Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

HUMANS BATTLING ZOMBIES UNPROTECTED

United States Magistrate Judge Richard Seeborg granted Capcom's Motion to Dismiss the lawsuit instituted by The MKR Group, which claimed that Capcom's mall-zombie-game Dead Rising infringed on its Dawn of the Dead IP rights.

In dismissing the lawsuit Judge Seeborg reportedly found that "To the extent that Dead Rising may be deemed to posses a theme, it is confined to the killing of zombies in the process of attempting to unlock the cause of the zombie infestation. The social commentary MKR draws from Dawn of the Dead, in other words, appears totally absent from the combat focus found in Dead Rising."

Coverage at: GameSpot

THE PIRATES OF WAR

Submitted by Karine Bellavance

Despite the fact that Gears of War 2 is not coming to PC, it is reported that a forged copy of the game has already been uploaded by various pirate sites for use on modified Xbox 360 systems. Epic Games' Lead Game Designer had stated that the game would not be coming to PC primarily due to piracy concerns.

Coverage at: Gamedaily.com

Tecmo’s legal woes

Submitted by Tania Da Silva, Articled Student

On June 17, 2008, it was reported that two of Tecmo’s employees, Team Ninja developers Hiroaki Ozawa and Tatsuki Tsunoda, were filing a class action lawsuit with the Tokyo District Court, on behalf of themselves and 300 other employees, against the company for 8.3 million Yen in unpaid overtime (approx. $77,000). Tecmo allegedly placed workers in a “flexible hours” work scheme, thus underpaying them for overtime hours for the past four years. Tecmo is denying rumors that up to 300 of its employees are involved and have reportedly stated that only two employees are seeking legal action. They are also denying rumors of mass resignations occurring as a result of the suit. Reports indicate that, according to Tecmo, employees affected by unpaid overtime have been notified that they will be compensated and that the company will resolve the issue.

The news of this class action follows the resignation of Tomonobu Itagaki, head of Team Ninja. Mr. Itagaki has also filed suit against Tecmo. Rumors indicate that he is seeking approximately 1.4 million dollars in damages for unpaid completion bonuses for the development of Dead or Alive 4 for Xbox 360. It has also been reported that a court order was granted to Tecmo prohibiting Mr. Itagaki from directly or indirectly making statements about the company, its products, practices or employees.

Read more about the story here.

Legal Battle Joined over WoW Bot

Vivendi, the parent company of Blizzard Entertainment (the creator of the popular World of Warcraft on-line multiplayer game), has sued the author of a software tool that automates certain in-game tasks such as fighting.

Vivendi and Blizzard claim that the software tool infringes its copyrights (because the tool copies game code into RAM in order to avoid cheat-prevention software) and also violates the game's end-user licence agreement.

The defendant, who claims to have sold more than 100,000 copies of his program, denies there is any copyright infringement.

Both parties have filed written submissions and are awaiting summary judgment in the case.

Coverage on the BBC and at the International Business Times.

Wii Leads to Divorce?

A US man says that his Wii provided evidence of his wife's improprieties. Here's the story: When the man returned home from serving in Iraq, friends and family told him that his wife had cheated on him. His wife claimed that she had only interacted with the "other man" once. However, when he started digging around on his Wii the man found a "mii" (a character avatar) of his wife's alleged partner, and (through the Wii's calendar), found that his wife had gamed with the other man many times. The man has filed for divorce.

Assuming this story is true, the Wii evidence will not necessarily be the turning point of the case. That being said, however, the story demonstrates the many ways that personal information can be recorded and shared through technology, and how this can result in interesting sources of evidence in litigation. For example, FaceBook postings have also turned up as evidence in matrimonial disputes, and blog entries and networking sites sometimes turn up in wrongful dismissal suits. Now we can video game systems to sources of potential evidence.

Coverage at: GamePro and Destructoid.

World of Warcraft EULA - Will it be enforceable? Are end-users at risk?

Read Section 5 of the WOW EULA (End-User License Agreement) and you might be concerned about allowing Blizzard Entertainment to "monitor" your machine for "unauthorized" third party software. Read Section 11 of the WOW EULA and you might be even more concerned because Blizzard seeks to limit its liability to "the total fees paid ... to Blizzard during the six (6) months prior to the time such claim arose". It remains to be seen whether clauses of this nature are in fact enforceable.

The question really is - has Blizzard gone to far in its efforts to prevent cheating? Gary McGraw (CTO of Cigital Inc.) and Greg Hoglund (CEO of HBGary Inc.) seem to think so. In the meantime, in response to the "monitoring" software Blizzard calls "The Warden", McGraw and Hoglund have released their own piece of software they call "The Govenor". Their software "closely monitors The Warden and curtails activities the authors deem invasive".

