Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

ESRB Toughening Up on Advertising Guidelines

The ESRB is continuing to crack down on publishers and developers who aren't complying with Advertising Review Council guidelines when marketing their videogames. 3D Realms is the latest in a string of developers, publishers and retailers to receive warnings from the ESRB regarding violations, and has been given 10 days to comply-or else the ESRB will impose penalties. The ESRB alleges that 3D Realms' advertising has used out-dated ratings icons and has not contained appropriate content descriptors. Scott Miller of 3D Realms has accused the ESRB of acting like a "school yard bully."

The ESRB is the industry body that assigns ratings and enforces advertising guidelines for the interactive entertainment software industry, and lately they've been getting serious about ensuring videogame advertising content is appropriate and accurately reflects the ratings they've assigned to the product. See more coverage on this issue at GamesIndustry.biz .

Xbox360 Scratches Way to Lawsuit

The rash of Xbox360 failures is well known (and the reason behind Microsoft's recent extension of the 360's warranty). Now another alleged hardware problem is causing problems for Microsoft -- a Florida man has launched a lawsuit (and is seeking to have it classified as a class action) against Microsoft on the grounds that his 360 scratches discs to the point that they become unreadable. The man claims that the 360 was "negligently designed and manufactured", and is seeking $5 million in damages.

There have been various reports of disc-scratching 360s, but (not surprisingly) Microsoft has not confirmed whether there's a widespread breakout of scratchiness in relation to the 360.

Coverage here Miami Herald and here Joystiq.

European Online Ratings System Unveiled

A new rating scheme has been announced to cover online gaming via consoles, PCs and mobile phones. An extension of the Pan European Game Information (PEGI) rating system, the PEGI Online scheme will involve publishers adding a logo to the packaging of affected games. A multi-language information website (www.pegionline.eu) has also been set up to help both parents and players make informed decisions about the games they are playing.

The logo system doesn't specify an age rating. Rather, the logo is meant to demonstrate the publisher's committment to an onlnie safety code and framework contract, including an obligation to keep the gaming website “free from illegal and offensive content created by users and any undesirable links, as well as measures for the protection of young people and their privacy when engaging in online gameplay.“

Coverage at:

Gamasutra

Gamesindustry.biz

The Party's Over for Mario Party 8, at least in the UK

Just weeks after Sega's Mind Quiz for the Nintendo DS was pulled from the British market for using the word "spastic", Nintendo UK has recalled all copies of Mario Party 8 for the Wii for featuring the same word - a word that, it has been argued, is significantly more offensive in the UK than it is in America. The situation highlights differences between American English and British English and the dangers of simply reusing translations created for American English when releasing a video game in the British market.

Nintendo has said that Mario Party 8 will be relaunched as soon as possible.

Coverage at Gamasutra

Midway Sued By Investors

Midway Games Inc., along with Chief Executive David Zucker, Chief Financial Officer Thomas Powell and three other executives have been names as defendants in a lawsuit. While not a class action, the lawsuit was filed on behalf of investors who allegedly suffered losses as a result of statements made by certain executives of Midway.

Midway had no comment on the lawsuit.

Coverage at the Chicago Tribune.

SCEA Settles Overtime Lawsuit

Sony Computer Entertainment America has settled an employee class-action lawsuit in California by agreeing to pay $8.5 million to current and past employees who claimed they were entitled to (but never paid) overtime by Sony.

Employment legislation in many jurisdictions requires employers to pay employees overtime after a certain number of hours unless the employees fall into exempted groups. These groups are typically highly-skilled individuals in a particular industry such as software development. The Sony employees claimed they California exemption did not apply to them.

Employee overtime lawsuits are becoming a regular occurrence in the video game industry. Electronic Arts, Activision and Gamestop have all been hit with them. In 2005, EA settled one lawsuit by agreeing to pay employees $15.6 million.

