Be careful when writing guides

[MackemX]

I don't know what was in the guide (probably pictures) but surely it isn't going to start a new trend?

http://www.theinquirer.net/?article=30630

A 24 year old WoW player is suing the games maker after he was stopped from selling his guide on how to play the game on eBay.

Brian Kopp of Bronson, Florida claims he was improperly barred from selling copies of his own unofficial gaming guide.

Last year Kopp sold several hundred copies of his guide, which contains tips on playing the game and accumulating experience.

After his auction went live Blizzard, Vivendi, and the ESA began sending repeated takedown notices under the Digital Millennium Copyright Act (DMCA). eBay followed its policy that after it has received such complaints it has to suspend a user's account.

The three companies then threated Kopp with copyright and trademark infringement action.

Its argument was that 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".

If Kopp loses his case then it would be possible for all those who write how-to books about different software to be done for copyright infringement.

[Caple]

Ridiculous :/

[Xylob the Destroyer]

that's just stupid.
they're just pissed because he didn't bend over and buy a license
it's not like he's hacking their software

the only thing he did different than all those folks who post FAQs on sites like GameFAQs is that he tried to get a little compensation for his time and effort.

[northcat_8]

so apparently they are willing to challenge freedom of speech

Good luck with that one.

[garman]

Not a big surprise. Many years ago I was able to download guitar tablatures from a guitar website. Now it seems the publishers did not like this idea, because it was taking money away from sales. Mind you most these songs were figured out by the group and they would share them to other guitar enthusiasts. I still don't understand how this works, one day I may not be able to teach my son mathematics, science or whatever until I buy the book first. -garman

[BJ_M]

this is totally nuts - or not the whole story ...

there are millions of guides online and in the bookstores on how to play everything , plus the millions of guides on different pieces of software ....


why this one guy ?

[BJ_M]

oh -- he may have used images from the game ...

you have to get permission from the rights holder to use images (ive been through this before) for guides/books that are sold ...


i never had a problem getting permission though ...

[adam]

BJ_M the reason all those guides on the market exist lawfully is because they license the rights from the trademark holder.

It has nothing to do with images. This is really not a copyright case, at least not a strong one at all. Theinquirer.net just changes every article it posts to a copyright issue.

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

That is classic trademark lingo, trademarks protect goodwill. I know its not what people want to hear but the guy's case is a crock. This is exactly the type of thing that Trademarks are intended to prevent and this is as blatant a trademark infringement as I have ever seen. His guide only exists and is only able to be sold because another company is making the substance of his work. (the game he writes about) There is a STRONG liklihood of confusion in that people may assume his work is created, sponsored or approved, by the company that makes the game. His guide infringes on the trademark, there's no question about it. You can't sell a product that only has commercial viability because of the goodwill of another's trademark, without getting authorization first.

[MackemX]

I can understand that it's the 'trademark' that is making his guide popular but surely a clear disclaimer saying that he is not affiliated in any way with the game or it's creators etc would be OK and that he doesn't use any logo's etc?

what about sites that charge you to join and then be able to look at the guides?
is it against the law to wrote a guide then make it publicly available for free?
if it isn't then what if people ask for donations, does that make everything OK? as in my eyes it's just the same thing as you are gaining that donation from the attraction of the trademark

guides are a very big site attraction so what about other gains, such as hits to your website which in turn generate into cash via advertisements? Some sites only exist due to the fact that their collection of guides draw in the visitors so you could say the same thing as I bet many of them don't ask for permission

I sold a BMW towbar a few months back on Ebay and I use pictures of BMW's towing caravan and the BMW logo a few times in my description including my gallery pic. I guess that's the same thing in a way as I'm using the BMW trademark to 'enhance' my items appeal. You could probably go to ebay and list 1,000's of auctions that are using trademarks in the same manner. do ebay give a toss about it? As usual, hell no as they hide behind their lame 'it's nothing to do with us what the member advertises in whichever way unless someone complains even though common sense tells you it isn't' attitude

where will they draw the line with this trademark thing?

I bet they wouldn't be complaining if they only sold 1 or 2 games because it was crap . It's the fact they have probably made £100,000's from this game and can afford to be arseholes about it. It's another case of the big guys pissing on the little guys and just because the guy is making a few £'s. If it was £10,000's he was making then I'd see the point in stopping him but I don't think he's exactly having a direct impact on sales by selling a few guides and if anything is probably helping promote the game.

Greedy bastards!

