Kopp v. Vivendi is old news, granted, but we never really got around to blogging it here. So to look for something new to say with this post, I went over to the Central District of California website and took a peek at the docket this week and... nothing much new to report. Some exciting filings about the pro hac vice issues but no answer yet to the Complaint.
If you follow MMORPG/techlaw news and didn't catch the stories about this suit the first time around, you've obviously been hiding under a virtual rock. See, e.g, Security Focus, Mike from TechDirt, Outlaw. Slashdot Games, Marty Schwimmer -- the list goes on. But anyway, here's a brief recap: it seems that gamer/uber power-leveling virtual moneybags/entrepeneur Brian Kopp brought suit (with help from the consumer defenders at Public Citizen) against Vivendi after auctions of his tome "The Ultimate World of Warcraft Levelling & Gold Guide" were repeatedly taken off eBay pursuant to the VeRO system by Vivendia and the ESA (no, not the Entomological Society of America -- the other ESA).
According to the allegation in Kopp's Complaint, he tried to get things straightened out with emails and phone calls to the ESA and Vivendi and finally ended up with an explanation from Vivendi's counsel that his guide
involve[d] the infringement of Blizzard Entertainment's intellectual property, specifically the World of Warcraft / WoW trademarks and copyright.
Another message stated that
The EULA prohibits using the World of Warcraft software for 'commercial purposes'. Your disclaimer that the guides are for "educational purposes only" is ineffective.
Evidently, there were/are some WoW screenshots in the guide, which is apparently still being sold by Kopp here with the assurance that it is "100% legal." So, essentially this is a case about the proper extent of intellectual property rights. Among the issues to be briefed and decided are:
1) Is Kopp's use of the WoW screenshots for his guide a fair use under copyright law? (Relatedly, is this a fair use? This?)
2) Are there any other copyright grounds (beyond the screenshot use) for pulling the guides? (E.g. is this anything like the Seinfeld aptitude test?)
3) Was there a valid claim of trademark infringement here and if so, how does
the threat of potential contributory liabiity under trademark law mesh with the ESA/Vivendi's
actions under eBay's VeRO (some light background reading on that topic)
4) Can the WoW EULA/TOS agreement trump the fair use defense under copyright law? (And, btw, Blizzard's lawyers have some experience in getting this type of result, much to the consternation of those of us who share the EFF's worldview.)
But of course, this is a guide the teaches people how to get gold quick and power level. E.g., in a "free tip," Kopp mentions that "A Place I go to farm easy gold, about 40 an hour, is Azshara." As we all know, some people don't like gold farming. I'm not this should have any bearing on the questions above, but I guess there is a very remote possibility that it could come in through the equitable considerations in the fair use analysis. (At TN, we just have to mention the gold farming angle, you know.)
Anyway -- we'll be watching this and will bring you another news update several months after something interesting happens. Comments open. Feel free to take the discussion in any direction.
photo credit: dweekly
A minor quibble, but farming for gold and gold farmers are two distinct topics. Gold farmers are those involved in the RMT - they farm gold and items (or create exploits to dupe gold and items) to sell them for real money. As this is a busuniess for them, they engage in unethical pracices to protect the territory they have chosen to "farm".
Farming for gold, on the other hand, is done by everybody. This is merely the act of earning some gold to finance something else in game - raid repairs and potions, an enchant, etc. Farming for gold does not imply that the gold will be exchanged for real money. Perhaps we should change the phrase to "grinding for gold" to differentiate from the RMT activities.
Posted by: L'Emmerdeur | Jun 06, 2006 at 10:18
I can't attest to legality, but I can attest to goods delivered. I just bought the guide package, and it looks nice.
Posted by: hikaru | Jun 06, 2006 at 13:12
[obligatory]IANAL[/obligatory]
Haven't actually seen the product, so silly of me to do this.. However I predict:
1) Usage of the screenshots constitutes fair use under American copyright law.
2) There are no other copyright grounds for the suit.
3) There is no validity to the cliam of trademark infringement. Trademark infringement claims often seem to be abused by companies under the theory that is bars anyone else from making money by selling a product related their own. The fiding will most likely be that there is no risk of confusion between blizzard warcraft products and the third party guide.
4) From previous discussion current holdings appear to be that EULA/TOS consitute binding contracts, which would trump ordinary copyright law. This is the most likely area for Vivendi to prevail on any claims.
Thanks for the post though I have indeed been hiding under virtual rocks in virtual caves. You might even say "Oblivion-ous" to many recent happenings..
Posted by: Thabor | Jun 06, 2006 at 16:20
I sincerely hope that Vivendi is indeed found to have overreached, since otherwise the free exchange of ideas enshrined in the First Amendment will be bludgeoned to death by anyone who cares to wield an "IP ownership" club.
Furthermore, hopefully Vivendi will be found liable for the behavior of their "lawyerbots," causing all companies to be more judicious about using such tools.
