Blizzard Sued By Game Guide Creator

Gamespot reports on a suit brought by a game guide creator against Warcraft-maker Blizzard Entertainment. The two parties will be going to court because of an attempt by Blizzard to quash a guide the plaintiff created for the World of Warcraft MMORPG. Offered electronically through eBay, the company claims that the guide creator is infringing on their IP. From the article: "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."

Comments

More reasons for repudiating copyright and IP

[dada21]

Here's another person creating his own art based on the prior art of someone else. The copyright and IP laws make no sense to me -- why is it OK to protect the overall look of a game or the name when pieces of the game are taken directly from thousands of games before it? Why is it wrong for someone to use their own labor to make a product (even a direct knock off) and go and sell it?

I believe in true freedom and true competition. Both are what is best for the consumers in the market and the producers as well. If someone is willing to spend their own time and their own labor creating something with their own hands, I see no reason why the product shouldn't be allowed to sell. I personally tend to buy some items from large companies just because I feel I've gotten better quality products, but there are many items I won't buy from a big company because I prefer the unique feel of the item.

Intellectual property laws were originally created to protect artists and artists alone. Blizzard is not an artist, it is a co-op of artists. The idea that a co-op can have more rights than an individual is ridiculous -- individuals have rights, co-ops are just groups of individuals trying to market a huge variety of products together. Each artist at Blizzard has their own art they've created, and they should worry individually about making the best produt they can at the lowest price. That is competition.

Making a knockoff or a product that supports another is the best part of competition -- it gives the market a choice in goods of varying prices and quality, and it also allows others to make a product better by supplementing it with add-ons, upgrades, modifications and third party support services. Can you see Google suing someone for writing a guide to using Google? Wouldn't that guide give Google free marketing and promotion for their product?

Blizzard is run by MBAs, I guess, not artists. These "educated" businessmen don't see the value of free promotion; they should be taking advantage of this guy's supplementary art by promoting his product just as he's promoting theirs. They can both profit, and the consumers will walk away with the products they want at a price they're willing to pay. That is competition, and that is freedom.

The argument that invention and art would not occur without the force of copyright and IP is over. We see proof here that people can't create something based on previous work (as every work is) because the cartels with the power of the legal industry are the ones controlling the law -- the law meant to keep opportunities open, not close them off.

Re:More reasons for repudiating copyright and IP

[HoosierPeschke]

Funny, one of the word of the day phrases on Google today is "The chief obstacle to the progress of the human race is the human race." - Don Marquis.

It ties in that Blizzard will stifle any competition because it only wants itself to make money. Maybe Blizzard wants to release its own Game Guide. I, for one, hope Blizzard loses or else this may set precedent for others to sue publishers for producing Game Guides.

Re:More reasons for repudiating copyright and IP

[cpt kangarooski]

Here's another person creating his own art based on the prior art of someone else.

While I understand what you mean, you might want to avoid casual use of the term 'prior art' as it is a term of art in patent law, and this is essentially a copyright discussion.

why is it OK to protect the overall look of a game or the name when pieces of the game are taken directly from thousands of games before it?

These are really two different questions. So long as the assemblage is creative and original, it's not a problem that many of the component elements are not. Dragons and knights and rescuing princesses and so on are all staples of the fantasy genre and are unprotected, but what you do with those elements may be perfectly worthy of a copyright. And there are a lot of ways you can put those parts together. Think of them as being like legos; the individual blocks aren't interesting, but what you do with them is. As for the name, that's basically just consumer protection. If I bought a bottle of soda with the word 'Coke' all over it, I don't want it to actually contain coffee or something.

Why is it wrong for someone to use their own labor to make a product (even a direct knock off) and go and sell it?

It's not wrong, per se. But it might be unwise. Until fairly late in the 19th century, US copyright law didn't include a derivative right. So, if you wrote a book, anyone else could translate that book into another language without needing permission or having to pay you, the original author. If we have this right, then that means more of the possible profit that can be made from a work is directed to the author. This increases the incentive he has to create and publish works, and one goal of the copyright system to cause works to be created and published. Of course, we must balance this against other goals of the system, such as having the least restrictive, if any, copyright law at all, and having the shortest copyright terms, and encouraging the creation and publication of derivative works by any author.

Intellectual property laws were originally created to protect artists and artists alone.

That's wrong in many regards. First, I would strongly encourage you to not use the term 'intellectual property.' It includes bodies of law such as trademarks and patents which have nothing to do with artists, and which have quite different reasons for existing. Second, copyright laws were not created to protect artists alone; they also protected publishers, but their actual goal was to serve the public interest by enticing authors and publishers to behave in certain ways beneficial to the public. Helping authors is just a means to an end; it's not our goal.

Think of cable television. A town that doesn't have cable will often give a monopoly on cable tv to a particular company for a term of years, in exchange for the company shouldering the cost of building the infrastructure. The goal of the town is not to have to pay one company that can charge monopoly prices. It is to get someone to build the cable tv infrastructure so that it can eventually be opened up to competition.

