Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

Soldier of Fortune: Payback Gets Un-banned in Australia

Australia’s federal classification board, the Office of Film and Literature Classification (OFLC), has awarded a MA15+ rating to a revised version of Activision’s Soldier of Fortune: Payback. This is a reversal of OFLC’s earlier decision to ban the game outright for its excessive violence and gore, particularly the different ways players could maim and injure other characters.

An Activision spokesperson confirmed that the toned-down version of the game will feature less “rag doll” physics, less blood and no dismemberment.

The OFLC has previously banned a number of games, including Grand Theft Auto: San Andreas and Marc Ecko’s Getting Up: Contents Under Pressure. Unlike North America, Australia does not have a R18+ classification for games. As a result, titles which exceed the limits of the MA15+ are effectively banned from sale.

Game Politics coverage here.

[Summary by Michael Mjanes]

Fight Over UK Ban on Manhunt 2 Continues

Rockstar Games, publisher of the ultra violent Manhunt 2 video game, continue to push for a the UK ban on the game to be lifted.

In an appeal to the Video Appeals Committee, Rockstar's legal counsel submitted scientific studies that purported to show that Manhunt 2 was no more violent than numerous 18-rated games and films that were available to the UK public. Rockstar's counsel also argued that banning the game had, by making the game "forbidden fruit", actually increased the public's desire to play it

Legal Counsel for the British Board of Film Classification, the entity that banned the game, responded by arguing that Manhunt 2 was a uniquely violent game.

A verdict on the appeal is expected soon.

More coverage at Gamespot

This is PLAYLOGIC!

In what we like to imagine was the legal equivalent of the frenzied combat in "300", Game publisher Playlogic appears to have triumphed over game developer World Forge in a dispute over the Ancient Wars: Sparta RTS video game.

Though World Forge had claimed "multiple material breaches" by Playlogic, a recent Playlogic press release announced that it had triumphed and was entitled to use the name "Ancient Wars: Sparta".

Coverage at: Firing Squad

Urinal-Controlled Racing Game Flushed Away

Despite its anti-drunk driving message, Place to Pee, a urination-controlled driving game, has been banned by Belgian police who found the game indecent.

Coverage at: Gamepolitics

PS3 Doubles as Hacking Machine

An Australian computer security expert has found that the PS3's computing power makes it a powerful tool for cryptography cracking. This does not mean that casual gamers can suddenly start hacking using the PS3 -- the cryptanalysis algorithms being used in the "Crackstation" are very sophisticated. But it raises the interesting concept of video game consolse (which pack significant processing punch) being used for other high-tech applications.

The analyst admits (no doubt tongue firmly in cheek) that he started the project so that his company would buy him a PS3. Sadly, our own similar requests (for "industry research" purposes) have not yet been successful.

Coverage at PC World.

Virgin Comics Teams With Perspective Studios to Develop New Intellectual Properties

Virgin Comics, a division of Richard Branson’s Virgin empire, announced today that it would partner with Perspective Studios to develop a diverse slate of original intellectual properties. The goal is to create new character franchises that can extend across multiple platforms - including comic books, video games, mobile technology, and feature films. According to Perspective, the companies intend to initially focus on content for online and console gamers.

Perspective brings an impressive portfolio to the table. Past projects include 15 releases for Rockstar Games, including the Grand Theft Auto and Manhunt franchises, and MTV’s huge new hit, Rock Band.

Virgin Comics is a recent partnership between Branson, author Deepak Chopra, and filmmaker Shekhar Kapur. Based in Bangalore, India, the company has focused on developing new characters for the Indian comic market, but has also inked deals with Warner Bros and Fox for feature length film development. This August, Virgin Comics announced it was partnering with Sony Entertainment Online to produce a MMO based on Virgin Comics’ India-based Ramayan 3392 A.D. comic book.

Coverage here (GameDaily)

[Summary by Michael Mjanes]

Happy Blogaversary!!!