Finally, as I understand it, the DMCA and VeRO systems are currently rigged to favor anyone who claims IP ownership. It appears easy to get something taken down, but nearly impossible to challenge the take-down or get that something reinstated. While one could try to craft a better system, holding companies liable for their bot activities (including their lawyerbots) seems more effective in the long run.
Posted by: Arnold Hendrick | Jun 06, 2006 at 16:27
What amazes me is that this is a fight over something that does not exist in everyday reality but exists in the minds of those players and the company's servers. In-game gold only has value outside of the game because players (and to some extent the corporations who own the servers and the game univers) give it value. And yet it dosen't really exist? We have given real world monetary value to our own shared imaginary world that has no corporal reality. Look out everyone it looks like P.K. Dick's and Gibson's nightmare made real.
Posted by: Todd | Jun 06, 2006 at 17:16
(IANAL)
If I wanted to write, publish, and sell a professional, book bound guide to WoW, putting it up for sale on Amazon.com and on selves at Borders, say, would I get in trouble with Vivendi's lawyers for using their intellectual property to make money without receiving license from them? If I wrote and published a novel based on the tv show Friends and sold it for profit, would Warner Brothers' lawyers come after me? If I created a film based on the Star Wars universe and sold it for profit, would Lucas Arts haul my ass into court?
It's easy to say that this will smash free speech or fair use, but we have to remember that this is not a fan creation -- it is not fanart, fanfiction, fan film, or fan created guides like Alakhazam, Thottbot, or WorldofWar.net. It isn't a blog which makes no money whatsoever using an image from copyrighted material. It is a guide for which someone unaffiliated with Blizzard is charging money. That isn't fair use, that isn't free speech, that's business. I don't see how making money off someone else's copyrighted creation without their express permission could possibly be construed as legal.
But as I said, IANAL. Vivendi has plenty of those.
Posted by: Samantha LeCraft | Jun 06, 2006 at 17:20
Interesting note... at the bottom of the page selling this guide, Brian states:
"All materials published in our guide...are protected by our copyrights or trademarks or those of our partners. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works of, distribute, publicly display or in any way abuse any of the materials or content or our sites in whole or in part. We regularly monitor ebay and other sites for violation of our copyright. Legal action may be taken and listings WILL BE removed through ebay's VERO program."
So... what was the point? That it's OK for him to play WoW (a copyrighted piece of software, writing and art), troll the Internet for other people's tips, hints, tricks, etc., and combine them into another format in order to make money, claiming "fair use...." but that it's not OK for other people to then do it to his stuff?
I'm not a lawyer. Nor do I play one on TV. Or on a blog. But if it's OK for him to do it to Blizzard, why isn't it OK for me to do it to him?
Posted by: Andy Havens | Jun 06, 2006 at 17:20
Todd wrote:
We have given real world monetary value to our own shared imaginary world that has no corporal reality. Look out everyone it looks like P.K. Dick's and Gibson's nightmare made real.
Gosh, you mean like currency, watching a movie, or experiencing Disneyland? The latter two, after all, have no corporeal reality as they are experiences, not things.
--matt
Posted by: Matt Mihaly | Jun 06, 2006 at 17:22
Samantha LeCraft wrote:
It's easy to say that this will smash free speech or fair use, but we have to remember that this is not a fan creation -- it is not fanart, fanfiction, fan film, or fan created guides like Alakhazam, Thottbot, or WorldofWar.net.
Something like Allakhazam is just as much a commercial enterprise as what this guy is doing. Allakhazam brings in quite a bit in advertising.
--matt
Posted by: Matt Mihaly | Jun 06, 2006 at 17:24
Additionally, Allakhazam is effectively owned by IGE, isn't it?
Posted by: Artheos | Jun 06, 2006 at 17:47
I mostly certainly believe there are many cases in which it is legal and appropriate for make money off other peoples creations.
What about selling ink cartridges for someone else's printer. How about selling training services on how to use Windows, OS/X, Photoshop, etc? Would you seriously consider it a violation of IP rights to incorporate screenshots into a third party training guide?
Non-profit status certainly shouldn't be the sole criteria for fair use of IP. The quantity of IP used versus the amount of original content is certainly a qualifier as well. Even free fan fiction is frequently on shakey ground because an amatuer writers may incorporate huge amounts of source IP in their writing.
Posted by: Thabor | Jun 06, 2006 at 18:22
Gosh, you mean like currency, watching a movie, or experiencing Disneyland? The latter two, after all, have no corporeal reality as they are experiences, not things.
--matt
yes but Disneyland exist in a specific real world geographical place, money has a corporal form (although it is this reality has been diminishing with the advent of the credit card) and a movie or book has a corporal reality to it as I can own a copy of said movie or book. I can feel touch and experience that movie or book as a real physical object. The sword that I create inside of EQ2 and sell outside the game have no reality in that way yet the book or mive that I buy off of Amazon is said to exist in physical form some where in the physical world and will shipped to me in a timely manner. The difference between amazon.com (or anyother e-buisness) and VR is that Amazon onluy changed the mode of communication whereas MMORPG's literally create something out of nothing and yet that somethin does not exist in this corporal reality but in the minds and servers of the players and corporations who regulate those worlds. This would be all fine and good if one world did not effect the other but as we are increasingly seeing with games like Eve and Eutopia is the ability to own virtual property wich has an impact (albeit small at this time) the real world economy.
