Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

Accusations of Plagiarized Engines

According to Develop-online.net, GSC Game World ("GSC"), the Russian studio which developed the S.T.A.L.K.E.R. series, is alleging that Kiev-based studio 4A Games' proprietary engine has plagiarized its tech and that it is in fact copied from a pre-release version of its x-Ray code.

GSC's lead programmer and technology architect on S.T.A.L.K.E.R., Oles Shishkovtsov, allegedly left the company a year prior to its release to become the CTO of 4A Games, a fact which is apparently fueling GSC's allegations. However, Shishkovtsov reportedly claims that both firms' tech are incompatible and that it would not be feasible to port games to consoles using GSC's x-Ray code. Conversely, it appears that 4A Games' tech will power the upcoming Xbox 360 FPS Metro 2033.

Metro 2033's producer has reportedly said that 4A Games would not want to work on a pre-developed engine and that it doesn't make sense to do so when you have the technology to make your own.

Coverage at Develop-online

Jellyvision Sues Aflac Alleging Infringement of its Copyright in "You Don't Know Jack"

Back in 1995, Jellyvision developed and released its comedic interactive trivia game You Don't Know Jack. Indeed, in 2001, it was apparently briefly made into a game show that aired on ABC. It is still available online today. Aflac, a Fortune 500 company that provides supplemental insurance recently developed a campaign called You Don't Know Quack, which encourages consumers to interact and respond to (three) trivia questions designed to provide information about the company's products and services. In addition to this recent campaign, Aflac has also used such slogans as Don't Let "em See you Quack.

Critics argue that Jellyvision is taking advantage of an opportunity to garner publicity because Aflac is a known, established company with strong brand identity; however, legally speaking, if confusion can be proven exists between the two brands, and Aflac has received an economic benefit as a result of its You Don't Know Quack campaign, Jellyvision could have a case.

According to sources, the parties are looking to settle the matter amicably.

Coverage at: Gamasutra.com and the Ledger Inquirer.

PS3 gets hacked

According to Edge, the "unhackable" PS3 has been hacked, with details to follow, apparently.

This is timely, with the latest round of Anti-Counterfeiting Trade Agreement negotiations underway now in Guadalajara, Mexico. Those negotiations cover a wide range of copyright-related topics including anti-circumvention. One proposal is for civil and criminal penalties for breaching anti-circumvention provisions. The US has also proposed that anti-circumvention provisions be expended to cover technology that prevents access to a work (in addition to preventing reproduction of the work)

The US, of course, has anti-circumvention legislation as part of its DMCA. Canada has no such legislation, but for years has been been debating the appropriate Canadian approach to circumvention of copyright protection.

Edge article here.

Messy Fallout

Interplay Entertainment Corporation ("Interplay") has reportedly obtained a ten day extension to answer a preliminary injunction filed by Bethesda Softworks LLC ("Bethesda") in a court battle involving its licensing agreement with Bethesda for the rights to Fallout 3, Fallout 4 and Fallout 5. According to Gamepolitics.com, Bethesda is contesting the fact that Interplay sold the original Fallout games after the release of Fallout 3, while Interplay claims that it retained the rights on the previous Fallout games when it contracted out the rights to the subsequent Fallout games to Bethesda. It is also reported that Interplay is countersuing Bethesda over statements that it allegedly made to third parties which were harmful to Interplay's business. According to the Raging Bull forum, Interplay is also claiming that Bethesda is in breach of the contract, thus making it null and void, and that said breach of contract means that Interplay owns the franchise again. Interplay allegedly is also arguing that instead of owing Bethesda royalties for the upcoming Fallout MMORPG, Bethesda should pay Interplay royalties for Fallout 3 and damages for the injury it has caused to Interplay's name. Further developments will surely follow upon expiry of the aforementioned ten day extension.

Coverage at Gamepolitics.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.

Kombat over Midway's Assets Begins...and it Could be Mortal

Submitted by Sylvie Lang
Threshold Entertainment, a Hollywood production company, reportedly filed a complaint and an objection to the proposed auction of Midway Games' assets in a U.S. bankruptcy court on June 24, 2009.
It has been suggested that Threshold's claim is an attempt to protect its rights following Warner Bros. Interactive Entertainment's $33 million offer to acquire most of the bankrupt Midway's assets. The production company alleges that it has a perpetual and exclusive license to produce films and television shows based on Mortal Kombat. Consequently, it has been reported that Threshold wants to ensure its intellectual property rights are not unduly acquired by Warner Bros or any future bidder for Midway's assets. Lawrence Kasanoff, the head of Threshold, has reportedly claimed that his company's rights stem from a 1993 agreement with Midway.
A hearing on Midway's proposed asset sale is scheduled for July 1, 2009.
Coverage at Gamespot
Coverage at

Duke Nukem Forever or Never?

It has been reported that Take-Two Interactive Software Inc. ("Take-Two") has filed a lawsuit against Apogee Software Ltd. because of the developer's "continually delayed" delivery of the game Duke Nukem Forever, a project that has been ongoing since 1997 . Publisher Take-Two had purchased the publishing rights to the game in 2000 for over $12 million dollars.

It is to be noted that Apogee Software Ltd. is a 3D Realms-related entity and is a different entity than Apogee Software LLC who is the developer behind the Duke Nukem Trilogy.

It has been reported that the complaint states that "Apogee repeatedly assured Take-Two and the video-gaming community that it was diligently working toward competing development of the PC Version of the Duke Nukem Forever." However, despite these assurances, it has been reported that 3D Realms has shut down its doors. It has also been reported that Take-Two had offered cash incentives to 3D Realms for the completion of the game. Nevertheless, it seems that the developer is now out of money and may owe more than expected.

Coverage at Kotaku.com, Gamasutra.com and Gamedaily.com.

RCMP and York Police Arrest DVD Pirates

Much criticism has been leveled at Canada regarding its copyright laws; however, the news isn't all bad. Following a six-month investigation, the RCMP and York Police, in a collaborative effort, have arrested five men (Huici Chen, 36, Chung Ping Pang, 37, Tongjin Chen, 62, all from Markham, Ya Ouyang, 29, of Scarborough and Huixin Chen, 27, of Brampton) for multiple breaches of the Canadian Copyright Act for pirating movies including "Slumdog Millionaire", the "Curious case of Benjamin Button" and "James Bond: Quantum of Solace".

You might remember that in Louis Vuitton Malletier S. A. v. 486353 BC Ltd. et al (2008 BCSC 799), the Supreme Court of Canada sent a strong message to infringers of among other things, copyright, by awarding statutory damages of $20,000 per work, and $300,000 (total) in punitive and exemplary damages which were awarded (jointly and severally) against the defendant corporation and two employees.

If convicted, the five men in this most recent case could face fines of up to one million dollars and/or imprisonment of up to five years.

http://www.thestar.com/gta/crime/article/630068

New Zealand Raises the Bar for ISPs

Prime Minister John Key of New Zealand has decided to hold off on the implementation of the controversial Section 92A of the Copyright Amendment Act, until March 27, 2009. Section 92A of the Act requires Internet Services Providers (ISPs) to "have a policy to terminate the accounts of repeat copyright infringers in appropriate circumstances". While the amendments are considered to be inappropriate and flawed, the Telecommunications Carriers' Form has nevertheless prepared, and released for public consultation, a draft ISP "Copyright Code of Practice". While it is certainly fair for copyright owners to want to be able to protect their rights, many argue that Section 92A places too much of the onus on the ISPs to police, report and enforce possible copyright infringement. As it currently stands in Canada and the U.S., while ISPs may not be required by law to terminate the accounts of suspected infringers, the practical reality is that many of them, in the face of a sufficiently compelling letter from legal counsel for a rights holder asserting intellectual property rights (including copyright), will rely on their own applicable "terms of use" and immediately suspend or close the offending account.

Upon review of Sections 92A through 92D of the Copyright Amendment Act, I'd say that ISPs in New Zealand have a lot more to worry about than simply "reasonably" implementing terms of use that "provides (sic) for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer". To view the relevant sections, go here

Copyright Code of Practice

Articles: Stuff article and techdirt article

Why play when you can glide? Because...

In 2006, MDY Industries sought a declaration that its "Glider" program that plays World of Warcraft doesn't violate Blizzard's and Vivendi's copyrights. The Arizona District Court ruled in favour of Blizzard and Vivendi, for tortuous interference with contract, contributory copyright infringement, and vicarious copyright infringement. The parties then agreed that the court should hold a bench trial regarding three outstanding issues.

On January 30th, the court released its ruling, concluding that:

1. MDY was trafficking in anti-circumvention technology;

2. the president of MDY should be personally liable because he knew that MDY was infringing Blizzard's and Vivendi's rights, and he supervised the infringing activities, and he profited from them personally; and

3. Blizzard and Vivendi are entitled to a permanent injunction against MDY.

A copy of the order is available here.

SCRABULOUSO!

Hasbro has apparently dropped its copyright infringement lawsuit against the makers of Scrabulous, RJ Softwares. No explanation for the discontinuance of the proceedings has been given.

Personally, I think that Scrabulous was the best thing on Facebook!

Coverage at: GameDaily.com

Midway Cleared Of Psi-Ops Copyright Infringement

Midway has been declared the winner in a copyright infringement action brought by William Crawford, a California screenwriter, over Midway's game "Psi-Ops: the Mindgate Conspiracy". Crawford claimed that the game borrowed heavily from his script for a movie called "Psi-Ops” and sought $25M in damages.

According to Crawford both of the works shared similar plot devices, characters and (obviously) naming. However, the federal court judge held that the similarities were not "protectable" under the Copyright Act and that "no reasonable juror” would find that that the two works were "substantially similar in the expression of their ideas.”

Coverage is available at kotaku.com and 1up.com.

UPDATE: THQ v. Activision Settle Baja Dispute

It seems that THQ and Activision have settled their copyright fight over the box art for Activision's "SCORE International Baja 1000". Patent Arcade is reporting that THQ discontinued the lawsuit on November 18, 2008 after Activision agreed to change the cover of its game, which clearly shared some significant similarities with THQ's "Baja: Edge of Control".

Patent Arcade has a copy of the new box art here.

Original post is available here.

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

ARRIVA! ARRIVA!

Mexico's Procuraduria General de la Republica and Agencia Federal de Investigacion recently seized 20 tons of pirated materials including approximately 91,200 copies of video games, 130,000 video game cover inserts and 3,200 empty video game boxes in a Guadalajara Market. It is reported that the government agencies worked with local ESA representatives to conduct the raid.

ESA has stated that they "commend Mexican law enforcement officials for their actions in this raid and are committed to fully supporting authorities around the world who conduct these kinds of enforcement actions".

Coverage at: GameDaily.com

THQ sues Activision Over Game Packaging

As first reported by Patent Arcade, THQ has filed suit against Activision Blizzard claiming trade dress and copyright infringement over the box art for Activision's brand new release, "SCORE International Baja 1000". THQ is seeking an injunction against the publisher, alleging that Activision's packaging is identical to that of its own racing game, "Baja Edge of Control", released in September.

Both games are based on the Baja 1000 off-road race that takes place in Baja, Mexico each fall. The covers of both games depict two vehicles, one red and one blue, almost identical in position and perspective.

In its suit filed in California District Court, THQ claims that it has exhausted 'all reasonable efforts to prevail upon Activision to replace the packaging artwork', including contacting Activision on multiple occasions to request that the artwork be changed.

The complaint and a comparison of the two boxes can be found here.

ELECTRONIC ARTS SUED OVER "WIN WITH THE REBELS"

The Las-Vegas Review Journal has reported that Electronic Arts is being sued by Gerald Willis for as much as 1.5 million dollars for infringing Willis' copyright over the University of Las Vegas' fight song "Win With the Rebels". Willis is claiming $150,000.00 for each copyright infringement. The song has been featured in several of the NCAA Basketball, Football and Baseball games.

Coverage at: Gamedaily.com

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

Scrabulous removed, but returns under a new name

Facebook users in Canada and the US were blocked from using the extremely popular Scrabulous application earlier this week. Facebook blocked the application pursuant to Hasbro’s request, as the company has taken the matter to Court with claims that RJ Softwares and the Agarwalla brothers’ game infringes on their Scrabble intellectual property rights.

Hasbro owns the rights to the Scrabble game in North America and Mattel owns the rights to it in the rest of the world. Mattel has yet to file a formal lawsuit against the Scrabulous creators. Since the application was blocked earlier this week, the two official games offered on Facebook by Hasbro and Mattel have gone from having fewer than 25,000 users between them to having 60,000 users in Canada and the US alone.

According to CBC, the Agarwalla brothers agreed to have the application blocked in response to Hasbro’s lawsuit. They have now come back with a retooled game with a new look and an adjustable board called Wordscraper. The game is available on Facebook and to date, has fewer than 4,000 users.

Coverage here (GameDaily).

Submitted by Tania Da Silva, Articled Student

A Simply Scrabulous Lawsuit

A lawsuit has been filed in U.S. District Court in New York by Hasbro Inc. against the creators of “Scrabulous”. Although an official version of Scrabble was issued last week by Electronic Arts Inc. for Canadian and American Facebook users, online players have continued to play Scrabulous. Hasbro alleges that Scrabulous is a copyright infringement and is trying to have the game shut down. The toymakers are also seeking an unspecified amount in damages from the creators.

Scrabulous is the most popular game on Facebook, attracting more than 600,000 players daily. It was created during the summer of 2007 by two young brothers from Calcutta India, Rajat and Jayant Agarwalla. The brothers and their company RJ Softwares are all named as defendants in the lawsuit which was filed on July 24, 2008.

Submitted by Sylvie Lang, Summer Student

Coverage here (Associated Press)

Bot makers: beware!

In March we reported that Vivendi had sued the author of a software tool that automates certain in-game tasks such as fighting in World of Warcraft. Vivendi claimed that the software tool infringed 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.

Earlier this week the United States District Court for the District of Arizona released its decision, granting Vivendi summary judgment regarding copyright infringement and tortious interference. Other claims, such as certain DMCA claims, trade-mark claims and unjust enrichment claims, will be decided later in a full trial.

Coverage here (Virtually Blind)

File Share Beware - IP ID'd

Submitted by Amanda Alfieri, Articled Student

Topware Interactive obtained judgments from a London Court against four individuals for file-sharing . The Court granted interim damages in the amount of £750 per person and the final amount can be up to £2000 per person. The difficulty in successfully suing file sharers is discovering their identity. Internet Service Providers (ISP) give a number to each of their users when they are on-line. This number is referred to as an IP address and the ISP's have been reluctant to divulge the IP addresses of their customers in order for computer experts to be able to identify which IP addresses match file-sharers with illegally obtained copyright material on their computers. However, a UK High Court has ordered the identification of hundreds of users whose computers have been used for illegal game sharing. It will permit Davenport Lyons, the lawyers for Topware Interactive to send lawyer’s letters to all those users. The recipients of the letter must provide a satisfactory response or they shall risk being sued.

Read more at This Is Money.

Music Suit Against Nintendo Suddenly Dropped

GameSpot is reporting that a suit against Nintendo for using unauthorized music in its 2004 commercial for “Paper Mario: The Thousand Year Door” has been dropped. Morgan Creek Productions filed the suit on June 12, 2008 alleging that Nintendo had used the song “You’re So Cool” without permission. The song is better known as the theme to the ultra-violent, Tarantino-penned cult classic “True Romance”.

According to GameSpot, Morgan Creek voluntarily dismissed the case on June 18. No reasons were given.

GameSpot report is here.

Google Video of Nintendo’s ad is here.

Submitted by Michael Mjanes

GTA Movie Situation

There have been a number of movies in recent years based on video game properties (e.g, Hitman, Doom, etc.) Even though Take Two's Grand Theft Auto series of games is wildly popular, however, it's unlikely that there will be a "Grand Theft Auto" movie based on the game.

The reason is that Fox Atomic owns the rights to a 1977 movie (directed by Ron Howard) called "Grand Theft Auto". And an agreement between Fox and Take Two says that Fox will not make a video game based on its movie property, and Take Two will not make a movie based on its video game property.

Of course, this is probably just a straight branding issue -- Take Two can probably make a movie based on GTA IV so long as it's not called "Grand Theft Auto".

This is not breaking news, but the situation highlights how complicated branding, cross-marketing and derivative work issues can be in the video game and entertainment media context.

Coverage at GameDaily.com.

"Kölner Dom" in Second Life: Copyright Infringement?

To the inhabitants of Cologne, their "Dom" is very dear – and legend says that tourists calling the building "Cathedral" have found themselves thrown into the Rhine. So the judges of the District Court of Cologne will have been very pleased that they have not just rendered what is probably the first German judgement on copyright of Second Life architecture, but that this case refers to the great Cologne landmark.

The applicant claimed copyright in certain textures of the virtual "Kölner Dom", which was partly designed by her, and partly designed by the defendant. While the textures were designed to make the virtual building look like the real one, and photos were taken to achieve this aim, the applicant claimed that her work was protected under copyright law, as she had to adapt colors, brightness, and perspective. After a rather long elaboration of the various types of "work" which can be protected under copyright law, the court found that the textures were not suffiently original for copyright protection.