[MackemX]

again, I don't know the full story nor am I a legal expert but I still think this whole thing is stupid as it just shows how petty the damn industry can be . It looks like he doesn't even have that many pics within the guide according to the info and here is the guys guide he is selling at the minute.

http://www.ultimatewowguide.i8.com/

I don't know if this is the exact description that was on ebay but it does look OTT for his layout/wording but I've seen worse . I was expecting it to be plastered with pictures of WoW and logo's and all the rest. There is also a disclaimer at the bottom. I don't know if that was there before but I'd have to be stupid to think this was an 'official' guide or this guy had anything to do with the software

Disclaimer:
This guide is not a copy of the official guide nor is it piracy in any way shape or form.
The "World Of Warcraft Guide Package" is an unauthorized source for educational purposes, I have composed this guide independently and
it is not endorsed or authorized by Blizzard in any shape or form.

This product was created solely to inform/educate players of the online game World Of Warcraft to become a better player, owned and operated by Blizzard. In accordance to US Copyright Law: Sec. 107. "Sec. 107. Limitations on exclusive rights: Fair use "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."..

funnily enough he also has this to say about his guide

Our guide include a combination of content that we create, and that our partners create. All materials published in our guide, including, but not limited to, written content, photographs, graphics, images, illustrations, marks, logos, sound and or video clips, 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.

he has a list of stories in a link on that page HERE and they do make interesting reading

I think this one gets closer to the truth as it mentions the 'official' guide and also the fact that his guide tells you about gold farming or something. I don't think they will stop him selling the guide but he may have to change a few things, I don't know. Therefore instead of them being a twat about it and coming down hard on him straight away, surely they could have dealt with him on a more personal level and seen whether he was willing to co-operate in whatever way he could to still be allowed to sell the guide first? Two ways to skin a cat and they look like they have went the arse over tit way which just gives them a bad name in my eyes

http://arstechnica.com/news.ars/post/20060324-6459.html

A consumer advocate group known as Public Citizen has filed a lawsuit against Blizzard Entertainment, makers of the popular massively multiplayer online game World of Warcraft. The lawsuit, filed in the US District Court for the Central District of California, seeks to restore the right of Brian Kopp of Bronson, Florida, to sell his online strategy guide on eBay. Previously, eBay had blocked auctions of the strategy guide after Blizzard invoked the provisions of the Digital Millennium Copyright Act (DMCA), claiming that the guide violated the game maker's copyright laws.

"Copyright laws are designed to promote creativity and innovation, not squelch it," said Greg Beck, the Public Citizen attorney representing Kopp. "A video game is copyrightable just like a book, and just like a book you should be able to comment on it, create new works inspired by it, teach about it in classes, write newspaper articles about it and so on. It is this kind of innovation and open discussion that the copyright laws are supposed to foster. By claiming that mere publication of a how-to book about its game infringes its copyright, Blizzard has interpreted its intellectual property rights in a way that would prohibit legitimate commentary that is protected by the First Amendment."

Kopp wrote his guide, entitled "The Ultimate World of Warcraft Leveling & Gold Guide," and began selling copies of it on eBay on August 18, 2005. The guide contains tips on how to play the game, but does not contain any copyrighted text or storyline. After he began selling the guide, Blizzard, Vivendi, and the ESA filed notice against eBay under the DMCA, and eBay terminated his auctions. After a certain number of auctions were terminated, eBay suspended Kopp's account in accordance with their stated policy.

Kopp is still selling the guide from his web site using direct payment through PayPal, although he claims that Blizzard and Vivendi have threatened to sue him for copyright infringement if he sells the guide at all.

Is the issue really copyright infringement, or is there something else at work here? One might think at first that Blizzard is anxious to protect sales of its licensed Strategy Guide from BradyGames. However, a closer look reveals that something else might be afoot. The BradyGames strategy guide, which I own, is a nicely laid out overview of what the game has to offer for all the various classes of characters. However, it does not address the needs served by Kopp's guide, which is how to level up your character and collect in-game gold as fast as humanly possible.

The problem in MMOs of "gold-farmers" selling in-game gold for real money and thus disrupting the game's economy has been a major concern for companies like Blizzard, and the company has banned accounts accused of farming in the past. While Kopp's guide does not involve the sale of in-game gold for money, it could be considered a useful training manual for gold-farmers. Perhaps this is the real reason for Blizzard's laying down of the legal hammer.

Of course, not everyone who is interested in such a guide is a potential gold-farmer. Indeed, while writing this story I came very close to purchasing the guide myself—for research purposes only, of course! However, I eventually decided that as enticing as learning the "best secrets" to tons of money and quick leveling might have been, I would probably get more enjoyment by just muddling through the game at my own pace. Pity a poor level 48 mage, sir?

