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Blizzard, eBay and Strategy Guide Author Settle Their Differences

Public interest law firm, Public Citizen Litigation Group has just dropped its lawsuit on behalf of 24 year old Brian Kopp of Bronson, Florida. Kopp sued World of Warcraft maker Blizzard Entertainment to prevent Blizzard from blocking eBay sales of his book The Ultimate World of Warcraft Leveling & Gold Guide. Kopp had been selling his online book on eBay since August 18, 2005.

Blizzard leveraged provisions of the Digital Millenium Copyright Act (DMCA) to force eBay to remove Kopp’s listings. Under the DMCA, eBay would be sheltered from liability if it removed Kopp’s listing after receiving notice from Blizzard that Kopp’s material infringed Blizzard’s intellectual property rights. The way the DMCA is supposed to work is that the internet service provider (eBay) should allow the poster (Kopp) to respond to the allegation. If Kopp responds that the material is not infringing, eBay should repost the material unless the intellectual property infringer can prove that they have filed suit against the alleged infringer.

eBay works things a little differently. eBay has a program called Verified Rights Owner (VeRO). Under the VeRO program eBay pulls a listing upon receipt of a signed statement from a VeRO. Presented by eBay as a way to streamline protection of intellectual property, at least one online commentator views the VeRO program as eBay giving “a select group of business owners carte blanche control over who can sell on eBay and what they can sell. This special class of eBayers can shoot first and ask questions later.”

In Kopp’s case, Blizzard informed eBay that Kopp’s auctions for the The Ultimate World of Warcraft Leveling & Gold Guide were infringing Blizzard’s intellectual property rights. After several letters from Blizzard, and eBay shutting Kopp down under several different screen names, Kopp sued Blizzard with the backing of his own 800lb gorilla, Public Citizen Litigation Group. The lawsuit alleged Blizzard had misrepresented claims of intellectual infringement under the DMCA and committed unfair business practices. The lawsuit asked the court to make a declaratory judgment that Kopp’s book was not a violation of the DMCA.

Now that the parties have settled their differences and dismissed the lawsuit one can only speculate as to the parties’ motivations behind blocking the auctions, filing the suit and settling the case. Was Blizzard really concerned about copyright infringement, or were they more concerned about what some as viewed as a World of Warcraft gold farmer how-to guide? Although Kopp’s book does not appear to advocate third party gold farming in violation of World of Warcraft rules, the guide could obviously be used be a third party gold farmer in violation of WoW rules.

A more cynical analysis might be that the 800 pound gorilla tried to shut down the little guy on the off chance his text might be used for untoward purposes. The First Amendment advocate in me finds such an analysis disturbing. Unfortunately, in my own practice, I have seen more intellectual property cases settled on the basis of who has more money to fight than who has the legally justifiable position. My experience has been that once the 800lb gorilla decides you have the resources to see your case through to the end, a settlement dismissing the lawsuit is a foregone conclusion. With courts reticent to dismiss even the most frivolous intellectual property lawsuit, the take home lesson might be to make sure you have your own 800lb gorilla to present your case.

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