The underlying contracts between the parties have not been part of the dispute, presumably because they were not very clear on the subject.

This article was kindly contributed by Andreas Lober at SCHULTE RIESENKAMPFF in Frankfurt.

Capcom Seeks Declaration over “Dead Rising”

Submitted by Michael Mjanes

Fans of zombie movies will undoubtedly recognize this old chestnut: a protagonist, barricaded in a curiously weapon-rich building, surrounded by zombies, must use any and all means available to stay alive. Sound familiar? Could be George A. Romero’s 1979 opus “Dawn of the Dead” (or its 2004 remake). It could be Peter Jackson’s 1992 gorefest “Dead Alive”, or 2004’s quietly brilliant “Shaun of the Dead”. In fact, it could be any number of re-tellings of that classic “man vs. the undead” narrative.

It could also be Capcom’s 2006 award winning game, “Dead Rising”. The game, in which a hero is stranded for three days in a mall infested with zombies, shares a number of similarities with Romero’s “Dawn of the Dead”. Too many similarities, charges The MKR Group, holder of the IP rights to “Dawn of the Dead”. Even prior to the release of “Dead Rising”, MKR approached Capcom and accused the game of infringing MKR’s copyright and trademark. The parties were unable to resolve the dispute and as a precaution, Capcom included a disclaimer on the front of its packaging stating: “this game was not developed, approved or licensed by the owners or creators of George A. Romero’s Dawn of the Dead.”

On February 12, 2008 Capcom filed for a declaratory judgment to prevent the MKR Group and New Line Cinema from asserting their intellectual property rights. In papers filed in the California District Court, Capcom claims that any similarities between the game and the movie are “based wholly on the unprotectible idea of humans battling zombies in a shopping mall.” Capcom goes on to say that there are “literally dozens of other video games featuring a protagonist battling hordes of flesh-eating zombies”, and neither MKR’s copyright in the film, nor any mark, is infringed by the game. Capcom further asserts that because of the disclaimer that accompanied the game, there was no confusion among consumers between the film and the game.

“Earth No More” Creates Controversy for 3D Realms

Submitted by Michael Mjanes

According to reports, Duke Nukem developer 3D Realms is being sued for copyright infringement over an as-yet-unreleased game entitled “Earth No More”, due out in 2009. The suit was filed by Darin Scott and Edward Polgardy of Cinemagraphix Entertainment, who claim that they shopped a game called “Earth No More” to a number of companies, including 3D Realms, in 2005. Although that game was never picked up, the plaintiffs claim that 3D Realms (under the moniker Apogee Software) has created a game “virtually identical in substance”.

According to a forum posting from Scott Miller at 3D Realms, the company is fully innocent and has offered to meet with the plaintiffs “many times”, but have been rebuffed. Miller accuses Scott and Polgardy of “looking for a quick score”, and said that the settlement offer proposed is “far more than $150K” and includes a demand for 20% of future game revenues. 3D Realms intends to fight the case and not settle, he says.

In October 2007, 3D Realms/Apogee filed for a declaratory judgment that Realms’ “Earth No More” did not infringe any intellectual property.

Square Enix Launches Lawsuit Over Counterfeit Final Fantasy Swords

Square Enix, the Tokyo-based creator of the Final Fantasy franchise, has filed a federal lawsuit for copyright infringement against four wholesalers whom Square Enix claims were selling unlicensed replicas of the swords used in the Final Fantasy games. The lawsuit is a result of the seizure of a crate of counterfeit swords by the US Department of Homeland Security and Customs and Border Patrol.

This lawsuit, filed in the Central District of California on February 12, follows multiple confidential settlements with various retailers of similar infringing items, each of which involved the payment of a substantial financial penalty. Additional defendants may be added to this lawsuit.

In a statement, Yasuhiko Hasegawa, Square Enix's General Counsel, said: "We are actively pursuing those who commit intellectual property infringement against our company. Any illegal activities, including the sale and distribution of unauthorized replica merchandise and counterfeit jewellery, and the unauthorized copying of Square Enix games, music, movies, images, and other intellectual property, will be prosecuted. While Square Enix appreciates the enthusiasm of its fans, and values its relationship with them, it is also obligated to protect its intellectual property rights or risk weakening or losing the very rights that enable the company to continue to provide its fans with an exciting entertainment experience."

Coverage here (GameDaily)

Contributed by Michael Mjanes, articled student.

Tariff 22A Decision and video game music

The Society of Authors, Composers and Music Publishers of Canada (SOCAN), the collective society mandated to collect royalties for musical works in Canada, proposed a tariff to the Copyright Board of Canada (the Board) targeting musical works communicated by means of Internet transmission. SOCAN’s proposed tariff rate, retroactively covering the years 1996 to 2006, worked as a percentage of either gross revenues or gross operating revenues. Among the rates proposed were: 10% for music websites that offered downloads with previews, 7% for music sites without previews, 16.7% for sites with on-demand streams, and 4% for game websites (including gambling).

Several parties objected to the proposed tariff, including the Entertainment Software Association (ESA) on behalf of Canadian video game publishers and distributors. The ESA argued that downloading over the Internet was not a “communication to the public” by telecommunication, as required by the Copyright Act, and that no liability existed for point-to-point digital delivery of video games to end users. The ESA also argued that music made up a minute part of the total audiovisual output of a video game, and that video game publishers generally enter into agreements with third-party rights holders to provide music for video games. Therefore, rights holders are fully compensated in advance of the game’s publication.

However, the ESA also submitted that if the Board must certify a tariff, the only acceptable proxy was the existing “low music use” tariff, which is 0.8 per cent of advertising revenues related to music. A further discount of 90 per cent should be applied to reflect that music “is never the main feature of any communication that might occur on a video game publisher’s site.”

The Board held that, per the Supreme Court of Canada’s decision in SOCAN v. Canadian Assn. of Internet Providers (CAIP), a musical work is communicated to the public by telecommunication when a server containing the work responds to a request for a download, and it is the person who makes the work available on the Internet who authorizes its communication. The Board also held that the communication of software in which music is embedded is no different than communication of a television program containing music. The Board did not agree with the ESA’s argument that the proper approach to addressing music within games was contractual rather than regulatory, given the context of SOCAN’s regime.

In the end, the Board certified a tariff, although not the one proposed by either SOCAN or the ESA. The Board decided to only deal at this time with uses targeted in an earlier tariff, commonly referred to by the Board as the “CSI - Online Music” tariff. These uses include permanent downloads, limited downloads and on-demand streams. A tariff for musical works contained in video games was not set. The Board held that dealing with the other uses targeted in Tariff 22 (such as video games) would “raise administrative and wording issues that will require extensive negotiations with the parties.” Nevertheless, in their response to ESA’s arguments the Board indicated that it considered music in video games a communication to the public by telecommunication, and open to regulation by tariff.

On that basis, the Board held that if a communication to the public involved the communication of a work within SOCAN’s repertoire (by one of the targeted uses) then SOCAN was entitled to a tariff. The tariff rates were set at 3.1% for permanent downloads, 5.7% for limited downloads, and 6.8% for on-demand streams (after discounts). Minimum fees were also established, based on the number of “subscribers”.

Subsequently, five of the objectors, including the ESA, applied to the Federal Court of Appeal for judicial review of the Board’s decision.

RE: SOCAN Statement of Royalties, Internet-Online Music Services
October 18, 2007 Copyright Board of Canada
61 CPR (4th) 353
KEYWORDS: tariff - royalties - digital music - Copyright Board
Summarized by Michael Mjanes

WILL YOU BE OUR FRIEND?

Hasbro, the owner of the board game SCRABBLE, has sued Facebook for copyright infringement, claiming that the Scrabulous game on Facebook violates Hasbro’s copyright in SCRABBLE. Hasbro is keen to protect its IP in the electronic frontier, especially since Hasbro signed an agreement last year with EA to create electronic versions of its board games including Scrabble. More on that story here.

In a slightly related story (actually, only related in the sense that it also involves Facebook), we have heard your overwhelming demand, caved to the pressure, and created a VideoGameLawBlog fan group on Facebook (here’s the link) so that now all four of you out there can publicly and proudly show your support for our blog. Sheesh, what next… paparazzi?

Square Enix protects its IP

The Seoul Central District Court recently issued copyright infringement sentences to the producers and directors of a music video for Korean singer “Ivy”. The video used portions of the storyline, setting and character styles from Final Fantasy VII Advent Children without Square Enix's permission.

In the words of Square Enix’s General Counsel: “This judgment by the Seoul Central District Court is stringent in comparison to other copyright infringement cases in South Korea, and we appreciate that the maliciousness of this infringement has been recognized in a public forum. Square Enix will continue to take decisive action against any infringements upon the Company's intellectual property, recognizing that this property is one of our most crucial resources.”

The total damage awards were small (approximately $11,000 against the producer and $6,500 against each of the directors), but sometimes the certainty of a small penalty can be a more effective deterrent than the uncertainty of a large penalty. Also, Square Enix’s civil lawsuit is still pending and might result in an additional damage award.

Square Enix’s press release is here.

Virtual Property Lawsuit Settles

We reported back in November about a lawsuit by a group of Second Life merchants against Thomas Simon ("Rase Kenzo" in SL) and for making and selling unauthorized copies of the plaintiffs' virtual products (see our previous post).

The parties have now filed a consent judgment to end the lawsuit. The consent judgment, which still has to be approved and entered by the court, contains the following key points:

- The defendant will pay $525 as restitution for profits derived from the "unauthorized copying and distribution of plaintiffs' merchandise".

- The defendant represents, under penalty of perjury, that he acted alone in the unauthorized copying and distribution, that he derived a total of $525 from his activities, and that he has destroyed any remaining copies of the plaintiffs' merchandise in his possession.

- The defendant is permanently prevented from copying, displaying, distributing and selling any of the plaintiffs' merchandise without permission.

- If the defendant uses SL by way of an alternate account, he will tell the plaintiffs the name of that account.

The use of the term "merchandise" in the judgment is interesting, as it suggests that the virtual items in question are actual property. The lawsuit was based on trade-mark and copyright infringement, and the judgment still refers to "unauthorized copying", but the portrayal of the subject matter as "merchandise" rather than some form of copyrighted software could be an important development in virtual property law.

Coverage at Virtually Blind.
Virtually Blind also has a link to the consent judgment here.

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.

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.

Guitar Hero III and Guitar Freaks: Much Ado About Patents

It appears that patent issues between Activision’s new Guitar Hero III title and Konami’s Guitar Freaks may have been resolved.

The 9 patents listed on the Official Xbox Magazine demo version of Guitar Hero III are split into two sets - one group relating to the MTV Drumscape electronic arcade machine (which patents were recently acquired by Activision in August, 2006), and a second set that are known to be owned by Konami. Though neither Activision or Konami have commented, the reference to the Konami patents has led industry commentators to speculate that a licensing agreement must be in place between the two companies.

Coverage at Gamasutra(http://www.gamasutra.com/php-bin/news_index.php?story=16014)

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.

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.

And justice for all?

Recent reports alleged that Metallica filed suit against Harmonix and Red Octane on the grounds that Guitar Hero III and Rock Band violate Metallica's copyright in its music. This of course led us to wonder who's the master of which puppets. But now Metallica has stated that it is NOT suing anyone, and that it has licensed both parties to use the classic song "One" in their new games. Good thing, too -- a lawsuit by Metallica would have been some kind of monster for the defendants, who would have been wondering for whom the bell tolls.

Initial reports at Digg.com and DailyGaming.Net.
Denial news at Rolling Stone.

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.

Piracy of Video Game Films

Thinking of turning your hot new game into a movie? You'll be happy to know that Canada is getting tough with the pirates who would steal your booty. We recently published an article in the CBA Addendum regarding Canada's new anti-piracy efforts in the movie industry. The article is available here.

Sony Apologizes but Church Continues to Demand Video Game Recall

Sony has apologized to the Church of England over the inclusion in Sony's title, Resistance: Fall of Man of a violent gunbattle in Manchester Cathedral. In its letter to the Cathedral's dean, Sony has also offered to meet with Church officials.

Though the Church has accepted the apology, it continues to demand that Sony withdraw the video game from the market. The Church is also asking that Sony contribute to the Church's anti-gun violence campaign.

Coverage at: Allheadlinenews.com

Church of England threatening legal action over depiction of Manchester Cathedral in video game

The Church of England has expressed moral outrage over the inclusion of a seeming replica of Manchester Cathedral in Sony's first-person shooter Resistance: Fall of Man. More specifically, the Church has demanded that Sony apologize and pull the game from shelves as a result of a violent gun battle that is depicted in the game as taking place inside the famous cathedral.

The Church claims that Sony failed to obtain permission to include a virtual version of the Cathedral in the game, while Sony contends that it obtained all the permissions it was required to. It is not clear how Sony designed the virtual cathedral - including whether or not it based the virtual design on photos taken inside Manchester Cathedral - or how closely the virtual cathedral duplicates the physical one.

Aside from the moral question of whether Sony acted appropriately, the dispute raises a number of legal issues including whether the Cathedral, or its image, is protected by copyright or trademark and, if it is, whether Sony infringed such rights, whether Sony may have trespassed on Church property in designing the game, whether the depiction of the Cathedral is defamatory, and whether the representation amounts to a false endorsement of Sony. It is not clear, however, that any legal arguments the Church might raise would be successful. In any event, the Church appears to be approaching the issue more from a moral perspective than a legal one.

Sony's initial response was that the game is entertainment and not based on reality at all and that, in any event, it had sought permission where necessary. More recently, Sony has confirmed that it is in talks with the Church but has declined to make further comment.

Coverage at:

The Guardian

Joystiq.com

Gamesindustry.biz

Nova Productions v Mazooma Games & Ors

Phillip Carnell of C'M'S' Cameron McKenna kindly sent us the following summary of the UK Court of Appeal's recent decision in the Nova Productions case. In that case, the owner of a coin-op pool game sued two competitors who created games with similar features. The games looked and played differently and none of the source code for the original game was copied. The court therefore concluded that there had been no copyright infringement.

In the words of the learned Mr. Carnell and his colleagues, "As a result of this judgment (and the previous judgment in Navitaire) it will be difficult for software copyright owners to take action against developers of software which has the same functionality, but which does not copy the underlying code or the graphics displayed on screen."

Case summary here.

Ghost Rider Creator Suing Sony, Marvel and Take-Two

Ghost Rider creator Gary Freidrich is suing Marvel and the two companies responsible for the recent movie and video game adaptations of the comic for what he calls a "conspiracy to exploit and profit from the Johnny Blaze character and persona." Freidrich recovered his Ghost Rider copyrights in 2001, despite a 1971 agreement with Marvel, who Friedrich now alleges undervalued Ghost Rider IP and gathered "lower than acceptable royalties" when negotiating licenses for the production of Ghost Rider merchandise in anticipation of the movie. Freidrich also alleged that Take-Two improperly created Ghost Rider merchandise, at which point his skull turned into a giant ball of flame.

Source: http://www.shorl.com/fropustagrekafe

Activision Gets Tough With Unauthorized Resellers

Activision has filed a complaint with the US District Court alleging that Maryanne Leach, an individual, has infringed its copyright by distributing to the public two of its most popular video game titles, Call of Duty 2: Big Red One and Tony Hawk’s American Wasteland. In the complaint, Activision is seeking damages, injunctive relief, and an order requiring Leach to destroy all copies of the games still in her custody.

It seems that Activision has built up some confidence after its recent success settling its Guitar Hero lawsuit against some former employees. Anyone else want some?

WHAT'S THE BIG IDEA?

The UK Court of Appeal recently decided a case involving copyright infringement and video games. Nova Productions Limited had created a computer pool game called "Pocket Money", and claimed that games created by two other companies -- "Jackpot Pool" by Mazooma Games Limited and "Trick Shot" by Bell Fruit Games Limited -- infringed its copyright.

The trial court found that there was no copyright infringement, and the Court of Appeal upheld that finding.

The basis for the decision was the key principle that copyright protects expression, not ideas. The games had some similar elements -- after all, they were all computer pool games -- but there was no evidence that any substantial part of "Pocket Money" was copied in the defendants' games. As the court said, "what was found to have inspired some aspects of the defendants' game is just too general to amount to a substantial part of the claimant's game".

The claimant's barrister argued that this approach meant that there is no effective protection for computer games if the rules of the game but not its graphics can be copied. The court did not accept this argument -- to protect such general ideas as the claimant was relying on would make copyright law an "instrument of oppression" rather than an "incentive for creation". Ideas themselves cannot be protected by copyright.

Coverage here: http://tinyurl.com/2bzvoe (Out-Law.com)

Decision here: http://tinyurl.com/2joscf

PEOPLE IN GLASS HOUSES...

You are probably aware that Viacom recently filed a massive lawsuit against Google over unauthorized film clips on YouTube. Viacom says that YouTube has not been proactive in preventing copyright infringement, and that YouTube's business model "is clearly illegal and is in obvious conflict with copyright laws".