Regardless of the motivations for Blizzard's actions, the results of the lawsuit will prove interesting for anyone concerned over some of the nastier ramifications of the DMCA. Does a game's copyrighted status put limits on what we can and cannot say about the game to others? If Public Citizen is successful, it won't.

http://www.citizen.org/pressroom/release.cfm?ID=2157

March 24, 2006

Software Company Wrongfully Interfered with Sale of Guide to Popular Video Game on eBay

Florida Resident’s Unofficial Guide to “World of Warcraft” Does Not Violate Copyright, Infringe Upon Video Game Maker’s Intellectual Property

WASHINGTON, D.C. – A Florida resident should be allowed to sell a guide to playing the popular online video game “World of Warcraft” because it does not infringe upon the video game maker’s copyright, trademark or other rights, Public Citizen said ina lawsuit filed late Thursday in a federal court in California.

The lawsuit, filed in U.S. District Court for the Central District of California, seeks to restore the right of Brian Kopp of Bronson, Fla., to sell the guide. He was blocked from selling it on eBay after the video game maker, Irvine, Calif.-based Blizzard Entertainment, Inc., invoked the provisions of the Digital Millennium Copyright Act (DMCA) by claiming that the guide violated its copyright in the game. The suit also seeks to prohibit Blizzard, its parent company Vivendi Universal Games Inc. of Los Angeles, and the Washington, D.C.-based Entertainment Software Association (ESA) from further interfering with the sale of the guide, and to recover damages for lost sales.

The companies also have threatened to sue Kopp for copyright infringement if he sells the guide at all, although he is still selling it on his personal Web site. If the companies’ interpretation of their copyright were allowed to prevail, it would threaten the publication of future how-to guides about any subject and a wide variety of other speech that merely comments on a copyrighted work.

“Copyright laws are designed to promote creativity and innovation, not squelch it,” said Greg Beck, the Public Citizen attorney representing Kopp. “A video game is copyrightable just like a book, and just like a book you should be able to comment on it, create new works inspired by it, teach about it in classes, write newspaper articles about it and so on. It is this kind of innovation and open discussion that the copyright laws are supposed to foster. By claiming that mere publication of a how-to book about its game infringes its copyright, Blizzard has interpreted its intellectual property rights in a way that would prohibit legitimate commentary that is protected by the First Amendment.”

Kopp wrote and published a guide to the electronic video game “World of Warcraft” – currently the most popular online game in North America – and began selling copies of the guide on eBay on Aug. 18, 2005. During the next few months, Kopp sold several hundred copies of the guide book, “The Ultimate World of Warcraft Leveling & Gold Guide.”

The guide book contains tips on how to play the game but does not contain any copyrighted text or storyline from the video game, according to Public Citizen’s lawsuit. Kopp includes disclaimers in the guide stating that it was not an official guide and clearly noting that he was not affiliated with Blizzard Entertainment, the developer and publisher of “World of Warcraft.”

After Kopp began selling his guide, Blizzard Entertainment, Vivendi, and the ESA filed several notices of claimed infringement under the DMCA, asserting that Kopp’s guide violated the video game maker’s intellectual property rights.

EBay terminated auctions for the guide as a result of the notices. EBay terminates auctions if intellectual property owners that are part of eBay’s “Verified Rights Owners” program – in this case, Blizzard, Vivendi and the ESA – file notices of claimed infringement against particular auctions in accordance with the DMCA. When a certain number of auctions are terminated – the exact number varies from person to person – eBay suspends the seller’s account. Kopp’s account has been suspended, meaning he is unable to sell his guide on eBay and has lost profits as a result.

“Companies are increasingly using the DMCA and eBay’s Verified Rights Owner program to interfere with legitimate competition by small online retailers,” Beck said. “Overaggressive application of claimed intellectual property rights by corporations not only interferes with free speech protected by the First Amendment, but ultimately hurts consumers by reducing the choices available to them.”

