on how to locate “cheats” in the game.
Under the procedures of the DMCA, companies that receive a counter notice regarding an item should not file more notices of infringement until they obtain a court order stating that the item infringes their intellectual property rights. When counter notices are ignored, small eBay sellers have no means to defend themselves against wrongful corporate claims of infringement. The DMCA provides for damages and other remedies against companies that issue notices of infringement in bad faith.
“We praise the companies’ decision to allow our client to continue selling his unofficial guide and to fully honor the provisions of the DMCA,” said Greg Beck, the Public Citizen attorney representing Kopp. “We urge other companies to follow this example and avoid terminating the auctions of eBay sellers who have filed counter notices in defense of their goods. We are alert to the widespread abuses of the DMCA process, and companies that continue to abuse the process do so at their own risk.”
Neil Greenstein of TechMark, a California intellectual property firm, served as local counsel for Kopp. To view the lawsuit, click here.