Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

FROM RUSSIA WITH LOVE

StarForce, Russian makers of game copy protection software that has recently elicited controversy in gaming circles, has threatened technology weblog BoingBoing.net with legal action following a negative piece on game copy protection software and its alleged adverse effect on consumers' computers.

Late last year StarForce challenged consumers to prove the adverse effect of its software on their systems and offered a $1,000 prize to whomever succeeded.
coverage at http://tinyurl.com/a6hec

WE GOT GAME

Sault Ste. Marie's Algoma University College's Masters programme in gaming has been approved by the Ontario government. The College will be offering the MSc Computer Games Technology curriculum from the University of Abertay Dundee, Scotland, in exclusivity. Algoma U will be the first Canadian University to offer a Master of Science in Computer Games Technology programme.

coverage at http://tinyurl.com/7jrmg

Don't Ask, Don't Tell - Sexuality And The World Of Warcraft

virtual gamer Sara Andrews has been instructed by Blizzard Entertainment, the publisher of the popular World of Warcraft online role-playing game, to stop her in-game recruitment activities for her WoW guild. If she continues, Blizzard has threatened to ban her from the game. the problem? in her recruitment messages, Andrews wrote that her guild was not ''glbt only', but we are "?glbt friendly'."? 

Blizzard claims Andrews' recruiting was a violation of WoW's harassment policy, though its unclear how this could be so since Andrews doesn't appear to be harassing gays, lesbians, bisexual or transgender players but, rather, making it clear that her guild welcomes such players. on this point, Blizzard has said that it is reviewing its harassment policy and that the policy will likely be broadened to include 'any language that could result in situations where players are going to break down into harassing debate"?. does this then mean that Blizzard accepts that Andrews' in-game recruitment activities don't violate the present harassment policy?though Blizzard insists that it is only trying to enforce a policy to protect WoW members from being harassed, its approach has been criticized as attempting to deal with potential harassment of gays, lesbians, bisexuals and transgender players by forcing such players to keep quiet about their sexuality.coverage at http://tinyurl.com/cxywe

ARE YOU USING THE RED CROSS SYMBOL IN YOUR GAMES?

The Red Cross symbol (a red 'plus"? symbol on a white background) is protected by Canadian law. The Canadian Trade-marks prohibits anyone from adopting the Red Cross symbol in connection with their business, as a trade-mark or otherwise. 
The Red Cross is currently contacting members of the video game industry regarding their use of the symbol in video games"?especially violent games"?and asking them to stop using the symbol. Details of the Red Cross's concerns are available here   http://tinyurl.com/7sf45

GAMER PARENTS NEW POLITICAL LOBBY GROUP?

A new study by the Software Entertainment Association shows that 35 percent of American parents play video games, 73 percent of 'gamer parents"? are regular voters, and 85 percent of all voting parents (whether gamers or not) say that parents and not government, retailers or game publishers should take primary responsibility for ensuring that children are not exposed to inappropriate game content. Finally, 60 percent of parents say that it is not government's role to regulate game sales to try to protect children from inappropriate content (36 percent of parents said that itisgovernment's role to regulate game sales).

The ESA is understandably pleased with this survey, and claims that ongoing government proposals to regulate video games is not necessarily what American voters desire.

ESA News Release at http://shorl.com/fanasyfrobeka

Coverage at http://shorl.com/datovikegijy

More Legal Woes For Rockstar Games

the company, as well as its parent company, Take-Two Interactive, has been sued by the LA city attorney as part of an ongoing investigation into video game marketing. the defendants have been accused of making misleading statements in marketing the popular Grand Theft Auto San Andreas game and in engaging in unfair competition.

at issue are certain sexual mini-games within the San Andreas game which can be activated with the fan-created 'Hot Coffee"? modification. those mini-games, when discovered, resulted in an investigation by the Entertainment Software Ratings Board and, in July, 2005, the game was reclassified in the U.S. as Adults Only. 12 million units, however, were sold before the reclassification and, of those, 200,000 are thought to have been sold in California. though Rockstar had originally claimed that the controversial content had been created by fans, the discovery that both PC and console versions of San Andreas included the same hidden mini-games forced Rockstar to admit this wasn't the case.

the controversial mini-game content has attracted significant attention for Rockstar, including from Senator Hillary Clinton. Senator Clinton criticized both the game itself as well as violent video games in general, which she grouped along with cigarettes and alcohol as hazards to America's youth.