Neil Greenstein of TechMark, a California intellectual property firm, serves as local counsel for Kopp. To view the lawsuit, click here.

another one that again is interesting

Gregory A. Beck from Public Citizen Litigation Group writes "Public Citizen Litigation Group has just filed a lawsuit against Blizzard, Vivendi Universal Games (Blizzard's parent company), and the Entertainment Software Association on behalf of a small eBay seller. Our client (the eBay seller) wrote an unofficial gaming guide to World of Warcraft called "The Ultimate World of Warcraft Gold & Leveling Guide." After he began selling an electronic version of his guide on eBay, Blizzard, Vivendi, and the Entertainment Software Association began repeatedly invoking the notice and takedown provisions of section 512 of the DMCA to have the eBay auctions terminated on the grounds that the guide infringed Blizzard's copyright. Our client filed a DMCA counternotice and, because the companies did not respond within the fourteen days required by statute, eBay reinstated the auctions. But even after that, the companies continued to file notices of claimed infringement, ignoring the prior counternotice, until the seller's eBay account was suspended. In addition, Vivendi's lawyer has threatened to sue if he continues selling his guide.

Vivendi's position is apparently that merely writing about their game infringes their copyright even if the author incorporates none of the company's text or storyline. Although the e-book does contain a limited number of screen shots to explain combat techniques, this is well within the bounds of fair use. If Vivendi is correct, 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. We think this cannot be the law. Big companies often use the DMCA and eBay's "Verified Rights Owner" -- or "VeRO" -- program to harass small sellers of competing products. With the hundreds of thousands of notices of claimed infringement it receives, eBay is not capable of examining the merits of each individual claim. As a result, eBay terminates targeted auctions without question and small sellers who can't afford to defend themselves are left without recourse. Even a DMCA counternotice is ineffectual if a company can simply ignore it and continue terminating auctions at will."

[thecoalman]

His guide only exists and is only able to be sold because another company is making the substance of his work. (the game he writes about)

Ok so let's apply this to a newspaper, supppose someone printed an article about the game it contained tips on how to play it. Same thing as the the full guide as far as I'm concerned..... You could argue that he newspaper contains more than just the guide but what if it was a newspaper that contained multiple guides... you following me here. How do you draw the line what is condsidered trademark infringement and what is not.

This sounds to me as if they could apply this to anything including someone just reviewing the game. How is that any different than publishing a guide. The entire substance of your work is still going to be based on the game.

[adam]

MackemX disclaimers help but they don't give you license to rip the source off. A pertinent question to ask is if the trademark holder could legitimately "enter the field" of making such guides. If so then this third party need authorization to do what he is doing. Its the goodwill built up in the game that sells his product, not the goodwill built up in his guide.

His disclaimer itself seems pretty inaffective to me too. He excuses his actions as educational use but he is charging for the product. That is a commercial use. And you know you have a shady position when you have to tell your customers that you aren't breaking any laws.

@thecoalman: No I do not follow you. The point I am making is that the underlying concern of Trademarks is that one does not capitilize off the good will of another and that they do not create confusion in the marketplace. Writing an article about something does not capitilize off the goodwill of the subject. The success of The New York Times does not depend on the success of WoW when they write an article on it. Yet if Blizzard doubles marketing of WoW and that in turn doubles sales this will have a direct effect on how many guides this guy sells. If the newspaper is just a collection of "guides" than it is not a newspaper. That is not news.

Look I can't go into all the nuances of Trademark law to explain away every example and analogy. For instance, reporting almost always falls under Fair Use (yup it exists in trademarks too) and MackemX's car example isn't an infringement because he is (re)selling the Trademark holder's product.

Every Idiot's Guide to ____, every Cliff's Notes, every other guide to a video game, etc... gets authorization to use the trademark in their commercial work. Maybe some think its petty but its the law and this guy didn't follow it. I can tell you with certainty that his actions amount to a trademark infringement and that his case will be dismissed. I can't tell you how many times I have seen people get hit with infringement suits for selling similar products without authorization. Its just that usually its the trademark holder bringing the suit.

[MackemX]

the towbar I sold was a BMW part but it could have been a universal one, I would have still used the same layout/description like many do on ebay selling non official items

the thing is though adam, coalman does have a good point if you don't look at the NY Times as a newpaper. What about magazines that are simply just about reviews, guides or contain cheats for things? What about TV programs or websites that offer reviews etc? Are they not gaining financially from the same thing by people buying the magazine and from the adverts within the magazine/TV program/website?

there is no way that every magazine/TV program has permission to print/discuss such stuff. The main reason some of these magazines sell is because of the popularity of whatever they are reviewing, offering guides or cheats for. Does every Ford custom car magazine have permission from Ford to tell Ford owners how to do this that and the other to their cars?

