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It May be a Brutal Rocktober: Counterclaim Filed in Activision Lawsuit

Submitted by Sylvie Lang
In a counterclaim filed last week, game maker Double Fine Productions allegedly accused Activision Entertainment Inc. of trying to kill the scheduled October 2009 release of the game "Brutal Legend". Brutal Legend features Jack Black as a heavy metal roadie fighting evil in an ancient mythical world. The counterclaim was filed in response to a lawsuit launched by Activision in June. In the lawsuit, Activision reportedly claimed it never surrendered its publication rights to Brutal Legend and as a result Double Fine's transfer of the rights in the game to Electronic Arts ("EA") was conducted improperly. The lawsuit also allegedly attempts to stop competitor EA from releasing the game. It is reported that Double Fine's counterclaim accuses Activision of engaging in unlawful practices and a conspiracy to protect sales of Activision's franchise "Guitar Hero".
Originally, Double Fine developed Brutal Legend for Vivendi Universal Games, which was acquired by Activision in 2008. Purportedly, Activision showed little interest in the game and dropped it from its roster which Double Fine felt opened the door for it to transfer the publication rights to EA. The hearing on Activision's motion to block the release of Brutal Legend is reported to be scheduled for July 30th.
Coverage at Augustachronicle.com

CTA Bans Video Game Ads; ESA Sues

The Entertainment Software Association announced that they are suing the Chicago Transit Authority over the CTA's decision to ban all ads for "M" and "AO" rated video games on trains and buses. The policy, which came into effect January 1, 2009, follows the CTA's decision to pull ads for GTA IV last April for "inspiring violence" - a decision that was ultimately reversed when Take-Two sued and later settled with the CTA.

The ESA has decided to challenge the CTA's ordinance on First Amendment grounds, arguing that game ads are entitled to free speech protection and the CTA's rule unconstitutionally "restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so." The ESA also notes that the ads are themselves subject to ESRB review.

A CTA spokesperson said that the policy is consistent with the CTA's long-standing policy of banning alcohol and tobacco advertising.

The full press release is available here.

New York Ban on Texting, Gaming, Surfing While Driving

The New York State Senate has passed a bill which bans texting, playing video games or surfing the Internet while driving, adding to the state's already in-force legislation that makes it illegal to talk on a cell phone while driving. The measure imposes fines of up to $150 for using hand-held devices or laptops to send text messages or view and read data and images. The ban is only a secondary offense, meaning that a fine could only be imposed if a driver is pulled over for breaking another law.

Fourteen other US states and the District of Columbia have banned text messaging for all drivers. In Canada, it is currently illegal to use a handheld cell phone while driving in Newfoundland and Labrador, Nova Scotia and Quebec, and other provinces are considering similar legislation.

While most would agree that such legislation will no doubt improve roadway safety and reduce accidents, it is easy to anticipate opposition to the measures. Driver distractions are limitless -- at some point, most have contended with calming upset children, eating food and drinking coffee, changing the radio station, or simply chatting to fellow passengers while behind the wheel. Many may argue that we're heading down a slippery slope of increased driver regulation, when perhaps increased driver education and common sense should be encouraged instead.

Coverage found at GamePolitics

Online game company sues bot software company and wins

Submitted by Dr. Andreas Lober

In an unprecedented case in German jurisprudence, the operator of an online game sued the provider of a bot software, and won. The court granted a cease and desist order, so the bot must no longer be distributed.

1. Facts of the case:

The plaintiff developed and operates one of the worlds most popular massively multiplayer online brower based strategy games. The plaintiff's online game is free to play in a basic version, but requires purchasing so called premium functions in order for the user to be able to use special and enhanced features of the game. The Terms of Service of the game expressly prohibit the use of cheating software or bot software.

The defendant offered a bot software on the Internet by using a website which was available in German and various other languages. The bot software was specifically configured to interfere with the plaintiff's online game. By using the bot software, the user was enabled to use game functions which the plaintiff's online game either did not have at all or which were only available in the game as a so called premium feature with costs. Therefore, the use of the bot did not only extensively interfere with the gameplay and the game balance of the defendant's online game, but also caused a potential loss of income for the plaintiff because users of the bot did not have to purchase the plaintiff's premium functions anymore.

The use of the defendant's bot software was free for a trial period, but required a license for a valuable consideration after that. On its website, the defendant used the plaintiff's registered trademark and also graphical material which was taken from the plaintiff's online game.