Posted by: Todd | Jun 06, 2006 at 18:25
Todd wrote:
yes but Disneyland exist in a specific real world geographical place
And? When you buy entrance to Disneyland, you in no way are purchasing Disneyland. You are purchasing the right to experience it. Similarly, Achaea's servers exist somewhere physical, but the user is not purchasing the server, just the experience that utilizes it.
movie or book has a corporal reality to it as I can own a copy of said movie or book.
Really? Did you get a copy of the movie last time you went to the theatre? I doubt it. What you got instead was an ephemeral experience.
Incidentally, when you 'buy' a movie, you are not purchasing the movie. You're purchasing a disc that grants you certain rights to view the movie. In no way do you own the movie.
--matt
Posted by: Matt Mihaly | Jun 06, 2006 at 18:36
And? When you buy entrance to Disneyland, you in no way are purchasing Disneyland. You are purchasing the right to experience it. Similarly, Achaea's servers exist somewhere physical, but the user is not purchasing the server, just the experience that utilizes it.
yes this is true but I cant go into disneyland and create a new disney product for them that will only work and have value in Disineyland and the real world Like I can in EQ2 not only that but in Eve I or my guild can own and govern a specific geographical area in the game. In eutropia I not only can own it but i can leese or sell it and make real world money off of it. I don't see Disneyland allowing you to do this anytime in the future.
Incidentally, when you 'buy' a movie, you are not purchasing the movie. You're purchasing a disc that grants you certain rights to view the movie. In no way do you own the movie.
I understand that I dont own the movie but I have a physical representation of that movie that allows me to view it when I want. again VR propety does not have this ability it is in essence the ultimate simulacra as it has no physical representation other than the image on my computer screen.
Posted by: Todd | Jun 06, 2006 at 18:51
Todd wrote:
yes this is true but I cant go into disneyland and create a new disney product for them that will only work and have value in Disineyland and the real world Like I can in EQ2 not only that but in Eve I or my guild can own and govern a specific geographical area in the game. In eutropia I not only can own it but i can leese or sell it and make real world money off of it. I don't see Disneyland allowing you to do this anytime in the future.
Photographers can go into Disneyland and shoot photos, then sell them. This may violate copyright restrictions, but then, that's not really an issue in a good portion of the world (like China) and it happens. In other words, a user is having an ephemeral experience and has managed to create value from that experience, precisely like what you're talking about in a MUD/MMO.
I understand that I dont own the movie but I have a physical representation of that movie that allows me to view it when I want. again VR propety does not have this ability it is in essence the ultimate simulacra as it has no physical representation other than the image on my computer screen.
If the bits on your cd make the movie "real" then the bits on the hardrive make the sword "real." There is no difference.
--matt
Posted by: Matt Mihaly | Jun 06, 2006 at 19:48
I suggest that - ultimately - the attribute of "reality" will no longer be a factor in legal recourse. There are of course, many, many examples of non-tangibles being exchanged for money, and it's not a great leap of logic to realize that the fundamental issue is exchange - quid pro quo - regardless of whether what is exchanged is real or not. Reality is moot. Blizzard is not collecting cash, they are charging your credit card.
Secondly, and sadly, the law only claims to have a basis in logic. There is little real difference in the courts of today and the gladitorial arenas of two thousand years ago. The bigger, badder lawyer beats up the smaller, weaker one, and the judge is just there to see that "the system" can survive the process without losing its claim to legitimacy. It is naive to think that legal cases are won or lost on the merits of the arguments. People who yell and scream more, win more. It's like fifth grade in perpetuity.
For better or worse, it's doubtful that Kopp will win his case. I would predict that the best case scenario for him will be a form of winning the battle but losing the war. I like Blizzard and like their products. I also like Thottbot and Allakhazam and like and use their product. Why are they ok and Kopp not?
As was pointed out earlier, one is about "Gold Farmers" and the other about "farming for gold". That's the real issue. However, that's not what is being discussed in the courts, because that's not the best hold to use to get the other side to cry Uncle.
Posted by: Xoebe | Jun 07, 2006 at 01:05
Matt wrote: If the bits on your cd make the movie "real" then the bits on the hardrive make the sword "real." There is no difference.