as a kid I used to buy computer magazines that offered reviews/guides/cheats and I would go out on a limb to say they didn't get permission from each and every software to publish their content. They were still gaining financially as they charge for the magazine that contains the info such as that guy charges for his guide

for example the success of the New York Times would depend on the success of the guides/reviews they wrote if that's all they wrote about and it wasn't just a newspaper. The more successful the content they publish about then the more successful their sales could potentially be

so are saying is that if I don't sell anything when I write a review/guide for a software etc it's OK. Therefore if I post it on a website that I'm not gaining anything financial from it by not selling it so it's OK? To me that's complete bullshit as I'm still using it in the same way as I'm attracting people to my website and generate traffic to my site so I can make money indirectly from adverts/resales etc. If it is the same copyright/trademark infringement even if you don't charge access to the content then that means that 1,000,000's of guides/reviews/cheats etc are effectively breaking the law

what about the 'unofficial' fan sites for celebrities?, again these are the same thing as they are not 'official' but use the celebrity to help promote the site. I don't see each and every celebrity fan site being told to cease and desist. Is it because sometimes sites like this help promote the celebrities and therefore are actually seen as a gain?

it's a ridiculous world if you cannot write a review/guide for something and need to get permission to do so each and everytime. Most reviews/guides help enhance whatever it's for and most companies won't say no to some free publicity. Yeah, this guy is breaking the law if you fully understand the legal jargon but to the normal people of the world this just looks bloody stupid that they have come down so hard on this guy over a guide

I dont see 'official' guide or 'official' review that often in the 1,000's guides/reviews etc but they obviously state 'official' when they have got permission. This just shows how many people haven't got permission as I'd sure as hell have 'official' in my guide/review if I had permission .

basically this law is there for them to use whenever they feel like it to come down on the little guys if they start to take a little piece of the cake. This is because the big guys don't want to share it now it's well known and they don't need to share it. It's all fine when the little guys are helping with giving people samples of the cake to help people buy the whole cake though but after that they are brushed aside

yeah, it's the law and I see the justice in it and can agree with it. But hell it's a pretty sad world if a company that has made $100,000's see a $15 guide that has sold a few 100 as a threat that they need to take legal action in the way they did . They guy isn't exactly hitting their sales for $10,000's is he?

most of what I'm saying is probably crap due to the law but it's pathetic in my eyes the way they have acted and it isn't good public relations or publicity. Even if you don't have to sell it directly to break the law (do you?), as a guide writer would you spend time writing a guide for any product by that company if you knew what they had done previously to this guy? I sure as hell wouldn't!

If anything it just gives them a bad name and more of an excuse to dislike the fat cats even though they are in the right. I'm not speaking for everyone but I would like to think many others would have a similar view and that's why it's news

[MackemX]

if he just gave the guide away free on his site is it the same offence?

if not then could he not simply offer a picture of his ass for $14.99 and give away the guide for free for the hell of it? . In fact, could he not just charge $15 for postage (email) and admin costs with the guide being free?

although this isn't the same thing it's still amusing. On ebay people don't charge for the actual item but it's for the info/link to get the item and/or for the postage/delivery costs . I've noticed some freeware's actually allow this in their terms and conditions. If people are stupid enough to pay for them even though they are free then what can you do?

[adam]

In order for something to be a trademark infringement it has to be a commercial use, yes. Guides here, there, wherever have to be analyzed individually to determine whether they are being used commercially or not. Even if not used commercially they can still infringe on copyrights.

And I really don't understand your big guy little guy argument. I don't see how they have come down hard on this guy at all. They could have sued him, they could have sought damages for the guides he sold. Instead they sent an e-mail to ebay and filed a grievance through their internal policy and EBAY removed the auctions. This guy is the one who is suing.

I'm sure Blizzard et al file complaints for lots of other infringing auctions, that's called policing your mark and any major trademark holder does it. If you fail to do it actually decreases the strength of your mark. If you were to let such infringing auctions go unchecked for say, 5 years and then chose to sue someone over it a court could deem your actions as a waiver or limit your damages under something called laches.

Bottom line, this is a commercial use of another's trademark and it is of the caliber that amounts to an infringement in my opinion, and I do not see this as falling within the Fair Use exception AT ALL. Some of the examples you listed about would fall within Fair Use in my opinion, others would not. Whether it suprises you or not, yes in many of those examples you listed the seller/author would in fact have gotten authorization to use the trademark.

[adam]

If he gave the guide away for free then no there is no trademark infringement...not for this anyway. If the mark qualifies as a "famous mark" then there are other remedies under trademark law that apply even if its not a commercial use, (really just used in any non-competitive, non-confusing way) but you've got to be huge to fall into this category.