It turns out that Viacom's moral high ground might be compromised -- Viacom owns iFilm, and the iFilm site contains content in which Viacom does not hold copyright. It's not clear whether, or how, these circumstances will affect Viacom's lawsuit, but it does demonstrate the point that if you're going to bring an action your own house had better be in order, as your past conduct will certainly be fair game.

This rule is true in the video game context as well. In one of the classic video game lawsuits, Universal City Studios, Inc. v. Nintendo Co., Ltd. (see a case summary here), the plaintiff found itself in hot water for trying to enforce rights in the King Kong franchise against Nintendo's Donkey Kong because the plaintiff had previously (and successfully!) argued in another lawsuit that King Kong was in the public domain.

So, the point to remember is that it's best to be sure of your own position before you start trying to throw your weight around.

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.

CANADIAN THOUGHTS ON MOD CHIPS

Dr. Michael Geist, one of Canada’s pre-eminent technology law scholars, has an interesting entry on his blog about mod chips. One of his readers recently received a cease and desist letter from a large Canadian IP firm on behalf of the ESA concerning the use and sale of mod chips. As well as citing various statutes that prohibit software pirating, the letter also claims that using and selling mod chips to circumvent security on game consoles is an offence and constitutes direct or indirect IP infringement by “inducing and procuring” infringement in Canada.

Dr. Geist has two thoughts about the demand letter. First, the ESA is trying to apply US law in Canada – there is no Canadian doctrine of “inducing” copyright infringement. Second, the letter contradicts the ESA’s position that Canadian copyright law needs reform. On one hand, the ESA says that Canadian law does not adequately address mod chips and therefore needs to be amended; on the other hand, the ESA is relying on existing Canadian laws to prohibit the use and sale of mod chips (in other words, existing Canadian laws are adequate).

Coverage at: http://preview.tinyurl.com/yrfbf3 (Michael Geist)

BLAME CANADA

The International Intellectual Property Alliance, a coalition of US movie, music and software providers (which, most relevantly for our purposes, includes the ESA), has issued a report urging the US government to add Canada to the list of countries that don't properly protect intellectual property (the Axis of IP Evil, as it were). The IIPA complains that Canada's failure to update its copyright legislation to address issues such as technological protection measures, bootleg in-theatre filming of first-run movies, etc.

Canada is currently on the low-priority watch list. If it is moved to the high-priority list, as the IIPA wants, Canada could face trade challenges at the World Trade Organization, plus possible sanctions.

Canada's copyright legislation is indeed a little behind the times. The copyright reform process has been underway for a number of years, but keeps getting derailed by elections and minority governments who (perhaps understandably) have other priorities.

Coverage here: http://tinyurl.com/28lryd (Globe & Mail)
And here: http://tinyurl.com/2s7ssb (Game Politics)

New Japanese Anti-piracy Legislation

Japanese customs and copyright law is being amended to start banning the exportation of pirated software as of July 1, 2007. The current laws bans importation, but not exportation, of pirated software.

This is actually not very unusual. For example, the Canadian Copyright Act doesn’t specifically prohibit exportation of pirated software, although it does prohibit the distribution of pirated works “to such an extent as to prejudicially affect the owner of the copyright” in those works.

Coverage of Japanese law here: http://tinyurl.com/ywr8bp (Yomirui)

SECOND LIFE GOES OPEN SOURCE

Second Life publisher Linden Lab has released virtual world's viewer as open source software, and intends to do the same with the server software that runs the virtual world itself. Linden Lab released the viewer software under the open source General Public Licence (GPL), which allows anyone to view, change and distribute source code, but requires anyone who distributes modified software to make the changes available as well. Linden Lab will require programmers to sign a contributor agreement which gives Linden Lab joint ownership of the software; Linden Lab will also maintain control of an official version of the viewer software.

This is a big step in the games industry, as most large game companies prefer to keep their code proprietary. However, Linden Lab believes that Second Life lends itself to an open source approach, and also believes that it still has significant income potential even if software is open source.

Coverage from News.com here .

Linden Lab press release here .

DMCA DOES NOT APPLY TO OLD GAMES?

The US Digital Millennium Copyright Act prohibits the circumvention of technological measures that prevent access to copyrighted works. The US Librarian of Congress has recently announced six classes of works that are exempted from this prohibition. One such category relates to 'obsolete"? computer games; the exemption is described as follows

'Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive."?

A format is 'obsolete"? if 'the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace"?.

Some fans of obsolete games (sometimes termed 'abandonware"?) have argued that such games should be exempt from copy protection laws; the Librarian's announcement provides some support for that argument. Of course, the new exemption only applies for preservation or archival reproduction "? breaking copy protection on old games merely to play them may not qualify.

Coverage at http://shorl.com/fodastaribypra (Gamespot)

Librarian of Congress rulemaking on anticircumvention http://www.copyright.gov/1201/

COPYING POSES THREAT FOR VIRTUAL ECONOMY?

Second Life is a popular virtual world with a thriving economy. Players design, create and sell of in-game items, including clothes, furniture, cars, etc. The items are bought and sold for in-game money, which can be exchanged for real-world money. Each player owns the rights in the content that he or she creates, and many players make modest (or not so modest) real-world profits from their Second Life businesses.

Therefore the creation and dissemination of a software program which can replicate any in-game object, including items created and sold by other players, is causing concern for Second Life's economy. The story sounds familiar to anyone following the digital copying controversy in the music and movie industries "? content owners are concerned that their content can easily be reproduced and distributed without any remuneration or acknowledgement. The same concerns apply in Second Life why should a player purchase a designer (virtual) suit in the game if that player can obtain and use a copy of it for free?

Second Life publisher Linden Lab has presented some solutions to the use of the copying software. First, it advises content creators to rely on the real-world Digital Millennium Copyright Act to prevent the unauthorized copying of their works. Second, it has stated that using an external application to make unauthorized duplicates within the game violates the terms of service, and those who engage in such copying may have their Second Life accounts closed.

This development should come as no surprise "? on-line games involve nothing but digital data, which is of course relatively easy to copy. But as the Second Life controversy demonstrates, the implications of such copying in the context of on-line games and virtual economies are far-reaching and challenging.

Coverage at http://shorl.com/dinatygrofregra (GameSpot)

THE ANTS GO MARCHING ONE BY ONE TO COURT

Red Octane (the publisher of Guitar Hero) has sued the Ant Commandos for selling wireless guitar controllers for use with the game.  Red Octane claims Ant Commandos copied Guitar Hero packaging and advertising materials, in violation of Red Octane's copyrights and trade-marks. They also claim false advertising with respect to Ant Commandos' claims that the guitar controllers work properly with the PS2.

Interestingly, Red Octane is facing IP lawsuits for its own activities. Konami claims that Red Octane's dance game Groove violates Konami's patents relating to Dance Dance Revolution, and KnuckleBonz claims Red Octane's use of GUITAR HERO violates KnuckleBonz's trade-mark rights in that name.
Coverage of the marching ants is here  http://www.shorl.com/fadredrufrarine (Gamespot)

THEY FOUGHT THE LAW, BUT THE LAW WON

Two Bristol men have been sent to jail for large-scale copying operations, which included the creation and sale of pirated games. The men have been convicted under the UK Trade-marks Act and Video Recordings Act, and proceeds of crime investigations have also begun.

Coverage at http://shorl.com/dynehubrybopu (BBC)

and at http://shorl.com/hupustalivysy (Myth-Games.com)

JUDGE SAYS PRO PLAYER STATS CAN BE USED WITHOUT LICENCE

A US district court judge in St. Louis has ruled that fantasy baseball leagues can use player names and stats without permission from Major League Baseball because MLB doesn't own any intellectual property in the names or stats. The lawsuit was filed after MLB refused to grant CBC Distribution and Marketing Inc. a new licensing deal for the use of pro ball player stats. 

You can expect the MLB to appeal this one pro licensing deals are worth millions. 

The ruling of course does not affect any personality rights that individual players may have, so sports games developers and publishers will still need licences from player associations to use player likenesses in games. They'll also need trade-mark and copyright licences to use team and league logos in games. 

Also, in some countries (such as Canada) privacy laws might prohibit gaming companies from using personal information about players in games without their consent. 

Coverage here  http://www.shorl.com/bulygynopriho (SI.com)

A copy of the case is here  http://www.davis.ca/community/blogs/video_games/files/show_case_doc.pdf

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

OK, So Maybe The Name Is A Little Similar...

Eidos, makers of theTomb Raiderseries, are contemplating legal action for copyright infringement against Ozura Mobile, who are marketing a new game for mobile handsets called "Lava Kroft."  I'm not sure what all the fuss is about...surely these similarities are just coincidence
Main Character inTomb RaiderLara Croft, Lady Abbingdon, a buxom brunette beauty.  Main Character inLava Krofterr, Lava Kroft. A buxom, brunette beauty. Description of Lara Croft's raison d'etre"archeological wunderkind," "credited with the discovery of some 16 archeological sites of international significance." Description of Lava Kroft "a new age woman who has an exceptional thirst for discovering some of the most intriguing and mystical treasures in the world."More words of wisdom on Lara Croft's life her "exploits...invariably involve the unexplained or the outright unbelievable."  On the mystery that is Lava Kroft she suffers "an addiction to danger."Key Wardrobe Pieces for Lara in latestTomb Raidertitle, "Legend" a black tank top.  InLava Krofta white tank top.
See?! Innocent coincidences and not even that similar...black and white couldn't be more opposite, could they? And, I mean, Lava Kroft hangs out in volcanoes, according to Ozura Mobile's press release, available at http://shorl.com/fupytrafodrufro .  Lara Croft is the TOMB RAIDER, people, not the VOLCANO RAIDER.  These are two entirely distinct dark, shadowy crevasses.  I'm sure it will be fine.  Nooooo copyright infringement here, no siree.  I don't know what Eidos is getting all upset about.

Coverage at GamesIndustry.biz http://shorl.com/hibrobedidreko

Lara Croft information courtesy http://www.tombraider.com

 

VIDEO GAME SETTINGS CAUSING STIR

Las Vegas officials are concerned about their city being the setting for Ubisoft's upcoming 'Tom Clancy's Rainbow Six Vegas"?. They are worried that hyper-realistic images (the game is designed for next-generation consoles) of terrorist activity in Las Vegas could deter tourists and harm the city's economy. The mayor has gone so far as to say that the game may not be entitled to free speech protection, although it's unclear what underlies that assertion.

Using real locations as settings for 'what-if"? scenarios adds verisimilitude to many works of fiction, including video games. One newspaper points out that Las Vegas has been the setting for many movies, including 'Ocean's Eleven"?, 'Diamonds are Forever"?, 'Con Air"?, and 'Domino"?. Given the common use of real settings in fictional works, why do video games seem to be attracting more attention recently?  (The issue is not just limited to cities "? recall that Hugo Chavez, the President of Venezuela, found special meaning in the fact that Mercenaries 2 is set in his country [see here ].) Perhaps it is just increased awareness of, and sensitivity about, video games (and, in the Rainbow Six case, terrorism). Or perhaps it's because video games have to actually recreate settings instead of just using real cities as backdrops.  Or maybe it's something else. Whatever the reason, if complaints like this continue to arise then game designers may have to think carefully about the settings used in their games.  The ramifications for the video game industry could be significant -- getting clearance to use an individual's image and personality, or a song, or a particular brand and model of car in a video game is arguably different (and more straightforward) than trying to get similar clearances with respect to a whole city.

Of course, the legal issues involved are complex.  Las Vegas officials are checking to see whether any of the city's trade-marks are infringed in the Rainbow Six Vegas, and casino companies are doing the same with respect to trade-marks and copyrights.  As always, stay tuned to see if anything further develops.

Coverage here http://shorl.com/gepedalavusy

And at GamePolitics (see July 13, 2006)

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)

GUILTY PLEA IN HOLLYWOOD XBOX COPYING CASE

A co-owner of a trendy Melrose Avenue game store has pleaded guilty to conspiring to traffic in copyright-circumvention technology, conspiring to infringe copyright for financial gain, and wilfully infringing copyright by reproducing and distributing pirated works. His co-owner has agreed to enter a similar guilty plea.

The two are accused selling modified XBOX consoles with pirated games preloaded onto their hard drives. A third man has been charged but has missed his court appearances.

Coverage at  http://shorl.com/gysydalinoro (News.com)

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).

PIRACY IS A CRIME.

(Just so you know.)

The court in US v. Yonatan Cohen convicted the defendant for violating US copyright laws by selling a game console that contained over 40 Nintendo games. As part of his punishment, he was required to pay for the following ad http://www.shorl.com/dybrofrebresyvi . 

YOU HAVE EVERYTHING TO LOSE BY VIOLATING COPYRIGHT LAWS!!!

(Thanks to David Schnider at Sedgwick for spotting this.)

FROM RUSSIA WITH LOVE

StarForce, Russian makers of game copy protection software that has recently elicited controversy in gaming circles, has threatened technology weblog BoingBoing.net with legal action following a negative piece on game copy protection software and its alleged adverse effect on consumers' computers.

Late last year StarForce challenged consumers to prove the adverse effect of its software on their systems and offered a $1,000 prize to whomever succeeded.
coverage at http://tinyurl.com/a6hec

$6 MILLION FOR SELLING MOD CHIPS

Sony alleged that the Defendant, Filipiak, operated an on-line retail store that sold devices (“mod chips”) used to modify PlayStation and PlayStation 2 video game consoles so as to circumvent copyright protection mechanisms that prevent copied games from being played on them.

Sony sued the Defendant for injunctive relief and damages for alleged copyright infringement under the US Digital Millennium Copyright Act. The DMCA prohibits the sale of devices which circumvent copy protection, and the Plaintiff chose the option of statutory damages under the DMCA (between $200 and $2,500 for each infringement).

The court held that the DMCA allows a separate award of statutory damages for each device sold, and that statutory damages would be set at $800 for devices sold before June 12, 2004 (when the defendant agreed to stop selling the mod chips), and at the maximum $2,500 after that date (because the later sales constituted wilful violations of the DMCA). Ultimately, the District Court awarded Sony over $6 million in statutory damages.

This decision demonstrates that the DMCA can be a powerful took against modders and hackers in the United States. As we have mentioned before, Canada does not have comparable anti-circumvention legislation, but there is some is in the works.

Coverage at http://shorl.com/gesirubredryna

Sony Computer Entertainment America, Inc. v. Filipiak
December 27, 2005 US Dist. Ct., ND Cal.
2005 WL 3556676
KEYWORDS: DMCA - statutory damages - anti-circumvention - mods - copyright infringement - contributory infringement
SUMMARY BY: David Sprately

POKEMON CANCER SCARE

A recent article in the journalNaturediscusses a cancer-causing gene that called the POK erythroid myeloid ontogenic gene.  The article refers to the gene as Pokemon (understandable when you look at the first portion of each word POK Erythroid Myeloid ONtogenic). Needless to say, Pokemon USA was not thrilled to see a rash of headlines in the vein of 'Pokemon causes cancer"?, and threatened legal action. The Memorial Sloan-Kettering Cancer Center, whence the article came, has complied with Pokemon USA's demands and no longer calls the gene as Pokemon. The gene is now referred to as Zbtb7.

We wonder what grounds Pokemon USA could rely on to prevent researchers referring to a gene as "Pokemon" -- arguably there is no copyright in a single word, and the cancer researchers were not using "Pokemon" as a trade-mark.  Even so, it's understandable why the institute thought it better to continue doing what it does (i.e., trying to find a cure for cancer) than get caught up in a dispute with a video game company.

Coverage at http://www.gamespot.com/news/6141487.html

SUPERHERO SETTLEMENT

A year ago Marvel sued NCsoft Corp. and Cryptic Studios Inc. over "City of Heroes", claiming that the game's character customization function allowed players to create superheroes that closely resemble trade-marked Marvel comic characters (see our post ). More than half of Marvel's claims were dismissed a few months later, including its claim for trade-mark infringement (see our post ).

NCsoft now reports that the parties have reached a settlement which will let 'City of Heroes"? continue unchanged. As a result, the parties (and us) are spared a judicial decision dealing with player-created content.

However, the settlement does not mean that all is hunky-dory between Marvel and NCsoft "? Marvel and Microsoft are pairing up to make an XBOX 360 MMO based on the Marvel superhero universe, which will compete directly with 'City of Heroes"? (as will Sony's recently-announced MMO based on the DC Comics universe).

Coverage at http://shorl.com/dimefyprugesty

Electronic Arts' Empire Goes Wireless

Just when you thought monolithic publishing emperor EA couldn't get any bigger, it goes and purchases mobile gaming company Jamdat for a reported $680 million, or USD $27 per share. Jamdat, created in 2000, will add a significant mobile gaming component to EA, which has thus far been unable to create a dominant position for itself in that area. It is expected that Jamdat will benefit from EA's host of gaming rights, EA will benefit from Jamdat's technical expertise and strong position in the mobile space, and cell phone users everywhere will benefit from having Madden with them during awkward visits from in-laws.