Davis LLP’s Video Game Law Blog celebrates its third birthday. Since its inception in 2004, the blog has been a vehicle for members of the Davis LLP Video Games & Interactive Entertainment Law Group to offer commentary and insight into cases in the realm of video game law. The blog is frequently updated and contains postings on issues that often arise in the gaming world, such as intellectual property, defamation, ownership of virtual property, and freedom of speech. The blog currently contains over 700 entries, including case commentary on issues stretching back to the early 1980’s.

The members of Davis LLP’s video game law group (all of whom contribute to the blog) include: Chris Bennett (Vancouver), David Spratley (Vancouver), Tudor Carsten (Toronto), Pablo Guzman (Montreal), Sarah Dale-Harris (Toronto), Michael Coburn (Vancouver) and Danielle (Dani) Lemon (Vancouver). Members of the group offer specialties in a variety of aspects of the law including intellectual property, taxation, litigation and immigration.

The blog’s readership is varied, and includes gaming industry executives and analysts, others in the legal community, and the gaming public at large. In addition to this traffic, the group has seen surges in new visitors after winning a series of industry awards, publicizing landmark decisions, and cross-promoting with others in the blogosphere. To encourage dialogue with readers, the group also distributes an email newsletter and provides RSS feeds so that readers can follow the industry using their preferred technology. The result of such attention to detail has seen the group acknowledged as national leaders in the video game law industry.

Davis LLP, which was founded in Vancouver in 1892, has found success with its video game law practice. In the words of one Davis blogger: “At the time we launched the blog, most law firms were not running blogs from their firm websites, instead having lawyers run them independently from personal accounts. Davis had us up on the home page from day one.” This type of niche marketing is integral to the success of Davis LLP’s video game law.

In September of this year, the group opened a virtual office in the online world called Second Life – another Canadian first.

Romantics Don't Like Guitar Hero Encore

"Guitar Hero Encore: Rock the 80s", part of Activision's popular "Guitar Hero" franchise, includes a cover version of the song "What I Like About You" by The Romantics.

Activision obtained a proper licence from The Romantics to include the cover song in the game. However, The Romantics have now sued Activision on the grounds that the cover version is too similar to the original.

The basic outline of the lawsuit is this: (1) The Romantics have developed an identity, persona and distinctive sound; (2) Activision intentionally misappropriated that identity and persona, and imitated the distinctive sound, in order to sell GH: Rock the 80s; (3) because the cover version in the game is "virtually indistinguishable" from the authentic version, consumers are confused and believe it is actually The Romantics playing the song in the game; and (4) Activision has sold "millions of dollars worth" of the game.

The suit specifically claims that Activsions has violated the band's right of publicity and has suggested an association, sponsorship or approval that doesn't exist, and has thereby caused damage to the Romantics and has been unjustly enriched.

This is an interesting claim -- presumably the licence allows Activision to create and include a cover version of "What I Like About You", and presumably does not restrict how the end product will sound. As well, there is a difference between allowing your content (either original or in a cover version) to appear in a game like GH, and endorsing or supporting that game as a commercial product. The Romantics obviously supported their content being in the game, and it seems a stretch to say that the game has sold well because consumers think The Romantics support or endorse the game in some other way. Finally, given the other content in the game (including original versions of some songs), what's to say that it's the quality of The Romantics' song alone that has resulted in the game's sales?

Coverage at GameSpot and GamePolitics.

Game Politics also has a link to the statement of claim.

Reviewer, Review Thyself

Upset by the fact that the ESRB rated the revised Manhunt 2 game as "Mature" instead of as "Adults Only", four U.S. senators - Hillary Clinton, Joe Lieberman, Evan Bayh and Sam Brownback - are calling for the ESRB to review its own practices. At issue for the senators is not only the violence of the game itself, but also the fact that, on the Nintendo Wii, the use of the WiiMote "permits children to act out each of the many graphic torture scenes and murders” in the game.