Even though ebay doesn't clarify the intent of what the buyer is really paying for, item or shipping, the law does. You can't take a $50 item and say you are giving it away but then make up the full value by charging extra in shipping. That is called a peppercorn under contract law and is considered fraud on any court in any future legal action. There's no difficulty in determining the actual intent of the people. If they are paying $50 for something that costs $5 to ship then the court will value the item at around $45 regardless of how the transaction was structured.

[MackemX]

I can fully understand the legal side of things but most people who are not in law aren't interested in the black and white . Yeah they went through the ebay procedures but it's not as if he's having a major effect on their sales or his guide/auction is blatantly using their logos' etc. I notice they used the ebay policy to get him removed but surely someone from the company saw the auction in the first place so why go through the autmoated process of being faceless tough guys? Why didn't they just tell him directly instead of going to 'teacher' over something so trivial as the guy charging a few $'s for a guide?.

it's silly that ebay act on this so firmly yet allow far greater infringements to blatantly go ahead and as I said above they hide behind their lame 'it's nothing to do with us what the member advertises in whichever way unless someone complains even though common sense tells you it isn't' attitude

adam, surely there's 10,000's of guides/reviews etc out there that won't have permission. Why is it some use the word 'official' yet many similar guides/reviews/websites don't?. Even I've got a few guides on my site and they aren't official but I don't have adverts, nor do I sell them. I would have had adverts etc if I'd know how many hits I would get . The popularity of the software is the only reason I got hits to my website and not the actual guides themselves. If I'd been getting money from adverts etc it would have probably given me more incentive to do more guides. So what about sites that have guides etc that do attract people but have things like adverts and other income generating means but don't charge for the guides themselves?

is this method of gaining financially by charging for membership to a site via ebay, having adverts or any other income generating means any different than selling it directly?

I don't think it is any different, you are still gaining financially via the same reasons and my main query is, where do you draw the line?

does certain well known sites have permission from each and every hardware/software producer to list their products and offer means to see information/reviews/guides/cheats/hacks etc on them? This is one big reason most people go to these sites and increase it's traffic. Therefore the site has adverts, sponsorships and affiliations so isn't this gaining financially from trademarks? It's not exactly the same thing as that guy selling a guide but surely it's on the same lines?

if the guy was a major con artist and scamming people and the company £1,000's then hell yeah stop him dead in his tracks but come on, it's a bit trivial seeing as the guy has only sold a few 100 guides . It's also not as if he's offering a way to affect sales of the product by somehow offering the game for free either

this is my big guy/little guy argument as they just stopped him in a flash without thinking about what they were doing and didn't give a toss about him. This little guy has the balls to stand up to the big guy and say 'F**k You', I will sell my guides and I'm not giving up easily .

what I'm saying is that if you are seen as making a profit by offering guides then you are in fact breaking the law. I can understand that and therefore there are probably 1,000's of people out there 'breaking the law' as they gain financially by the content they display/offer and most probably won't even know it

what if I wrote a guide on how to setup Windows XP so it worked perfectly? (we know it's impossible :P) But honestly, it's stupid that you need to get permission to sell a guide seeing as you are the only person who knows how to do it. Why shouldn't you be rewarded for your knowledge and guide writing skills without having to ask for permission? Surely as long as you clearly state this is completely unofficial, is not affiliated, don't try to mislead people in any into thinking it is or don't affect sales of the product in any way should be acceptable for most people?

legally right or wrong, I think the whole thing is silly that a company like that feel the need to stop a guy selling a few 100 guides

it's a shame this place is pretty quiet as I would have liked to have heard other people's views on this but that's VHOT for you :P. Even I've lost interest in posting and I'm only posting this as I have an interest though I'm bored and I should be doing other things

[MackemX]

If he gave the guide away for free then no there is no trademark infringement...not for this anyway. If the mark qualifies as a "famous mark" then there are other remedies under trademark law that apply even if its not a commercial use, (really just used in any non-competitive, non-confusing way) but you've got to be huge to fall into this category.

Even though ebay doesn't clarify the intent of what the buyer is really paying for, item or shipping, the law does. You can't take a $50 item and say you are giving it away but then make up the full value by charging extra in shipping. That is called a peppercorn under contract law and is considered fraud on any court in any future legal action. There's no difficulty in determining the actual intent of the people. If they are paying $50 for something that costs $5 to ship then the court will value the item at around $45 regardless of how the transaction was structured.

OK, so if the shipping etc is too much then surely he could value the pic of his ass at $15 without question and the guide is free?

