Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

GAME BREACH HIGHLIGHTS PRIVACY CONCERNS

The developer of Xenepic Online, a popular Japanese MMOG, announced recently that players' personal information was inadvertently compromised. Information relating to almost 300,000 players was mistakenly stored on an open download server, making it easily accessible to hackers. The information included user names, passwords, and other account information, but apparently not credit card information.

Although this episode does not seem particularly serious, it highlights the fact that game providers who collect players' personal information must be very careful about protecting that information from unauthorized access or disclosure. Consumers are increasingly aware of privacy issues, especially as fears about identity theft become more widespread and information security breaches are more widely publicized (e.g., there has been a great deal of news about the recent the US Veterans Affairs episode, in which a laptop containing personal information, including social security numbers, of millions of US veterans and military personnel was stolen). Privacy laws requiring the protection of personal information exist in many jurisdictions, and game providers should make sure that they protect and keep secure any personal information that they collect. To do otherwise risks, at best, some bad publicity and, at worst, regulatory fines or civil suits.

Coverage at http://shorl.com/guvetrarobiba (GameSpot)

Nintendo Shareholders Defy Its Board

For the first time in Nintendo's history, Nintendo's shareholders have voted against a recommendation from its board of directors. The board of directors of Nintendo had suggested a proposal that would have allowed its board of directors to decide the timing and size of dividends without the approval of its shareholders, as well as changes to the company's corporate charter.

Nintendo Co., Ltd., of Kyoto, Japan is a worldwide leader in the creation of interactive entertainment and has sold more than one billion video games worldwide. Nintendo is traded at the Tokyo Stock Exchange under code 7974. 

Tokyo Stock Exchange at www.tse.or.jp/english/index.shtml

Stock Quote at http://shorl.com/gigystebrustehu (Tokyo Stock Exchange)

Coverage at http://shorl.com/guprimatreprutre (Gamasutra)

TAKE-TWO SUED BY ACTOR

Take-Two Interactive is reported to have been sued for $250,000 by actor Roger Hill for the unlawful use of his likeness in The Warriors, a game based on the film by the same name. He is also seeking an injunction to bar the use of his likeness. Mr. Hill claims that he turned down an initial offer made by Take-Two for the use of his name and voice in the game and that they never followed up. Take-Two has dismissed Mr. Hill's claims as groundless and affirms having the right to use his likeness as portrayed in the film.

 
coverage at http://shorl.com/gigrepistekogry (gamespot)

INSOMNIAC'S PRICE WEIGHS IN AGAINST LOUISIANA

Insomniac Games' president, Ted Price, is said to have filed a brief supporting the Entertainment Software Association's and the Entertainment Merchants Association's judicial challenge of Louisiana's violent video games law. The brief focuses on the broadness, ambiguity and vagueness of the law.

coverage at http://shorl.com/dyprogiholeri (gamedaily)
full brief at http://shorl.com/babrosokidrofy (gamepolitics)

Australia Continues Ban On “adult” Video Games

Eidos'Reservoir Dogsvideo game is the latest title to be refused official classification by the Australian Office of Film and Literature Classification. Although the official OFLC explanation has not been posted, it appears that the game's content was too extreme for the country's classification guidelines and, as a result, it will be illegal to sell or rent the game in Australia. Previous titles banned by the OFLC includeGrand Theft Auto San Andreas,Carmageddon,Manhunt, andNARC.

Australia, with a history of strict video game censorship, is one of the only Western countries not to allow 'adult"? games, instead banning those games ineligible for an MA15+ rating. 

Coverage at http://shorl.com/gymahyvuvygi

TAKE TWO SUBPOENAED

Take-Two Interactive has received grand jury subpoenas from the New York County district attorney, requesting documents relating to the Hot Coffee sex scenes in GTA San Andreas. 