Coverage at http://shorl.com/fistigerobripry  and at http://shorl.com/fudihibrepifri

 

MEDIA SPOTLIGHT ON RACING GAME

We reported yesterday about a fatal car crash in Toronto involving two teenagers who were allegedly street racing.  Early reports mentioned that a copy of "Need for Speed" was found in the front seat of a suspect's car.

As predicted, it did not take long for people to start linking the crash and the video game.  For example, CTV reports point to the "deadly video game" -- see article and related video reports here .  Similarly, a Vancouver Sun article headline reads "Racing video game found in accused street racer's car" -- see here .

Dance Dance Revolution Part Of West Virginia School Curriculum

Konami Digital Entertainment and the State of West Virginia have just announced a three year partnership in which all 765 West Virginia public schools will feature Dance Dance Revolution as part of their P.E. or health-based curriculums.  This announcement follows positive public response to the Games for Health research project, a joint venture of the West Virginia Public Employees Insurance Agency (PEIA) and West Virginia University, which focused on using video games to fight childhood obesity.  We can't wait to bring you coverage of the first-ever DDR State Championships...

Coverage at http://shorl.com/gonifrebragostu  and http://shorl.com/felityduhagu

Good Violence -vs.- Bad Violence?

 Another attempt to regulate bad video game content by our neighbours. Utah's Bill HB 257 aims to modify the Criminal Code and stop access to 'inappropriate violence"? by minors. The Bill toes the line of proposed or existing Federal and State legislation, some of which has been declared inoperative or unconstitutional.

The Bill defines 'inappropriate violence"? as

'Any description or representation, in any form, of violence when it

"(a) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors;(b) taken as a whole, does not have serious literary, artistic, political, or scientific value for minors;(c) is glamorized or gratuitous;(d) is graphic violence used to shock or stimulate;(e) is graphic violence that is not contextually relevant to the material;(f) is so pervasive that it serves as the thread holding the plot of the material together;(g) trivializes the serious nature of realistic violence;(h) does not demonstrate the consequences or effects of realistic violence;(i) uses brutal weapons designed to inflict the maximum amount of pain and damage;(j) endorses or glorifies torture or excessive weaponry; or(k) depicts lead characters who resort to violence freely."

If passed, the Bill would make it illegal for anyone to show, sell or give games, movies, or any other media containing inappropriate violence to minors and punishment would be harsh.

Utah's Office of Legislative Research and General Counsel declares in its Legislative Review Note that 'Based on limited legal review, this legislation [i.e. the Bill] has not been determined to have a high probability of being held unconstitutional"?.

Utah is joined by Iowa, which is considering similar legislation tabled this week.
Coverage at http://shorl.com/guhograbrapryba

NEED FOR SPEED IN CRASH SUSPECT'S CAR

Two Toronto teenagers have been charged with criminal negligence causing death after a late-night crash in Toronto on Tuesday night. Police allege that the two teens were street racing when one crashed into a taxi, killing the taxi driver.

Investigators have told the media that a copy of 'Need for Speed"? was found on the front seat of one of the suspect's cars. Whether anyone is going to take the next step and allege that playing 'Need for Speed"? was a contributing factor to the crash remains to be seen (but we expect someone will).

Coverage at http://shorl.com/deprupimabale

ENTERPRISE VS. STAR DESTROYER, PART II

In an earlier post some of us speculated that the USS Enterprise could defeat an Imperial Star Destroyer. (To be fair, it wasn't an a unanimous judgment, but we cleverly neglected to post the dissenting opinion).

Well, the debate has reopened--now that developer Bethesda Softworks has announced that it owns the exclusive licence to develop Star Trek games in all formats. 