All four senators are noted opponents of video game violence, though senators Clinton and Lieberman had praised the ESRB in 2006.

Coverage at: Gamepolitics.com

Is the End of Atari Near?

In response to more disappointing news, Atari, Inc. has publicly questioned whether it will continue to carry on business.

The release of Atari, Inc.'s second quarter results indicated that as compared to the same period last year revenues had dropped from $USD28.6 million to $USD13.3 million and losses had increased from $USD68,000 to $USD7.7 million.

In light of these results (and presumably other recent setbacks at Atari), Atari concluded that:

"The uncertainty caused by these above conditions raises substantial doubt about our ability to continue as a going concern."

More coverage at: Gamsutra

Guitar Hero III Responsible for Crime Wave?

The recent release of the much anticipated Guitar Hero III has apparently resulted in at least one (minor) crime. In Adamsburg, Pennsylvania, a modern day Bonnie and Clyde allegedly attempted to steal a copy of the game. However, any possibility of a interstate crime spree was thwarted thanks to a failure to gas up the getaway car.

Coverage at GameRush Entertainment

Halo 3 Crashes Lead to Lawsuit

A class action lawsuit has been filed in California against Microsoft and Bungie, alleging that Halo 3 causes the Xbox 360 to crash or freeze, and therefore that the software is not "fit for its purpose" (legalese for "it doesn't do what I shelled out $60 for it to do").

The lawsuit also alleges that Microsoft and Bungie have done nothing to address the problem even though there have been numerous complaints.

Coverage at ITWire, Kotaku, and Digital Journal.

Not Funny

The “Something Awful” website has apparently posted a link on its site to a pornographic cartoon featuring Jade Raymond, spokesperson for Ubi’s Assassin’s Creed. According to Game Politics, Ubi demanded that Something Awful remove the image, and Something Awful responded by saying the image was only linked from the site; it wasn’t actually hosted on the site.

Under Canadian law, the posting might violate Ms. Raymond’s privacy or personality rights. It might also be defamatory. We’ll see how the case is handled under US law.

The Game Politics posting is here.

More evidence for the Star Trek camp

It's been a while since we've posted anything in our ongoing Star Wars vs. Star Trek debate. Probably that's because we have great difficulties finding any law-related aspects to the debate.

That's why we're glad to post this link to a recent World of Warcraft commercial which clearly adds weight to the Star Trek camp.

And in case you're still curious about the legal connection in this posting, it's that it gives us an opportunity to mention that there's a difference in Canadian law between "evidence" and "proof". The Shatner video is clearly evidence, but not necessarily proof, of Star Trek superiority. Yes, the connection is tenuous, but it's good enough for us.

Singapore Bans, Unbans Game

All within a few days, Singapore announced that it was banning the science fiction RPG "Mass Effect", then announced that the ban was lifted and that the game will be issued an M18 rating instead.

The brief ban was caused by a love scene (part of sub-plot in the game) between the player's character and an alien (which resembles a blue-skinned human woman). Singapore objected to the scene that occurred if the player had selected a female character (apparently using a male character was not an issue).

In any event, Singapore has lifted the ban and has stated that while it is waiting for its new game-rating system to come into effect (in January 2008), it will "selectively" use game ratings to allow highly-anticipated games to be sold.

Singapore has banned other games for objectionable content, so the "Mass Effect" episode was nothing new. However, it may be the shortest game ban ever.

Coverage at GameSpot and Game Politics.

Comcast slapped with net neutrality lawsuit

A San Francisco Comcast subscriber is suing Comcast,the US' No. 2 broadband carrier, for breach of contract and bad faith dealings, claiming Comcast is violating net neutrality principles by slowing or blocking broadband access to P2P fileshare sites.

The subscriber is asking the court to certify the matter as a class action suit on behalf of all Comcast subscribers.