I had this when I claimed cashback on my creditcard for a like for like price comparision. The store which I paid more for the TV also had a free DVD player and 5 year warranty. In my eyes they were free and the TV was still the same TV no matter which store I bought it. I got my cashback no problem as the free DVD player/warranty could have easily been a free scart lead, it just so happens that was the deal at the time. As they were free they had no value and therefore added nothing to the overall cost so how could they refuse my cashback for like for like on just the TV which I had paid for?

same thing could apply here couldn't it. He sells a picture of his ass for $15 and also offers a free guide . Yeah I know it's complete rubbish and he wouldn't be able to do it but I thought I'd mention it

p.s. obviously he wouldn't have to use a pic of his ass as he could use anything just as trivial . I know my ass is worth a lot more than $15

[Supreme2k]

And you know you have a shady position when you have to tell your customers that you aren't breaking any laws.

I agree with pretty much everything you've posted, except that. In this overly-litigious society, this type of "disclaimer" becomes a necessity as much as the knife with the label that says "WARNING: May cause death if thrust repeatedly in the heart. Do not use to clean out your eyeballs." This guy is a jerk, but even legit companies make that claim: "Aphedramutasol is a safe, legal FDA approved allergy treatment. Breathe more freely today." (Creatine, anyone?)

[adam]

Saying that something is safe or approved by some board or giving warnings that any reasonable person really shouldn't need to hear, is not even remotely similar to assuring that what you are doing or selling is legal.

Claiming that you are acting lawfully has absolutely 100% no legal effect. How can someone sue you for failing to state that your actions are legal? If they are legal you don't need to say it because you've done nothing wrong. And if your actions were unlawful then you can be held accountable for them regardless. The only time someone has to tell someone what they are doing is legal is when they anticipate that others might question the legality without being given more information.

The reason we have ridiculous warnings is because some absolute nutcase sued, or there is anticipation that some absolute nutcase will sue, for doing whatever it is that is warned against, like eating nails or sticking your head in an oven. How can anyone sue you BECAUSE your product is legal. Even for a nutcase, that's ridiculous.

[Doramius]

This is exactly why Copyright, Trademark, & Rights Reserved laws need to be adjusted. This 1700's establishment was based on written work only. Anybody could play it. You just couldn't copy the written work for sale or use without consent. You could still play the music by ear without breaking a law. If someone asked what tune was that, you couldn't say it was your own, as that would be false pretense or blatent plagiarism which is illegal on it's own.

With the way laws are set now, Humming a popular tune in public could be construed as copyright infringement because you didn't pay for a license to hum it. What a crock?!!!

These laws are no longer doing what they are intended to do, or big money companies are intervening by rewriting the laws to benefit themselves for much longer than fair time.

[adam]

Doramius I'm not sure what authority you are referring to but Trademarks existed under commonlaw before the US was even founded and it was just brought over as is and later codified into statute. It always applied and pretty much covered the same exact things as it does today. The modern statute changed things substantially but it doesn't change the substantive scope. Commonlaw trademarks (same law as 1700) still exists even today. It applies anytime you conduct business but don't register your trademark. And as mentioned before, this present case really is dealing with Trademarks not so much Copyrights.

As for US copyrights (copyrights predate US) the US constitution essentially created them by empowering Congress to pass laws to promote science and the ARTS. The fact that the first copyright statutes only protected literary works was because they were the only forms of art being copied at that time. The intent of the Constitution is clear, Copyrights shall protect the arts and that applies to more than just literary works.

And I have seen this example posted up and down this board and it is so blatantly stretched beyond truth that I can't believe people think that singing a song in public is copyright infringement. Public performances are not prohibited unless you are getting paid for it or if you are performing to a sufficiently large crowd. The legislative notes describe that this typically means that you use some sort of amplification and at least 4-7 speakers. The same is true for your example of playing a song by ear for someone. That is not an infringement under copyright law and never has been.

All laws could stand some reform, copyright and trademark laws especially. But you cannot reform something if you don't know what is wrong with it.

[Supreme2k]

Saying that something is safe or approved by some board or giving warnings that any reasonable person really shouldn't need to hear, is not even remotely similar to assuring that what you are doing or selling is legal.

It certainly is when you're talking about Creatine (for example). Many people think that it is illegal and basically steroids.

Claiming that you are acting lawfully has absolutely 100% no legal effect.

Who says it has to? I'm sure that he has been asked about the legality of his material. I'm surprised about quite a few things that are legal that clearly seem as though they are not. Wouldn't it make you at least feel better if you were talking to someone who was smoking a joint, but said "It's medicinal."?