Coverage at http://shorl.com/duprobudyfrasty

The Resurrection Of Acclaim

When Acclaim Games went belly-up in September 2004, it left scads of vaunted intellectual property like 'The Adventures of Mary Kate& Ashley"? in legal limbo. Howard Marks, a former significant shareholder and executive with Activision, had the foresight to buy up what was perhaps Acclaim's greatest intellectual asset its name. Now, it is being reported that Marks is readying to launch a new company with the old name, specializing in casual, Asian-style MMOs. Whether Marks' Acclaim will have more success than the Acclaim of old remains to be seen, but we're glad to see that someone is making the attempt.

Coverage at http://www.shorl.com/hutababredrope

Vivendi Allows Fans To Create King's Quest Sequel

Vivendi Universal Games, the holder of the rights to the King's Quest games (which were created by Sierra in the 1980s), has allegedly granted a 'fan license"? to Phoenix Online Studios to create "The Silver Lining," which was previously entitled "King's Quest IX Every Cloak has a Silver Lining."  Details of the license are not available, but Vivendi has apparently responded to fan requests to grant the license after Vivendi ordered Phoenix to stop development on the title a few months ago. This appears to be a winning move for Vivendi the fan project could breathe new life into the stagnant King's Quest world, fans of the games get a new title to enjoy, the brand "King's Quest" doesn't get watered down (at least, not by the title of the game), and Vivendi has undoubtedly earned some new fans by this generous move. Who said the adventure genre is dead?

Coverage at http://www.kqix.com/home.php

The Adventures Of Mary Kate&ashley Could Be Yours!

The trustee for the bankrupt publisher Acclaim Entertainment, Allan B. Mendelsohn, has put the rights to more than 200 video game titles up for auction in Oceanside, New York. Famous titles such as 'Crazy Taxi,"? 'Re-Volt,"? and"? 'The Adventures of Mary Kate& Ashley"? are on the block, though Mendelsohn has admitted that he hasn't done complete due diligence on the properties, and thus some of the IP rights may be incomplete or nonexistent. For example, a game that included licensed properties may lack the license to continue using such properties, making the game itself a risky or worthless investment. It's strictly buyer beware, but then again, when has buying a game from Acclaim ever been any different?

Coverage at http://www.shorl.com/hidamejygryny

See the auction site at http://www.maltzauctions.com/acclaimip.htm

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

ZERO TOLERANCE FOR TM INFRINGEMENT?

Eidos Interactive announced recently that its soon-to-be-released shooter 'Roll Call"? is being re-named 'Zero Tolerance City Under Fire"?. This move did not sit well with Randel Reiss, the former president of Technopop (a now-defunct game developer). Technopop developed a game for the Sega Genesis in 1994 called 'Zero Tolerance"?, and Reiss claims that he retains trade-mark rights in that name.

In response to Reiss's cease and desist letter, Eidos apparently pointed out that the Technopop 'Zero Tolerance"? trade-mark registration in the USPTO had been cancelled. While this is not a mere 'technicality"? (as Reiss claims), it demonstrates an important point about trade-marks in various countries (including Canada and the United States), trade-mark users can develop enforceable, unregistered trade-mark rights. Official trade-mark databases obviously only show trade-mark registrations and applications, and do not reveal whether someone is using a mark without registering it. However, if a trade-mark database shows an application or a cancelled registration, that suggets that the mark in question may have been used, or that someone intends to use it "? in other words, that someone else may have unregistered trade-mark rights. On the other hand, there's only so much due diligence that can be done to identify unregistered trade-marks.  Eidos cannot really be faulted for thinking that there was no conflicting mark (if indeed that is how it approached the situation), and Reiss will have to show that he has not abandoned the "Zero Tolerance" trade-mark if he hopes to take on Eidos.

Reiss also claims to own the worldwide copyright in the 'Zero Tolerance"? title. This raises another interesting issue, namely whether there is copyright in a game title, but we'll leave that for another day.

Coverage at http://shorl.com/dotradotradudy

DEVELOPER LOSES COPYRIGHT CLAIM

The case involved a dispute between a video game developer and a group of publishers and distributors. The Plaintiffs are the publishers; the Defendant is the developer.

The Defendant claimed that in 1995, one of the Plaintiffs engaged him to develop a game called Sharpshooter. The plaintiffs later created another shooting game, this one called Police Trainer 2. The defendant argued that the new game infringed his copyright in Sharpshooter. The Plaintiffs sued to obtain a declaratory judgment that they were not violating the defendant's copyright.

The Plaintiff argued that there was no infringement because there were no similarities in source code between the games, no substantial graphical similarities existed, the games are dissimilar in their feel and content, and, any similarity is the result of the use of uncopyrightable ideas. The judge agreed.

The Defendant had argued that the judge should not compare Police Trainer 2 to Sharpshooter alone. Rather, the judge should compare Police Trainer 2 to what the defendant called a series of games, represented by Police Trainer and Sharpshooter together. The judge rejected this argument, finding that two games alone did not constitute a long enough running series.

Upon review of the allegedly similar portions of the game, consisting of a “Balloon's Challenge”, a “Memory Challenge” a “Whack the Criminal” segment, and a “Select Rank Exam” the judge found that there was no evidence of copying.

Team Play, Inc. v. Boyer
September 28, 2005 US Dist. Ct., ND Ill.
US Dist. LEXIS 21753
KEYWORDS: developer - publisher - copyright infringement
Summary by Ryan Garrett

KING'S QUEST SEQUEL SHUT DOWN

KQIX, the unofficial ninth sequel to the King's Quest series was recently shut down after developers received a demand letter from Vivendi Universal Inc.

The legality of unofficial sequels is sometimes uncertain. It often depends on the extent to which intellectual property from the original game is included in the sequel.

For example, if the sequel uses trade-marks from the original game such as the name of the game (or sometimes even the names of characters or places in the game), the sequel might violate trade-mark rights in the original game.

Likewise, if the sequel uses any code, characters, or other materials from the original game, the sequel might violate copyright in the original game.
Shut down site is at  http://www.kqix.com

The Dreaded Pirate Ponce De Leon

No, not the 16thcentury explorer. Dashiell Ponce de Leon of Richmond, Texas has been convicted of criminal copyright infringement by the US District Court of the District of Columbia, for selling 'backup"? (read pirated) copies of game and application software online. Ponce de Leon was sentenced for 3 years and 10 months in a federal prison, followed by 2 years of supervised release, and must pay $1.15 million in restitution fines. Due to this strong sentence, Ponce de Leon's case stands as a harsh deterrent against Caribbean and North American exploration. Piracy. I meant to write 'piracy"?.

Full coverage at http://shorl.com/fabegedratyku

Don't Mess With Texactivision

Looks like the giant woke up. As previously reported, Spark Unlimited launched a lawsuit against Activision, alleging that Activisionfailed to pay promised royalties for the first title developed under that deal (the console edition of Call of Duty Finest Hour), and took Spark's proposals for a sequel and gave them to its own developers.. Now, Activision has filed a counter-suit against Spark, allegingfraud, breach of contract, trade secret misappropriation, trademark infringement, false designation of origin, and false advertising. In a lengthy statement of claim, Activision refutes virtually everything alleged by Spark, and paints an interesting alternative perspective of Spark's claims. Activision also argues that Spark's refusal to return Activision development kits, mixed with the fact that Spark is generating new content for Atari, may result in Atari unwittingly violating Activision's intellectual property. Ultimately, Activision has requested that damages be calculated through a full trial, which indicates a potentially lengthy (and potentially difficult for Spark to finance) legal battle between the two companies.

Coverage at http://shorl.com/fetanihirete

Previous Coverage at http://www.davis.ca/community/blogs/video_games/archive/2005/08/30/283.aspx

NOTE TO DEFENCE COUNSEL

This isn't exactly a video game law story, but it's close enough. The reason we're reporting it is because it provides a great laundry list for counsel who are drafting counterstatements or statements of defence.

As you know, theRecording Industry Association of America (RIAA) has been busy filing lawsuits against thousands of individuals who have allegedly violated copyright by sharing MP3 files online. 

The RIAA has had some PR problems in the past (e.g., when it sued a 12 year old honours student and an 83 year-old grandmother).  The RIAA has just encountered another PR problem with its lawsuit against a 42 year-old, disabled, single mother. 

The interesting part of this story is that the mother filed a lawsuit in response. And she's not shy  she's suing for RICO violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, deceptive business practices and"?we like this one"?the tort of 'outrage"?. We'd never heard of that one before. 

This highlights an important point when you're faced with a breach of your intellectual property rights, you have to respond carefully. Your intellectual property is valuable and you must protect it (in fact, if you don't protect it you can lose some or all of your rights). And a lawsuit can be a very effective way to protect your IP. However, sometimes a lawsuit isn't the best choice. 

Sony is well aware of this (and has experienced several litigation-related PR issues in the past). Perhaps this is why Sony decided to sue retailers"?instead of consumers"?to prevent grey-market PSPs from entering other markets ahead of schedule. 

RIAA coverage at http://www.shorl.com/butytofrubrelu

 

DAVY JONES'S LOCKER FOR PIRATE CAPTAIN

The Entertainment Software Association has announced that the owner of the Pandora's Cube chain has been sentenced to 5 months in prison and three years of supervised release (including 5 months of home arrest) for game piracy activities. The sentence also includes a fine of $247,237 and 80 hours of community service.

Several Pandora's Cube employees modified Xbox consoles into 'Super Xboxes"?, which allowed users to bypass the Xbox's copy protection and use pirated games; the employees also loaded illegal copies of games onto the 'Super Xbox"? hard drives. Three other employees have also been convicted and sentenced for these activities (see our previous post ).

ESA press release at http://shorl.com/fodifrifeleby

Coverage at http://shorl.com/bodradrorofryvu

DON'T BE HACKING BATTLE.NET

Last year we reported that Blizzard Entertainment had won its lawsuit against Internet Gateway Inc. and various individuals who reverse engineered Blizzard's software and protocols to create the bnetd project, a free and unregulated alternative to Blizzard's Battle.net arena.  The lower court ruled that the defendants' activities violated US copyright law and also violated Blizzard's software licences and online terms of use. The Court of Appeal (8th Circuit) upheld this decision yesterday.

When the defendants agreed to Blizzard's Terms of Use and End User Licence Agreement, the defendants contractually agreed not to reverse engineer any of Blizzard's software. The Court of Appeal ruled that this contract was binding and enforceable, and that the defendants had breached it. Also, the Court of Appeal ruled that the defendants had breached the DMCA's anti-circumvention provision (by allowing gamers to play unauthorized copies of Blizzard games on bnetd) and one of the DMCA's anti-trafficking provisions (by developing the bnetd emulator for the purpose of circumventing Blizzard's copy protection). 

The decision is available here http://www.shorl.com/hegrysorarufa

GAME OVER NAMCO AND SONY SETTLE LAWSUIT

Namco sued Sony for copyright infringement after one of Sony BMG's recording artists (Lil' Flip) included samples from the Pac Man video game in his 'Game Over"? song. The parties recently settled out of court, although the terms of the settlement were not disclosed.

In an earlier posting , we reported about US Circuit Court of Appeals judgement which confirmed that sampling even three notes from a sound recording can violate US copyright law.  This case and the Namco case reiterate the importance of doing proper copyright clearances before releasing your games. You'd hate to get caught with ghosts in your closet. Especially Pinky...  he's a speedy one.

Coverage at  http://www.shorl.com/bystofryhiprapi

VILI THE WARRIOR EA TOOK ADVANTAGE OF ME!!!

Vili the Warrior, a mascot for the University of Hawaii, has sued EA for $75,000. He claims that EA used his character without permission on NCAA Football '06.

Lawsuits such as this one are common (although we doubt EA has previously been sued by a half naked guy covered in war paint).  Earlier this month,Sony won the first stage of a lawsuit involving Sony's use of an ice cream truck in Twisted Metal (see our coverage here ). The risk of a lawsuit makes copyright and trade-mark clearances an extremely important part of game development and production. 

Vili Coverage at  http://www.shorl.com/hipruhedamepra

ANOTHER PSP SUIT

Sony has started another lawsuit against an on-line retailer who is selling PSPs in the UK. This time Sony has its sights set on Lik-Sang.com, a well-known Hong Kong video game retailer. Sony will not officially launch the PSP in the UK until September 2005, and is taking action in the meantime to prevent PSPs from other parts of the world from being sold to UK customers.

Sony brought another lawsuit against Lik-Sang in 2002 to try to prevent the retailer from selling unauthorized hardware mods for the PS2.

Coverage at http://shorl.com/bygamugubrigro

and at http://shorl.com/byfrybrudodysto

SONY SEEKS FEWER DAMAGES

Sony has apparently reduced its damages claims against at least one PSP importer from UKP1,000 to UKP500. No word on Sony's reasons for the compromise, especially considering Sony's recent success with at least one other grey importer. 

Coverage here  http://www.shorl.com/befeprogugejy

Our coverage of the grey importation claims is here .

 

COURT SHOOTS DOWN VIDEO GAME COMPANIES

In an earlier post , we reported that a wildlife photographer had sued various companies (including a coin-op game distributor and a software distributor) for copyright infringement.  The photographer claimed that the companies had infringed his copyrights by copying, distributing and displaying various images of deer and turkey which he photographed.  The photos were used in the video games 'Big Buck Hunter"?, 'Big Buck Hunter  Shooters' Challenge"? and 'Big Buck Hunter 2:  Sportsmen's Challenge"?. 

The defendants applied to transfer the case from Texas to Illinois. That request was recently denied. 

The court considered following factors (1) the convenience of the parties; (2) the convenience of material witnesses; (3) the availability of process to compel the presence of unwilling witnesses; (4) the cost of obtaining the presence of witnesses; (5) the relative ease of access to sources of proof; (6) calendar congestion; (7) where the events in issue took place; and, (8) the interests of justice in general.

The court's comments on factors 7 and 8 are interesting. On factor 7, the court noted that although the products are marketed and sold nation-wide, the centre of gravity of the activity is the place where the infringing party designed and manufactured the product. On factor 8, the court noted that the plaintiff's choice of forum should be accorded substantial weight, especially when the plaintiff is an individual, resident of the forum and where the defendants are non-resident corporations.
The case doesn't appear to be reported yet, but the citation is Biggsv.Bass Pro Outdoor World, LLC, [2005] U.S. Dist. LEXIS 14548 (Tex. Dist. Ct.) (July 20, 2005).

Another Xbox Modder Sentenced

Hitesh Patel, a 31-year-old employee of Washington DC-based game retailer Pandora's Cube, has been sentenced to 8 months for selling 'Super Xboxes,"? which are Xboxes modified with larger hard drives which play imported and pirated games. Because Patel sold many units with pirated games pre-installed, it is difficult to assess the extent to which his prosecution is due to modding, versus the distribution of pirated games.

See article at http://www.shorl.com/fekobribrybyru

Court May Exercise Jurisdiction If Party Delivered Product Into A State's "Stream Of Commerce"

Biggs, a wildlife photographer in Fort Worth, Texas, sued Bass Pro Outdoor World LLC, Incredible Technologies Inc., and Play Mechanix Inc., for copyright infringement, claiming the defendants had infringed his copyright in images of deer and turkey he had photographed by including them in several software and coin-operated video games, including "Big Buck Hunter,""Big Buck Hunter Shooters' Challenge," and "Big Buck Hunter 2: Sportsmen's Challenge."

Two of the defendant companies asked the court to dimiss the lawsuits.  They claimed the court had no jurisdiction over them because they weren't located in Texas.  The court refused because the first defendant had encouraged sales in Texas, and the second defendant intended to distribute the games as widely as possible, which would have included Texas.  Both defendants ran afoul of the "stream of commerce" theory.

Under the stream of commerce theory, a court may exercise specific jurisdiction when the defendant's link with the forum arises from the sale and manufacture of a product which has caused harm in the forum state, so long as the defendant delivered the product into the stream of commerce, expecting that it should be purchased or used by consumers in the forum state.

Biggs v. Bass Pro Outdoor World LLC
July 20, 2005, Tex. Dist. Ct
[2005] U.S. District LEXIS 14548
Summary by Arsen Krekovic.

The Death Of P2p?

The end of June brought sad news for the peer-to-peer (p2p) community, with the US Supreme Court finally deciding MGM v. Grokster. The decision, which holds p2p company Grokster liable for the unauthorized trading of copyrighted works on its networks, modifies the 1984 Sony Betamax case in which the US Supreme Court stated that manufacturers of devices capable of copyright infringement (such as VCRs and photocopiers) are not liable for such infringement, provided their devices also have legitimate uses. Grokster does not significantly change this 1984 decision, but instead carves the niche that 'one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses."?

Instead of outlawing p2p networks, the ruling warns against improper p2p software marketing. Unfortunately, determining what might constitute the "?promotion of copyright infringement' is not made readily clear by the ruling, leaving p2p software companies on potentially unstable legal footing. Whether this uncertainty will result in a chilling effect on p2p software remains to be seen.