2. The court's decision:

The court held that offering and selling the bot by the defendant constitutes an illegitimate exploitation of the plaintiffs reputation in the sense of "selling of compatible products that interfere with a third party line of products" and an unfair interference with the plaintiff's business model under Section 4 No. 9b and Section 10 the German Unfair Competition Act.

The court was of the opinion that the defendant intentionally undermines the plaintiff's business model which - since the basic version of the game is free to play - is based on selling premium functions for the online game. Users of the defendant's bot software would stop purchasing premium functions for the plaintiff's online game if such functions were also available by using the bot software.

Further, the plaintiff's Terms of Service for the online game expressly prohibit the use of cheating software or bot software. Consequently, the court held that the defendant entices the users of the plaintiff's online game to breach their respective contract with the plaintiff over the use of the game by offering prohibited software and enabling such breach of contract.

Lastly, the court held that by using the plaintiff's trademark and graphical material on the website, the defendant infringes on the plaintiff's trademark rights and on the plaintiff's copyright.

Game On: Midway Asset Sale Approved

Submitted by Sylvie Lang
On July 1, 2009, the bankruptcy judge in the Midway Games' Chapter 11 bankruptcy filings reportedly approved the $33 million dollar sale of most of the company's assets to Warner Bros. Allegedly, Warner Bros. was the only bidder for Midway's assets. As reported in our earlier blog, Threshold Entertainment Inc. had filed an objection to Warner's Bros. bid and it has been suggested that other companies had also opposed the bid mainly over intellectual property disputes.
The court filings also claim that the bankruptcy judge approved the settlement between Midway's creditor committees and the company's majority shareholder, Mark Thomas. The settlement was reached in early June 2009.
Coverage at Chicago Tribune.com

Apple may be "Out of Luck"

It has been reported that Cupertino-based Apple is being sued for an iPhone video game entitled "ParkingLot". It has been alleged that this game, which requires players to move around cars in a parking lot in order to release a blocked-in car, resembles a 1977 brain-teaser entitled "Lots of Luck" ("Lots"). The puzzle master behind Lots is reportedly suing Apple on the basis of copyright infringement, claiming that Apple should not have approved the game in the first place.

Coverage at Kliv.com>Kliv.com.

GTA IV Offers Meth Recipe?

Rockstar and its Grand Theft Auto franchise are no strangers to controversy (hot coffee, anyone?), but according to a recent report in the Times, the British Board of Film Classification investigated reports that a recipe for crystal meth was part of the game play in GTA IV. As it turns out, the recipe, which was available through the game's mock "Craigslist" site, was "inaccurate" and stayed in the game.

But perhaps more interesting than Rockstar's relentless pursuit of subversive content was the gist of the Times' story itself, which was that Britain has abandoned its attempt to have video games classified by the BBFC (which also rates films), and will allow the Video Standards Council to rate games using the PEGI system. Although critics claim that the PEGI system is industry-controlled and less robust than the BBFC ratings, others insist that the PEGI system has been strengthened and will provide needed consistency with the rest of Europe when it comes to rating video games. Surprisingly, even the author of the Byron Report, Dr. Tanya Byron, seems to have come around to the PEGI system, despite recommending in her comprehensive report that the BBFC should handle the job.

Times article is available here.

Gold Farming banned in China

New Chinese legislation has banned the exchange of virtual currency for real goods and services and consequently, it bans the practice of gold farming. The legislation also outlaws the purchase of virtual currency by minors and the use of the virtual currency for gambling.

The virtual currency will only be allowed to be traded in for virtual goods and services provided by the issuer.

Last year, virtual money trade was worth several billion yuan and it has experienced an average annual growth rate of approximately 20%.

Source: Escapist Magazine

Final Fantasy XI -not quite the fantasy for Square Enix Inc.

A class action lawsuit claiming $5 million in damages has been filed by a San Francisco, California resident against Square Enix Inc. ("Square Enix"). The suit was filed on June 18, 2009 in a California District Court and alleges, inter alia, that Square Enix engaged in false advertising and unfair business practices in relation to the online game Final Fantasy XI (the "Allegations"). The Allegations primarily concern: monthly fees; interest charges on the late payment of fees; user restrictions and conditions; charges while the online game account is suspended, among others.

The filing estimated that more than 100,000 people will likely take part in the class action.

Coverage at >Gamasutra.com.