Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

Davis LLP opens Second Life office

Davis LLP is excited have opened its office in Second Life. The office was started by the firm's Video Game Law & Interactive Entertainment Group and currently focuses on intellectual property, technology and video game law. The Davis lawyers present in Second Life are represented by avatars, and the virtual office features a lobby, a library with topical legal information, a recruiting centre, and a secure boardroom.

Davis LLP lawyers that are currently residents on Second Life currently include Dani Lemon (avatar: Lemon Darcy), Sarah Dale-Harris (BarristerSolicitor Underwood), Pablo Guzman (PabloGuzman Little), Chris Bennett (IPand Teichmann), David Spratley (DaveS Blackadder), and Chris Metcalfe (IP Maximus).

"The virtual world of Second Life gives us the opportunity to interact with our current and potential clients in a unique way," stated Dani Lemon at Davis LLP. "We also aim to generate business leads and attract job candidates for our bricks-and mortar business through Second Life."

Davis LLP is a leading full-service law firm with more than 220 legal advisors and patent and trade-mark agents across Canada and in Japan. Davis LLP has Canada's first Video Games & Interactive Entertainment Law Group and the world's first Video Game Law blog, http://www.videogamelawblog.com, which has large and loyal international following.

For more information on Davis's presence in Second Life, please contact Dani Lemon in Vancouver at 604.643.6457, Sarah Dale-Harris in Toronto at 416.365.3510 or Pablo Guzman in Montreal at 514.392.8406, and visit http://slurl.com/secondlife/Zurich%20City/99/240/27

Thompson says Halo 3 a Nuisance

Jack Thompson, well known for taking on the video game industry, appears to have filed documents in the Florida courts against Microsoft and Best Buy claiming that Halo 3 (about to be released) is a "public nuisance". Thompson is relying on Florida legislation which defines public nuisances as things which "tend to annoy the community, injure the health of the citizens in general, or corrupt the public morals."

Thompson has tried this before (and failed) with respect to Bully, and had a run-in with Take Two on similar issues relating to ManHunt 2 and GTA IV (see our posts here, here, and here).

If Thompson has indeed started such a claim, it's not yet clear whether he will get a hearing (as he did, perhaps to his regret, in relation to Bully).

Coverage at Game Politics and GameShout.com.

Linden Introduces Out-of-Court Settlement Procedure to Second Life to Head Off Resident Lawsuits

In the wake of several virtual property-related disputes in Second Life, Linden Lab has beefed up its Terms of Service to include an out-of-court settlement procedure in the hopes of reducing dispute resolution costs to both Linden and Residents. The new Terms of Service, which were announced September 18 and which all Residents will be required to agree to before their next log-in, provide that a Resident who has a dispute with Linden who is claiming less than USD$10,000 may opt for "binding, non-appearance based arbitration." In selecting this option, a Resident will have to indicate their choice of an Alternate Dispute Resolution provider (a list of accredited arbitration centres, such as the American Arbitration Assocation and the National Arbitration Forum, are provided, although a Resident may make any "reasonable" request with respect to their arbitrator), and must indicate whether they'd like to appear at the arbitration by telephone, online, or through written submissions. Once both parties agree to appear before the arbitrator, both Linden and the Resident will be bound by the arbitrator's decision.

Linden Lab is hoping this process will provide a "cost-effective" dispute resolution process for Second Life. Those Residents with a bone to pick with Linden who are not so hot on the arbitration mechanism (and cash for legal costs to spare) may still sue in a San Francisco court.

Source: Official Linden Blog

Oklahoma Video Game Law Permanently Enjoined

Like similar laws enacted by other states, Oklahoma's law seeking to ban the dissemination to minors of compter or video games containing any depiction of "inappropriate violence", has been found to be unconstitutional by the U.S. District Court for the Western District of Oklahoma. The impugned law was to have gone into effect on November 1, 2006 but a preliminary injunction against it was originally issued in October, 2006.

In ordering a permanent injunction against the proposed law, The Honourable Robin J. Cauthron reasoned that video games are a form of creative expression entitled to protection under the First Amendment and noted the absence of legislative findings, scientific studies, or other rationale to support passage of the law. His Honour further noted that the proposed law was underinclusive - targeting the video game industry but not addressing the depiction of inappropriate violence in movies or books, for example.

Coverage at Gamedaily.

Real People in Games -- Some Thoughts

Game Politics has an interesting entry about infamous anti-game attorney Jack Thompson's allegation that he is depicted in Grand Theft Auto IV (currently under development).