My point is this; a movie has a physical representation which I am said to own. In the case of virtual property there is no physical representation; with no physical representation traditional means of ascertain ownership through physical possession becomes impossible. In other words, I can be said to own a copy of a movie by my possessing a copy of it on my DVD, DVR, Hard drive, what have you, but that particular copy exists only within the confines of a single particular physical object my hard drive, DVD, ECT. However, a unique virtual property may exist on many hard drives simultaneously. How can an item be unique if it exists in many different places at the same time? If the item is not unique than its value must be diminished? I know what your going to say “its use is unique to me” and yes it may be under current games but with Eutropia and eve we are seeing persistent worlds where conditions of a piece of virtual property may have been changed without your consent or knowledge if this change causes you real world damage do you have the right to sue over something that has an imaginary existence? The lines between what is real and what is imaginary are becoming more and more blurred. The whole concept of ownership by possession has to be reevaluated. How can I be said to be in possession of a unique property that exist simultaneously in many physical locations. Where does the responsibility of ownership lie if not in the own who possesses it? But how can I be in possession of it if it has no corporal existence?
Posted by: todd | Jun 07, 2006 at 01:27
How can you be in possession of something with a corporeal existence? What gives you the right to own anything, Todd? This is an admittedly philosophical question, but you're going to talk about existence and reality, that's the arena you get to be in.
What does ownership mean, and why does something physical, tangible, corporeal need to be there for it to be owned?
I ask these questions without expecting answers, by the way.
Posted by: Michael Chui | Jun 07, 2006 at 02:41
todd,
The issue of "physical representataion" isn't an issue, and hasn't been for some time. For decades, we've had properties that merely exist as binary o's and 1's on some disk somewhere. There's not a paper dollar for every dollar that exists... or even a fraction thereof. The era of needing to possess-in one's own hands- tangible assets has long since passed.
The idea of an object existing in many places simultaneously is decades-old and also fairly well resolved. I own the material I publish on my website, I own the same material cached at hundreds of proxies and in your hard drive. I don't own a part of your hard drive though. I can fully own all the "imaginary" representations of my work, despite its residence on other peoples' property.
---
The issue with Virtual World properties isn't about their "real-ness." They're real. It's more about who owns it- and what in-game ownership means.
In most games, you're given license to access- you never "own" anything. "Ownership" of items in the game is merely the act of the developer granting conditional access to you in support of the game. If events in the game suggest you lose the item, there's no property loss to you. However, that license itself may be of value: if events outside the context of the game cause you to lose access to a license you might otherwise have had, then you *might* be able to sue for recovery. That's essentially the issue resolved in the oft-mentioned case in China. If the player had lost an item in-game due to game mechanics, he wouldn't have been able to claim theft, but since lax security on the developer's end caused him to lose his license to access the sword, the resellable value of that license was considered fair compensation.
Second Life lets you create objects and keep some form of ownership over that object, meaning you have the right to resell and reuse... possibly even extending to reusing it in another context- we've seen Tringo, for example, leave the SL realm for reality. I don't know how far this goes- if I create my own meshes and objects, I might be able to use them in SL OR in another creation (if the technology permits capturing such things) as long as I don't build off SL's original assets.
I'm not as familiar with PE, but as I understand it, you're not given that level of content creation power. You can "own" a space station made of art assets developed and owned by MindArk. They retain these art assets and reuse them elsewhere, after all. They auction the property like a "sale" but do you really *own* it? If MindArk went belly up today and shut down the servers, did they just destroy your property? Would you be entitled to a local backup? or running your own copy? Should you be entitled to compensation? Could I strip the meshes out of cache, convert them to a compatible format, and upload a copy into Second Life? Full ownership would suggest I could.
PE's "ownership" seems more akin to "owning" a box at a sports stadium. You might get free access to that box during sporting events. You might be able to resell seats in your box or give them away. You might be able to do pretty much whatever you want there. You can't, however, remove the box. You may or may not have access to the box during other events at the stadium- a "monster truck" rally, or concert, for example. It's more of a conditional lease than a purchase.
Interestingly, if I have a 20-year lease, and the stadium is torn down in year 15, I might have the right to a 5-year lease in the new stadium- or cash compensation for my loss. If it didn't, it becomes a much more tenuous investment, as I'd never be sure when it would disappear. If PE shut down tomorrow, does it offer any guarantee of compensation to the loss of a space station or island?
Posted by: Chas | Jun 07, 2006 at 11:50
Posted by: illovich | Jun 07, 2006 at 12:24
Regretably, I believe the discussion has become lost in the endless debates about virtual property rights and what legal tools game operators can (or should) use to prevent gold farming and similar activities.
That is NOT the point here. The case in question is whether an author is or is not able to sell an unauthorized book about WoW on the internet, and most especialy whether Vivendi's tactics to prevent that sale are legal.
I have no high regard for the title or content of the book, but I will defend an author's right to present his opinions and ideas. If Intellectual Property ownership can muzzle people, all too soon nobody will be able to say anything about any company's product without that company's permission.
Posted by: Arnold Hendrick | Jun 07, 2006 at 15:39
OK, Arnold. Back to it...