The Sony case citation is Andrew Wilson v. Sony Computer Entertainment America Inc

Coverage at GameDaily

Lawsuit over Second Life Furniture

Eros LLC, a US company whose business is selling "virtual adult-themed objects" in Second Life, has started a copyright infringement lawsuit relating to its products. According to the lawsuit (filed on Tuesday in Florida), Eros's products have developed a good reputation in Second Life, and one product (the "SexGen bed") is particularly popular. However, even though this virtual item is sold on a "no copy" basis -- i.e., Second Life users can buy and sell the items, but cannot copy them -- unauthorized copies are being made and sold on Second Life.

The defendant in the action is identified by his or her Second Life persona, "Volkov Catteneo". Eros does not know the defendant's true identity, and has stated that it will subpoena Linden Labs (which operates Second Life) and PayPal for Catteneo's identity, chat histories and financial records relating to the sale of unauthorized copies of Eros items.

This lawsuit demonstrates how existing laws can apply effectively to virtual property, or perhaps how virtual property can be considered just another form of digital content. Bringing copyright lawsuits against anonymous on-line personas for unauthorized digital copying is common in the music industry; the Eros lawsuit is a similar undertaking. And the lawsuit is based on well-known causes of action -- copyright infringement, trade-mark infringement, misrepresentation, etc. In other words, even though the context is one of virtual property in a virtual world, existing real-world laws seem well-suited for seeking a remedy.

Coverage at Reuters; copy of the lawsuit here.

Microsoft Sued by Estate of Infant

The estate of an infant who perished in a December 2004 house fire alleged to have been started by a faulty X-Box has commenced a lawsuit against Microsoft Corporation. Wal-Mart Stores, Inc. who sold the X-Box unit to the family of the deceased has also been listed as a defendant to the action.

In February 2005, Microsoft announced a recall of more than 14 million X-Box power cords, citing fire concerns.

Coverage at whig.com

UK Burnout Ad Fades Away

EA has been instructed by the British Advertising Standards Authority not to reuse an advertisement depicting a crashed car with the tag line "inner peace through outer violence". The ASA says that the ad (for the game "Burnout: Dominator") was irresponsible because it could been seen to condone a violent lifestyle, anti-social behaviour, or dangerous driving.

Although the ASA's statement was a strong one, it might be a case of closing the barn door after the animals have already escaped -- the game was released in March 2007, and the primary advertising campaign is long over. Nonetheless, EA has said that it will not re-use the advertisement in its current form.

Coverage at Gamasutra and at BBC News.

Europe Grappling With Offensive Content in Video Games

First there was the threat of legal action between Sony and the Church of England over Sony's decision to include a gun battle inside Manchester Cathedral in its Resistance: Fall of Man title. Though Sony ultimately apologized, the Church still maintains that the video game should be pulled from shelves and that Sony should make a contribution to the Church's anti-violence campaign.

Then came the UK ban on Manhunt 2, a title whose gameplay was characterized by the British Board of Film Classification as "sustained and cumulative casual sadism", making it the first game to be banned in that country in 10 years.

Now, three more incidents are keeping alive, at least in Europe, the issue of offensive content in video games.

In England, an ad for Electronic Arts' Burnout Dominator has been voluntarily pulled after the Advertising Standards Authority received 37 complaints. The poster, which was ruled "irresponsible" by the ASA, depicted a wrecked car, a burning tire and the slogan "Inner peace through outer violence".

Meanwhile, Legacy Interactive, the developer behind the Law & Order video games, has come under fire for including in its Law & Order II: Double or Nothing title an image of James Bulger, a two-year old who was abducted and murdered in England in 1993. The game also specifically refers to the murder case. In the wake of complaints from the victim's mother, Legacy has issued a formal apology to the Bulger family and released a patch to remove the image. The game has also been pulled from British retail shelves, with Legacy promising to remove the offending photo from future printings.

Finally, Ubisoft's Mind Quiz game has received criticism as a result of complaints regarding offensive comment in the game. More specifically, poor performance in the game can result in the player being referred to as "spastic" - a term deragotory to disabled people. Ubisoft, who blames the error on the Japanese development team and also on its own quality assurance, has withdrawn the game from the European market.

Coverage at:

• Gameindustry.biz

• Joystiq.com

• Gamepolitics.com