Selling Pokemon on eBay: Legal Issues

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eBay removed some of my Pokemon ads due to them not liking digitally delivered goods. Because of that I am longer offering the trading service here. Instead, all services will continue on this new website:
pokeservice . com

Selling Pokemon on eBay is a tricky business. It's important to check your national or state law to make sure it is legal to sell virtual items. Make sure you take care of your taxes you everything is registered.
Blizzard, creators of World of Warcraft, make it very clear in their Terms of Service that selling in-game items or currency for real life money is not allowed. At best, they can ban you. That is not a legal issue. The Pokemon games do not have such a Terms of Service.  Copyright law is where things get interesting. You're not selling a copy of the game. But what exactly are you selling? Perhaps you can see it as selling data, uniquely created by the game's Pokemon creation system. That uniquely created Pokemon, which depends on the player's input (nicknames, OT, ID, SID, etc.), is something that didn't already exist. So who has the copyright? The creator of the systems (Gamefreak), or the creator of the newly generated content (the player)? Honestly, I don't know. You can could also see it as providing a trade service. The people pay for an in-game trade, not necessarily the Pokemon itself. It's like paying for a competitive battle. In this case you would be selling a service and not a product. That cannot be copyright protected. Trademarks get even weirder. According to the Trademark Electronic Search System, Bulbasaur and Charmeleon are trademarked; however those trademarks expired. On the other hand, Torchic and Florges are not trademarked at all. From what I could find, the closest trademark registrations for Pokemon and Pokémon in our goods and services are: "computer game software, electronic game programs, video game cartridges, video game software [ and video tapes containing children's entertainment ]" and "providing a web site featuring entertainment information in the fields of electronic game programs, electronic game products, and other entertainment topics related to electronic game programs and products.". Neither of those fully describe the service we offer, although it is probably close enough to be trademark infringement. The problem is that these descriptions are vague enough to apply in a number of ways. "providing a web site featuring entertainment information in the fields of electronic game programs". I'm not sure if Serebii . net is monetized, but if it is it would be infringing the Pokemon trademark as it provides entertainment information in regards to Pokemon.
Let's talk about Terms of Services for a second. The Nintendo 3DS EULA states:
"The Nintendo 3DS Code of Conduct prohibits all harmful, illegal or otherwise offensive conduct, including, but not limited to the following:
Engaging in any commercial activity using the Nintendo 3DS System or any other activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of a Nintendo 3DS System, including the Nintendo 3DS Services or networks connected to the Nintendo 3DS Services."
The Pokemon games' Terms of Services state a similar prohibition. This is of course just about the User Agreement and EULA, which is not illegal to break. At best, Nintendo and Gamefreak could stop providing their products and services to you; however, that is pretty impossible in practice.
The first sale doctrine is probably the best defense. Section 109(a) of the Copyright Act states:
“ Notwithstanding the provisions of section 106(3) (which grants copyright owners the exclusive right to distribute copies or phonorecords of a work), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
That is why you are allowed to resell your old video games and DVDs. Section 109(b) states:
"The owner of a particular copy of a computer program or a particular phonorecord of a sound recording may not rent, lease or lend that copy or phonorecord for the purpose of direct or indirect commercial advantage."
So you can't rent out your Pokemon games. Fair enough, we're talking about selling anyway. After a trade, the Pokemon is truly deleted from the computer program (or game in this case). There is still one problem though. More often than not, the User Agreement states that you are merely buying a license to use the game, not a copy of the game itself. By that logic, a licensee is not allowed to resell the software (Section 109). The Pokemon Omega Ruby manual states:
"This software (including any digital content or documentation you download or use in connection with this software) is licensed by Nintendo only for personal and non-commercial use on your Nintendo 3DS System."
Yes, you read it right. It basically says, this software is licensed by Nintendo only for personal use. That doesn't sound like a proper sentence, nor does it state that you own a personal license. It says that Nintendo holds the license for personal use. Very strange. That's pretty much all it says about licenses.
Lastly, many courts have recharacterized a software publisher's shrinkwrap licensing agreement as a sale when the publisher distributes its software through retail channels. Other courts have taken the opposite position, however, holding that a copy of software obtained through a license is not subject to the first sale doctrine or other benefits of "ownership." In other words, it differs per court. I would think that we fall under the first category (as long as you use a physical copy). We are essentially selling the game in parts (one Pokemon at a time). Like selling a DVD boxset in singular DVDs,  instead of the whole set. In that sense, our selling falls under legitimate reselling of the first sale doctrine. On the other hand, if the court disagrees (in that you only have a license and you are not the owner) then every single person that resells a Pokemon cartridge is committing copyright infringement. It's still legally light gray, but it seems like copyright law is on our side.
Still, I would tell anyone in the Pokemon selling business to see it as an extra, and most of all, temporary income stream. I knew that it was mostly a matter of time before either Nintendo or eBay would shut me down. eBay shut down the ads because of a policy breach on digitally delivered goods, nothing copyright related. I suspect that pokeservice . com will eventually shut down as well. I don't know how long the site needs to be on or how popular it needs to be, but if I get a cease and desist letter at some point I wouldn't be surprised.
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