See the case at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-480

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

VIDEO GAME DEFENDANTS' REQUESTS GET SHOT DOWN

Biggs, a wildlife photographer, sued various companies (including a coin-op game distributor and a software distributor) for copyright infringement. Biggs claimed that the companies had infringed his copyrights by copying, distributing and displaying various images of deer and turkey which he photographed. The photos were used in the video games 'Big Buck Hunter"?, 'Big Buck Hunter Shooters' Challenge "? and 'Big Buck Hunter 2: Sportsmen's Challenge"?. 

Two of the defendants asked the court to dismiss the lawsuits. They claimed the court had no jurisdiction over them because they weren't located in Texas. The court refused because the first defendant encouraged sales in Texas and the second defendant intended to distribute the games as widely as possible. 
The case doesn't appear to be reported yet, but the citation is Biggsv.Bass Pro Outdoor World, LLC, [2005] U.S.Dist. LEXIS 12519 (June 27, 2005)

COPYRIGHT COULDN'T PROTECT GOLF VIDEO GAME

Incredible Technologies Inc. created a golf video game called Golden Tee. A competitor created a similar game called PGA Tour Golf. Incredible Technologies sued.

As part of the lawsuit, Incredible Technologies asked the court for a preliminary injunction to stop the competitor's game from being sold before trial. The court refused to grant the injunction, and the Federal Court of Appeals (7thCircuit) agreed. 

The court acknowledged that the two games were visually very similar. However, copyright does not protect the idea of video golf, nor does it prevent a competitor from showing golf course scenery in a golf game. In other words, in order to make a golf video game, you need to show golf clubs, golf balls, fairways and (for us) sand traps, water hazards and forests.
Coverage at http://www.shorl.com/funojugrifedro

SONY PSP LAWSUITS ONE DOWN…

Sony was just granted a temporary injunction against UK retailer ElectricBirdLand. The injunction prohibits the retailer from selling imported PSPs, possibly until the full case is tried in court. 

The judge who granted the injunction concluded that Sony had an arguable case. Whether or not the case ultimately succeeds will be decided later.

Coverage at  http://www.shorl.com/fyresidigrema

Our prior coverage is available here .

SONY SAYS IT'S NOT SPYING ON YOU

Last week we reported that Sony said it wasn't planning on suing you if you bought a grey marketed PSP in Europe. (Click here for our coverage on grey marketing / parallel importing).

Now Sony is denying rumours that it has been asking online stores for details regarding UK customers who have purchased PSPs. Sony says it's going after businesses, not consumers, and has already sent out over 600 demand letters to retailers who are selling imported PSPs on eBay.
Coverage at  http://www.shorl.com/fomyrikisedri

PSP OWNERS WON'T GET SUED

Last week we reported that Sony has started filing lawsuits in the UK regarding the unauthorized importation and sale of PSPs. 

Sony has now offered some clarification regarding these lawsuits Sony is only interested in the grey marketers, not the PSP owners.

That's no surprise, really. Suing your customers is usually a bad idea. Some would say that suing your distributors isn't great for business either, but Sony probably has enough authorized distributors that this isn't much of a concern.

Coverage at http://www.shorl.com/fiprubrulefabri

PIRACY'S A STATE OF MIND

A recent UK study has found that people (UK people, at least) do not view downloading copyrighted material as theft.  Most people view downloading a copyrighted game as somehow different from shoplifting that same game from a store; in fact, such downloading is often considered a 'normal leisure practice"?. This study reinforces the point that attitudes towards game piracy still have to change significantly, especially as the ability to access and download pirated games continues to increase.

Coverage at http://shorl.com/hekistalihumu

CANADIAN COPYRIGHT AMENDMENTS PROPOSED

The Canadian government has tabled amendments to theCopyright Actwhich address various digital and Internet-related issues.  Some of these proposed amendments are very relevant to the video game industry.  For example, one amendment gives copyright owners the right to sue someone who circumvents or removes copy protection technology, or someone who offers or provides such services. Another amendment institutes a 'notice and notice"? regime for ISPs, under which a copyright owner can notify an ISP of claimed infringement and the ISP must then forward the notice to the alleged infringer.

The Entertainment Software Association of Canada has already announced its disappointment with these proposed amendments, claiming that the bill does not go far enough to protect Canada's game developers and producers. ESAC would prefer a notice and takedown regime such as exists in the US, and would prefer to make the circumvention of copy protection a criminal offence rather than just allowing civil actions for it.

Bill C-60 at http://shorl.com/gegyfrekylyra

ESAC Reaction at http://shorl.com/dugugrygastude

BATTLENET APPEAL

You can stop holding your breath today's the day that the Battlenet appeal gets heard in St. Louis. 

As we reported last year, Blizzard Entertainment won its lawsuit against Internet Gateway Inc. and various individuals who reverse engineered Blizzard's software and protocols to create the bnetd project, a free and unregulated alternative to Blizzard's Battle.net arena.  The court ruled that the defendants' activities violated US copyright law and also violated Blizzard's software licences and online terms of use.

Now the bnetd folks are appealing, claiming that the decision "could dramatically impact consumers' ability to customize software and electronic devices and to obtain customized tools created by others". 

It's true this is an important decision. Stay tuned for the results.
Coverage at  http://www.shorl.com/gigalapranyjo

HASBRO GIVE AND TAKE

Five years after licensing the digital gaming rights to various toy brands to Infogrames in 2005, Hasbro has now re-acquired them in a $65 million deal. In connection with this deal, Hasbro re-licensed 10 popular franchises, including Dungeons and Dragons and Monopoly, back to Infogrames.

Coverage at http://www.shorl.com/gobrepepebromi

GAMES KEEP TALKING

The Screen Actors Guild and the American Federation of Television and Radio Artists have agreed to a deal with video game publishers, ending the threat of a strike by video game voice actors. The new 3 and a half year deal includes a 36% pay raise for voice actors and improved benefits, but the issue of residual payments was dropped to facilitate the deal. The deal has yet to be ratified by the unions.

Coverage at http://www.shorl.com/gokisihufrymo

Previous coverage here

GET PERMISSION TO INCLUDE MUSIC SAMPLES IN YOUR GAMES

The 6th Circuit Court of Appeals in the US has confirmed that sampling even three notes from a sound recording can violate US copyright law. 

The case involved two record companies and two publishers who sued 800 defendants for using samples without permission in various rap recordings. The court ruled that the samples (even the short ones) were valuable, which is clear from the fact that the defendants sampled them and used them in other recordings. In the court's words 'Get a license or do not sample."?

Case at http://www.shorl.com/buralynylene

Consequences Of Nakeder Tecmo Games

May 18 was a sad day for video game lawyers, because on that day US Federal Judge Charles Kocoras permitted a settlement of a case between Tecmo and video game modders. NinjaHacker.net, whose webmasters Mike Greiling and Will Glynn were named as defendants in the lawsuit initiated by Tecmo, offered a community to create and distribute mods for Tecmo games such as Dead or Alive 3 and Dead or Alive Xtreme Beach Volleyball. Tecmo, famous for making electronic near-naked characters fight and... play extreme beach volleyball, argued that NinjaHacker.net's mods violated US intellectual property and unfair competition laws, and of course the DMCA. Now that the case has settled, we may never know the legal accuracy of Tecmo's claims.  As video game lawyers in search of truth and justice, we can thus only hope that this settlement collapses and everyone involved is ruined.

Full coverage at http://www.shorl.com/fugesolatusta

PLUMBER V. PIRATES

A new report from Nintendo of America describes the company's various anti-piracy efforts in the first quarter of 2005. Nintendo, which is ramping up its anti-piracy efforts, proudly reports on how many counterfeited products were confiscated around the world (approximately 178,287), how many on-line auctions for counterfeit products were shut down (approximately 25,299), and how many criminal actiosn and investigations are ongoing (about 81).

The report also discusses various significant piracy cases, including the start of a trial in Taiwan against Eric Lo and his company Revotek (whom Nintendo claims has designed and distributed in excess of 35 million chips used in counterfeit Nintendo games); the addition of a Taiwanese semiconductor company to existing litigation against two US companies for distributing counterfeit devices; and obtaining a $5 million judgment (plus interest) in Hong Kong against defendants who sold the Flash Advance Linker (which allows Game Boy software products to be copied).

Coverage at http://shorl.com/geranesadygu

PLAY-IT AGAIN DO THE SEARCHES BEFORE YOU REBRAND

In an earlier posting we reported that Mobile games publisher Digital Bridges recently rebranded itself as 'I-Play"?.  Unfortunately, the new name and logo are similar to the name and logo of rival publisher Play it. 

Play It sued and was recently granted an injunction which temporarily prevents I-Play from using its new logo. The full trial is scheduled for July and will determine whether the injunction will be permanent and whether I-Play will be required to pay damages to Play It. 

It's not clear whether Digital Bridges conducted any searches before rebranding, but it's obviously important to do comprehensive searches before adopting any new mark.  Just ask any intellectual property or video game lawyer the cost of these searches is always less than the cost of defending a lawsuit, paying damages for infringement, re-branding (again) and losing the goodwill in your brand.

Coverage at  http://www.shorl.com/hogruludefyhe  

 

PSP PIRATES “WE'RE SO S-M-R-T SMART!!!”

Pirates recently released unauthorized copies of PSP games onto the Internet. However, the PSP has great copy protection technology there aren't any UMD burners yet, so the pirated games can't be played on the PSP. There's a chance the games could eventually be played from a memory stick, but Sony has taken steps to prevent this.

Coverage at  http://www.shorl.com/dinegryfepreva

NO MORE GRAVY

After nearly three years of court battles, Valve and Sierra have settled their dispute regarding the distribution of Valve's games. Valve claimed that Sierra had been unlawfully distributing Valve's games through cybercafes. Valve also claimed damages from Sierra's parent, Vivendi, for delaying the release of Counter-Strike Condition Zero. 

As a result of the settlement (a) Vivendi will no longer distribute packaged versions of Valve's games, (b) Vivendi will notify former licensees that only Valve is authorized to distribute Valve games through cybercafes, and (c) all former licences granted by Vivendi to cybercafes are now void.

Coverage at  http://www.shorl.com/jefehorijuma

KEEP APRIL 21ST CLEAR ON YOUR CALENDAR

In an earlier posting , we reported that Play-It Ltd. had sought legal advice regarding Digital Bridges' decision to rebrand itself as 'I-Play"? and adopt a logo which is similar to Play-It's logo. 

The result of that advice is a lawsuit (no surprise there) and an application for an interim injunction to stop I-Play from using its new name and logo. That application is scheduled to be heard on April 21.

Coverage at  http://www.shorl.com/dutomidygebu

Finland Or The FBI?

When the law stops working, it's time to create a dummy hash file.

Finnish Company Viralg Oy claims to have engineered digital rights protection software that generates such a file, which can then be inserted into a P2P network to trick downloaders into accepting garbage data instead of the copyrighted content they so greedily desire. As this garbage data spreads across the P2P network, less original content is distributed and more finished downloads are corrupted, making the file sharing process nigh-impossible. Whether Viralg's creation will significantly prevent piracy - or merely cause a short-lived annoyance to the grog-drinking yar-shouting masses - remains to be seen.

Coverage at http://www.shorl.com/garobynufusta and http://www.shorl.com/hytrahodresyla

YOU TOO CAN HIRE THE FBI

They're tough. They're smart. They have cool earpieces and sunglasses. They pack heat. And they can get secret court orders under the USA PATRIOT Act.

No, they're not your friendly neighbourhood video game lawyers. (We wish.) They're the FBI. And they're working for you!!! Or at least some of you.

Games publisherIn The Deepwas ticked-off at publisherTake Two Interactivebecause In The Deep thought Take Two was selling illegal copies of one of In The Deep's games. 

In The Deep didn't have the cash to hire one of those fancy US video game attorneys, so they complained to the FBI instead. 
Coverage at  http://www.shorl.com/feprodrudyrajy

THE PSP HAS BEEN HACKED!

In almost no time, the new PSP has been hacked to allow web browsing additions, IM and TiVo playback abilities (among other things).

Hacks such as these often violate copyright law.  They might also be a breach of contract  some companies specifically prohibit hacking in their End User Licence Agreements. 

But regardless of whether Sony can legally stop the hackers, there's a business decision to be made regarding whether Sony should even try. 

Sony hasn't had much luck cracking down on hackers in the past. For example, it once sued one of its customers for hacking Aibo, the company's robotic dog toy. This strategy backfired when fans started boycotting the product.

The other downside, of course, is that hacking can raise interest in a product and help promote product sales. 

Coverage at  http://www.shorl.com/gomytrejabrigri

BSA BS?

The Business Software Alliance (BSA) has withdrawn its lawsuit against Project Entropia creator MindArk Studios.  The lawsuit alleged that MindArk used unlicensed versions of Microsoft, Adobe, Macromedia and Autodesk software to develop Project Entropia. It turns out the software was licensed afterall. (Oops.)

Predictably, the dispute doesn't end there. MindArk is preparing a countersuit claiming damages caused by the original lawsuit.
Coverage at  http://www.shorl.com/jelitojugajo

HEROS ONE; MARVEL ZERO

Last year, in an article (brilliantly, we think) entitled 'Maybe Modding Isn't So Marvellous"?) we reported that Marvel Comics had sued the publisher and developer of City of Heros. Marvel claimed that the character customization functionality in the game allows players to create superheroes that closely resemble trade-marked Marvel comic characters like "The Incredible Hulk" and the "X-Men".

Marvel's lawsuit recently suffered a major setback more than half of Marvel's claims were dismissed"?including Marvel's claim that the defendants had directly infringed Marvel's registered trade-marks.

On the copyright issue, the judge concluded that the character customization feature has a substantial non-infringing use (for example, making superheros who look like lawyers). This meant that the defendants shouldn't be held liable for contributory copyright infringement.

Coverage at  http://shorl.com/bestebribymeste
And at  http://shorl.com/fytugreprynuvy

YAAR - CONSOLE PIRACY BE ON THE RISE, MATEY

A recent survey by Macrovision, a California-based anti-piracy firm, shows that 21 percent of console gamers use pirated software (mostly from peer to peer networks). Obviously such gamers also use mod chips or modify their consoles without chips to be able to play the pirated games. Macrovision, probably with an eye to future business, warns that game piracy is bound to increase in the future.

The report also claims that three quarters of those who obtain pirated games would have purchased the games had they not been available for free, so it's interesting to wonder the extent to which the pirates also buy legitimate copies of games.

Coverage at http://shorl.com/gebygroludruhu

SONY CRACKS DOWN ON CRACKS DOWN UNDER

Australia's position on mod chips just became more interesting. In 2002, the Australian Competition and Consumer Commission intervened in a case launched by Sony Computer Entertainment Australia against Eddy Stevens, who was supplying mod chips to the Australian market, on the grounds that the PS2's region coding created artificial trade barriers which deprived Australians of their chance to purchase games and DVDs overseas. Unfortunately for Stevens, the ruling was overturned, and he has now filed a further appeal in Australia's High Court.

Sony, who is awaiting the decision of the Stevens appeal before proceeding, claims that recent changes to copyright laws, enacted by Australia to comply with its Free Trade Agreement with the USA, offer a fresh opportunity to bring the pain to Australia's nefarious mod chippers.

 
Coverage at http://shorl.com/bibrityprefroste

NOT NEARLY FRIGHTENED ENOUGH

Peter Jackson, who directed the Lord of the Rings movie trilogy and is currently remaking King Kong, has sued New Line Cinema for a greater share of licensing profits from the LotR movies. One of his specific claims is that New Line did not pay for scripts and song lyrics used in an unspecified Electronic Arts video game.

Although the full details of the claim are not clear, the action highlights a couple of points. First, video games are clearly an important source of potential licensing revenue for content creators, and it is crucial to address them explicitly in licensing transactions. Second, on a related point, video game creators must be very sure that they have the right to use every bit of third-party content included in their games.

Coverage at http://shorl.com/fifregrakohisto

And at  http://shorl.com/gogyfrinedeke

NINTENDO GETS PICKY ABOUT WIKI

Nintendo has warned Webzen (the publisher of MU Online) that some of the characters in Webzen's new online game, Wiki, are similar to those in The Legend of Zelda The Wind Waker.  Nintendo says it will wait until Wiki is finalized before deciding whether to start a lawsuit.  Coverage at http://shorl.com/hastefrejybofi

DUKE NUKEM? NUKED 'EM!

3D Realms has shut down development of an amateur mod for Half-Life 2 which was meant to recreate Duke Nukem 3D. 3D Realms, which developed the classic Duke Nukem 3D, is currently working on that game's sequel. There is clearly a tension between protecting intellectual property and promoting the game. In this case, 3D Realms made the safe bet.

Coverage at http://shorl.com/hepypugrostubro

REVERSE ENGINEERS LIABLE

(This is an archived case summary)

Davidson & Associates v. Internet Gateway, et al
US Court of Appeal for the 8th Circuit (2005) No. 04-3654

The plaintiffs do business as Blizzard Entertainment, and make and sell computer games such as StarCraft and WarCraft. Blizzard launched an online service, Battle.net, that allowed gamers to play with each other over the Internet. Blizzard has valid copyrights on all of its games.