Blizzard is not an artist, it is a co-op of artists. The idea that a co-op can have more rights than an individual is ridiculous -- individuals have rights, co-ops are just groups of individuals trying to market a huge variety of products together. Each artist at Blizzard has their own art they've created, and they should worry individually about making the best produt they can at the lowest price. That is competition.

That's a really bizarre statement.

The argument that invention and art would not occur without the force of copyright and IP is over.

I disagree. First, I at least have never felt that creation and invention wouldn't occur without copyrights and patents, respectively. Second, however, the quantity of those acts would likely decrease sharply. So we have to decide whether unrestricted competition or some degree of monopoly granting wil

Re:More reasons for repudiating copyright and IP

[KDR_11k]

If you went to Target and bought a bottle of Soda with the word 'Coke' on it, and it had coffee in it (actually, see Coke Blak, heh), or had a knockoff cola, you'd stop shopping at Target. Leave the quality control to the middle man between you and Coke -- that's their job to make sure you're happy.

But you wouldn't know which store is Target, either. Or visit some other place, you couldn't rely on the names at all to help you identify anything, you could go into Target and find a grocery store or a bar or a brothel. You wouldn't know which "Coke" they are selling until you try it, you could not carry over any previous experience with any product. All that just for some idea that "names should belong to noone".

If you can do a job cheaper, the market will prosper. I don't believe in derivative profits being forced by law -- I believe the market sets many precedents why people will buy the original over the knockoff (see "generic products" for details).

Problem is when you add media to the deal. With media the good sold is information, not the physical medium. But there would be no protection on the information and we have technology to duplicate the information without loss of quality. Concrete example: Take CDs. Data on a CD can take months or years and thousands or millions of dollars to produce but the actual medium only costs pennies these days. As you know, it's trivial to just take a CD and make an exact duplicate of it. A leech could sell tons of CDs for 1$ a piece by simply copying content he did not create. The original creator cannot offer any advantage to the buyer (except for the feeling of supporting the creator but few care about that) that the copiers cannot offer. So the creator would have to compete with the leeches on price directly but the leech has no development costs to cover. As a result the leech has a competitive advantage over the creator.

A market for data simply cannot exist without some restriction on just going out and copying it. And while you may argue that it's better to create art for the love of it instead of for money, you cannot deny that it would lower the productivity of artists simply because they would have to spend time they would spend on creating art on earning the money to live. Oh, and of course because they can't use the same budget current for-profit art uses. While some argue that Hollywood movies are unnecessary I still think that it would mean a loss of variety and artistic freedom. It's not like anyone's preventing you from making your own art in your free time, that possibility always remains. But without copyright the freedom to use expensive elements in your art would be greatly reduced, simply because you can't afford it.

Re:More reasons for repudiating copyright and IP

[deinol]

The precedents set can affect more than game guides.

Except there is no precedent set unless the trial actually concludes. Most often something like this is dropped or settled out of court.

The real question is, can this guy afford to stay in the fight long enough to bring a case to conclusion?

The main reason a big company is willing to sue small ones frequently, is that even if the law doesn't support the big one, they can afford to outlast a small one so the little guy gives up without a fight. It isn't right, but it is the way it often goes.

Re:More reasons for repudiating copyright and IP

[cpt kangarooski]

No, a guide book is not a fair use. It's a use of public domain materials. A use is a fair use if the underlying material is copyrightable; the game rules that underlie WoW are not.

His use of the WoW trademark appears to be nominative. And use of screenshots would be fair use.

Really, the copyright and trademark parts of the case seem open and shut in the guide author's favor. However, there is an interesting breach of contract claim that Blizzard could assert. I'm mostly interested to see how that works out. If it's like the bnetd case, it could be bad for the guide author.

The BS of the DMCA

[eldavojohn]

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.

At some point, everyone has to start to wonder where the DMCA's boundaries begin. I don't believe I've ever seen any single act or bill used in the court of law more than this. Basically, if you are low on funds, wave the DMCA in front of someone's face and take them to court. I'm not a lawyer but this piece of trash is written in the most convoluted legalese I've ever seen. Everyone and their dog are using the DMCA like a damaged crop in a witch hunt. I can't even get through a summary of it without getting lost--a sure fire sign that if you have the money, you can get those fancy lawyers that are essentially 'truthsmiths.'

I don't think everything about the DMCA is wrong. But I do think that it has no boundaries and can be openly interpreted. I believe this Act needs to be reformed before it is renewed and that it should be better defined. The internet has developed far past our wildest imaginations and no act passed in 1998 could account for all the legal caveats of it.

I believe my hatred for the DMCA falls just under my hatred for the Patriot Act.

And that's saying a lot.

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...

Hey, with the DMCA, anything's possible! Well, what do you say Microsoft? O'Reilly's got deep pockets!