How can someone sue you for failing to state that your actions are legal? If they are legal you don't need to say it because you've done nothing wrong.

But we're talking about eBay. It's safe to say that all transactions there aren't on the up and up.

How can anyone sue you BECAUSE your product is legal. Even for a nutcase, that's ridiculous.

Again, I'm not talking about the strictly legal sense. From a marketing standpoint, maybe there are nutjobs who report auctions on a regular basis (actually, scratch the maybe). Though this particular person was wrong, I can see someone making a preemptive strike to (try to) prevent any such reports.

With everything else (relating to this case) I agree. If you want t eat at m house, you'd better make sure you're invited.

[Doramius]

Another question is what's the difference then between a patent and copyright? A patent is on an idea or physical product. Wouldn't a sculpture fall into that realm? I'm sure there is a Black & white explanation between the 2, but sculpture is an artwork which I guess is copyright realm. The chop-o-matic would have a patent. I guess sculpture requires a patent & a copyright? I made an oil lamp in highschool I should patent & copyright then.

[adam]

Patents are on inventions and the three requirements are that it be novel, non-obvious, and useful. The key with a statue is the useful requirement. It must be utilitarian meaning it actually accomplishes something or performs a task, so a statue could not be patented.

Copyrights protect expressions of ideas so any artistic expression applies including a statue. They are actually classed the same as any pictoral work.

It is possible to have both a patent and a copyright tied up in the same object or product, but they are still mutually exclusive forms of protection meaning that no single thing can quailfy for both forms of protection. So maybe if you invented a novel new spy camera that fit inside a statue, you could patent the camera and its "inner-statue" design and then copyright the purely artistic aspects of the statue itself.

The design of your lamp could be copyrighted but unless this is one special lamp I don't think you'd pass the novel or non-obvious patent requirements.

[BJ_M]

microsoft has applied for 5000 patents this year and 4000 last year ..

some of which are for things like "double click on an item" (6 patents on that alone) , and several on how a mouse pointer looks and slides across a screen ....

those two examples dont seem to fall under novel and non-obvious, though they are useful.

i'm just being glib here -- but those are real patent applications ..

i am reading the current patents on http://www.freshpatents.com/ - and a lot of stuff doesnt fall under novel, non-obvious, and useful in any form -- at least in my book ....

if you want to search for microsoft patents -- search for 'Merchant & Gould' - that is Microsoft's patent attorney's ... plus a few others i recall ... like this new one by MS

"Location based licensing"
The present invention provides a method and system for location-based digital rights management. Digital rights for protected content are restricted to a specific location or region by specifying the approved location of the consuming device within the license. This allows the content owner to specify the geographic locations/regions at which the protected content may be consumed. The device obtains its location from a location entity which is then evaluated against the location constraint within the license. If the device is within the location constraint then the content may be accessed. Acquiring the location of the device before allowing access to certain content helps in preventing a user from accessing a protected document in an area which is considered a prohibited location as defined within the license.


http://www.freshpatents.com/Location-based-licensing-dt20060316ptan20060059096.php

[thecoalman]

some of which are for things like "double click on an item" (6 patents on that alone) , and several on how a mouse pointer looks and slides across a screen ....

those two examples dont seem to fall under novel and non-obvious, though they are useful.

Or the infamous Amazon one-click patent... yea that took some thought.

http://cse.stanford.edu/class/cs201/projects-99-00/software-patents/amazon.html

In the fall of 1997, Amazon.com submitted a patent application entitled "A Method and System for Placing a Purchase Order Via a Communications Network." On September 28, 1999, two years and one week after the application was filed, Amazon was granted United States Patent Number 5,960,411. It is now known as Amazon's "1-Click" patent. The patent describes an online system allowing customers to enter their credit card number and address information just once so that on follow up visits to the website all it takes is a single mouse-click to make a purchase from their website.

Whats even worse than the original patent is the snowball affect where other companies are going to try and get the same affect by other means. So they race to the patent office with there own and the next thing you know only a few have the option for doing something simple. Hardly an environment for innovation.... I saw this really cool affect once that some had posted a "how do they do this?" question, possibly here. I look at the source code and there it is Copyright. Granted it was cool and something I had not seen before but it was hardly something that someone could not have reproduced themselves, even to the extent where they might have used identical code if they had a purpose for such an effect without ever seeing the original. It was akin to patenting a link changing color when you mouseover, nothing spectacular but none the less copyrighted.