This is nothing new for Take-Two, which has already been the subject of an investigation by the FTC, a lawsuit brought by the families of slain police officers, a lawsuit by the LA. city attorney, and lawsuits in other jurisdictions including Delaware, North Carolina and Connecticut. Take Two has already been asked to turn over records to the plaintiffs in many of these lawsuits. 
Coverage at  http://www.shorl.com/dogivabivepru (news.com)

ESA Sues To Overturn Oklahoma Video Game Law

We recently reported on the State of Oklahoma's new video game law and on the computer and video game industry's intention to contest this new law ( here ). Well, the Entertainment Software Association (ESA) recently made their opposition official by filing a lawsuit in order to have the Federal Court strike the law down as unconstitutional.

The ESA is fairly confident in its chances of success in this case, since similar laws have been overturned by six federal courts in five years, all of which rejected the claims made by states that violent video games cause aggression.

Of note is the fact that the Oklahoma law criminalizes the sale or distribution of violent video games to minors, even by their own parents. By subjecting a parent to criminal liability for providing a video game to their child, the State of Oklahoma is the first in the country to pass a law that takes the unprecedented step of telling parents that the government knows better than they what games their children should play.

The ESA has stated its disappointment over the fact that the legislature opted to enact the bill rather than pursue constitutional and effective ways to work cooperatively with industry, retailers, government, parent groups, and health groups to educate parents about the ESRB ratings and content descriptors and the parental controls available in all next generation consoles.

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

VIDEO GAME USAGE A MEASURE OF COGNITIVE FUNCTION?

(This is an archived case summary)

Desgagne v. Yuen, [2006] B.C.J. No. 1418

The plaintiff claimed damages for a personal injury suffered as a result of a collision when she was riding her bicycle. Her injuries permanently impaired her ability to obtain gainful employment. The defendants brought a motion to produce electronic evidence, including the plaintiff's video game system. The defendants argued that evidence of the plaintiff's usage of her video game system was relevant to the plaintiff's claim that the accident and resulting injuries had impaired her cognitive abilities.

The court held that evidence of video game usage was not relevant to the issue of the cognitive function (or lack thereof) of the plaintiff. Assessment of cognitive function is an area left to medical experts, and none of the experts retained in this case referred to video game usage as being relevant.

Summary by Chris Metcalfe

CAE LOOKING INTO VIDEO GAMES

CAE's president, Robert Brown, has confirmed that CAE has put together a team to study the feasibility of developing aviation themed video games. Mr Brown is quoted as saying that technological advances and lower production costs are major considerations behind his company's certain exploration into video games.

 
coverage at http://shorl.com/dekikykehydri (La Presse - in French)

Louisiana Hotbed Of Video Game Regulation

A judge of the U.S. District Court in Louisiana has granted a temporary injunction against Louisiana's newest video game law in response to a first amendment challenge by the ESA and EMA. HB1381, which was signed into law on June 16, 2006, sought to treat video games as 'harmful to minors"? using the standard used to judge obscenity. 

Meanwhile, SB340, another bill to regulate video games, has been unanimously passed by the Louisiana House and is expected to be signed into law by the Governor. Unlike HB1381, it enjoys the support of entertainment trade groups such as the ESA and the EMA. SB340, which aims to regulate descriptions or depictions of 'illicit sex or sexual immorality"? in video games sold to minors, is silent as to violent video game content. Both bills, however, carry the same potential penalty a fine of up to $2,000 and up to a year in jail.

Yet another bill to regulate video games - HB254 - is still in the pipeline, currently before the Louisiana Senate Judiciary Committee. HB245 mandates that commercial establishments require customers to show ID verifying their age before such customers can purchase video games with an ESRB rating of Mature or Adult Only Content

Coverage at http://shorl.com/dykagradrapovo

Link to temporary injunction of HB1381: http://shorl.com/hujokekemypri

Trade Groups To Challenge Constitutionality Of New Louisiana Video Game Law

On June 16, 2006, HB1381 was signed into law in Louisiana. The law, which carries a penalty of up to $2,000 as well as imprisonment for up to a year, provides that an interactive video or computer game shall not be sold, leased or rented to a minor if a trier of fact determines that