Blizzard took steps to avoid piracy by creating various safeguards in its software. For example, when a user connects with the Battle.net server, the server performs a "secret handshake" with the game to verify if the game is an authorized version. Furthermore, in order to play a Blizzard game users must install the game and agree to comply with the End User Licence Agreement and Terms of Use (both of which prohibit reverse engineering).

The defendants created a similar server to Battle.net and reverse engineered the Blizzard software to allow users to play both real and pirated versions of the Blizzard games online. The most significant difference was that the defendants' server read every code as an "ok" when performing the "secret handshake" and allowed users to log on regardless of the status of their software.

The Court of Appeal upheld the District Court's finding of copyright infringement, circumvention of copyright protection systems, trade-mark infringement and breach of the user agreements.

REVERSE ENGINEERING BREWS UP A STORM ON BATTLE.NET

Blizzard Entertainment recently won its lawsuit against Internet Gateway Inc. and various individuals who reverse engineered Blizzard's software and protocols to create the bnetd project, a free and unregulated alternative to Blizzard's Battle.net arena. The court ruled that the defendants' activities violated US copyright law and also violated Blizzard's software licences and online terms of use.  

Other software publishers should take note that the court was impressed by the following (a) Blizzard's licence agreement explicitly prohibited reverse engineering, (b) the software boxes and packaging stated that the customers' use of the software and Battle.net were subject to a licence agreement and terms of use; (c) the pop-up licence agreement and terms of use gave users explicit notice that their use of the software and Battle.net was governed by the agreement and that the users could return the software for a full refund if they didn't agree to the terms; (d) users would not be able to use the game if they did not consent to the agreement and the terms by clicking "I Agree".

Coverage at http://shorl.com/dujenanurata

321 COMES TO NAUGHT

321 Studios Inc., whose Games X Copy software allowed users to make backup copies of copy-protected PC games, has agreed never to make or sell software that lets users create copies of computer games. This is part of its settlement with three video game powerhouses (Atari Inc., Electronic Arts Inc. and Vivendi Universal Games Inc.) who sued 321 for copyright infringement. 321 had already been sued by various Hollywood studios over its DVD-copying software; that lawsuit came to a similar conclusion. 321 went out of business in August, due in large part to these lawsuits and various court orders which went against it.

Coverage at http://www.shorl.com/gaherebotrake

MOD SQUAD CRACKDOWN

Three DC-area video game stores were raided recently, resulting in the seizure of equipment and the arrest of two employees. The charge modifying Xbox consoles so that they could play pirated copies of video games. Some of the modified consoles on display already held 15 or more games on their hard drives. The employees were charged with conspiracy to commit copyright infringement and conspiracy to traffic in a device that circumvents technological protection measures. This is a reminder that copyright infringement is a criminal offence, and that game makers can look to criminal proceedings as well as civil actions to protect their copyright.

Coverage at http://shorl.com/henumamudrory

Coverage at http://shorl.com/bujogrurygryfe

BANNED FOR HALF-LIFE

Half-Life 2 maker Valve has hit back at players who obtained pirated copies of its popular new game. To be able to play, players must set up an account on Steam, Valve's online gaming community. Steam then verifies whether the player's game is legitimate or pirated. Valve has now shut down close to 20,000 Steam accounts on the grounds that the account holders obtained the game illegally. Valve maintains that this system makes it easy to trace and confirm which accounts use pirated copies, but some banned users claim they are innocent. Clearly there are some wrinkles to be ironed out, but Valve's approach may be a significant new development in copyright protection for video games.

Coverage at http://shorl.com/gesavakymutra

MICROSOFT TARGETS MODDERS

Microsoft has begun checking its Xbox Live users' consoles for mods, refusing to let modified consoles participate in online games. Microsoft says the purpose of this new policy is to reduce cheating on Xbox Live.

Coverage at  http://shorl.com/fystestofradruka

 

MAYBE MODDING ISN'T SO MARVELLOUS

Marvel Enterprises Inc. sued NcSoft Corp. and Cryptic Studios Inc. in regard to their massively multiplayer game "City of Heroes". Marvel claims that the character customization functionality in the game allows players to create superheroes that closely resemble trade-marked Marvel comic characters like "The Incredible Hulk" and the "X-Men". Marvel argues that the defendants are liable for their customers' actions because the games are played on the defendants' servers

. 

This is uncharted territory and it raises the larger question of the extent to which a publisher, developer or gamer could be liable for creating modding tools. One of the major difficulties in pursuing such a lawsuit is that mod tools can be used for non-infringing purposes. Accordingly, there is an argument that mod tool makers should be no more liable for damages than the makers of "Photoshop" or the manufacturers of computers. After all, when it comes to liability for enabling infringement, courts have held that people infringe copyrights, and that machines or software tools generally do not. 

Coverage at http://shorl.com/higanafofofe

BREATHE IN AND SUE

Screenwriter Roger Avary has sued Microsoft Corp. and games publisher ResponDesign Inc. for $30 million plus punitive damages. Avary claims that the yoga game "Yourself! Fitness", recently released for the Xbox by Microsoft and ResponDesign, is based on information and ideas he gave to Microsoft when he pitched a detailed concept for a yoga-based video game.

Coverage at http://shorl.com/gyhamogirobe

PIRATES OF THE PLAYSTATION WALK THE PLANK

(This is an archived case summary)

Sony manufactured and sold PlayStation games on CD-ROMs for which it owned the copyright. To protect its copyright, Sony imbedded an "access code" on each CD-ROM that worked in concert with a "boot ROM chip" in each PlayStation console. The boot ROM chip would only allow CD-ROMs with valid access codes to run on the PlayStation console and the access code on each CD-ROM could not be copied by conventional copying devices.

Mr. Ball thwarted this system by creating a "Messiah 2" chip that would allow pirated PlayStation CD-ROMs without valid access codes to be played on a modified PlayStation console. Sony sued Ball under the U.K. Copyright Act, which provides a right of action against a person who manufactures, imports, distributes, offers for sale, advertises or possesses for commercial purposes devices for the purpose of circumventing technological protection measures that have been applied to a copyright work.

The court found that Sony's protection measures was a "copyright protection" means under the Act and that the Messiah 2 chip results in an infringing copy of Sony's works by allowing portions of the CD-ROMs to be loaded into RAM memory. The court held that the temporary or "ephemeral" nature of the portions of Sony's work that were loaded into RAM qualified as an infringing copy under the Act. The court found that Ball had breached the Act by distributing, offering for sale, advertising and holding in possession for commercial purposes a copyright circumventing device.

Kabushiki Kaisha Sony Computer Entertainment v. Ball
[2004] EWHC 1738 (Ch.)

DVD COPYING VS. FREE SPEECH

(This is an archived case summary.)

321 Studios is the maker of “DVD Copy Plus”, a product that makes backup personal copies of movies on DVD. A U.S. federal court in California ruled in February 2004 that this product violates the Digital Millennium Copyright Act (the DMCA). DVD Copy Plus bypasses the “Contents Scramble System” (CSS) that manufacturers insert on DVDs. The DMCA is a controversial Act that bans such circumvention tools. 321 Studios argued that banning the product violated the consumers' rights to free expression to make backup copies of DVDs they had purchased.

Judge Ilston wrote that making backup copies for personal use is not illegal; in fact it is a legitimate “fair use” of a work that the consumer already owns. The right to personal use is protected under the First Amendment (free expression), but even though the DMCA radically restricts the legitimate use, the Act does not unconstitutionally restrict 321's speech.

The Judge pointed out that ”if 321 removed the part of its software that bypasses CSS and marketed only the DVD copying portion, it could freely market its product to customers who use the software to copy non-CSS encrypted DVDs and other public domain material.”

The judge ordered an injunction against 321 Studios, prohibiting them from manufacturing, distributing, or otherwise trafficking in any DVD circumvention software.

321 Studios v. Metro Goldwyn Mayer et al
February 19, 2004 US Dist. Ct., ND Cal.
307 F. Supp. 2d 1085
KEYWORDS: DVD copying - freedom of speech - DMCA - fair use
SUMMARY BY: Chris Bennet
The case is available here http://www.shorl.com/gafevubibridri

MODDING PREVENTED DOWN UNDER

(This is an archived case summary)

Sony manufactured and sold PlayStation games on CD-ROMs for which it owned the copyright. To protect its copyright, Sony imbedded an "access code" on each CD-ROM that worked in concert with a "boot ROM chip" in each PlayStation console. The boot ROM chip would only allow CD-ROMs with valid access codes to run on the PlayStation console, and the access code on each CD-ROM could not be copied by conventional copying devices.

Mr. Stevens created a "mod chip" that would allow pirated PlayStation CD-ROMs without valid access codes to be played on a modified PlayStation console. Sony sued Stevens under s. 116A of the Australian Copyright Act, which provides a right of action against persons supplying devices to circumvent technological protection measures designed to protect or inhibit copyright infringement.

The trial judge found that Sony's protection measures did not constitute a "technological protection measure" under the Act, as it did not prevent or inhibit subsequent copyright infringement of the CD-ROMs. Rather, it merely discouraged copyright infringement by making pirated CD-ROMS unusable on PlayStation consoles.

The majority of the Court of Appeal disagreed with such a narrow construction and held that preventing infringement by rendering the sale or copy of the CD-ROMs "impracticable or impossible by anticipatory action" was sufficient to constitute a "technological protection measure" under the Act.

Citation is
Kabushiki Kaisha Sony Computer Entertainmentv.Stevens,
2003 FCA 157; 57 I.P.R. 161 (Fed. Court of Australia)

Summary by Chris Metcalfe

BUILD EDITORS AND DERIVATIVE RIGHTS

(This is an archived case summary.)

Duke Nukem 3-D (DN 3-D) was shipped with a Build Editor which allowed fans to create their own levels for DN 3-D. Players were encouraged to build their own levels and to share them with other players. These levels were saved as .MAP files which, with references to the art databases of DN 3-D, allowed the recreation of user created levels with the use of any copy of DN 3-D. The DN 3-D licence agreement however, specifically forbade users from selling the levels they created. Micro Star downloaded over 300 levels from sites across the internet and marketed these levels as a CD entitled “Nuke It”. “Nuke It” was packaged in a box containing screen shots of the new levels.

The owner of the rights to Duke Nukem 3-D, FormGen, brought an action alleging Micro Star was infringing the copyright on those rights by selling derivate works. This argument was based on the fact that the MAP files ran only in conjunction with the DN 3-D engine and all of the audio/visuals were extracted from the DN 3-D art databases. FormGen also sought a preliminary injunction to block the use of the screen shots on the “Nuke It” packaging. The district court rejected the claim for copyright infringement ruling that the levels were not derivative works. It did however grant a preliminary injunction barring Micro Star from using the screenshots and dismissing the fair use defence that Micro Star raised.

Both parties appealed this decision. FormGen appealed the ruling that MAP files were not derivative works. Micro Star argued that the audio/visuals were not incorporated into a “concrete” form and therefore could not be derivative works. The court sided with FormGen and dismissed Micro Star's arguments. The MAP files were incorporated into a concrete form when they were burned on to the “Nuke It” CD.
The court also held that the files were obviously similar to DN 3-D since they were entirely generated by the DN 3-D engine and databases. Given its “concrete form” and similarity, the MAP files were held to be derivative works. Having found that the MAP files were derivative works, the court granted an injunction barring the production and distribution of “Nuke It”. Of the four factors considered, the determining factor appears to have been the fact that “Nuke It” impacted the potential market for DN 3-D sequels thereby reducing FormGen's ability to capitalize on derivate works of its own.

The court also upheld the district courts finding that use of screen shots from DN 3-D to market a product that competes directly with DN 3-D was not acceptable as a “fair use” of copyrighted material.

Micro Star v. FormGen, Inc.
1998, US Ct. of Appeals, 9th Cir.
154 F. 3d 1107
Keywords: copyright - derivative works - Duke Nukem 3-D - player-created content
Summary by: Adam Nott

Copyright Infringement Established By Showing Creators Of Substantially Similar Work Had Direct Access To The Original

(this is an archived case summary.)

In this 1997 Pennsylvania case, the plaintiff, who had created an unpublished manuscript called “Awesome Possum,” brought a copyright infringement action against Time Warner Interactive, Inc., Atari Games Corp. and Sega of America Inc., for the video game and accompanying comic book, “Awesome Possum Kicks Dr. Machino's Butt.” The defendants claimed their products were independently created, and that there was no evidence they had had access to the plaintiff's manuscript, and made an application asking for summary judgment in their favor.

The court held that a plaintiff can demonstrate a defendant has had access to its work in one of three ways, by showing
1. The defendant had direct access to the plaintiff's work;
2. The defendant had access to the plaintiff's work through a third party; or
3. There are such striking similarities between the works that there is “no reasonable way that the defendant could have arrived at the end product without copying the plaintiff's work.

The defendants gave strong evidence that they had been creating an “Awesome Possum” game prior to the plaintiff beginning his work, so there was no claim available against the video game for copyright infringement. The plaintiff argued that the defendants had copied his manuscript in their comic book, which was included in the video game's instruction manual. The narrow issue left to resolve was whether there was sufficient evidence to support a claim that the defendants had copied the plaintiff's story in their comic book. This could be established by demonstrating that the defendant had had access to the plaintiff's material and that the work was substantially similar to the plaintiffs'.

Although the plaintiff argued that the defendants could have received copies of his manuscript from the U.S. Copyright Office or Library of Congress, the court found that the plaintiff had to show that this access was reasonably possible. It could not be the product of speculation or conjecture. There was absolutely no evidence the defendants had direct access to the plaintiff's work. A comparison of the plaintiff and defendant's works showed that there were no similarities so substantial that a juror could reasonably infer that the defendants had copied the plaintiff's work.

Roginski v. Time Warner Interactive, Inc.
1997, US Dist. Ct., MD Penn.
967 F. Supp. 821
Keyword: copyright - Awesome Possum - access to work
Summary by: Arsen Krekovic

MODELS FOR MORTAL KOMBAT

(This is an archived case summary.)

Three individuals modelled for Midway, which designs, manufactures, and sells video games including “Mortal Kombat” and “Mortal Kombat II”. The individuals brought an action against Midway, Nintendo, Sega and others for using their names, images and likenesses in an unauthorized way. The individuals had all signed releases, but claimed that they signed because they were told they would receive great benefits. Also, they thought they were modelling only for the coin-operated video game, not the subsequent home video, home computer, and hand-held versions of the game.

The plaintiffs lost on all counts because they had all consented to the videotaping and because the choreography and choice of movements used in the game were not jointly “authored” by the individuals.

Ahn v. Midway Mfg Co., et al.
May 28, 1997
US Dist. Ct., ND Ill
965 F. Supp. 1134
Keywords: copyright - Mortal Kombat - modelling - joint authorship
Summary by: Chris Bennett

VIDEO GAME MAPS DENIED COPYRIGHT PROTECTION

(This is an archived case summary.)

Nintendo alleged that Prima Communications had infringed its copyright in the "GoldenEye 007" video game by publishing the "GoldenEye 007 Unauthorized Game Secrets" strategy guide book. Nintendo alleged that the maps used in the guide book violated Nintendo's copyright and thus that Nintendo was justified in requesting a preliminary injunction to enjoin Prima from the use or sale of the guide book. The court denied the motion, holding that the maps contained a majority of factual data and that they constituted only a small portion of Nintendo's registered copyright in the video game. The court held that it was likely that the copyright infringement could be found de minimus and, as such, the preliminary injunction did not meet the required standard of demonstrating a likelihood of success on the merits.

Nintendo of America Inc. v. Prima Communications Inc.,
1997, US Dist. Ct., WD, Wash.
1997 U.S. Dist. LEXIS 21120
Keywords: copyright - injunction
Summary by Chris Metcalfe

Sega Sues BBS Over Illegal Downloads

(this is an archived case summary)

MAPHIA was a San Francisco-based BBS provider whose users had been uploading and downloading Sega video games without authorization. SEGA was able to prove that the System Operator of MAPHIA had knowledge of this practice, and in fact had encouraged it among the users of the BBS. The BBS provided downloading privileges to users for Sega games in exchange for either the uploading of Sega Games or other software to the BBS, payment, or both. The Sega trademark also appeared frequently in connection with the activities of, and marketing by, MAPHIA.

In December 1993, a judge issued a temporary Restraining Order and Seizure Order, which resulted in the confiscation of the MAPHIA server. Evidence to support the Plaintiff’s motion was subsequently discovered on the MAPHIA hardware. The court found that the test for copyright infringement was met. Sega’s certificates of registration established a prima facie valid copyright in all the registered games, and Sega could easily prove that the copying was unauthorized. The court held that the unauthorized copying took place both when the games were uploaded to the BBS, and when users downloaded them onto their personal computers.

However, the court relied on an earlier decision, Religious Technology Center v. Netcom On-line Communication Services, Inc. 907 F. Supp. 1361, 1368-70 (N.D. Cal. 1995), which held that "[a]lthough copyright is a strict liability statute, there should be some element of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party.". The court found that although the Defendant’s actions were more participatory than those of the defendants in Netcom, and although Sega had shown that the Defendant knew infringing activity was occurring, those facts had no bearing on whether the Defendant directly caused the copying to occur. The court held that the Defendant’s actions were more appropriately analyzed under contributory or vicarious liability theories. Such liability is established where the Defendant, "with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another."

