Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

Second Life Musings

Here's an article published in the Lawyers Weekly this week, in which we discuss some of the virtual law going on in Second Life. The article was written by freelance writer Luigi Bennetton.

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

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

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

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

References:

• WOW EULA
• GAME INDUSTRY
• THE REGISTER

NEW LAW IN CHINA FORCES GAME DISTRIBUTORS TO GET PRIOR APPROVAL OF OFFICIAL CENSORS

New law has been introduced in China which requires game distributors to get approval from the country's censors before being able to release new games in China. With over 23 million gamers in China and an estimated market of nearly 100 million Canadian dollars (and climbing), distributors will have to submit to these latest attempts by China to control video game content. According to the BBC, 'companies must also submit monthly monitoring reports, confirming developers have not added forbidden content."? Forbidden content is said to include pornography, excessive violence, sensitive religious material and references to territorial disputes.

Earlier plans by the General Administration of Press and Publication (GAPP) in China to control video gaming and content have included 3 hour limits being imposed on gaming followed by a 5 hour 'cooling off"? period between 3 hour sessions; banning minors from being able to play games on-line which are deemed to be too violent; and embedding technology within games which enforces such restrictive measures.

According to some, these and other measures are being proposed and imposed in an effort to assist in curbing the 'addiction of Chinese youth to video games"? and to censor offensive content. How effective these measures are, remains to be seen.

Coverage at  http://shorl.com/bypapribidroku (Games Industry); http://shorl.com/byfukystujima (China View)

OKLAHOMA'S VIDEO GAME LAW BLOCKED

A Federal District judge has issued an injunction temporarily blocking the coming into force of Oklahoma's video game law on November 1st. 
The provisional injunction foreshadows that the law is likely to ultimately be declared unconstitutional.

 
http://shorl.com/biratestodigu (GamePolitics)

VIOLENCE IN MONTREAL

25-year-old Kimveer Gill is reported to be responsible for the murder of one Dawson College student and injuring 19 others. Not to mention scaring and scarring the student population and bringing tears to the eyes of my hometown. His death at the hands of the police does not assuage our collective sorrow. 
Talking about this tragedy, Prime Minister Harper is said to have stated that 'debates are sure to unfold about the government's role of censorship in video games and the monitoring of the Internet"?. I agree with his thinking. Let's start a debate. Here are my two cents worth. 

News reports so far seem to confirm that the Dawson population helped each other, that the police acted prudently and quickly and that emergency personnel succored those in need rapidly. I'm sure that with time we might find flaws in how things were handled, to be denounced and addressed.   

Aside from legislation that dictates the duties of police and emergency personnel, Art. 2 of Quebec's Charter of Human Rights and Freedoms provides that every human being whose life is in danger has a right to assistance and imposes a legal obligation on every person to come to the aid of the person in danger, personally or by calling for aid, unless this would result in danger for the person assisting or someone else. 

So the Good Samaritan rule of the Quebec Charter was respected. 

What about Kimveer Gill? Did we fail to assist him? Should we have identified him as someone in need of aid? And if so, how should we have helped him? Would the censorship of video games and the monitoring of the Internet have helped him? Would we also need to consider censoring the music groups that Kimveer listened to (e.g. Marilyn Manson) or the websites that he frequented? What about Canada's gun register and gun laws? Should we revisit them? 

It's a good thing that this is just a video game law blog. I don't have to pronounce myself on whether we failed to help Kimveer or not. I will say, however, that, in my opinion, the levels of censorship/monitoring and of government intervention that would be required to prevent crimes such as Kimveer's would be right out of 1984. Are we willing to give up so much freedom?

 
coverage at  http://shorl.com/gylybryvokeve (Sympatico News)

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. 

POSTAL GOES INTERNATIONAL

Back in 1997, game publisher Running With Scissors released a PC game called 'Postal"?, a violent shoot-em-up featuring a postal worker on a rampage. Unsurprisingly, Postal caused controversy and outrage when it was released, and was in fact banned in 13 countries (including New Zealand and Australia). Despite that, the game sold very well (over a million copies).

Now Running With Scissors has partnered with Softwrap ( www.softwrap.com ), who provides software that allows developers to distribute their products on-line without fear of piracy, to make its line of Postal games available for download. As a result, gamers in jurisdictions that banned Postal will be able to get their hands on the games by downloading them directly. Says Running With Scissors CEO Vince Desi '"?the world can now go Postal in peace and privacy, as God intended"?.

Coverage at http://shorl.com/fivilibrutyfu

The Adventures Of Jack Thompson, Video Game Lawyer

Earlier in November, Florida attorney Jack Thompson attempted to withdraw as counsel from an Alabama civil suit against members of the gaming industry. However, judge James Moore has rejected Thompson's motion to withdraw, and has instead removed him from the case, and revoked a temporary Alabama bar license Thompson was using to practice in the state. The judge removed Thompson as a result of a defence motion which claimed Thompson's numerous press releases and open letters on violence in video games represented a breach of legal ethics.