(a)the average person, applying contemporary community standards, would find that the video or computer game, taken as a whole, appeals to the minor's morbid interest in violence;(b) the game depicts violence in a manner patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and(c) the game, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Soon after the announcement that HB1381 had gone into affect, the Entertainment Software Association and the Entertainment Merchants Association announced that they were filing suit against the bill. Doug Lowenstein, president of the ESA, proclaimed his confidence that the bill would be found unconstitutional, citing a March, 2006 decision of the US District Court in Michigan which found that video games were 'expressive free speech, inseparable from their interactive functional elements, and are therefore protected by the First Amendment."

Coverage http://shorl.com/hefagrostetake

SQUARE ENIX CRACKS DOWN ON REAL MONEY TRANSACTIONS

Square Enix is taking steps to stop the trading of in-game currency (called "gil") from Final Fantasy XI online multiplayer game for real money (artfully referred to as Real Money Trading, or RMT). The game's user agreements expressly prohibit players from engaging in RMT activities.

According to Square Enix, a detailed investigation identified a group of players who were using 'illicit methods"? to produce large amounts of gil and then selling that in-game currency for real-world money. As a result, Square Enix has terminated 250 user accounts and removed more than 250 billion gil from circulation.

Square Enix announcement at http://shorl.com/dotubrostutuse

Square Enix statement about RMT (December 2004) at http://shorl.com/fusafastosodra

Coverage at http://shorl.com/byrutogijusti (GameSpot)

Oklahoma 'Games As Porn' Bill Signed Into Law ESA Quick To React

We reported, in April 2006 (click here ), that the Oklahoma House of Representatives was considering a new bill that would redefine a list of items, such as hardcore pornography, which are deemed 'harmful to minors"?, to include video games which use 'inappropriate violence"?. It has now been announced that Oklahoma Governor Brad Henry has signed into law this State-specific bill.

The video game industry was quick to react to this news and the ESA has already officially voiced its opposition to the new law, stating that it intends to contest its constitutionality. The new law, which is set to come into effect on November 1, 2006, would make it a felony for anyone in Oklahoma to sell, rent or display games which contain inappropriate violence, with stores required to keep such games hidden in a similar manner to pornographic magazines and videos. The bill ignores the ESRB age rating for games, and instead makes its own definition of inappropriate violence.

This definition considers inappropriate any game which 'lacks serious literary, scientific, medical, artistic or political value"? and which features glamorized or gratuitous violence; uses that violence to shock or stimulate; features violence that is not contextually relevant to the material; has violence so pervasive that it serves as the thread holding the plot of the material together; trivializes the serious nature of realistic violence; does not demonstrate the consequences or effects of realistic violence; uses brutal weapons designed to inflict the maximum amount of pain and damage; endorses or glorifies torture or excessive weaponry, or depicts lead characters who resort to violence freely.

The ESA's legal challenge can certainly not be said to be baseless, since the ESA has recently succeeded in having a similar law overturned, in Utah, on the basis of free speech.

For coverage http://shorl.com/gutenistutyde and http://shorl.com/gibrekybystyhy

 

VIDEO GAMING AS AN ADDICTION

Smith& Jones Addiction Consultants is opening Europe's first detox clinic for video game addicts in Amsterdam.

It is reported that about a dozen clinics already exist in the United States and Canada, and even one in China, as problem gaming gains recognition as an ailment requiring treatment.  According to the article referenced below, Keith Bakker, director of Smith& Jones Addiction Consultants, has stated that although video games may look innocent, they can be as addictive as gambling or drugs.

Others, like Richard Wood, a professor of International Gaming Research Unit at Nottingham Trent University, are reported to be sceptical about viewing heavy gamers as addicts.