There's a delicate balance between "fair use" and "plagiarism." The framers of the Constitution wanted creators of intellectual property to be able to enjoy the fruits of their labor, but also wanted the public at large to reap the benefits of providing the system and "commons" that allows for the free expression of ideas that gives those creators the space and tools to produce those works.
So. On the one hand, as a writer, I would be gratified if another author wrote a book about my works that discussed their significance, quoted them at some length, and put them into some framework of a discussion about how much smarter I am than everyone else. On the other hand, if said author collected ALL my works -- let's say, 3 novels, the contents of 4 collections of short stories and 5 books of poetry -- and published them all as a "Complete Collection, With Annotations and Discussions," and didn't provide me with any remuneration or take my copyrights into consideration... I'd be pissed as hell. There is a difference between "quoting" and "stealing." I've had both done to me, and I know what the difference feels like.
In many cases, it is up to the holder of the copyright to determine what's OK w/ his/her work. It's not like a criminal issue, where the government/courts determine the extent of "lawlessness." So one game or software publisher very well might say, "It's cool to take screen shots, write play books and cheat sheets and charge for 'em. Go for it." Another might say, "You can do so, but you can't charge." Another could say, "You can do it, and charge, but you have to give us a cut." And another might say, "You can't do it at all." That's what owning the intellectual property means; you get to make the call in many circumstances, outside the framwork of "fair use."
As far as I can see, what Brian Kopp did is as far from fair use as you can get. His book violates EULA and copyright. The fact that other people do things similar to what he did (write cheat guides, publish them, put out "secrets" sites) has nothing to do with whether or not Blizzard has the right to go after him. If I post the right warnings, I can let 30 people trespass on my property and not prosecute them, and then go after YOU.
So. Publishers of copyrighted material have the right to protect it. They don't have to, but they can. In some cases, it's smart business NOT to do so -- for example, fan fiction that doesn't hurt the company and isn't making and dang money for the legions of 14 year old Buffy fans. In some cases, it does. For example, dudes who are publishing tip books that compete with licensed products of the copyright owner or its partners, based on pirated (i.e., stolen) work; books that may also, in fact, encourage behavior that is in direct violation of other concerns the publisher has.
Seems pretty simple to me.
Posted by: Andy Havens | Jun 07, 2006 at 17:08
4) From previous discussion current holdings appear to be that EULA/TOS consitute binding contracts, which would trump ordinary copyright law. This is the most likely area for Vivendi to prevail on any claims.
Unless you consider Snow v. DirecTV as applicable to EULA. The precendent here suggests that "I agree" is an insufficient barrier to people who don't actually agree with the terms of the EULA, thus isn't binding at all.
http://www.acsblog.org/ip-and-tech-law-2883-11th-circuit-to-webmasters-telling-someone-to-go-away-doesnt-make-them.html
Posted by: Idyll | Jun 07, 2006 at 19:53
Can I put a shrink-wrap EULA on a book I write, trademark its title, and then sue anyone who writes about it (especially something I don't like) for misuse of my IP or ruining the good name of my trademark?
More to the point, can I use the lawyerbots and the DMCA to prevent any negative comments about my work on the internet?
Even more to the point, if someone writes a counterattack on something in my work and tries to sell it on eBay, can I use lawyerbot the VeRO to prevent the sale?
What if I published a software product instead of the book? Does that change anything in the above scenarios?
Posted by: Arnold Hendrick | Jun 07, 2006 at 19:59
Arnold: You don't need to put a shrink-wrap EULA on a book you write; your book is copyrighted by definition. You can't sue someone who writes *about* it. You can sue someone who writes it again, copying giant sections of it whole-cloth, such that the work is entirely derrivative. If the value of their new work; 1) relies entirely or almost entirely on the value of what you created; 2) derrives revenue from a source that you would otherwise have gained, and, 3) subtracts from the value of your copyright, then you'd probably have a pretty good case of copyright infringement.
You cannot prevent negative comments about anything, unless they are slanderous or defamatory. There are very specific, and usually very hard to prosecute, laws about keeping people from saying negative things. I don't think that's what this case is about, though. I could write a whole book about how WoW sucks, and give all kinds of examples, and as long as I didn't infringe their copyrighted materials, Blizzard couldn't do a dang thing. If people wanted to pay for a book entitled, "My 90 Days in Azeroth Hell," and it was all true stuff about how I got ganked and corpse camped and how RMT ruined my life... they could do nothing. Now, if I lied and said they took my money and that I was denied access and that they charged my credit card a million bucks, etc. etc., they could charge me with slander. If they cared to.
Software is protected the same was as a book; it's intellectual property. For the most part, the law doesn't distinguish. There are some cases where very specific types of software are covered by patent law rather than copyright law, but we aren't going to encounter those in a discussion about games, I don't think. Not today, anyways.
You can't trademark a book title.
