Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

Kinect Banned in China

Submitted by Julio Mena

It has been reported that the Kinect motion control device for the Xbox 360 console, much like the Xbox 360 console, will not be sold in China as a result of an edict issued in 2000 by China's Ministry of Culture. Although Microsoft China COO Michel Van Der Be did not indicate whether Microsoft would appeal the ban, he reportedly stated that the company does intend to cooperate with Chinese laws.

Despite the ban, it has been reported that although there are some legal game consoles available in China, there exists a significant "grey market" for these products.

Coverage here (gamasutra.com)

College Athletes Sue for Video Game Revenues

Submitted by Brigitte Lenis

Sam Keller, a former collegiate quarterback, along with other NCAA athletes are reportedly filing a class action law suit against EA sports and the NCAA, citing their intellectual property rights.

It had been reported that EA sports is introducing another installment of its "NCAA Football" video game this summer, and while the game does not include players' names, it supposedly features virtual players with the same number, skin tone, height, throwing arm as well as home state as the real-life players.

Compensation for college athletes has been a controversial issue in the past. A similar yet distinct class action was reportedly filed by collegiate basketball player Ed O'Bannon for using player's images without compensation. (see our coverage)

It will be quite interesting to see how these play out...

Coverage at:AOLnews

SouthPeak fights for My Baby and the bathwater

In the midst of legal battles involving payments owed to its publishing partners, South Peak has sued Majesco Entertainment over the publishing of My Baby 3 & Friends. The issue is who has the right to publish the game in the US. SouthPeak claims it has that right, despite the fact that Majesco announced that it would be publishing the game.

Coverage here (Joystiq)

Digital Locks and Video Games

Digital locks and anti-circumvention prohibitions generally say that it is illegal to bypass technological copy-protection measures. Such laws are contentious because of the fear that these prohibitions will apply even if the protected work is being accessed for legal activities (for example, under fair use or fair dealing exceptions).

The US Digital Millennium Copyright Act contains anti-circumvention provisions, but has a built-in mechanism by which the Librarian of Congress periodically determines whether there are classes of works that should be exempted from those provisions. The Librarian of Congress recently designated several new classes of exempt works, two of which are relevant to video games:

1. Computer programs that enable wireless handsets to execute software applications, so long as the circumvention if for the sole purpose of enabling the interoperability of lawfully-obtained applications. This exception opens the door to "jailbreaking" smartphones so that they can run unauthorized applications (including games).

2. Video games accessible on personal computers, so long as the circumvention is solely for the good-faith testing for, investigating, or correcting security flaws or vulnerabilities. The information generated from the testing must be used to promote the security of the owner or operator of a computer or computer system or network, and the information must be used or maintained in a way that does not facilitate copyright infringement or other violations of the law.

These are narrow exceptions, but they demonstrate the ongoing evolution of how anti-circumention laws are approached in different circumstances.

Coverage at Gamasutra; see the Librarian of Congress's statement here.

Another Lawsuit against Activision

Submitted by David Beckstead

As a follow up to our blog dated March 5, 2010 and entitled West and Zampella Sue Activision, another lawsuit has allegedly been brought against Activision by some of its workers in California. This time, the reported suit was launched by a group of nearly 40 former and current employees. According to kotaku.com, the employees are suing Activision for breach of contract, alleging the company withheld bonuses from employees, demanding that they develop, produce, complete and publish the Modern Warfare 3 game by November 2011.

A hearing to see if the two suits can be consolidated has reportedly been set for August 5th.

Industry Issues Statement on California Law

As California prepares for its day in front of the US Supreme Court to justify the constitutionality of its latest video game legislation, the Entertainment Software Association (ESA) has issued a statement in advance of its own brief, reiterating its position that video games (read: violent games) are deserving of the same First Amendment protection as other forms of expression.

In the statement, ESA President and CEO Michael Gallagher writes:
"Computer and video games are First Amendment protected speech. There is an unbroken chain of more than a dozen previous court rulings agreeing. Courts across the country recognize that computer and video games, like other protected expression such as movies, books, and music, have an artistic viewpoint, and use sounds and images to create an experience and immerse the player in art. That is why other courts have unanimously affirmed that video games are entitled to the same constitutional protection as movies, music, books, and other forms of art."

California is taking another run at legislating against the sale of violent video games to youth, hoping that a more "narrowly tailored" bill banning sales and rentals of "excessively" violent games will pass muster. The primary architect of the bill, State Senator Leland Yee, issued his own statement, saying that "[n]o rational justification exists for treating violent material so vastly different than sexual material under the First Amendment when reviewing restrictions on distribution to minors."

A decision is expected later this year.