And so the war between cyber-defence and spyware continues.

References:

• WOW EULA
• GAME INDUSTRY
• THE REGISTER

Gold Farming: A day in the life

Gold farmers generally have a bad reputation in the world of on-line games. However, Julian Dibbell (the author of "Play Money: Or How I Quit My Day Job and Made Millions Trading Virtual Loot") has written an interesting and insightful article for the New York Times titled "The Life of the Chinese Gold Farmer", which takes a look at gold farming from the perspective of those who spend 12-hour shifts playing WoW to earn miniscule amounts of money. Regardless of where you stand on the issue, the article should be an eye-opener.

The article was published on the New York Times site on June 17, 2007. Registration is required to view the NY Times site.

WoW LAWSUIT OVER BOT SOFTWARE

A flurry of legal activity has erupted over a piece of software called WoWglider. The software (see here) will play your World of Warcraft character for you while you do other things. WoWglider's FAQ states bluntly that using the software is a violation of WoW's terms of use, and that your WoW account may be closed if you are caught using it. However, the FAQ also points out the various steps taken to make WoWglider difficult to detect.

When the creator of WoWglider, Michael Donnelly, received notice that Blizzard and Vivendi considered WoWglider to be a copyright infringement and a violation of the Digital Millennium Copyright Act, he decided to strike first and commenced a lawsuit seeking a declaration that WoWglider does not infringe any rights.

Blizzard and Vivendi have now filed a countersuit claiming various infringements, including violation of WoW's terms of use, copyright and trade-mark infringement, violation of the DMCA (by circumventing copyright protection), unfair competition, and tortious interference with contractual relations. The countersuit alleges that by creating and distributing WoWglider, Donnelly's company is encouraging and enabling WoW subscribers to breach their contracts with Blizzard.

Coverage at: http://tinyurl.com/25h3kp (Gamasutra)

and at: http://tinyurl.com/2m2hys (Game Politics)

WoWglider's Complaint here; Blizzard and Vivendi countersuit here.

MS DEPLOYS COUNTER HACKING EFFORTS IN KOREA

Microsoft is confident that the DVD firmware hack will be countered by its Xbox Live updates.

Sales of security upgraded consoles in Korea have increased over the past month after hackers tinkered with the embedded DVD software drive to allow copied CDs to run on the machine. Xbox is confident that the problem will be 'neutralized"? through software updates (detected and prompted for installation upon connecting to Xbox Live).

Apparently more consumers are attempting to bypass Xbox's security in order to be able to use cheaper pirated software. The additional cost for a modified console is said to be approximately KRW 70,000 (60 Euro) and users are tempted by the saving of about KRW 25,000 (21 Euro) from the purchase of pirated software.
coverage at http://shorl.com/gybrestigribinu

TABLE OF VIDEO GAME CASE LAW

We're pleased to report that our blog now contains a table of video game law cases.  It's a work in progress (we have a bunch more cases to add) but we're so excited that we just can't wait to share.  So here's the link  http://www.davis.ca/community/blogs/video_games/files/blogtable.htm

Keep checking back for updates.  There's also a link on the homepage of the blog. 

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)

GAMER SUES SECOND-LIFE PUBLISHER

A gamer has sued Second-Life publisher, Linden Lab, after his online game account was shut down. The gamer claims this resulted in the lost of $3,200 in virtual property. He is now demanding $8,000 in damages.  Linden Labs says it shut down the account after the gamer participated in a suspicious auction where he purchased several plots of land at very low prices. 

This move follows Blizzard's announcement last month that it had banned 5,400 World of Warcraft players and suspended a further 10,700 for participating in activities that violate the game's Terms of Use, including using third-party programs to farm gold and items. 

These cases raise an interesting issue for video game lawyers  to what extent can online gaming companies be held liable for damage or destruction caused to online players or their virtual property? The answer to this question will depend (at least in part) on whether the publishers' licence agreements and online terms of use agreements adequately deal with potential liability issues such as cheating, hacking, viruses and service interruptions.
Linden Lab coverage here http://www.shorl.com/filepedropifo (Joystiq)

CHEATERS SETTLE

In an earlier posting we reported that the owner of cheatcc.com (a site dedicated to posting cheat codes for video games) recently sued a competitor, Crave Online Media, for copying his postings and replicating them on their website.  He claims Crave Online Media violated his copyright in the postings.

We now understand that the parties have settled on undisclosed terms. Which is too bad, really, because we wanted to see how the court would deal with the question of copyright ownership. The plaintiff (of course) was not the author of the actual cheat codes, so he wouldn't own copyright in them. Perhaps his claim was based on any original content he added to his site in addition to the cheat codes, but we probably won't ever know for sure.