I'm all for intellectual freedom. I love the First Ammendment. I love the Open Source and Open Software movements. I think that it's great when companies and individuals make their intellectual property available for use as much as possible. But they don't have to unless they want to. Because THEY OWN THEIR INTELLECTUAL PROPERTY. The reason this feels "unfair" is because it's one dude with bad grammar and a funky web page going up agin' big, bad Blizzard. Well, years ago BBB was just a small, up-start software company. They had some good ideas, did well, put a bunch of stuff together in a way that now 6 million or so people really like. Why shouldn't they get to choose what gets done with what they created?
Now... on the flip side, I think it's high-on-monkey-crack the way companies like Disney have extended the life of copyright way, waay, waaaaaay beyond what the Founders ever imagined in order to over-protect their precious Mousiez and Duckies. In the process, they have condemned millions of books to an oblivion between "known" copyright and public domain. So we're going to lose, probably forever, a vast sum of knowledge that should have moved into the public domain, in order to protect the profits of a few companies who bought a few senators.
So, yeah. You should get to say what you want on your blog. But, no, you shouldn't get to just copy a ton of screen and maps and content from somebody else's game, book or manuscript and make money off it if the only value comes from the fact that it's related to a popular work.
Posted by: Andy Havens | Jun 07, 2006 at 21:08
"Can I put a shrink-wrap EULA on a book I write, trademark its title, and then sue anyone who writes about it (especially something I don't like) for misuse of my IP or ruining the good name of my trademark?"
Yes you can. It's big business.
Posted by: This Post is Not About Scientology | Jun 07, 2006 at 21:11
Interesting comments.
So re #2 in the OP, I mentioned the Seinfeld Aptitude Test -- the full text opinion can be found here:
Basically, it is a case about a book containing trivia questions about the Seinfeld TV show -- it finds that the book violates the copyright in the television series. I'd be kind of curious, Andy and Arnold, of what you both think about that result. Here's a snippet from it:
I'm not crazy about that case, I should admit. But even presuming the case is a good statement of the law that might be applied, trying to analogize that case to the Kopp guide is difficult for me. This is true 1) because I don't have a copy of Kopp's guide. Yet I might presume that his guide is just as much *about* the fiction of WoW as the Seinfeld Aptitude Test is about Seinfeld. Yet it is also true because 2) its seems possible that there is something about virtual worlds (and a guide on gold farming and levelling in WoW in particular) that makes the guide less like a derivative quiz about fiction and more like a factual or independently creative work -- maybe.
Anyway, it should be interesting to see the lawyers deal with that question and the problems of trying to analogize caselaw on other forms of creative production to the genre of MMORPGs.
Posted by: greglas | Jun 07, 2006 at 22:13
Well, hold on a minute here. I think you might have a few misunderstandings about the way this all works. First of all, "fair use" has nothing to do with contract law (which is what would cover any questions of the EULA), it is only applicable in questions of copyright violations.
Now, just do we're clear -- fair use is not a set of hard and fast rules, but a set of guidelines that a judge uses to determine whether or not a use is fair use. In other words, we can say un/fair use until our wrist seize up, but unless a judge rules it, it's unclear.
I suggest reading Measuring Fair Use: The Four Factors from Stanford's Copyright and Fair Use Overview.
From my vantage point, I'd say that Kopp's work is transformative (to an extreme, he switches not only purpose but medium), is arguably of benefit to the public (at least Kopp's audience), and that it would be difficult for Vivendi to argue that they were deprived of income. In my mind then. he has a fairly good shot at convincing a judge that what he did was kosher, especially if it's an industry norm to publish tutorials on how to use software with screenshots without getting approval from the software publisher, and I'm almost certain it is.
I think you're partially correct. However, as far as I understand it U.S. law does make exceptions for "standard practice" and also historical use.
In your example, which is probably inappropriate because you're talking about property rights in a community setting, if you allow people to trespass on your property for a certain amount of time and don't so anything about it, you can actually lose the ability to "go after" someone. This is fairly common, and is why many institutions with large amounts of unused property put fences around them and don't let the surrounding community say, play baseball in the field or walk their dogs there. Because if the institutions do that for 5 years and then want to build a building, they may get (successfully!) sued by the community who understandably wants to keep playing baseball or whatever.
Something of this nature has happened in every neighborhood I have lived in, and I always find it quite weird.
However, to keep closer to the Kopp v. Vivendi case there are tons of EULAs which prohibit all kinds of things, and they don't necessarily stand up in court because contracts can not necessarily deprive people of their rights, no matter what the company wants.
Posted by: illovich | Jun 08, 2006 at 12:09
For example, Vivendi could put in their EULA that homosexuals can not publicly self identify (I'm referencing the earlier case which never went to trial, obviously), but Lambda Legal was fairly sure that such a policy would not stand up in court. Obviously in that specific case it wasn't a question of the EULA but rather Blizzard's TOS, but I'm sure the principles are similar (I'm guessing you can not run a public accommodation which has a policy that states that by entering you are contractually obligated to surrender your civil rights).
I guess I have to say, I'm not a lawyer -- but I'm pretty sure I'm right, at least basically.
