Kopp v. Vivendi: Game Over

So says CNet.  Blizzard has agreed to stop taking down the auctions.  (I guess I should have just waited a few more days for some news to develop!)

Comments

[Garthilk]

1.

So what does this mean?

Does this mean I can print a book with nothing but screenshots in it and sell it? What about a T'shirt with a screenshot on it? How much text is requires to make something a guide?

[greglas]

2.

Garthilk -- It means the law is essentially where it was before the lawsuit was filed. Fair use law is especially fuzzy and fact-dependent, so even if this case had been litigated and decided, there would not have been a simple answer to your questions -- just an educated guess based on particular facts.

For an over view of the basics of copyright and fair use, see http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html
which was mentioned in the previous thread.

[Jeff Cole]

3.

Caveat: I have not seen the book. I thought the use of the screenshots would pretty clearly not be "fair use," because of the commercial nature of the use. Were I Vivendi's lawyers, I would have required he remove and refrain from using any screenshots.

One thing to remember, there are very often multiple copyrights involved in any dispute.

You had to know that this would settle, Vivendi had bad facts and very little at stake.

[illovich]

4.

Bleh, this is the problem for small companies and individuals now. A company like Vivendi can exploit/abuse the already muddy take down rules continuously until threatened with litigation that they might lose, and then they settle. But they're still free to issue DMCA take downs to anyone else who crosses their radar.

Very frustrating, I'm a little disappointed that the EFF settled (but I guess maybe they were afraid they might lose too).

5.

Jeff,

The commercial nature of a work does not preclude the applicability of "fair use". Newspapers and magazines are commercial enterprises. If I wrote a magazine article about a game and included some screenshots, the game company wouldn't have grounds for a lawsuit.

[Brandon]

6.

As mentioned above, traditional cases in this realm are usually based on the facts of each individual case and it can be fuzzy.

I saw a lot of people in the previous post and one of the comments here saying something to the effect that you can't include screenshots because that's some sort of infringement. It's not. The law looks at it as follows. People do not buy your product because they want to see the screenshots of the game. They buy your product because they want the content that you have produced. If you simply made a booklet filled with screenshots with no content if your own, yes you could be sucessfully sued.

Yes, this leads to fuzzy law. Each case is different and heavily relies on the view of the judge. It is obvious in this case that the screenshots were not the prime focus of the product, consdering there is a limited amount of them versus how much of the author's content there is.

In the most simple terms, the selling point of the guide is not the screenshots, it is the content written by the author. This is fair use.

[Jeff Cole]

7.

Anonymous,

Well of course commercial use does not preclude fair use, but we are not talking about an article written in a magazine. And I admitted that I have not seen the book (so, arguably, I should not have invested my $0.02).

That said, if you would like to debate the of the other three factors and in light of the applicable caselaw, I would consider your first swipe ...

[hikaru]

8.

One thing that the author of the guide could actually lose on legal grounds:

He did not write the vast majority of the content.

I own the guide. Bought it. Skimmed it.

Most of the content is sifted from online gaming sites (and a lot of that content is out of date). Each article of the ~160 articles are actually just message board posts he's cut and pasted.

The original authors could sue for copyright enfringement and get a cut of that $15/sale plus punitive.