Great Canadian Threat

TIGA, the UK game industry trade association, has recently identified Canada as a "major threat". The reason? Canada's game-friendly business environment makes Canada more appealing to game companies and developers than the UK, which does not offer much in the way of tax breaks or other incentives to game companies.

This is a compliment, as Canada is being held out as a country that's "doing everything right" in terms of encouraging game companies to do business. Canadian tax incentives certainly help (see our coverage of some such programs here and here), but we also assume it's at least partly because Canada has such awesome video game lawyers.

Coverage at the Develop site.

Blizzard Reverses Plan to Require Real Names on Forums

Submitted by Brandi Stocks

Faced with the ire of its online community, Blizzard has withdrawn its plans to require users of Blizzard's forums to post under their real names.

On Tuesday, Blizzard announced that all Real ID users, as well as users of all Blizzard forums, would be required to use their real first and last names.
At the time, a Blizzard representative stated that "removing the veil of anonymity typical to online dialogue will contribute to a more positive forum environment, promote constructive conversations, and connect the Blizzard community in ways they haven't been connected before". Blizzard's hope was that providing real names on their forums would contribute to a "new and different kind of online gaming environment - one that's highly social, and which provides an ideal place for gamers to form long-lasting, meaningful relationships".

Upon hearing the news, the furious Blizzard community immediately took to Blizzard's still-anonymous forums, quickly producing more than 30,000 messages expressing, primarily, concerns about their privacy. Some users went so far as to post Blizzard staffers' personal information on facebook and blogs.

On Friday, a mere 3 days after the initial announcement, Blizzard reversed its decision - due, it seems, to the overwhelmingly negative response from its users. A Blizzard representative posted: "We've been constantly monitoring the feedback you've given us, as well as internally discussing your concerns about the use of real names on our forums. As a result of those discussions, we've decided at this time that real names will not be required for posting on official Blizzard forums".

So for the time being, at least, Blizzard forum users continue to be able to post anonymously. Is this attempt to clamp down on anonymity an online trend? An American newspaper, the Buffalo News, recently announced plans to require people leaving comments on its website to use their real names, in an effort to counteract so-called "comment trolls" who leave inflammatory anonymous comments. It remains to be seen how this experiment will work; regardless, Blizzard's experience suggests that people are not quite ready to connect themselves to their online comments.

Coverage at 1up.com and Gamespot

Freedom of Speech and Use of Likenesses

Submitted by Dan Chapman

In a test of exactly how far the U.S. First Amendment goes toward protecting freedom of speech, Jim Brown, a retired NFL football player, has launched an appeal of a U.S. District Court decision denying his claim that video game maker EA has used his likeness as a "false endorsement" of its game.

EA won the right to use its likeness in its game because Justice Florence-Marie Cooper held that video games are expressive works, akin to expressive painting, and that the mere depiction of players of today and yesteryear is not sufficient to constitute a false endorsement of the game. The fact that the in-game player looks like and has attributes similar to those of a real individual is not sufficient to override EA's First Amendment rights to freedom of speech.

Brown has launched his appeal of the 2008 decision in the 9th U.S. Circuit Court of Appeals on the basis that he was given insufficient time to demonstrate the facts upon which his action was based.

China bans sex and violence in video game advertising

Leading up to the release of THQ's Saints Row 2 in the fall of 2008, open-world crime-related gaming aficionados everywhere were inundated with ads featuring adult film superstar Tera Patrick,scantily clad and holding a massive machine gun. A few months later, THQ released DLC for Saints Row 2 featuring Ms. Patrick, as a playable character - no, not in the role that you're thinking, but as a microbiologist that formerly worked for Ultor, the game's villainous corporate foe.

Suffice it to say, everyone knows that sex sells, violence sells, and videogames with sex and violence sell - you need look no further than the hugely popular and profitable Grand Theft Auto series. Unsurprisingly, developers and marketers everywhere have been exploiting the sex and violence connection when advertising video games, including in China. As reported by BBC, various video game producers have used women embroiled in sex scandals or employed in the pornography industry to promote their products in China. For example, Shou Shou - a model who became famous after her sex videos were posted on the internet - was asked to promote a RPG. Apparently, a Japanese adult video star has also helped publicise another game - Warrior OL.

It would appear that China's Ministry of Culture has had enough of these practices. Beginning August 1, 2010, local officials will have the authority to force website owners to remove what is called vulgar content in online game promotions. According to AFP, the regulations will "require online game companies to self-censor and users who want to play a game to go through a registration process with a valid identity card."

It remains to be seen whether requiring identity cards to game online, self-censorship by video game developers and enforcement will have the intended effect of purging sex and violence from video game advertising in China. It is also unclear whether the new regulations are broad enough to capture what is very likely the most offensive video game ad out there: the World of Warcraft commercial featuring Mr. T yelling about his in-game Mohawk Grenade.