This is interesting for two reasons first, it's unexpected because just last year, Activision (the previous licensee) settled its dispute with Viacom. The prevailing wisdom at the time was that Activision would keep the licence for several more years. 

The other reason this development is interesting is because Bethesda's exclusive licence apparently does not include MMORPGs.  And (here's the interesting part), this appear to be a trend. According to Gamasutra, other licensors are taking a similar approach and treating MMORPG licences separately from other game licences. 

Coverage here  http://www.shorl.com/jebrojuganodu

IS BIG BROTHER WATCHING YOU?

There are recent reports that as part of the US Department of Justice's effort to enforce online pornography laws, it has petitioned a federal court judge to order Google to release information on millions of its users' search queries. While Google is, for the time being, challenging the USDOJ proceedings, three of its competitors - Yahoo, MSN and America Online - have previously acquiesced to similar demands and released said information.

As a result, net surfers are questioning and fearing the degree of government internet surveillance. Could a Google search for 'SEALs weapons for sale?"? trigger undesired attention on you? Would you resent having to justify your query? Having to disclose your interest on SOCOM Navy Seals for PS2?

While American citizens, residents or visitors may enjoy protection from undue surveillance and disclosure of private personal information under sundry legislation, how are surfers outside the US protected, if at all, when search information is stored in the US?

Pornography laws are a must, everywhere in the world. But we should be concerned about how they are being enforced in this instance.

Coverage at http://shorl.com/bystatotodrupri

Gizmondo Europe Seeks Protection From Creditors While It Restructures

Gizmondo Europe, a handheld console manufacturer and a subsidiary of Tiger Telematics, has already laid off staff totalling 50% of its payroll in an effort to reduce operating expenses and has obtained a US$5 million bridge loan as part of its debt restructuring. now, it is looking for help from the courts.

the company has recently filed an application to go into administration, and is scheduled to appear before the UK High Court on January 31st. until that time, Gizmondo Europe is automatically protected from its creditors, who cannot pursue any enforcement actions against it.

Tiger Telematics claims that the application doesn't affect its operations or those of Gizmondo USA but has acknowledged that Tiger Telematics' Swedish subsidiary and Gizmondo Studios will both likely soon follow suit and file for administrative protection.

Coverage at http://www.shorl.com/fypevakaframa

China Relaxes Game Fatigue Restrictions

In August 2005, 7 of China's largest online video game companies signed an agreement with China's General Administration of Press& Publication (GAPP) office to implement in-game restrictions to prevent "game fatigue," after several occasions where gamers collapsed with exhaustion (and in one case, died) during marathon gaming sessions. The "Beijing Accord" introduced in-game penalties in online multiplayer games that cut a characters' abilities in half after three hours of gaming, and further reduced their capabilities after five hours of playing.  Characters were only returned to full capabilities after 5 hours of being logged out.  The program was launched on a trial basis in October and GAPP has announced this week that as of February 1st, 2006 the system will only be applied to gamers under the age of 18.  Privacy concerns for gamers still remain as they will be required to register their names and ages in order to prove the restrictions shouldn't be applied to them.  This announcement comes amid reports that 25.3 million paying online gamers were registered in China by the end of 2005.

Coverage at http://shorl.com/buvutoprejoji

DISCRIMINATION IN THE MMO WORLD

'Wanna join our group? Then prove you can speak English."? 

Chinese-speaking World of Warcraft (WOW) players are complaining that they're being discriminated because they can't speak English. They say other WOW players won't let them joint their groups because they assume non-English speaking players aren't true players--they're gold-miners who are earning booty for their employers or themselves to auction. Is there any potential liability here?

Canada and most of its provinces and territories have human rights legislation that prohibits discrimination on various grounds such as race or ancestry. The legislation applies to specific activities, such as employment, tenancy, publishing and providing services to the public.  