The case is Allison v. Crave Online Media, 1:2005cv01186 (USDC, District of Colorado).

WoW CRACKDOWN CONTINUES

We reported several months ago (see post ) about how Blizzard was scanning the hard drives of World of Warcraft players, trying to prevent hacking and cheating. Blizzard is obviously keeping on top of things, as it has announced that over the past three months is has permanently closed more than 18,000 WoW accounts for violating the Terms of Use.

Most of the closed accounts were using third-party programs to collect gold and items for sale in the real world.

Blizzard's report at http://shorl.com/fastynobrobradri

Coverage at http://shorl.com/hagrivakedygro

CHEATER SUES FOR COPYRIGHT INFRINGEMENT

David Allison runs cheatcc.com, a site dedicated to posting cheat codes for video games. He recently sued a competitor, Crave Online Media, for copying his postings and replicating them on their website. He claims Crave Online Media violated his copyright in the postings.

The big question will be whether he actually owns copyright in the postings. He probably does own the copyright in his own original content, but he's going to have a tough time arguing that he has copyright in the actual cheat codes. First, the codes probably aren't his original works because they were created by the games' developers. Second, copyright doesn't protect underlying facts or ideas; it only protects how facts or ideas are expressed.
Coverage at  http://www.shorl.com/gagrodrigrafrutu

LIABILITY IN THE MMO WORLD

We just published an article in theLawyers Weeklyregarding unexpected potential liability in the online gaming world. 

Here's the link  http://www.shorl.com/gorufebradrome

A BLIZZARD OF PRIVACY QUESTIONS

Blizzard Entertainment is receiving flack from some players for scanning players' computers for illegal cheats and hacks relating to the massively multiplayer online game World of Warcraft. Some players claim that preventing cheating and hacking is not a sufficient excuse to impinge on their privacy. Blizzard, on the other hand, says that looking for hacks in the actual game itself is not unreasonable, and points out that World of Warcraft's end-user licence agreement (which players must review and acknowledge before playing) explicitly states that Blizzard reserves the right to scan for hacks and cheats.

Putting information about the scans in the EULA is a good move (Sony ran into trouble with Everquest players because it performed similar scans without giving notice to its players), and this story highlights the importance of actually reading software licence agreements instead of just scrolling through and hitting 'I accept"?.  Personal hard drives are increasingly open to prying eyes "? readers may recall that Microsoft generated much discussion when it announced new measures to verify that users seeking upgrades actually had legitimate copies of its operating system -- and it is a good public relations move to be as open about such activities as possible.

Coverage at http://shorl.com/bogatygravuge

SIM-PLY APPALLING?

Jack Thompson, the outspoken American lawyer who has many things to say about video games, is turning his sights from Hot Coffee-gate to another game which is so ripe with depravity that even GTA can't compare. What game is it, you ask? Why, The Sims 2, of course.

The Sims is a 'life simulator"? "? you guide your character through everyday life, which of course includes tasks like going to work, preparing food, exercising, washing, etc. As in real life, Sims are occasionally naked. EA deals with this with tasteful blurring of sensitive regions (and remember, this is all pixelated anyway). Thompson claims that cheats exist which let you remove the blurring, and thus see your Sims in their full glory. EA denies this claim, stating that there's nothing to see even if the blurring is removed "? Sims are mannequin-esque, and not anatomically correct.

We're not going to say much more about Thompson's claims for fear that he might sue us too. We do note, however, that one particularly prescient video game lawyer apparently realized how The Sims had its dark side before the Thompson story hit GameSpot see the post from July 20 , in particular the last sentence. Perhaps our blog really IS getting out there.

Coverage at http://shorl.com/bagrinuhobylu

Modding Is Illegal... At Least If 80 Pirated Games Are A Mod

A 22-year old man was recently charged in the UK for modifying and selling Xboxes. The modification of video game consoles is illegal in the UK due to its adoption of the EU Copyright Directive. Although official comments from ELSPA - the Entertainment& Leisure Software Publishers Association - state that this conviction sends a signal to would-be modders, the importance of this case should not be overstated. Here, the Xboxes were not only chipped, but also sold with 80 pre-installed pirated games, leading us to wonder whether it was the software piracy or the mod chip that lead to enforcement.

Article at http://www.shorl.com/hugepofafavi

THERE'S A STORM BREWING ON BATTLE.NET

Blizzard has shut down over 50,000 Battle.net accounts for cheating. It also suspended over 8,000 CD keys and permanently banned over 3,000 CD keys.

Cheating is no fun for gamers, so it's obviously bad for business. It's also an area of potential liability for gaming companies who are easier to sue than the cheaters.
Coverage at http://www.shorl.com/hyjastegrifuha