Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

Patent Compliance Group sues Activision

Gamasutra.com reports that a group called the Patent Compliance Group has filed a "qui tram" action against Activision in a District Court for the Northern District of Texas, which apparently allows for members of the public to sue on behalf of the government and potentially be awarded all or part of the damages that it claims. The lawsuit is reportedly alleging that Activision intentionally deceived the public by mislabelling Guitar Hero 5, Band Hero, Guitar Hero Smash Hits and DJ Hero with patent numbers which had patent descriptions that did not cover the scope of the products, and that Activision used the labels "Patent Pending" and "Patent Applied For" when that was not the case.

It appears that the damages sought are of not more than $500 for each violation, meaning that each unit sold could incur a penalty of up to $500, half of which the Patent Compliance Group is said to be claiming for itself, and half of which would reportedly go to the U.S. government.

Coverage at Gamasutra

West and Zampella Sue Activision

Jason West and Vince Zampella, co-founders of Infinity Ward, have allegedly filed a lawsuit against Acitivision Publishing Inc. claiming breach of contract, breach of the implied covenant of good faith and fair dealing, wrongful termination in violation of public policy and declaratory relief.

West and Zampella reportedly served as president/game director and CEO of Infinity Ward following its acquisition by Activision in November 2003. Their employment was allegedly terminated by Activision weeks before they were to be paid substantial royalty payments as part of their existing contracts for Modern Warfare 2. This reportedly follows claims of Activision having investigated charges of insubordination, breach of fiduciary duty and breach of contract by two senior employees at Infinity Ward, which allegedly became grounds for West and Zampella's termination on March 1, 2010. Activision is said to be moving ahead with the Call of Duty franchise, despite this turn of events.

Coverage here, here, here and here

Universomo... No More?

It has apparently been confirmed by THQ that Universomo, its Finnish mobile games studio, has entered liquidation. Universomo reportedly had more that 15 games and entertainment applications scheduled for release on mobile handsets at the time it was placed into liquidation. However, according to a spokesperson, these games and applications are still going to be released by using outsourcing and resources elsewhere in the company.

Coverage at Mobile-Ent.biz

Itagaki Settles Lawsuit with Tecmo

1UP reported late last month that Ninja Gaiden director and former Tecmo employee Tomonobu Itagaki has settled his lawsuit with Tecmo out of court. Itagaki left Tecmo in 2008 over unpaid bonuses and statements made by former Tecmo boss Yoshimi Yasuda.

No details of the settlement were released, but in his statement Itagaki promised to soldier on and that his newest work "will deliver to you an enjoyable game with depth that surpasses all the games I created before, and is worthy of being world-class entertainment." Reports have already surfaced that Itagaki has founded a new studio, Valhalla Game Studios, but no details of any upcoming projects have been released. Team Ninja, meanwhile, is co-developing the newest instalment in the Metroid series, Metroid: Other M.

As head of Team Ninja, Itagaki was responsible for the success of the Dead or Alive series, and the revival of the Ninja Gaiden titles. As a big fan of both the original Ninja Gaiden for the NES and Tecmo Bowl, the single greatest football game ever created, its nice to see everyone finally getting along.

The full text of the statement is available here.

Help Save the IT Work Permit Category

HRSDC intends to eliminate the Information Technology Workers category any day. Provide your support for saving the IT category - Information Technology Workers

The IT Category - Advantages to Avoiding LMO Applications

The standard work permit process for temporary foreign workers is a two-step process:

• The first step involves the prospective employer applying to Service Canada for a Labour Market Opinion ("LMO").
• The second step involves the prospective employee applying for the work permit.

For a few occupations, HRSDC has issued a national LMO to recognize that critical labour shortages in these occupations are experienced throughout Canada. As a result, employers are not required to apply for individual LMOs. One such national confirmation is for Information Technology Workers who fall within one of seven prescribed occupations, including Embedded Systems Software Designers, Software Developers - Services and Software Products Developers.

It is advantageous to prospective employers to not have to apply for an LMO. Reasons include:

1. Employers do not have to show comprehensive efforts recruiting qualified Canadians. This is important in light of the recent developments which make LMO applications increasingly uncertain. Service Canada adopted an arguably overly restrictive approach in January 2009 that continues to the present time. Service Canada is overemphasizing hiring Canadians and underemphasizing other important factors like job creation/retention and skills and knowledge transfer which can result from the hiring of a particular foreign worker.

2. Employers do not have to wait for the LMO application to be processed. The processing time is dynamic and gaming companies can not rely on processing times remaining at the current 2-4 weeks.