The 9th Circuit court in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261 (9th Cir. 1996) held that "providing the site and facilities for known infringing activity is sufficient to establish contributory liability." The MAPHIA court relied on this authority and held the Defendant liable for contributory infringement. It found MAPHIA liable for providing the facilities for copying the games by providing, monitoring, and operating the BBS software, hardware, and phone lines necessary for the users to upload and download games. The court held that even under an alternative and higher standard of "substantial participation," the Defendant was liable.

The court found that Sega was entitled to damages and injunctive relief.

Sega Enterprises Ltd. and Sega of America, Inc. v. MAPHIA
December 18, 1996
US District Court, ND California
948 F. Supp. 923
Keywords: BBS - copyright - direct and contributory infringement
Summary by: Michael Mjanes

NINTENDO SPANKS ANOTHER PIRATE

(This is an archived case summary)

The Court of Appeal affirmed the District Court's decision enjoining Brown from selling video game cartridges that infringed copyrights and trade-marks owned by Nintendo. The games sold by Brown were virtually identical to games protected by Nintendo's intellectual property rights. The only difference, in fact, was that the knock-offs did not have the Nintendo copyright symbol on the cartridge.

Nintendo of America v. Brown
1996, US Ct. of Appeals, 9th Ct.
94 F. 3d 652
Keywords: copyright - trademarks
Summary by Chris Metcalfe

SUPERUFO SHOT DOWN

(This is an archived case summary.)

C&E Inc. produced the SuperUFO, a device which plugs into Nintendo game consoles and allows the user to format disks, copy games and play copied games. Nintendo brought an application for a preliminary injunction barring C&E from producing or distributing the SuperUFO.

Upon a review of the application, the court held that there were substantially no non-infringing uses for a game-copying device such as the SuperUFO. The non-infringing uses could easily be performed on a personal computer and at a price of $420 it was not foreseeable that anyone would purchase the SuperUFO to perform these basic functions. It was also held that copying a game from a cartridge to a disc created a derivative work, a right that was specifically reserved to Nintendo. For this reason it was held that Nintendo's copyright claims were likely to succeed and a preliminary injunction was granted.

Nintendo of America, Inc. v. Computer & Entertainment Inc.
1996, US Dist. Ct., D. Wash..
US Dist. LEXIS 20975
Keywords: SuperUFO - copyright - derivative work - injunction
Summary by: Adam Nott

INTERACTIVE TACKLES NTN

(This is an archived case summary)

NTN developed an interactive game played in conjunction with televised football called "QB1", which it licensed to Interactive to sell together with an instruction manual produced by Interactive. Several years later, Interactive developed its own interactive football game called "IN The Huddle". Interactive filed for a declaratory judgement that "IN The Huddle" did not infringe NTN's intellectual property rights in QB1. NTN counterclaimed for copyright and trade-dress infringement as well as unfair competition. The suit proceeded by way of summary judgment.

On the issue of copyright infringement, the court broke the games down into a variety of component parts.  The court found that play-prediction was an essential aspect of an interactive football game, and therefore found that Interactive had not infringed NTN's copyright in the play-prediction element of the game, because that was not a "protectable expression" in the first place. With respect to other elements of QB1, such as "clutch picks" and "consecutive bonuses", the court held that these were not essential elements of the work.  The court therefore denied Interactive's summary judgement motion.

The court also held that NTN's scoring system was a protectable expression.  However, NTN failed to provide sufficient evidence with respect to the data feed structure and various animation screens, and as such, summary judgement of non-infringement was awarded to Interactive. 

On the issue of trade-dress infringement, the court stated that protection of trade-dress is only available where the features of the product are non-functional. Functional features are those that provide a benefit to the consumer, as opposed to being a reference to the source of the product. The court held that the majority of the features of QB1 were purely functional and were thus not protected. In addition, the court held that NTN did not hold trade-dress rights in the instruction manual for the game because Interactive was the author of the manual.

Finally, the court could not make a determination on the issue of unfair competition because a genuine issue of fact existed which was not appropriate for summary judgment.

Interactive Network v. NTN Communications
1995, US Dist. Ct., ND Cal.
875 F. Supp. 1398
Kewords: trademarks - copyright -
Summary by Chris Metcalfe

DAMAGE AWARD AGAINST ABSENT DEFENDANTS UPHELD

(This is an archived case summary.)

The defendants, NTDEC and Megasoff Inc., appealed a default judgment issued by the District Court to Nintendo on the basis of copyright and trade-mark infringement. The defendant corporations were owned by five men from Taiwan. These corporations manufactured, imported and sold pirated Nintendo games in the United States, South America and Asia. After numerous attempts to gain access to various documents through the discovery process, the Court gave the defendants one last chance to cooperate, then issued default judgment. The defendants did not attend the default judgment. The default judgment awarded Nintendo $24M in damages and a little under $110,000 in attorneys' fees.

On appeal, the defendants raised various grounds of appeal, as well as various reasons why damage award should be lowered. The defendants also attempted to raise technical issues regarding the method in which documents were served upon them, including the incorrect placement of signatures. The Court determined that the defendants' failure to attend any of the hearings and argue on their own behalf was solely attributable to their own behaviour and was not a flaw in the service of documents.

With respect to the damage award, the defendants raised an argument based upon Title 15, section 1117 of the U.S. Code, which states that defendants must prove all elements of a cost or deduction claimed in regard to a trade-mark infringement award. Damages awarded for copyright infringement were statutory damages of up to $100,000 per infringement. The defendants argued that their inability to raise a defence restricted them from being able to demonstrate the costs involved in manufacturing these infringing products and thus that the damage award was inflated.

The Court of Appeal held that there were no grounds upon which to set aside the default judgment, nor were there any compelling reasons to alter the damage award. There is no record of whether Nintendo was able to collect the award.

Nintendo of America, Inc. v. NTDEC
1995, US Ct. of Appeals, 9th Cir.
51 F. 3d 281
Keywords: copyright - trademark - default judgment - piracy
Summary By: Byron Yep

Street Fighter II Vs. Fighter's History

(This is an archived case summary.)

In 1994, Capcom sought a preliminary injunction to prevent Data East from producing, marketing or selling “Fighter's History” anywhere in the world, alleging that the game infringed Capcom's copyright in “Street Fighter II”.

Capcom alleged that Data East copied the distinctive fighting styles, appearances, special moves and combination attacks of many of “Street Fighter II”'s characters, as well as the control sequences to execute those moves. Data East argued in response that there was nothing unique about the Street Fighter II game, and to the extent that there were similarities between the two games, they resulted from the use of the same format, and drew upon the same public domain of stereotyped characters. Data East argued that Capcom's real goal was to insulate itself from competition in the lucrative video game industry.

The Court applied the legal test for establishing copyright infringement, namely that Capcom had a copyright in “Street Fighter II”, and that Data East had copied that work without authorization. The Court held that Capcom had proven the first element of the test.

To satisfy the second element of the test, the Court held that Capcom had to demonstrate either direct copying, or circumstantial evidence of copying. Circumstantial evidence of copying is demonstrated by showing first that a person had access to the copyrighted work and, second, that there was substantial similarity between the copyrighted work and the offending work. The Court found that Data East had access to Street Fighter II and that Data East's development team deliberately sought to emulate the overall style of Street Fighter II in hopes of capturing its success. The Court then turned to the question of whether there was substantial similarities, both objective and subjective, between the games.

Capcom argued that there were similarities between the characters, special moves and combination attacks, control sequences and general game play that infringed its copyright. With respect to the control sequences the court stated that under the law any intrinsic utilitarian function is ineligible for copyright protection, except to the extent that its artistic features can be identified separately and are capable of existing as a work of art. While the Court stated that it was “concerned” by some of the similarities in the control sequences, it found that they were not protectable expression. Furthermore, the general game play was not found to be so similar as to violate Capcom's copyright.

The Court did, however, find that three characters and five special moves in “Fighter's History” were objectively similar to characters and special moves in “Street Fighter II”. It then proceeded to consider whether these characters and moves were subjectively similar. The Court stated that the standard to be applied was whether the similar elements were virtually identical, as they covered only a narrow range of the total moves and characters available in the Street Fighter II game.

Using this standard, the Court decided that Data East had not copied the core, protectable expression of “Street Fighter II”. The court concluded that while three of the characters in “Fighter's History” were similar to three in “Street Fighter II” they were not so similar as to be virtually identical. Similarly, two special moves were found to be not virtually identical.

The Court ultimately ruled that Capcom had failed to demonstrate a likelihood of success on the merits or even serious questions concerning the merits. The Court noted that large portions of Street Fighter II were based on stereotypical characters and fighting techniques which were part of the public domain and hence not copyrightable.

Capcom USA, Inc. v. Data East Corp.
March 18, 1994
US Dist. Ct., ND Cal.
1994 WL 1751482
Keywords: injunction - copyright infringement - Street Fighter
SUMMARY BY: Chris Bennett

JUST THE FACTS PLEASE

(This is an archived case summary)

Midway owned the copyright and related trade-marks for the video game “Mortal Kombat". PIL published a book entitled “Strategies for Mortal Kombat" which displayed screen shots from the game and instructed readers about fighting moves that could be used in the game. Midway alleged that PIL's book infringed its copyright and trade-marks. The action proceeded by way of summary judgment.

On the issue of copyright infringement, the court could not make a determination. The critical issue as to whether a substantial portion of Midway's copyrighted material was used in PIL's book was a factual issue not appropriate for summary judgment.
Similarly, the court could not decide the issue of infringement of the “Mortal Kombat" mark. The essential issue of the likelihood of consumer confusion was a factual issue and therefore also not appropriate for summary judgment. However, on the issue of trade-mark infringement of 'Midway", the court held that infringement had not occurred since the only use of the mark by PIL was in reference to Midway being the licensor of the game.

Midway Manufacturing Co. v. Publications International Ltd.
1994 US Dist. Ct., ND Ill.
1994 US Dist LEXIS 6264
Keywords: copyright - trademark
SUMMARY BY: Chris Metcalfe

Multi-game Cartridges = Double Damages

(This is an archived case summary.)

Dragon Pacific International was a Taiwanese business which produced and distributed multi-game cartridges for the Nintendo game console. The games stored on the cartridges included both original works and copies of Nintendo games. Nintendo was successful in acquiring two default judgments against Sheng, the sole proprietor of Dragon Pacific, for infringement of a number of Nintendo's copyrights. It received damages for violations of both the US Copyright Act and the Lanham Act (i.e., US trade-mark law). Sheng appealed the judgments on the grounds that this damage award amounted to double recovery for one violation.

The court was clear that damages arose under both acts and since there was a violation of both acts the damage award was appropriate. The lower court's decision was upheld.

Nintendo of America, Inc. v. Dragon Pacific International
1994, US Ct. of Appeal, 9th Cir.
40 F. 3d 1007
Keywords: damages - copyright - trademark
SUMMARY BY: Adam Nott

GAME GENIE INJUNCTION DENIED

(This is an archived case summary)

Nintendo appealed a District Court ruling that the Game Genie does not violate any Nintendo copyrights. The Game Genie is a device that is placed between the game and the Nintendo game console that allows a user to input codes to change game characteristics such as character strength, lives and speed. The Game Genie functions by changing the value of a single byte of data that is sent out by the game cartridge.

The Court of Appeal upheld the District Court's finding and denied Nintendo an injunction. The Court held that the way the Game Genie operated did not constitute or create a “derivative work' under the Copyright Act. The District Court held, "[h]aving paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work." The court also held that even if the Game Genie produced derivative works, such works would not be infringing under the doctrine of fair use.

The judge also noted that “while board games may never die, good video games are mortal” in reply to Nintendo's assertion that it may re-release some games. The judge stated that this assertion was not supported by claims Nintendo had made in other anti-trust cases where it argued that the video game industry is fast paced and unstable.

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.
May 21, 1992
US Ct. of Appeal, 9th Cir. 964 F. 2d 965
Keywords: Game Genie - copyright infringement - injunction - modification of games
Summar by: Byron Yep

HARMLESS GAME GENIE

(This is an archived case summary.)

Nintendo applied for a preliminary injunction prohibiting the sale of Game Genies in Canada. Nintendo argued that Camerica was depreciating the goodwill of Nintendo trademarks by selling the Game Genie. This device allows players to insert codes prior to playing games on the Nintendo system, the effect of which is a change in the playability of the game. These changes increased or decreased the difficulty of the game by modifying a variety of the elements in Nintendo's games. This change was only temporary, and the code had to be entered each time the game was restarted.

Upon review of the application it was found that although there was a serious issue to be tried, Nintendo failed to show that it would be harmed irreparably if an injunction was not granted. It was noted that the Game Genie and Nintendo did not compete with each other, and in fact the Game Genie was of no use without a video game with which the device could interact. The Court held that the balance of irreparable harm was in favour of the Defendant.

The court dismissed the application for an injunction. This decision was upheld on appeal by the Federal Court of Appeal ((1991) 36 C.P.R. (3d) 352).

Nintendo of America, Inc. v. Camerica Corp.
January 28, 1991, Fed. Ct. of Canada (Trial Div.)
34 CPR (3d) 193
Keywords: injunction - Game Genie - goodwill - trademark
SUMMARY BY: Adam Nott.

DSI Outruns Accolade

(This is an archived case summary)

Accolade and the defendants entered into a licence agreement under which the defendants were to develop the video game "The Duel -- Test Drive II". The licence stated that Accolade was to own the copyright and the rights to publish and distribute the game. The defendants subsequently developed the video game "Outrun" for Sega. Accolade alleged that the defendants violated its copyright by using computer code from "The Duel" in "Outrun".

The District Court interpreted the licence agreement and held that Accolade owned the copyright in the concept and design of the game but not in the underlying source code. The court found that the games were not substantially similar and that only routine library commands were duplicated between the games. On balance, the court held that the defendants had not violated Accolade's copyright in the game.

Accolade, Inc. v. Distinctive Software, Inc.
1990, US. Dist. Ct., ND Cal.
1990 US Dist. LEXIS 14305
KEYWORDS: licence - copyright
SUMMARY BY: Chris Metcalfe

MONKEY BUSINESS

(This is an archived case summary)

This was an appeal from a judgment of the United States District Court for the Southern District of New York in favour of counterclaims brought by the defendants, Nintendo Co., Ltd. and Nintendo of America, Inc. (Nintendo), against plaintiff Universal City Studios, Inc. (Universal).

This case represents the last round of dispute between Universal and Nintendo over whether Nintendo had infringed Universal's “King Kong” trade-mark by marketing its popular video game ”Donkey Kong”. The District Court, in 1983, on motions for summary judgment, dismissed Universal's complaint of trade-mark infringement and unfair competition against Nintendo (Universal City Studios v. Nintendo Co., 578 F.Supp. 911 (S.D.N.Y.1983)). The Court of Appeals later affirmed that judgment in Universal Studios v. Nintendo Co., 746 F.2d 112 (2d Cir.1984).

The District Court then proceeded to try Nintendo's counterclaims against Universal. On July 29, 1985, the District Court ruled for Nintendo on part of its tortious interference counterclaim; for Nintendo on its vicarious copyright infringement counterclaim; and against Nintendo on its unjust enrichment counterclaim (Universal City Studios v. Nintendo Co., 615 F.Supp. 838 (S.D.N.Y.1985)). The court also awarded Nintendo punitive damages for tortious interference, attorney's fees for successfully defending against Universal's trade-mark infringement claim, and attorney's fees for successfully prosecuting its vicarious copyright infringement counterclaim. Both parties then appealed on each of the claims it lost.

In this appeal, the Court of Appeal upheld the lower court’s ruling that (1) Universal tortiously interfered with contractual relations by sending “cease and desist” letters to Nintendo's “Donkey Kong” licensees; (2) an award of attorney's fees was proper; (3) the award of punitive damages on tortious interference counterclaim was appropriate; (4) Universal had vicariously infringed “Donkey Kong” copyright by licensing a competing King Kong game; and (5) the “Donkey Kong” copyright holder was not entitled to damages for alleged tortious interference with license agreements.

Tortious Interference with Contractual Relations
Universal did not have a good-faith basis for sending “cease and desist” letters to Nintendo's “Donkey Kong” licensees alleging infringement of Universal's trade-mark rights. The Court found that Nintendo was entitled to damages for tortious interference with contractual relations because, in a suit against the maker of the original King Kong movie, Universal had successfully argued that the name ”King Kong” was in the public domain.

Punitive Damages for Tortious Interference
The Court also held that punitive damages were appropriate for Nintendo's tortious interference counterclaim. Universal had tried to enforce trade-mark rights that the studio knew it did not have. Moreover, Universal did not stop at asserting its rights against Nintendo, but embarked on a deliberate and systematic campaign to coerce third-party licensees to either stop marketing “Donkey Kong” products or to pay royalties to Universal. The Court held that Universal had engaged in conduct which amounted to abuse of judicial process by arguing in prior litigation that ”King Kong” was part of public domain, and then asserting against Nintendo that ”King Kong” was not part of public domain, and that Universal possessed rights in that mark.