Comcast has already been the subject of consumer complaints to the FCC regarding the carrier's alleged violation of net neutrality.

Dutch cops crack down on teen "virtual thief"

The BBC is reporting that a Dutch teenager is in jail facing theft charges after stealing 4,000 Euros worth of virtual furniture from the teen networking site Habbo Hotel.

Habbo Hotel users create virtual hotel rooms which they personalize and decorate. Allegedly, the accused lured other users into providing him with their usernames and passwords, which he used to log into their rooms, steal their furniture, and then re-sell for real currency...

Atari Out of the Development Game

Atari has announced that it will no longer carry out game development. Instead, as set out in its official statement, the company will focus on "title acquisition, sales and marketing, and physical distribution of products from Infogrames, its 51% shareholder, and other selected partners."

Atari has acknowledged that, with the restructuring, certain jobs will be lost.

The troubled company's CEO, David Pierce, has resigned, with Curtis G. Solsvig III acting as temporary CEO and chief restructuring officer.

Coverage at: Develop

Class Action over Xbox Live

A Georgia (USA) resident has started a class action suit against Microsoft, claiming that Microsoft improperly allowed the man's son to subscribe to Xbox Live using the man's debit card, and then automatically renewed the subscription without authorization. Apparently the debit for the automatic renewal caused an overdraft on the man's account and a resulting penalty fee from the bank. Microsoft has refunded the subscription fee but not the bank penalty.

Microsoft has asked that the action be dismissed, on the ground that the man's son misrepresented his age when he subscribed to Xbox Live.

On-line contracts typically contain clauses confirming that the customer is of legal age and is able to enter into the contract, etc. It's not clear what else can be done in the e-commerce arena, as there's no simple way to verify age. Until there is, parents should make sure they keep an eye on what their children are doing with their (the parents') credit cards and debit cards.

Coverage at Gamasutra.

In-Game Ads Becoming More Popular

For advertisers, at least. Media giant NBC Universal has announced that it will start selling ads into IGA Worldwide's inventory of game titles. Industry commentators note that NBC Universal is the first non-gaming media entity to make a serious entry into in-game ads, and that more in-game ads from non-game advertisers are to be expected.

Coverage at GameDaily News.

ESRB Upholds Manhunt 2 Rating

The ESRB has investigated the Manhunt 2 hacking/content issue (see our previous posthere), and has upheld the game's current M rating. The ESRB concluded that the content that is accessible by hacking the PSP and PS2 versions does not justify restoring an Adults Only rating.

The ESRB acknowledged that when a game receives an unfavourable rating, developers often cover up or disable certain content rather than removing it altogether, and that such practices are acceptable even though the hidden content is often accessible to determined hackers.

Despite the ESRB's findings, prominent retailer Target has decided not to stock either the PSP or PS2 version of Manhunt 2.

The ESRB also said that both the ESRB and Rockstar took approriate action and responded appropriately to the situation. Critics will no doubt regard this a self-serving statement, but cooler heads might view the episode as evidence that the ESRB can indeed regulate the game industry.

Coverage at IGN and at GameDaily News.

Atari Announces Additional Loss

Atari, Inc. announced that its net loss for the first quarter ended June 30, 2007 was $11.9 million. By comparison, Atari’s loss for the first quarter ended June 30, 2006 was $7.3 million.

The reported loss was yet another piece of bad news for Atari which in recent months has announced its possible delisting from the Nasdaq stock exchange and ongoing dispute over its distribution of the Dragonball Z franchise.

Additional coverage at Gamasutra and Game Daily

Dave Spratley: second life lawyer extraordinaire

Our Dave Spratley is frequently accosted by paparazzi and admirers as he goes to and from work. Now things will no doubt get worse: Business in Vancouver recently quoted him in an article regarding Second Life. The saga continues...

Manhunt 2 gets hacked - but is it really any surprise?