Posted by: illovich | Jun 08, 2006 at 12:10
illovich> Something of this nature has happened in every neighborhood I have lived in, and I always find it quite weird.
Yep -- it's called "adverse possession" or "prescription." I teach it in first-year property.
illovich> contracts can not necessarily deprive people of their rights, no matter what the company wants
Yep (more or less) -- there is a general presumption of freedom to contract (the EULA is a contract) but you can't enforce a contract that is against public policy. The particular question here may be whether you can contract via a EULA (which, I think we should acknowledge, is a peculiar form of contract of adhesion which is rarely ever read or understood by the average player) to restrict your fair use rights.
Posted by: greglas | Jun 08, 2006 at 12:27
illovich: I wasn't really talking as much about the EULA, and, yes... I agree that the neither the EULA, nor any contract, can abridge lawful rights. I'm talking mainly about copyright and fair use thereof. I am fairly familiar with it, as an author, teacher and speaker, and here's how I'd interpret the four factors you reference (thanks for the good pointer) and that are at stake in this case:
1. The Transformative Factor -- Have you done anything new with the work? I'd disagree with you in the extreme. The fact that medium is switched isn't a factor. If I scan a book and publish it online in digital format, or read it and sell it as an audiobook, that is not "transformative" in the sense that the federal courts mean. They mean, "have you transformed the intellectual property into a new property." For example, if I take a speech you wrote and add music to it, and re-arrange the words enough to make them rhyme, turning it into a funny song... that's transformative. If I take exact quotes from many of a person's essays, and juxtapose them in a way to show that they are contradictory, that's transformative, as it shows a new angle. If I satirize (which is a special class unto itself) or parody, that's transformative. If I add illustration or combine several works from different authors and show comparisons in order to render subjective opinions, that could be transformative. As I see the work in question, the only transformation, is that a game is being described in detail; that's the equivalent of writing down the lyrics to a song, the script of a movie or the instructions to a copyrighted process. I don't see at all how he "switches purpose," as the purpose of playing WoW for a non-reader is to play the game, and of his readers is to play the game. Had he written a book about how to attain transcendental enlightenment through Wow, or run Six Sigma business management classes with WoW guilds... that would be arguably transformative. He's writing about how to play the game, using screen shots and text materials that are copied from the game to do so. I see no transformation whatsoever.
2. Nature of copyrighted work. To quote the Stanford piece: "Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels." Well, this is as fictional as it gets. There's no public service "need" being filled by Kopp, just a business desire for him to make money.
3. The Amount and Substantiality of the Portion Taken. While Kopp is not selling a pirated version of the game itself, one can argue that it is other, licensed strategy guides that are the actual work being most "taken." The official Brady Games WoW strategy guide lists at $24.99, and you can get it for $15 at Amazon. Kopp sells his guide for around $15. That looks like a 100% "portion" being taken by Kopp when compared to the licensed version. Every customer Kopp gets, one could argue, is one less for the Brady book, which deprives the licensed property holders of revenue.
4. The Effect of the Use Upon the Potential Market: This is the one where I'd really try to burn Kopp if I were lawyering for Blizzard. Why? Because one can make the argument that power-leveling and power farming helps people play the game more quickly, which directly takes revenue away from Blizzard, as opposed to possibly taking money from folks who might have bought a strategy guide from them.
The advertising on Kopp's site says:
"If you are looking to make Thousands of gold, to impress your friends and leave them truly amazed as to how you have got so advanced in such a short space of time...."
and:
"In this guide we will show you how to level up to four times faster... Using this guide will catapult you to level 60 ahead of your friends and even ahead of other people who have been playing for months and months and haven't yet caught on to the secrets of the game."
Well, Blizzard makes money when people spend $15/month on the game. If he's using their own materials to deprive them of revenue... that suggest unfair use.
I don't know the details of his guide; haven't bought it, don't plan to. But I'm going to stick by my contention that the direct use of one company's authored, fictional, entertainment materials in order to make money for another individual or company, in such a way that directly deprives the copyright holder of revenue in at least two ways is (as I said) very, very far from fair use.
Posted by: Andy Havens | Jun 08, 2006 at 16:39
I have looked at Blizzard vs BnetD in my opinion completed set aside even activities which were explictly protected under copyright law in favor of enforcing a click agreement as a contract even when the users intent was clearly not to agree.
I absolutely disagree with that precedent, but I think its a good bet that precendent will continue to go that direction. I believe there are a couple other instances where click-wraps have borne out in court.
Posted by: | Jun 08, 2006 at 17:21
Most lay (and many non-lay) people misunderstand the agreement inquiry of contract formation. The question isn't whether or not a party actually agrees to the terms. The question is whether or not another party reasonably relied on the first party's indication of agreement (e.g. clicking "I agree").
And people regularly contract-away some of their most basic rights (e.g. NDA's and the First Amendment).
