IP Law Chat -- Hendricks & Lewis, intellectual property, trademark, copyright and technology attorneys

Being a bit of a WoW aficionado, I can't pass up a story where the virtual and legal worlds collide.  Marty Schwimmer at The Trademark Blog has just such a story with the news that a player of Blizzard Entertainment's enormously-successful MMORPG (massively multiplayer online role-playing game) World of Warcraft, has filed a class action complaint in federal court in Florida against alleged so-called "gold farmers," who generate virtual gold and sell it to players for "real life" money.

The plaintiff has asserted, among other claims, causes of action for breach of third party beneficiary contract (the End User License Agreement and Terms of Use Agreement), violation of the Computer Fraud and Abuse Act, violation of state consumer protection acts and conspiracy.

You can find the amended complaint here (PDF, 48 pages) and answer here (PDF, 19 pages).

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In a brief but no less interesting per curiam opinion, the Ninth Circuit vacated an order compelling arbitration that was based on a modified service contract posted on the service provider's website without specific notice to the customer of the changes to the contract.

In Douglas v. United States District Court, the plaintiff contracted for long distance telephone service with America Online, which service was subsequently acquired by Talk America.  After the acquisition, Talk America made four additions to the service contract, including additional service charges and an arbitration clause, and posted the revised contract on its website.  According to the plaintiff, however, Talk America did not notify him that the service contract had changed.  After the plaintiff learned of the changes, he filed a class action lawsuit in federal district court and Talk America moved to compel arbitration based on the modified service contract, which the District Court granted.

The Ninth Circuit disagreed with the District Court, however, concluding that Talk America could not unilaterally change the terms of the contract and that the plaintiff was not bound by the terms of the revised contract when he was not notified of the changes.  Notably, merely posting the revised contract on the website was insufficient notice of the changes as "[p]arties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side."

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