Thompson says (based on an article in a game magazine) that one of the game's missions involves the assassination of a lawyer who, when confronted by the player's character, says things such as "Guns don't kill people. Video games do." Thompson says that this lawyer is clearly meant to be him, and has demanded that Rock Star and Take Two remove all references to him from GTA IV before it is released (see copy of Thompson's letter on Game Politics here).

This situation (regardless of whether it is all accurate) raises interesting issues about the portrayal of real people in video games. Note that all of these discussions depend on there being a recognizable depiction of a real person -- having an in-game character who is a lawyer who says that video games cause violence is not necessarily the same has having an in-game character that is recognizably Jack Thompson.

In many jurisdictions people have rights in their personalities, and including a person's likeness in a game without permission may violate those rights -- for example, by suggesting an affiliation or endorsement that doesn't exist. If I appear in a game, people might logically think that I support or endorse that game.

Including a real person's likeness in a game could also involve defamation -- for example, if a game included a recognizable likeness of me doing something objectionable, I might have a claim that the depiction was harmful to my reputation.

Another issue -- the one Thompson raises in his letter to Take Two -- is personal safety. If a game involves violence against a game character that is recognizably a real person, might that game be seen as encouraging or inciting actual violence against the real person? The connection between general violence in games and actual real-life violence is a common topic of discussion and study (with no clear causal link yet demonstrated so far as we are aware). But intuitively it seems to follow that if a game involves violence against a specific recognizable person, there might be more likelihood of actual violence against that actual person. Such activity might raise issues under both criminal and civil law.

It's not clear whether Thompson's claims are accurate, or whether the final version of GTA IV will actually involve a depiction of an anti-game lawyer. But the issues are interesting, and demonstrate that depicting real people in games (or movies, or TV shows, or books) should not be undertaken lightly.

See the Game Politics article here.

New deal for music in games

The American Federation of Musicians, a musicians’ union, is allowing its officers to enter into agreements with video game publishers to use video game music in trailers, advertisements, soundtracks and for other purposes outside of the games. Traditionally publishers have been reluctant to use unions’ in-game music for these other purposes because it required the payment of additional royalties. The AFM hopes the new arrangement will encourage publishers to use more music from its unionized members.

Coverage here. (GameDaily)

RIM Wins Copyright Skirmish with Atari

RIM and Atari have been squabbling over two Blackberry games ("BrickBreaker" and "Meteor Crusher"). Atari thinks these games infringe its copyright in "Breakout" and "Asteroids", and has indicated that it may sue RIM for infringement.

RIM pre-emptively started an action in Ontario, seeking a declaration that its games did not infringe Atari's copyright in its games. Atari, in turn, brought a motion to dismiss RIM's claim. Atari's main argument was that RIM had no reasonable cause of action, because the Canadian Copyright Act does not specifically allow declarations of the sort RIM wants.

Atari's motion was dismissed in mid-August. The motions judge found that the Copyright Act does not specifically prohibit declarations of non-infringement, and therefore that such declarations were within the court's inherent jurisdiction. It didn't hurt that the Supreme Court of Canada granted just such a declaration in one of its recent copyright decisions.

This decision didn't decide the infringement issue, but it did clarify that the remedy of a declaration of non-infringement is available to RIM. RIM will still have to prove its case.

Decision is Research in Motion Limited v. Atari, Inc.

Quebec: More Video Games in French!

The Office québecois de la langue fran¸aise and the Entertainment Software Association of Canada officially made public the agreement reached in connection with the availability in Quebec of French language versions of video games.

The joint press release confirms that since July 2007 new video games sold in Quebec come in bilingual (French/English) or multilingual packaging and that all accompanying literature includes a French version. Moreover, the press release states that from October 1, 2007, computer games will be made available in French when sold in Quebec, if available in French anywhere else in the world. The “francization” of video games will continue progressively until April 1, 2009, when all new video games sold in Quebec, including games for next generation consoles and hand-hand held units as well as computer games, will become subject to the same rules.

Coverage at The Montreal Gazette

Blizzard Sued in China over World of Warcraft Fonts

A Chinese firm, Founder Electronics, has sued Blizzard for infringing on its copyright by using five of its fonts in Blizzard's popular World of Warcraft game. Founder is seeking damages of 100 million yuan (US$13 million), claiming it has lost 1 billion yuan ($131 million) as a result of such infringement. This is the largest sum ever demanded by a Chinese company in a copyright suit.

The case will be heard by the Beijing High People's Court.

Coverage at: Destructoid.com.

Second Life Musings

Here's an article published in the Lawyers Weekly this week, in which we discuss some of the virtual law going on in Second Life. The article was written by freelance writer Luigi Bennetton.