Jeff Cole
Posted by: Jeff Cole | Jun 08, 2006 at 18:40
Andy: My point about the transformative nature of Kopps product was probably ill-argued. My main argument there is that he uses screenshots and information of of type of work (a virtual world/game) and writes a guide on how to play the game effectively to a partucular end. I'm not clear how this is not a transformative use, as the purpose of the work is not to be a replacement to the original product, but rather a guide to using the original product in a unique way.
For this reason, I also think that any attempt to argue that he's cut into Vivendi's profits are going to be pretty easily parried by Kopp's counsel. Kopp's work is useless without a consumer paying approximately $50.00 upfront to Vivendi and then a $15.00 a month fee. To argue that a player that reads his guide would pay Vivendi less money is going to be difficult, since I would assume that anyone who would pay for such a work in the first place is likely a hardcore gamer type, who will probably play the game longer than the average person. At any rate, it would be difficult to prove the loss of income.
The loss of revenue from the "official strategy guide" is interesting, but I'm not sure how that works legally. My assumption is that --in general -- guides to software can be authored without the publisher's consent, due to the fact that I see numerous "unoffical" guides to (other) games and software in bookstores, and my guess is they didn't all get permission from the publisher.
My guess is though, that Brady Games would have to sue him, not Vivendi for that. But again, I'm not sure how that works. But my guess is that the royalty Blizzard would receive from the official strat guide would be a dollar or less, and if the average player plays for 6 months, is depriving Vivendi of a dollar or so in revenue when they've made $140 per average player signifigant enough to matter in a fair use decision? (I'm asking, not telling).
Personally, if I were Kopp's lawyer (boy would he be in trouble), I would probably try to go with the argument that WoW is a virtual place (like a themepark) and that Kopp has written a guide to how to win the games in the themepark (i.e. that making money is a game within the themepark and he's showing you how to beat the system and walk out with the big stuffed animal).
I'm pretty sure it's legal to write such a book without the themeparks consent, and while you can't use their own media, I'm pretty sure you could take your own pictures and publish them.
I'll defer to the lawyers on this one.
derail: Hey, what's a good law school for cyberlaw? Especially for video game law? Are there any?
Posted by: illovich | Jun 08, 2006 at 19:51
Thank you for elaborating on that. I definately wasn't aware of that distinction. Unfortuantely, that would seem to mean the current trend is likely to continue.
Posted by: Thabor | Jun 08, 2006 at 20:11
illovich> derail: Hey, what's a good law school for cyberlaw? Especially for video game law? Are there any?
I hear Rutgers-Camden has some fantastic people teaching cyberlaw. ;-). Actually, there are a bunch of good places -- send me an email.
Posted by: greglas | Jun 08, 2006 at 21:54
I wonder if you could argue that such unofficial books are akin to Cliff's notes, or Windows For Dummy's, or any guide to helping people better use a product. Do they come under some sort of educationl exemption? I guess the same issue exists though, anyone remember if they copy significant amounts of copyrighted text?
Looking at the cited Stanford test I think the guide publisher could be argued to only have breached the forth part of the test.
1 - Transformative - It is a guide, so yes, the work has been transformed from the original software. Static images have been culled from the software and commentary has been added. THe purpose of the work is to be a guide to the game, this is far removed from the intent of the game itself.
2 - Scope - WoW, like many MMOs is published and widly distributed. There are huge numbers of websites/forums that discuss this work every day. There are also book/magazines that mention or are devoted to this work as well. Some are fan sites, others are not. A published guide is just one of many, many similar works (if using different media).
3 - Amount/Substantiality - A guide, even one that takes screenshots, copies text from the game etc would not surely be reaching to 'the heart' of the work, if that work is a work of software.
4 - Effect of use upon the potential market - This part of the test is perhaps most likely to hurt the guide, given the existence of an official guide. It is hard to see how the guide publishers could beat this particular part. How much weight is given to this though?
Posted by: Juan Incognito | Jun 13, 2006 at 17:13
Two interesting writeups:
http://www.ivanhoffman.com/seinfeld.html
http://www.ivanhoffman.com/beanie.html
The beanie baby collector's guide was ruled as fair use even though it had photos of copyrighted beanie babies. The Seinfeld quiz book was ruled not fair use.
They were both approximately equal on the 'transformative' (both very) and 'derivative works' (both very). The difference that I could see was that the beanie baby collector's manual was competing vs licensed beanie baby collectors' manuals, and the seinfeld quiz book did not have licensed competitor(s).
Which probably means that if there's a licensed WoW user guide (and I bet there's at least one) with screenshots and so on, and the screenshots are clearly necessary to the Kopp guide, that the beanie baby collector's guide is a closer approximation of how the fair use calculation would work.
Blizzard would still have the EULA though. There is no EULA required to purchase stuffed animals. So that could make the difference. But if the EULA is ruled not to make this a contractual breach, the copyright issue/fair use looks to be in a bit of trouble.
Posted by: | Jun 15, 2006 at 16:13