Isn’t it kind of like getting sued? You know you’ve really hit the big time when someone takes the time to hack your software? Or was this just a stunt to promote game sales? Seriously though, it only took hackers three days to crack the Manhunt 2 software. And there is (or was anyway) a detailed video on YouTube just in case you needed the details. According to reports, the software was to have been modified to remove “ultra-violent… full-color death scenes” in order to comply with an Entertainment Software Ratings Board (ESRB) request. In light of the software’s recent hacking, it would appear however, that the scenes were not removed - just edited by adding a filter, so as to render them black and white. This isn’t the first time the game company has gotten into hot water - or what it “Hot-Coffee” - most recently, for not removing sexually explicit content from one of its games.

“Hackers apparently have altered one of those edits to produce an illegally modified version of the game that can only be played on an unauthorized, modified PlayStation Portable handheld system.”

“All of the game material, and especially these specific edits, was submitted to and reviewed by the ESRB in accordance with requirements regarding disclosure that were enacted two years ago and any contrary suggestion is inaccurate and irresponsible.”
Uh huh. Right. I’ll buy that for a dollar. I would say though that it is time you had some serious hackers on staff guys. And hey, ‘there is no such thing as bad publicity’, right?

You can still find the “death scenes” on YouTube but you are going to have to find them yourselves. And, not surprisingly, you can enter a fake birth date to access age-restricted materials. Trust me - I’m old enough to look - but my mother told me never to tell the truth about my age…

Coverage at Gamasutra and IGN.

FYI--EA AOK: SEC

The US Securities and Exchange Commission (SEC) has been busy investigating video game companies including Take-Two Interactive, Activision and Electronic Arts. The investigation into EA’s stock option practices has now ended, and EA is no doubt relieved to learn that the SEC will not be recommending any enforcement action against SEC.

Word to all video game companies: before you set up your stock option plans (and in particular, if you’re thinking about backdating any options), talk to a securities lawyer first. And hey, whaddaya know? We have some here.

Coverage here (GameDaily)

Atari May Lose Important Licence

Game publisher Atari Inc. has announced that it is in danger of losing its licence to the Dragonball Z franchise.

In a recent filing with the Securities and Exchange Commission, Atari disclosed that FUNimation Production, Ltd. (“FUNimation”) delivered a notice to Atari purporting to terminate the licences granted to Atari to distribute Dragonball Z titles.

FUNimation has reportedly accused Atari of breaching the terms of the licenses granted to it.

While Atari is disputing the purported termination, it acknowledges that if FUNimation is successful in terminating the licenses this could have a material adverse effect on Atari’s operations and financial position.

Coverage at Gamasutra and Gamedaily.

Another Real-World Lawsuit over Virtual Property

Back in July we mentioned a Florida lawsuit by Eros LLC, who sells "virtual adult-themed objects" in Second Life (see previous post). Eros sued someone for selling unauthorized copies of its SL products.

A number of SL merchants, including Eros LLC, have recently filed a similar action in the US Federal Court against Thomas Simon ("Rase Kenzo" in SL) and other unidentified parties for making and selling unauthorized copies of the plaintiffs' virtual products. The lawsuit is for copyright and trade-mark infringement.

Again, the mainstream media seems a bit perplexed by it all. "How can they sue over virtual property that doesn't actually exist?" is a common refrain. But IP is all about protecting intangible rights, and the fact that the SL lawsuits are couched in understandable IP terms means that the lawsuits aren't as crazy as some might think. Really this lawsuit is just an IP infringement lawsuit -- it's the setting that's unusual, not the legal principles involved.

The more interesting issue, and the one that hasn't really been addressed or resolved, is how do non-IP laws apply to virtual property? For example, do traditional causes of action like conversion or trespass to chattels apply to virtual property? Should they? If so, how? It's questions like these that drive video game lawyers.

Coverage at PC World, at Game Politics, and at the New York Post.
Lawsuit here.