It's often OK to discriminate on other grounds that aren't prohibited by the legislation (for example, you can probably discriminate against people with green hair, as long as you equally discriminate between men and women with green hair). So the first issue is whether Blizzard (the publisher of WOW) or the other players are discriminating on the basis of any prohibited ground. Here, the basis of discrimination is language, not race or ancestry. This will likely make it difficult for the legislation to apply because language isn't a named ground of discrimination.  But that said, the Supreme Court of Canada has previously read-in unnamed grounds of discrimination (such as sexual orientation), so there's always an argument that language discrimination should be read-into the legislation.

The second issue is whether Blizzard or the English-speaking players are discriminating in the course of any of the specified activities. Here, the only activity that appears to apply is 'providing services to the public"?. The players probably aren't providing services to the public, and although Blizzard is probably providing services to the public, it's not the one doing the discrimination.

In short it would probably be tough to argue that the discrimination is prohibited by Canadian law. That said, it doesn't mean the discrimination is acceptable. There may be other ways to address it. For example, Blizzard has a policy prohibiting the use of language that promotes racial or ethnic hatred. And Blizzard's terms of use are broad enough that Blizzard might be able to argue that the discrimination is prohibited by contract

Coverage of the WOW discrimination is here  http://www.shorl.com/bafokafavufe

Florida's Violent Videogames Legislation Passes Senate Hearing Committee

The continued efforts by US states to introduce legislation preventing the sale of violent videogames to minors took another turn last week, as a Florida Senate committee hearing passed a new bill by a vote of 7-1.

Closely modelled on California Bill AB1179, Senate Bill 492 seeks to impose fines (up to USD $1,000 per infraction!) for retailers selling violent videogames to minors. Additionally, the bill would impose government-approved labels on videogames, on top of the existing self-regulatory ESRB ratings system.

However, considering that the continued efforts of the Entertainment Software Association have so far resulted in the prevention of similar laws in Indianapolis, Michigan and Illinois, actual implementation of Bill 492 might never occur. In fact, a similar bill was also halted recently in California, on the grounds of violating the free speech amendment to the Constitution.

The progress of Bill 492, as well as of any related litigation, will be followed closely in the upcoming weeks.

Coverage at http://shorl.com/jededromadrusta

$6 MILLION FOR SELLING MOD CHIPS

Sony alleged that the Defendant, Filipiak, operated an on-line retail store that sold devices (“mod chips”) used to modify PlayStation and PlayStation 2 video game consoles so as to circumvent copyright protection mechanisms that prevent copied games from being played on them.

Sony sued the Defendant for injunctive relief and damages for alleged copyright infringement under the US Digital Millennium Copyright Act. The DMCA prohibits the sale of devices which circumvent copy protection, and the Plaintiff chose the option of statutory damages under the DMCA (between $200 and $2,500 for each infringement).

The court held that the DMCA allows a separate award of statutory damages for each device sold, and that statutory damages would be set at $800 for devices sold before June 12, 2004 (when the defendant agreed to stop selling the mod chips), and at the maximum $2,500 after that date (because the later sales constituted wilful violations of the DMCA). Ultimately, the District Court awarded Sony over $6 million in statutory damages.

This decision demonstrates that the DMCA can be a powerful took against modders and hackers in the United States. As we have mentioned before, Canada does not have comparable anti-circumvention legislation, but there is some is in the works.

Coverage at http://shorl.com/gesirubredryna

Sony Computer Entertainment America, Inc. v. Filipiak
December 27, 2005 US Dist. Ct., ND Cal.
2005 WL 3556676
KEYWORDS: DMCA - statutory damages - anti-circumvention - mods - copyright infringement - contributory infringement
SUMMARY BY: David Sprately

XBOX PIRATES AND MODDERS ARE INDICTED

The owners of a video game store in California were recently indicted for allegedly copying XBOX games and installing them on modded consoles. 

Video game piracy is obviously an infringement of copyright, and it might also be a criminal offence. Likewise, circumventing copy protection technology can violate US copyright law. Canada does not yet have anti-circumvention legislation; however, Canada's proposed amendments to the Copyright Act do currently contain anti-circumvention provsions.

Coverage here http://www.shorl.com/bejubugrekuko

And Now For Something Completely Different Study Says Video Games Educational

As part of EA and NestaFuturelab's Teaching With Games project, a study published this week says U.K. teachers support the use of video games in education.

