Davis LLP - Video Game Law Blog

Medal of Disapproval?

Thu, 26 Aug 2010 16:36:00 EDT

EA's latest Medal of Honor instalment is set for release in October 2010, but is already causing a stir. The reason? The single-player game involves US soldiers operating in Afghanistan, but the multi-player game allows players to play as the Taliban.

Peter MacKay, Canada's Defence Minister, has sharply critized the game on the basis that soldiers (including Canadian soldiers), aid workers and civilians in Afghanistan are regularly attacked, and sometimes killed, by Taliban fighters. The Minister believes it is inappropriate for game players, who may include children, to play as the Taliban in the game.

EA has pointed out that there are no Canadian soldiers in the game, and that the game is rated M for mature and therefore should not be sold to anyone under 17.

This situation highlights once again the issues that arise from portraying real-world settings and situations in video games (remember the episode involving the Manchester Cathedral in Resistance: Fall of Man? If not, refresh your memory here). Real-world settings add verisimilitude and enhance the gaming experience but, as these examples show, may also be perceived as offensive or inappropriate.

Media coverage here.

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DRM Firm Launches Second Patent Infringement Suit

Mon, 16 Aug 2010 09:16:00 EDT

Submitted by Jennifer Whincup

Digital Rights Management (DRM) firm, Uniloc, has filed a copy protection suit against several large corporations, including Sony, Activision Blizzard, Aspyr Media, and others alleging that the named defendants infringed on a software registration patent.

This claim comes in the midst of a 7-year long battle against Microsoft for a similar patent infringement. While the district court awarded $388 million in damages in 2009, the verdict was later overturned and Uniloc intends to appeal that decision.

Uniloc claims that because of the publicity of the prior lawsuit with Microsoft, the defendants had notice of their infringements and should have discontinued their unauthorized use of the patented software.

Coverage at GamePolitics

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UK Rules R4 Cards Illegal

Mon, 09 Aug 2010 13:42:00 EDT

A UK court has ruled that R4 cards, commonly used to allow users to play pirated games on the Nintendo DS, are illegal in the UK.

Although defendants Wai Dat Chan and Playables Limited argued that the cards had a non-infringing purpose (to allow players to play homemade games on the handheld system), the London High Court held that because the cards must circumvent Nintendo's security systems in order to work, they are illegal. According to the ruling by Justice Floyd, "the mere fact that the device can be used for a non-infringing purpose is not a defence."

However, as the coverage at MCV points out (and as we blogged about here), the UK ruling is an interesting one in light of a recent decision by the Librarian of Congress to allow an exemption under the DMCA for the "jailbreaking" of smartphones.

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Kinect Banned in China

Wed, 28 Jul 2010 15:36:00 EDT

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)

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College Athletes Sue for Video Game Revenues

Wed, 28 Jul 2010 15:13:00 EDT

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

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SouthPeak fights for My Baby and the bathwater

Tue, 27 Jul 2010 12:42:00 EDT

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)

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Digital Locks and Video Games

Mon, 26 Jul 2010 17:21:00 EDT

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.

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Another Lawsuit against Activision

Wed, 21 Jul 2010 14:52:00 EDT

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.

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Industry Issues Statement on California Law

Mon, 19 Jul 2010 20:20:00 EDT

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.

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Great Canadian Threat

Mon, 19 Jul 2010 17:42:00 EDT

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.

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Blizzard Reverses Plan to Require Real Names on Forums

Thu, 15 Jul 2010 11:17:00 EDT

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

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Freedom of Speech and Use of Likenesses

Wed, 14 Jul 2010 13:06:00 EDT

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.

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China bans sex and violence in video game advertising

Mon, 12 Jul 2010 12:34:00 EDT

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.

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Settlement of Duke Nukem Forever Litigation

Mon, 12 Jul 2010 08:05:00 EDT

As a follow up to our May 26, 2009 blog entitled "Duke Nukem Forever or Never?", it has been reported that 3D Realms/Apogee Ltd. and Take-Two have come to a settlement agreement with respect to their dispute over the Duke Nukem Forever game. This settlement could pave the way to the release of the game, which now reportedly needs to be completed.

It had initially been reported that Take-Two, the publisher behind the Duke Nukem Forever game, had sued 3D Realms/Apogee Ltd. after it had let go its development staff. Take-Two had taken this to mean that the Duke Nukem Forever game had been cancelled. This was reportedly followed by a counter-suit by 3D Realms/Apogee Ltd., in which it was revealed that the game was still in development.

Coverage at http://www.shacknews.com/onearticle.x/64233.

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EA Activates Trade-mark Lawsuit

Wed, 30 Jun 2010 19:47:00 EDT

Electronic Arts has been hit with a lawsuit aiming to stop the release of the next version of its Sports Active game. The suit was brought by Active Network, Inc., who provides on-line sports and fitness programs and services and who claims rights in the ACTIVE trade-mark in association with those services.

