New fair use case

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <plevy () citizen org>
Date: March 24, 2006 12:15:43 PM EST
To: dave () farber net
Subject: New fair use case

I thought you might be interested in a lawsuit that my colleague Greg  
Beck  just filed against Blizzard, Vivendi Universal Games  
(Blizzard's parent company), and the Entertainment Software  
Association on behalf of a small eBay seller.

http://www.citizen.org/pressroom/release.cfm?ID=2157

Our client (the eBay seller) wrote an unofficial gaming guide to  
World of Warcraft called "The Ultimate World of Warcraft Gold &  
Leveling Guide."  After he began selling an electronic version of his  
guide on eBay, Blizzard, Vivendi, and the Entertainment Software  
Association began repeatedly invoking the notice and takedown  
provisions of section 512 of the DMCA to have the eBay auctions  
terminated on the grounds that the guide infringed Blizzard's  
copyright.  Our client filed a DMCA counternotice and, because the  
companies did not respond within the fourteen days required by  
statute, eBay reinstated the auctions.  But even after that, the  
companies continued to file notices of claimed infringement, ignoring  
the prior counternotice, until the seller's eBay account was  
suspended.  In addition, Vivendi's lawyer has threatened to sue if he  
continues selling his guide.

Vivendi's position is apparently that merely writing *about* their  
game infringes their copyright even if the author incorporates none  
of the company's text or storyline.  Although the e-book does contain  
a limited number of screen shots to explain combat techniques, this  
is well within the bounds of fair use.  If Vivendi is correct, then  
selling a how-to book about Microsoft Word would infringe Microsoft's  
copyright, especially if the book contained one or more screenshots  
of Word's user interface.  We think this cannot be the law.

Big companies often use the DMCA and eBay's "Verified Rights Owner"  
-- or "VeRO" -- program to harass small sellers of competing  
products.  With the hundreds of thousands of notices of claimed  
infringement it receives, eBay is not capable of examining the merits  
of each individual claim.  As a result, eBay terminates targeted  
auctions without question and small sellers who can't afford to  
defend themselves are left without recourse.  Even a DMCA  
counternotice is ineffectual if a company can simply ignore it and  
continue terminating auctions at will.

This will be the first in a series of cases that Greg is putting  
together to put a stop to such abuses of the DCMA's take-down procedure.


Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation



-------------------------------------
You are subscribed as lists-ip () insecure org
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/