The medical debate on whether heavy gaming can be deemed an addiction will necessarily have an impact on the legal field. Already violence in video games is being used to explain, if not justify, the violent actions of players. Will video gaming addiction stand as a defense, or as a mitigating factor, in criminal law? What about employment law? In many jurisdictions some addictions are recognized as a handicap protected by human rights and employment standards legislation. Will an employer have to accommodate and offer treatment of an employee's video gaming addiction?

coverage at  http://shorl.com/fugipralihyve

A JUDGE'S LIFE IS A SOLITAIRE-Y LIFE

In an strange intersection of video games and the law, it seems that the US Federal Court judge hearing the John "Junior" Gotti conspiracy case has been accused of playing video games during the trial.

Gotti is accused of arranging an attempt on the life of Curtis Silwa, the founder of the Guardian Angels. According to an article in the New York Daily News ( here ) Silwa claims that when he was testifying at the trial, he saw the judge playing solitaire on her computer. Apparently no one else saw the episode. Silwa has stated that the judge should remove herself from the case as a result.

Coverage at http://shorl.com/gadruprivamegry  (GameSpot)

WOW! BLIZZARD ABANDONED COPYRIGHT CLAIM

In an earlier posting we reported that a World of Warcraft enthusiast had sued Blizzard Entertainment, parent company Vivendi Universal and the Entertainment Software Association for "improperly" banning him from auctioning copies of his unauthorized guide to WOW called the "Ultimate World of Warcraft Leveling and Gold Guide" on eBay. 

The ban occurred after Blizzard, Vivendi and the ESA fired off several takedown notices to eBay, claiming the guides infringed copyright in WOW. The guides apparently included copyrighted screenshots from WOW. Blizzard claimed this was copyright infringement; the gamer claimed he was making "fair use" of the images.

We'll never know because the parties have settled. Under the settlement, Blizzard agreed to drop its infringement claims and stop sending takedown notices to eBay. The gamer agreed not to include any cheats in the guide.
Coverage here  http://www.shorl.com/detustinufroda (cnet)

BLOCKS FALL INTO PLACE FOR THQ/TETRIS SETTLEMENT

THQ and The Tetris Company have settled a dispute over licensing rights to Tetris. As a result, THQ has acquired the rights to publish a Tetris game for the Xbox 360 in North America and other territories (a Tetris game for the 360 was published by AQ Interactive in Japan).

The legal dispute between THQ and The Tetris Company started in 2005, when THQ accused The Tetris Company of breaching an existing licence and preventing THQ's planned release of a Tetris game for the Nintendo DS. In the interim, Nintendo published a successful Tetris game for the DS. It's not clear whether the new settlement agreement will also give THQ the right to publish Tetris games for the DS; THQ may have to be satisfied with limiting itself to the Xbox 360.

Coverage at http://shorl.com/dugrilifrinopo (GameSpot)

and at http://shorl.com/dodrifepromomo (Gamasutra)

NINTENDO REBRANDS BEGINNERS' GAMES

Nintendo has announced that it is rebranding some of its hand-held games. The new brand is 'Touch Generations"?, and will include a distinctive logo. Touch Generations games are amied at those with little or no video game experience (although Nintendo says the games will appeal to experienced gamers as well). The rebranding is part of Nintendo's attempt to broaden its pool of game players (and therefore game buyers) "? the hope is that the new brand will allow inexperienced and casual gamers to identify games which they can easily enjoy.

This move reflects the importance of branding and trade-marking in the video game industry. Branding is an important method of building your business, and trade-marking is the best way to protect and enforce your brands.

Coverage at http://shorl.com/gakustajibufra (TechNewsWorld)

FTC HOT COFFEE SETTLEMENT ANNOUNCED

The US Federal Trade Commission announced today that it has reached a settlement with Take-Two and Rockstar Games regarding GTA San Andreas.

GTA San Andreas sparked enormous controversy last year when it was revealed that the game contained hidden sexual content. As a result, the game was re-rated from M to AO by the ESRB, and there was great public and political outcry (and not a few lawsuits).