Thompson, not one to stay silent in the face of criticism, responded to Judge Moore's 18-page ruling in a document apparently filed with the Alabama court, which harshly questions the rationale of the defence in attempting to have Thompson removed, and Moore's power to remove him after he had already voluntarily withdrawn.

Coverage at

http://www.shorl.com/dilotipukadry

and

http://www.shorl.com/gonikijufroto

Germany Taking Steps To Curb Violence

No, not on the streets, but in their video games!  Proposed amendments to Germany's child protection laws could serve to ban any game which depicts lethal violence. Following trends in USA and Japan, the proposed changes would give government power to regulate violent content, above and beyond the industry-controlled rating system already in place. The language of the amendment isn't final, but if approved would go into effect March 2008.

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

STAY, GOOGLE! GOOD BOY.

In an earlier post we reported that Microsoft was awarded a temporary injunction preventing a former Microsoft executive (named Kai-Fu Lee) from working for Google on certain products and services.  Mr. Lee was previously the 'face of Microsoft"? in China, and Microsoft objected to him playing the same role for Google.

Microsoft started the lawsuit in Washington State Court. The lawsuit was then moved to federal court.

Google filed its own lawsuit in California; however, a federal judge just ordered a tentative stay of that lawsuit. The court will rule today whether the stay should continue.
Coverage at  http://www.shorl.com/famaladypysy

GTA LAWSUIT MOVES TO FEDERAL COURTS

A recent lawsuit filed against Rockstar and Take Two in Illinois has been transferred to US District Court because of the Class Action Fairness Act, which requires that claims seeking more than $5 million be filed in federal court. The plaintiff, a mother who claims her children were exposed to sexually explicit content in GTA San Andreas and that the defendants misled the public by rating the game M instead of AO, is seeking to have the action certified as a class action. Those eligible to join the class are 'all persons in the United States who purchased at retail, GTA that contained an 'M' rating"?. Even though no class member is seeking damages in excess of $75,000, the total aggregate claim (given the potential number of class members) exceeds the $5 million threshold over which class actions must be brought in federal court.

Coverage at http://shorl.com/hadristevyvyto

Gizmondo Gets A Date

If all goes according to plan, on October 22ndAmerican gamers will finally be able to get their hands on Tiger Telematics' handheld gaming system, 'Gizmondo,"? which launched in the UK almost a year ago.   An interesting innovation, the Gizmondo will be sold for either$399 (US) for the regular system, or for $229 (US) for a model that automatically downloads and plays commercials.  Several details regarding Gizmondo's launch are still unclearwe're unsure whether it's launching in Canada, and nobody seems to know who will actually be selling the unit, although Tiger will reportedly be setting up special mall kiosks to move the handheld. Whether Gizmondo will be able to compete with Sony and Nintendo's new handheld units - the PSP, GBA Micro, and the DS - remains to be seen.

Coverage at http://shorl.com/bafredrihyhijy

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).

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)

NINTENDO ARGUES NO JURISDICTION

(This is an archived case summary.)

On behalf of retail purchasers in California, the plaintiffs alleged that Nintendo had violated California antitrust laws through its monopoly on video game cartridges created by the use of “lock-out" technology and marketing practices that increased the price and limited the number of video games available to consumers. Nintendo applied to have the matter removed from state court to federal court.

First, Nintendo argued that the doctrine of “artful pleading" should apply (drafting claims so as to qualify for state law rather than federal law). The court held that this doctrine should only be applied in exceptional circumstances and is only available where federal law completely pre-empts the state law claim, and the federal law provides the plaintiff a remedy. The court dismissed Nintendo's argument that a decision by the California court would affect interstate commerce, which is governed by the US Constitution and therefore should be decided under federal jurisdiction. The court held that the California courts are competent to determine the extent to which California antitrust laws may be enforced without violating the Commerce Clause of the US Constitution.

Second, Nintendo argued that the plaintiffs' allegations arose under federal patent and copyright laws, as Nintendo's copyright and patent of its lock-out system granted it the right to exclude others. The court dismissed this argument as well, stating that the plaintiffs were not alleging that Nintendo did not have valid copyright and patent rights over the technology, but rather, were challenging the anti-competitive manner in which Nintendo was using the technology.

Morse v. Nintendo of America, Inc.
1990, US Dist. Ct., ND Cal
1990 US Dist. LEXIS 5200
KEYWORDS: anti-trust - jurisdiction
SUMMARY BY: Chris Metcalfe