3. With the elimination of LMO "extensions" in April 2009, an employer is required to make in essence a new LMO application when wanting to support a work permit extension, including demonstrating that new recruitment efforts were conducted. The company will be required to lay off the foreign worker if it can not secure a new LMO, as may happen due to reasons cited in item 1 above. There are situations where Service Canada can be convinced to waive the recruitment requirement, but this is very much case-by-case and can not be assumed.

Proposal to Eliminate the IT Category

HRSDC has announced that it intends to eliminate the IT category, likely during the first few months of 2010. Particular industry organizations have also apparently been notified. Justification provided by HRSDC for eliminating the IT category is questionable.

The IT category should continue in order to facilitate the recruitment of highly talented and skilled temporary foreign workers. Elimination of the IT category will adversely impact various industries affected in Canada in terms of maintaining their strong position in the global market. If required to apply for individual LMOs, based on current trends, companies will be prevented from hiring talented and skilled foreign workers, and as a result will be forced to either carry out projects with compromised staffing or even forego certain projects due to multinational management deciding to develop projects abroad.

If you support the IT category, let us know and we will pass along said support to the various immigration authorities, federally and provincially.

Sackboy now even less likely to grace the Xbox 360

Sony acquires LittleBigPlanet developer...360 owners sobbing everywhere

Way back in October 2008 when platformer LittleBigPlanet was released to much fanfare and universal critical acclaim as a Sony PS3 exclusive, the seeds of hope were planted in many Microsoft Xbox 360 owners that it would one day be granted a wider release and perhaps one day even grace the 360. These hopes were dashed somewhat by certain statements attributed to LittleBigPlanet's developer - Media Molecule - shortly after its release: "We couldn't have made it on the Xbox 360 and the reason for that is actually because we designed it around the PS3's strengths" and that while theoretically, LittleBigPlanet could one day be found on the 360, "it'd be a different game." Different game or not, and despite the fact that Media Molecule badly dissed the technical capabilities of our hardware of choice, those of us who failed to convince our spouses that we needed both a 360 AND a PS3 still hoped that we'd be able to create our own levels and play with our own Sackboy on our own consoles.

Yesterday, the chances that LittleBigPlanet would one day be released on the 360 became akin to the chances that Halo would one day be released on the PS3 - situated firmly in the "not a hope in hell" category. On March 2, 2010, in the Playstation.Blog , Sony officially announced that it had acquired Media Molecule. Media Molecule, in a press release posted on its official website confirmed the acquisition, and made the following (cruel) statement: "In a strategic move to continue to secure excellence in game development for current and future PlayStation® platforms, the acquisition of Media Molecule formalises the successful exclusive relationship with SCE."

Did they say "exclusive relationship"?

NOOOOOOO!

Gamasutra coverage here

Class Action against NCAA gets a Green Light

Ex- UCLA star basketball player Ed O'Bannon's class action suit against the NCAA (the "Class Action") got a green light from the U.S. District Court when it denied the NCAA's request to dismiss it. The Class Action suit was filed last year and alleges that the collegiate association misused the likeness of college athletes in videogames and a variety of other licensed materials.

GamePolitics notes that the U.S. District Court's ruling not to dismiss the Class Action will lead to a discovery process likely to shed light on the inner workings of the NCAA.

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

The Burning Crusade license granted

Last week, it was reported by Gamasutra.com that NetEase had suspended new user registrations due to its application to the Chinese government for a license to operate the World of WarCraft expansion pack The Burning Crusade. It appears that Chinese regulators are showing concern over the "undesirable content" of online games and are allegedly cracking down on foreign investments in its growing online gaming industry.

On February 16, 2010, Gamepolitics.com reported that China's General Administration of Press and Publication (the "GAPP") has granted the license permitting NetEase to operate The Burning Crusade. While the GAPP reportedly claimed to have previously suspended NetEase's permit for what it allegedly referred to as "gross violations" of regulations, NetEase appears to have always maintained that it did not violate any regulation. The GAPP has reportedly said that it granted NetEase the license because it had "taken necessary corrective measures."

Coverage at Gamasutra and Gamepolitics

Viacom wants a refund on Rock Band

Viacom agreed to pay Harmonix earn-outs if Rock Band exceeded certain financial targets. Viacom paid the earn-outs, but now wants a significant refund, based on lower earnings and an "adjustment clause" which would allow Viacom to correct any overpayments. However, given that Viacom owns Harmonix it's unlikely we'll see this case in court anytime soon.

Coverage here (Gamasutra).