1,000 primary and secondary school teachers in the U.K. participated in the EA-sponsored study and 60% said they would use video games as an "interactive way" to motivate and engage students in learning.  The study says 91% of teachers agreed that video games have some educational benefits, including aiding in the development of motor-cognitive skills, higher-order thinking and  the ability to accumulate topic-specific knowledge.

The Teaching With Games Project is investigating the potential uses for and implications of video games in classrooms.

Coverage at http://www.nestafuturelab.org/research/teachingwithgames.htm

Court Orders Winding Up Of Digital Jesters

In the UK, the High Court has granted an order for the winding-up of Digital Jesters, after the firm was sued by several developers for breach of contract and failure to pay monies .  Now, the developers and other creditors are considering further legal action against the directors of Digital Jesters, which may compromise their impending move to Myriad Interactive, which took over much of DJ last year...

Coverage at http://shorl.com/fovabaprastoja

UBISOFT TAKES THE TURTLES

Ubisoft has signed an exclusive worldwide licence agreement to develop and publish Teenage Mutant Ninja Turtle video games based on the upcoming feature film (expected to be released in early 2007). Konami had the original licence to produce TMNT games, but Ubisoft has now taken its place.

The upcoming film, and the related video games, are said to be in more in line with the original TMNT comic books. This is welcome news for those of us who read the comics, which were darker, grittier and more violent than the world of pizza-eating, surfer-talking turtle dudes that are the mainstream ninja turtles.

Coverage at http://shorl.com/dyvofegregoga

SYSTEM SHOCK TM SIGN OF THINGS TO COME?

Take-Two Interactive recently purchased Irrational Games, who developed the well-known System Shock 2 game. That game was published by Electronic Arts. Take-Two has announced that it will publish Irrational's next game, BioShock, which is touted as the 'spiritual successor"? to System Shock 2 (although it is not a sequel).

Perhaps in related news, EA recently filed a US trade-mark application for SYSTEM SHOCK. Whether this means that a sequel to System Shock 2 is in the works remains to be seen.

Coverage at http://shorl.com/jepybreketega

and at http://shorl.com/bygrarilytujy

Yet Another Study Says Video Games Not So Good For You

Here's another post for the "Make up your mind, people!" section of the blog.  Back in the fall of 2005, we told you  here and here how studies had linked video game playing to violent behavior, and how yet more studies (where do they find the time?!) had  dismissed the idea as preposterous .  A new study from the University of Missouri-Columbia has weighed in on the subject and found a causal link between video games and aggressive behavior.  In the study, the brain activity of game players was monitored, focusing on the P300 response, which reflects the emotional impact of the image.  Video game players were found to have a diminished response when shown images of real-life violence.  Personally, I don't know how you can tell it's video games and not violent movies, TV shows, comic books, websites and whathaveyou that are causing this "diminished response," but maybe that's why I'm not a scientist.

The full report will be published in the Journal of Experimental Social Science this year. 

Additional coverage at http://www.newscientist.com/article.ns?id=dn8449

Sqratch That

While we thought we were pretty good at coming up with cool and innovative ways to defend intellectual property, Ivy Supersonic  has taken it to a whole new level. In 2002, Ms. Supersonic, publicist and hat designer to the stars, sued Twentieth Century Fox for trademark infringement , claiming she had created a character called Sqrat (half squirrel, half rat, all fun) way before a rodent character called Scrat showed up in the 2001 animated feature "Ice Age."  She lost the case but is back and suing Fox again in anticipation of the release of "Ice Age 2," demanding her share of royalties from the estimated $500 million gross from the first movie.  She's representing herself in court and has launched what she calls a full-scale media attack on Fox, which has included renting planes to fly around Los Angeles and New York pulling banners featuring pictures of her (semi) naked body , which she has had covered in Sqrat tattoos, publicizing statements in support of her cause from esteemed celebrities such as Tommy Lee, and posting every letter and email she receives from Fox on her website...

Coverage at  http://www.scrat.com  and http://sqrat.net