[IP] New fair use case
Begin forwarded message:
From: Paul Levy <plevy@xxxxxxxxxxx>
Date: March 24, 2006 12:15:43 PM EST
To: dave@xxxxxxxxxx
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
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