Filed Thursday in a California federal court, the complaint (click here for PDF) alleges that Blizzard Entertainment, its parent company Vivendi Universal, and the Entertainment Software Association (ESA) were wrong to order eBay to terminate auctions of "The Ultimate World of Warcraft Leveling & Gold Guide," a book penned by 24-year-old Brian Kopp of Bronson, Fla.
The multiplayer online game of wizards, warriors and monsters has now attracted a following of 6 million subscribers worldwide since it debuted in 2004--among them, active virtual guilds.
During several months beginning last August, Kopp sold several hundred copies of his guide, which contains tips on playing the game and accumulating points, at roughly $15 apiece. Weeks after his first auction went live, Blizzard, Vivendi, and the ESA began sending repeated takedown notices under the Digital Millennium Copyright Act (DMCA), asking eBay to yank the auctions because of copyright and trademark infringement concerns. The auction giant's general policy is to halt auctions when it receives such complaints and to suspend a user's account after it racks up a certain number of warnings.
Kopp filed counternotices protesting the infringement claims. Because the companies did not respond to the documents within 14 days, eBay was free under the DMCA to reinstate his auctions, which it did. But by November, eBay had accumulated enough takedown warnings from the companies to warrant suspending Kopp's account. He restarted his sales under a new username, which quickly earned suspension, too.
The companies went on to threaten copyright and trademark infringement action against Kopp. In one message quoted in the complaint, a Blizzard executive said Kopp could not lawfully sell a guide that "attempts to trade off the substantial goodwill and recognition that Blizzard has built up in connection with its World of Warcraft product." He also dismissed Kopps' claims that his book was solely meant for "educational" value, saying it clearly had a commercial purpose.
Kopp's complaint argues that his book does not infringe on any of the companies' copyrights for several reasons: The book presents a disclaimer on its first page about its "unauthorized" nature, contains no copyrighted text or storylines from the game and makes "fair use" of selected screenshots under copyright law, the complaint said.In effect, if the video game industry's actions are upheld, "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," said Paul Levy of the public-interest advocacy group Public Citizen, which joined in filing the suit on behalf of Kopp. "We think this cannot be the law."
The case points to a broader problem, Levy said: large companies that send takedown notices with abandon to eBay and jeopardize the prosperity of smaller sellers.
The suit seeks three major forms of relief: monetary compensation to cover, among other things, profits lost from the halted sales; an injunction preventing the entities from interfering with Kopp's book sales; and a judgment that his book is protected by the First Amendment and doesn't interfere with intellectual-property rights.
Kopp has continued to sell the product through a personal Web site and plans to continue doing so indefinitely, according to the complaint.
Representatives from Blizzard, Vivendi and the ESA did not immediately respond to interview requests Friday.