Vicarious Infringement
The District Court found that Universal had vicariously infringed Nintendo's copyright in “Donkey Kong” by licensing the competing King Kong game. The Court found that Universal knowingly contributed to this infringement, and awarded Nintendo the profits Universal accrued on the Tiger licence.

On appeal, Universal argued that the District Court erred by failing to specify which part of Nintendo's arcade game represented protectable expression as distinguished from the underlying and unprotectable idea. Universal also argued that the characters involved in “Donkey Kong” are not protectable because they are not “wholly fanciful.”
The Court of Appeal agreed with the court below and recognised that though the game characters themselves were not protectable, the “interaction” of the characters, obstacles, background and music were “arbitrary, fanciful, and sufficiently distinctive such that they deserve protection.”

An overview of this series of cases is available at GameSpy.com’s Universal Goes Ape The 25 Dumbest Moments in Gaming.”

Universal City Studios, Inc. v. Nintendo Company Ltd. and Nintendo of America, Inc.
1986, US Ct of Appeals, 2nd Cir.
797 F.2d 70
KEYWORDS: trademark infringement unjust enrichment - contributory copyright infringement - contractual interference - Nintendo - King Kong - counterclaim - appeal
SUMMARY BY: Arsen Krekovic

Battle Of The Apes

(This is an archived case summary)

This case involved two gorillas, King Kong and Donkey Kong, and the rights of their respective owners, plaintiff Universal City Studios, Inc. (“Universal”), and defendants Nintendo Co. Ltd. and Nintendo of America, Inc. (collectively, “Nintendo”). Universal initially claimed certain rights in the name and image “King Kong” and brought an action against Nintendo for its “Donkey Kong” video arcade game. In an earlier decision on cross motions for summary judgment, the Court dismissed Universal's claims of copyright infringement. The summary judgment was upheld on appeal (See Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112 (2d Cir.1984).
With the copyright issue resolved in favour of Nintendo, the parties continued on with Nintendo's unresolved counterclaims for unjust enrichment, contributory copyright infringement, and tortious interference with contract. The District Court held that (1) Nintendo had no cause of action for unjust enrichment under state law; (2) Universal was liable for vicarious copyright infringement in licensing games substantially similar to Nintendo's games; (3) Universal tortiously interfered with license agreements between Nintendo and its licensees; (4) Universal was liable for punitive damages; and (5) Nintendo was entitled to attorney fees.

Background
In 1981, Nintendo started selling its “Donkey Kong” electronic arcade game. In November 1981, Nintendo licensed American toy company Coleco Industries, Inc. (“Coleco”) to produce a “Donkey Kong” videogame cartridge for its home video system, Coleco-Vision. The formal licence from Nintendo was signed on February 1, 1982. In the fall of 1981, Tiger Electronic Toys, Inc. (“Tiger”), another American toy company sought and received a licence from Universal to use the name “King Kong” in connection with its own electronic game.

By April of 1982 Universal was considering a relationship with Coleco, either by way of an investment or a joint venture. Aware of Coleco's intent to produce a home video cartridge version of “Donkey Kong” under license from Nintendo, Universal asserted its rights against Coleco. Coleco, on the threshold of entering the market place with its fully developed “Donkey Kong” game, capitulated to Universal's demands and entered into an agreement to pay to Universal 3% of its gross revenues from the sale of “Donkey Kong” cartridges in exchange for Universal's covenant not to sue.

Nintendo declined to make any concessions to Universal in various meetings between the two companies. Universal commenced the action on June 6, 1982, and, after doing so, convinced two other Nintendo licensees to enter into Coleco-like agreements.

Universal also sent “cease and desist” letters to Nintendo's licensees stating that Universal was “the owner of the trademark and trade name rights in the name “King Kong”, the gorilla character “King Kong” and certain pictorial and graphic depictions of the character “King Kong” made famous by several motion pictures.” Universal demanded that the licensees either desist from marketing “Donkey Kong” products or obtain a licence from Universal authorizing the use of the name “King Kong” and variations of the name, including “Donkey Kong”. As a consequence of these letters, Nintendo lost $94,219.41 in guaranteed royalties under various license agreements.

Despite Universal's repeated allegations of “irreparable injury” resulting from alleged trademark violations by Nintendo's licensees, Universal began to secure agreements from Nintendo's licensees whereby Universal became a partner in the distribution of millions of “Donkey Kong” products identified as originating with Nintendo and under Nintendo's exclusive control. Universal received royalties of $4,765,371.48 from these agreements. Universal did not take action against licensees who refused to comply.

Unjust Enrichment
Nintendo's counterclaim against Universal stated that Universal's agreements with Nintendo licensees constituted the misappropriation of Nintendo's trademark and resulted in Universal's unjust enrichment. The court found that unjust enrichment claim was precluded either because Universal licensed King Kong, a property not controlled by Nintendo, or because Universal's improper licensing of “Donkey Kong” provided for a claim under federal copyright laws only.

Vicarious Infringement
Nintendo further alleged that Tiger's various games infringed on Nintendo's and Coleco's “Donkey Kong” games. The Tiger home video game revolved around the same three characters as “Donkey Kong”: a large gorilla, a female captive, and a male rescuer. After hours of determined game play, the court found that the “concept, feel, and play of the Tiger “King Kong” game are substantially similar to the coin-operated “Donkey Kong” game.”

Nintendo claimed that because Universal licensed Tiger's use of King Kong in these games, Universal was guilty of “vicarious infringement.” To establish vicarious infringement under U.S. law, a party must show that the other party, with knowledge of infringing activity, induces, causes, or materially contributes to the infringing conduct of another. The court held that the electronic games licensed by Universal were substantially similar to Nintendo's copyrighted “Donkey Kong” video arcade game, such that Universal's licensing of infringing games constituted vicarious copyright infringement.

Interference with Contracts
Nintendo's claim of tortious interference by Universal focused on two categories of licensee: (1) Coleco, Atari and Ruby-Spears, who breached material terms of their licensing agreements but continued to perform their other obligations; and (2) Nintendo's existing licensees who breached their licenses and refused to perform as a result of Universal's actions. The elements that had to be proven to establish tortious interference with contractual relations were (1) a valid contract between Nintendo and a licensee; (2) Universal's knowledge of the contract and inducement of a breach; and (3) a resulting damage to Nintendo.

Nintendo's cause of action for tortious interference failed with respect to its contracts with Coleco, Atari, and Ruby-Spears, because Nintendo did not prove a material breach of those contracts. The agreements between those companies and Universal did not impair payment of royalties to Nintendo, nor did they alter any other licensee obligations to Nintendo.

However, as a result of Universal's threatened litigation, a number of licensees failed to pay $94,219.41 in guaranteed royalties due under their licence agreements with Nintendo. The facts also established that Universal knew of these contracts when it took the actions that induced the breach. Universal argued, however, that liability can only attach for tortious interference with contractual relations where the interference is knowing and improper, and that a threat of litigation is improper interference only if the litigation is instituted without probable cause and for a purpose other than securing a judgment through the courts. The Court held that liability for tortious interference with respect to the licensees “hinges on whether or not Universal's threats of litigation were based on good faith and probable cause” and probable cause exists “when a party acts in reliance upon the advice of counsel, sought in good faith after full disclosure of all relevant facts within his knowledge and information.”

In the end, the Court found that Universal instigated the lawsuit and threatened others with litigation without meeting the good faith standard and without probable cause. Though a party's bad faith can rarely be established by direct evidence, and must often be proved circumstantially and by inference. In this case, there was direct evidence that Universal knew it did not have the rights it asserted in its complaint.

As a result, Universal was found liable for vicarious copyright infringement and tortious interference with contractual relations.

Universal City Studios, Inc. v. Nintendo Company Ltd. and Nintendo of America, Inc.
July 29, 1985
US Dist. Ct., SD NY
615 F. Supp 838
KEYWORDS: unjust enrichment - contributory copyright infringement - contractual interference - Nintendo - King Kong - counterclaim
SUMMARY BY: Arsen Krekovic

Pac-Man V. Gobbleman

(this is an archived case summary)

Atari and Midway obtained an injunction against Tryom, whose game “Gobbleman” or “Nibbleman” embodied characters, symbols, and non-functional design features that were substantially similar to “Pac-Man”. Atari and Midway properly held a copyright in Pac-Man, and Tryom infringed that copyright.

Atari, Inc. v. Tryom Inc.
November 17, 1982 US Dist Ct, ND Ill
No. 82 C 3593
KEYWORDS: copyright infringement
SUMMARY BY: Cheyenne Reese

Mighty Mouth Infringes Copyright, Trademark Of Pac-Man Case Summary

(This is an archived case summary)

This 1983 judgment of the District Court of Nebraska found the defendants liable for copyright and trademark infringement of three Midway coin-operated arcade games: “Pac-Man”, “Galaxian”, and “Rally-X.” Midway sold their games to regional distributors, who then sold them to operators, such as arcade owners. The defendants, who were previous operators of Midway games, purchased 10 “copy games” and 3 “conversion kits” and sold them to other retailers. They called the “Pac-Man” imitator “Mighty Mouth,” the Galaxian imitator “Galactic Invaders,” and did not bother to change the name of their copied “Rally-X” game.

The plaintiffs had registered copyright in their games and the court accepted their certificates of copyright registration as “prima facie evidence of the validity” of these copyrights. The court found that the onus was on the plaintiff to demonstrate copying by establishing that the defendants had direct access to the plaintiff's work, or that the defendant's allegedly infringing games were so substantially similar that there could be no doubt that copying had taken place.

The court found that there were “striking similarities” between the plaintiffs' and defendants' games, and that the characters, colors and sound effects were “in virtually every aspect identical.” The defendants argued that they did not know the machines they sold were copies, but the court held that liability attached to the “innocent infringer regardless of intent” and the defence was without merit.
On the issue of trademark infringement, the court found that the defendants had sold products that were likely to create confusion between their brand and Midway's brand. In fact, when prospective customers phoned, the defendants told people the game was “just like ‘Pac-Man’,” as a selling feature of the game. This created, in the court's opinion, a significant likelihood of confusion. The fact that the names picked for the defendants' games were so similar to Midway's names was further evidence of trademark infringement.

Midway Manufacturing Co. v. Dirkschneider
1983, US Dist. Ct, Nebraska
571 F. Supp. 282
KEYWORDS: copyright infringement - trademark infringement - arcade games
SUMMARY BY: Dani Lemon

COPYRIGHT LAW PROTECTS VIDEO GAMES

(This is an archived case summary.)

Arctic International sold two types of circuit boards for coin-operated video games. The first increased the rate of play of "Galaxian" a video game that Midway owned the rights to. The second chip produced images and sounds almost identical to "PacMan" the rights to which Midway also owned. The second chip did not copy the program of PacMan, however it produced an almost identical game.

The first question the court had to decide was whether or not the "audio visual works" protected by the 1976 Copyright Act was broad enough to include video games. The two concerns were that the images were not in a fixed sequence and the sequence was changed by the players of the game. The court held that the first concern was not a bar to the Midway's case as it had already been decided that the act applied where the sequence of images was varied. Likewise, it analogized that the variance in the sequence of games to an individual watching television and changing the channels, thereby changing the sequence of images. The player does not have the ability to create any sequence of images and sounds and therefore they are more akin to someone changing channels than they are to an author of a new audio/visual work.

The court also held that the chip that increased the speed of play of Galaxian created an "accelerated" version of the game which was a derivative work. Having found that the video games were protected by the Copyright Act and that Arctic had likely infringed upon those rights, the court upheld the lower courts preliminary injunction prohibiting Arctic from distributing and producing its chips. 

Midway Mfg. Co. v. Arctic International Inc.
1983, US CA 7th Cir.
704 F.2d 1009
KEYWORDS: copyright - derivative works - mods
Summary by: Adam Nott

FIRST CANADIAN VIDEO GAME COPYRIGHT CASE?

(This is an archived case summary)

This was one of the first Canadian cases to consider whether copyright could attach to the source code of a game. The defendant's game units would flash the “Atari” logo, and when Atari sought an injunction the judge found that there was clear evidence of copying. However, the defendant raised the issue as to whether existing Canadian copyright laws extended to game machines, pieces of equipment, EPROMS, source code, or object code. Since this was a question of major importance to copyright law, and because damages would be an appropriate remedy should the plaintiff succeed at trial, the judge denied the injunction and stated that the issue of whether a video game was copyrightable should be sent to trial.
There is no record of this issue ever being sent to trial.

Atari, Inc. v. Video Amusements of Canada Ltd.
1982, Federal Court of Canada, Trial Division
FCJ No. 1100
KEYWORDS: copyright - source code - injunction
SUMMARY BY: Byron Yep

CRAZY KONG ENJOINED

(This is an archived case summary)

Nintendo sought and received an injunction against Elcon, who had been importing circuit boards manufactured by Falcon into the United States. Falcon was a past Nintendo licensee who was licensed to manufacture and sell only in Japan. The circuit boards were modified slightly to create a game called “Crazy Kong”, which was manufactured and imported to be sold in the US. The game was merely a copy of “Donkey Kong”, with a different title and no Nintendo marks.

Nintendo of America, Inc. v. Elcon Industries
US. Dist. Ct, SD East Dist. of Michigan
564 F. Supp 937
KEYWORDS: injunction - copyright infringement
Summary by: Byron Yep

THERE IS COPYRIGHT IN VIDEO GAMES!

Williams Electronics Inc. v. Artic International is a key case which established that copyright exists in video games.

Williams Electronics manufactured and sold a coin-operated electronic video game called “Defender,” whose “phenomenal popularity” the court attributed to its “use of unrealistic fantasy creatures.” Artic International sold a memory device that produced audiovisual effects and a game called “Defense Command” that were almost identical to “Defender.”

Williams sued Artic for copyright infringement and won a permanent injunction in the district court. Artic appealed and lost.

The first issue the court had to consider was fixation. Artic argued that no copyright could exist in audiovisual effects because they failed to meet the statutory requirement of fixation found in s. 102 of the 1976 Copyright Act. Artic argued that the audiovisual effects displayed on screen were transient and that new images were generated each time the “attract” or “play” mode of the program was displayed, even if the images were essentially identical to earlier images. Further, Artic argued that no copyright could exist in the computer program as player participation meant each player become a co-author of what was displayed on screen; there was no set or fixed performance of the program and therefore no eligibility for copyright.
The court disagreed with Artic on both points. Fixation was met in the memory devices of the game. On the issue of player co-authorship as a grounds for invalidity, the court found that while player interaction during “play” mode resulted in some changes in the audiovisual presentation and game, there was always some repetitive sequence of a substantial portion of sights and sounds, and many aspects of the display remained constant despite a player's operation of the controls. Further, in “attract” mode there was no player interaction whatsoever that might raise a question of co-authorship in a new work.

The court also had to consider whether the ROM as a memory device component for the game was copyrightable. Artic argued that Williams was claiming copyright in what was essentially a utilitarian object or machine part in which copyright is not permitted. The court dismissed Artic's argument as Williams wasn't claiming any protection for the ROM itself but was using the ROM to meet the statutory fixation requirement for their copyrightable material.

The court also rejected Artic's argument that what it had copied was object code as opposed to source code (i.e., it wasn't intelligible to human beings or intended as a medium of communication to human beings, and therefore not copyrightable). The court rejected this argument in favor of a more expansive interpretation of the Copyright Act that contemplated technological advances, where a copy might need the aid of a machine or device to be reproduced, perceived or otherwise communicated. The court dismissed Artic's interpretation as creating an “unlimited loophole” where copying the text of a program (which is directly intelligible to human beings) is prohibited but the copying of a silicon chip containing that program (which is not directly intelligible) is permitted.

Williams Electronic Inc. v. Artic International, Inc.
1982 US Ct. of Appeals, 3rd Circuit
685 F. 2d 870
KEYWORDS: copyright - fixation
SUMMARY BY: Dani Lemon

Pac-Man V. Jawbreaker

The defendant published a game called “Jawbreaker” which was created by John Harris. Harris admitted to getting the idea from “Pac-Man”. Jawbreaker was already being marketed for the home computer, while Pac-Man had not yet been marketed. Although both games were maze-based, the judge found there were nine substantial differences, including the music and the way the characters moved.

The court held that there was “nothing protectable under the copyright laws as to the “Pac-Man” game itself, and the laws do not protect the strategy of a player symbol being being guided though a maze appearing to bobble up dots in its path while being chased through the maze by several opponents.”

The court also held that Atari had not established a likelihood of confusion in the marketplace because Atari had not yet entered the market with its “Pac-Man” game.

Atari, Inc. v. Williams
December 28, 1981 US District Court, ED California
1981 US Dist. LEXIS 17667
KEYWORDS: Pac-Man - Jawbreaker - copyright infringement - trademark infringement

SUMMARY BY: Cheyenne Reese