Not infringement

[cubicledrone]

attempts to trade off the substantial goodwill and recognition that Blizzard has built up in connection with its World of Warcraft product.

Yep. And it is perfectly within the boundaries of copyright law for someone to do so, provided they don't infringe on a trademark, create a derivative product or republish copyrighted material that is not a fair use.

From the article it sounds like this is a work of non-fiction, written to help people improve their knowledge of the game. It also sounds like "big company (that makes over $80M a MONTH in subscription revenue) uses copyright law as a club against entrepreneur." As long as all trademarks and copyrights are attributed, there's no infringement here. Sorry.

Re:Protecting the Trademark

[cubicledrone]

Basically, if Blizzard became aware of this guy using the World of Warcraft trademark for personal profit (which he clearly did), then they are obligated by law to try to make him stop, or they lose their trademark.

Nope. If the writer attributes the trademark and makes it clear for his readers that he does not own the World of Warcraft trademark, there is no infringement, therefore there is no possibility that Blizzard will "lose" their trademark.

It is no different than if someone writes about McDonald's or Home Depot. Both are trademarks. As long as its clear who owns the trademark, there is nothing there.

Re:Protecting the Trademark

[Detritus]

Owning a trademark does not mean that you own the words in the trademark. I can write about Blizzard and World of Warcraft all day without infringing on their trademark. I don't need Blizzard's permission to write "World of Warcraft" in a document. Trademarks are designed to protect the customer, not to be pieces of IP that can be used to abuse others in court. If I write a book, "How to win at World of Warcraft(tm)", Blizzard has no legal basis to interfere.

Re:WTF is wrong with Blizzard?

[cpt kangarooski]

The Jackass who's filing this suit is one of those slimeballs that scrapes freely available information (the kind you can get from any number of free websites that do not charge for it) and packages it up so he can sell it for a rediculous fee.

Why anyone would by crap like that when you can just look it up on the web I have no idea.

Meh. I can download Shakespeare for free from all over the net. But I also bought a hardback collection of his work. Just because you wouldn't buy something is no reason to denigrate people who would, or people who create things for them.

And to be clear, Blizzard's not the one harassing in court here. It is the GAME GUIDE writer suing Blizzard.

Well apparently Blizzard kept issuing complaints to Ebay that resulted in the guy being unable to sell any of his guides there. So arguably they were harassing him out of court, and he's decided to go to court to protect himself.

Prima Game Guides?

[EggMan2000]

I'm guessing that Blizzard has some kind of exclusive deal for guides through a publisher and is finding that competing guides violate their copyright? Could that be the case? It still doesn't make much sense to me though. I mean look at MS Office, there are dozens of books that teach users to use Office. Did each of these book publishers have to get permission from MS to produce it?

Re:Prima Game Guides?

[NMerriam]

They do have an exclusive deal with Prima, but what Blizzard and Prima agree to has no bearing whatsoever on the rights of other parties to write about their game.

The sticking point for unauthorized guides is usually that the author has no access to the software or development team before it is released to the general public. Large publishers want to have a book on the shelves the day the software comes out, not 12 months later.

Re:Protecting the Trademark

[Surt]

As another poster pointed out TM does not apply here due to TM acknowledgement, but perhaps more relevantly, TM does not apply to DM C A cases because the C stands for copyright, not trademark.

Authors have done this before -- successfully

[Hannah E. Davis]

I've heard of this kind of thing happening before, actually -- a while back, Anne McCaffrey was squelching fan artists left and right, angry that people should even try to make money off illustrating scenes from her novels. The vast majority of authors (and other IP owners) habitually turn a blind eye to this type of copyright infringement, mainly because it benefits them, but the point is that they can put a stop to it if they want, and some of them have in the past.

Re:Protecting the Trademark

[rossifer]

this guy using the World of Warcraft trademark for personal profit (which he clearly did)

But trademark law doesn't prevent you from using another company's trademarks for your profit. It primarily protects against uses that dilute the value of the trademark. So "MS Excel for Dummies" can be published without a license from Microsoft, even though it (1) clearly uses a trademarked phrase and (2) is published for profit. You can even sell your own spreadsheet program and market it as "Better than Excel!(tm)" as long as you don't call it something that could be confused with "Excel" or "MS Excel" or... Basically, all you have to do is acknowledge the trademark and not confuse potential customers with your use of the other company's trademark in your materials.

Which this guy apparently did. Blizzard is way out on a crazy limb here and in my non-expert estimation, will probably not prevail.

Regards,
Ross

MOD PARENT DOWN -- thanks

[Red Flayer]

Blech, I was totally incorrect and wish I'd had the seventh cup of coffee before posting that.

Thanks to everyone who pointed it out!
J

Re:yeah, i agree

[cubicledrone]

Probably that he's trying to make a buck off THEIR IP.

Like movie reviewers?

Copyright law was not written to prevent people from "making a buck." It's to prevent people from taking a buck away from the copyright holder. This book sounds like it's perfectly within the boundaries of fair use.