Active Network did not object when EA released the first version of its Sports Active game for the Wii in 2009. However, EA's announcement that Sports Active 2.0 (slated for Q4 2010 release) will be available for the Wii, the PS3 and the iPhone, and will have various on-line features, prompted Active Network's lawsuit. Active Network claims that the on-line features will mirror the services it provides on-line in association with its ACTIVE mark.

Regardless of how this lawsuit ends, it demonstrates an interesting point about trade-marks: even if you are able to, and do in fact, use your trade-mark freely in one area, you are not necessarily free to do so in another. So if you are adding new products or services or features to your existing brand line, consider conducting new trade-mark searches to make sure you are not stepping on someone else's toes by doing so.

Coverage at GameSpot and at IGN; for a link to a copy of the lawsuit click here.

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Differing views on Canadian copyright reform

Tue, 22 Jun 2010 13:07:00 EDT

Bill C-32, Canada's latest attempt to amend its Copyright Act, was introduced early this month. Generally the bill is seen as striking an acceptable balance between rights-holders and consumers. There is still substantial controversy, however, over the proposed "digital lock" provisions that give legal protection to technological protection measures.

Copy protection measures are well known to gamers (remember when you had to input a code from a PC game's manual to be able to play?), and not surprisingly there has been some recent public discussion of Bill C-32's digital lock provisions in the context of Canada's video game industry.

First, Danielle LaBossiere Parr of the Entertainment Software Association of Canada has published an opinion piece in the Calgary Herald titled "Why gamers should love copyright bill".

Second, well-known Canadian copyright scholar Michael Geist has responded to that piece on his own blog.

Given how important video games are in Canada (both to consumers and to Canada's economy and high-tech industries), no doubt there will be further discussions like this before Canada's copyright amendments are finalized.

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CTA Regulation Unenforceable

Fri, 18 Jun 2010 16:16:00 EDT

Escapistmagazine.com has reported that the Entertainment Software Association ("ESA") obtained a permanent injunction over the Chicago Transit Authority ("CTA") after having been granted a preliminary injunction back in January of this year. Reportedly, the U.S. District Court ruled once again in favour of ESA by giving a permanent injunction blocking the enforcement of a new regulation that banned all adds for mature and adult-only videogames (such as Grand Theft Auto IV) on CTA's property.

The CTA has apparently agreed not to appeal this decision and was reportedly ordered to pay ESA's lawyers' fees.

Coverage here (escapistmagazine.com)

Submitted by Julio Mena

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Yet another PS3 class action lawsuit

Thu, 10 Jun 2010 13:19:00 EDT

Submitted by Brigitte Lenis

ING reports that Sony has been hit with another class action lawsuits after having disabled the "Other OS" feature from the non-slim PlayStation 3 models on April 1st 2010. A fourth class action was reportedly filed on May 6th 2010 in California, with a claim alleging that Sony "unlawfully forced" PS3 owners to choose between features that were initially advertised, as many utilized the feature to install the Linux Operating System. Apparently, the feature was initially removed via an "optional" firmware update, but users who chose to not install it were locked out of other basic system functions. The suit reportedly seeks restitution, injunction relief and other damages.

A copy of the suit can be viewed here

Coverage at IGN

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B.C. Introduces "Interactive Digital Media Tax Credit"

Mon, 07 Jun 2010 16:00:00 EDT

Submitted by David Beckstead

The Vancouver Sun is reporting that last week, British Columbia's legislature passed a bill which would create an 'Interactive Digital Media Tax Credit' in the province with the hopes of making B.C. a more attractive location for digital media companies, including video game makers. The tax credit is reportedly the result of lobbying efforts by the B.C. Interactive Task Force, a group which is comprised, inter alia, of leaders in the industry which had apparently been pressuring the B.C. government for nearly a year to implement a tax credit program in the province. It is reported that stakeholders in the B.C. video game industry are hoping that the tax credit will help make the province a more attractive location for video game studios and thus raise its competitive advantage in relation to other North American jurisdictions. According to the Sun, the legislation will offer a tax credit of 17.5% for B.C. labour to digital media companies, and is set to begin on September 1, 2010.

While many industry leaders seem to be viewing the tax credit as a positive development, there are reportedly some concerns that the level of support that the B.C. government is offering is not sufficient enough to keep pace with benefits offered by other provincial governments. By comparison, Quebec, which the Sun refers to as B.C.'s principal domestic competitor, reportedly offers a tax credit of 37.5% of labour. While the tax credit will likely make B.C.'s profile more attractive to video game developers, the concrete impact it will have on the industry remains to be seen.

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German Ban on Violent Video Games Defeated

Wed, 02 Jun 2010 12:28:00 EDT

In 2009, a complete ban on the production and sale of violent video games was proposed by ministers in the German Parilament. An opponent of the proposed ban, however, collected sufficient signatures to sway the German State Secretary.

Instead of a ban, the State Secretary has called for a campaign to raise awareness of game rating standards.

Coverage at: FiringSquad

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