The FTC complaint alleged that Take-Two and Rockstar undermined the game industry ratings system and deceived consumers by failing to disclose that the game contained unused but potentially viewable nude images and a disabled but potentially playable sexual mini-game.

Highlights of the proposed consent agreement (which is subject to public comment for 30 days, after which the FTC will decide whether to make the agreement final) include

• Take-Two and Rockstar will clearly and prominently disclose on product packaging, and in any promotion or advertisement, content relevant to the rating, unless that content has been sufficiently disclosed in prior submissions to the rating authority.

• The companies cannot misrepresent the rating or content descriptors for an electronic game.

• The companies must establish, implement and maintain a comprehensive system reasonably designed to ensure that all content in an electronic game is considered and reviewed in preparing submissions to a rating authority.

• Once the order becomes final, the companies will be subject to civil penalties of up to $11,000 per violation.

The agreement does not deal a great blow to Take-Two and Rockstar (who have already incurred large costs in dealing with the Hot Coffee incident), but imposes strict requirements regarding how the companies' video game content is rated.

FTC Statement at http://shorl.com/fafripastytaso

Coverage at http://shorl.com/danigrusohapo (Gamasutra)

and at http://shorl.com/haprygygrebrive (GameSpot)

HERE WE GO AGAIN….

Just a few days ago we reported that Minnesota had passed some novel video game legislation (novel in the sense that it targets under-aged purchasers of M or AO-rated games, whereas most other states target retailers).

Guess what? The Entertainment Software Association has filed a lawsuit against the state. They say kids have First Amendment rights too. We'll see about that"?
Coverage at http://www.shorl.com/hubigrelahuvi (Gamespot)

Louisiana Video Games Bill Revised

Louisiana House Bill No. 254 has received a second reading in the senate and been referred to a Judiciary Committee. The Bill, which has been revised several times, amends the crime of sale, exhibition or distribution of material harmful to minors to include video games. 

As originally drafted, the Bill would have revised the definition of 'material harmful to minors"? to include cases of player participation in a video game in which certain specific offences were committed (including rape, kidnapping or the murder of a law enforcement officer) or in a video game that is devoted to or principally consists of descriptions of illicit sex or sexual immorality such that the average person applying contemporary community standards would find that the video game is presented in a manner to provoke or arouse lust, passion, or perversion or exploits sex. The revised Bill avoids any reference to the depiction of specific offences or any reference to contemporary community standards; instead, it mandates that commercial establishments require customers to show ID verifying their age before such customers can purchase video games with an ESRB rating of Mature or Adult Only Content.

Link to Text of Bill 254: http://shorl.com/gofujyhigrofro

 

CHINA BANS MORE VIDEO GAMES

China's Ministry of Culture has identified four games to be banned because they contain pornographic images, violent content or gambling. The games are Blood Rayne II, Obscure, AV Mahjong, and Kong Bu Lao Long (Horrible Cage). The Ministry of Culture requires cultural departments at the provincial levels to ban the games.

Coverage at http://shorl.com/fededrinabaso (China TechNews)

Minnesota Governor Signs Novel Game Bill Into Law

Adopting a somewhat different approach to that of other states, which have attempted to enact bills that proposed fines for retailers who sell inappropriate games to minors, Minnesota bill HF1298 mandates a $25 civil penalty against anyone underage who purchases a M or AO-rated game.

The bill is seen as novel because it places the responsibility on the minor and makes him/her responsible for having purchased such games. The bill does not, however, seek to criminalize this conduct and offences under this bill would not go on the minor's record.

The bill does nonetheless place certain responsibility in the hands of video game retail outlets, since it makes mandatory the already widespread practice of putting up signs that explain the ESRB rating system to customers.

The bill is set to go into effect on August 1st, 2006 and it is not clear whether the Entertainment Software Association or any other entity will attempt to it challenge constitutionally.

Coverage at http://shorl.com/hyprobirojuhi