Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

EA wins Madden lawsuit

Former NFL player Jim Brown sued EA over its use of a character in Madden NFL. The character looks like Brown, but was not identified as Brown, and wore a different number.

A federal court judge in Los Angeles has now ruled in favour of EA, concluding that the First Amendment protected EA's expression in this case.

Brown had argued that EA's use of his likeness was a false endorsement of the game. If he had argued instead that EA had violated his right of publicity, the result might have been different. Likewise, if EA had used Brown's name (instead of only his likeness) the result could have been different as well.

Coverage here: http://tinyurl.com/ycrp4fc (Gamasutra)

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.

Sony discloses security breach

Sony has issued a notice to PLAYSTATION Network users that their personal information on the PLAYSTATION Store may have been compromised. The notice warns that some users’ passwords may have been changed through unauthorized access, allowing third parties to view the personal information stored on users’ accounts. The notice also states that the security problem has been resolved.

A copy of the notice is available here.

The security breach raises an interesting issue under Canadian privacy law. In Canada, there are several statutes that govern privacy, including the federal Personal Information Protection and Electronic Documents Act and various provincial statutes including British Columbia’s Personal Information Protection Act.

All of these statutes require companies (including video game publishers and developers) to maintain the security of the personal information they collect. However, few of these statutes explicitly require companies to disclose that a security breach has occurred. Therefore, when faced with a security breach, companies often need to balance the risks of non-disclosure (e.g. identity fraud that could have been prevented by disclosure) with the possible PR fall-out of making a disclosure.

Wii Leads to Divorce?

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

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

Coverage at: GamePro and Destructoid.

Not Funny

The “Something Awful” website has apparently posted a link on its site to a pornographic cartoon featuring Jade Raymond, spokesperson for Ubi’s Assassin’s Creed. According to Game Politics, Ubi demanded that Something Awful remove the image, and Something Awful responded by saying the image was only linked from the site; it wasn’t actually hosted on the site.

Under Canadian law, the posting might violate Ms. Raymond’s privacy or personality rights. It might also be defamatory. We’ll see how the case is handled under US law.

The Game Politics posting is here.

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

LADY KIER SUES SEGA AND LOSES

In the mid-80's, Keirin Kirby (better known to us video game lawyers of the "?80s as "Lady Kier") was the lead singer of a band called "Deee-Lite". But wait"?that's not all! Kirby was more than just a retro-funk-dance pretty face she was also a dancer, choreographer and fashion designer. And she believes she has created a distinctive look and character.

Enter Sega.

In 1999 Sega released Space Channel 5, a futuristic space game which featured a character called "Ulala" who dressed in an outfit similar to the outfits Kirby liked to wear (i.e. mini-skirt, tank top with a number on the front, pink hair in pigtails, etc.). THQ later released a Gameboy Advance version of the game.

Kirby sued, claiming that the game misappropriated her likeness and identity. The lower court dismissed the lawsuit (through summary judgment). Kirby appealed but lost.

The courts found there were similarities between the appearances of Kirby and Ulala, so Kirby at least had an argument that her likeness and identity were misappropriated. However, the courts also found that the First Amendment (freedom of expression) provided a complete defence to Kirby's claims because Ulala was not a literal depiction of Kirby"?there were sufficient differences between Kirby and Ulala.

At one time or another, many of you have probably considered basing a video game character on one of the many buff, distinctive and charismatic video game lawyers at Davis. And you probably wondered how to do it.

Well here's how. According to the California Court of Appeal, all you need to do is ensure that your work contains "something new, with a further purpose or different character, altering the first with new expression, meaning, or message."

The test in Canada will likely be different, of course, but there doesn't appear to be any video game case law on point yet. But heck, we're willing to make some, so here's a link to our photos  http://www.shorl.com/divofrakodefri  

Kirby v. Sega is here http://www.shorl.com/distokimynagu

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

JESUS WANTS ROYALTIES TOO

Several professional poker players, including Chris 'Jesus"? Ferguson say they will file a lawsuit against the World Poker Tournament organizers today. The players are upset because they say the tournament organizers used their names and likenesses in a video game without any compensation. The players did sign waivers, but they claim the casinos colluded to prevent players from participating in tournaments unless all players waived their rights to compensation in these circumstances. 

Personality rights lawsuits are becoming more common in the video game industry. For example, last year, Vili the Warrior, a mascot for the University of Hawaii, sued EA for $75,000.  He claimed that EA used his character without permission on NCAA Football '06.

Another good example is the Guy Game lawsuit. In that case an anonymous teenager won a injunction against Topheavy for including topless footage of her in The Guy Game.  She had been videotaped while competing publicly in a topless contest during spring break.  The problem was that she was a minor at the time of the contest, so her lawyers successfully argued that the waiver she signed was void (despite the fact that she provided ID at the time which showed she was an adult). 

Every publisher will want to get waivers signed by people who appear in their games. But the Topheavy lawsuit and the poker lawsuit show that getting waivers might not be enough it's also important to confirm that the waivers are enforceable.
Coverage of the poker lawsuit at  http://www.shorl.com/fytypribrystuli (Mercury 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. 

GAME BREACH HIGHLIGHTS PRIVACY CONCERNS

The developer of Xenepic Online, a popular Japanese MMOG, announced recently that players' personal information was inadvertently compromised. Information relating to almost 300,000 players was mistakenly stored on an open download server, making it easily accessible to hackers. The information included user names, passwords, and other account information, but apparently not credit card information.

Although this episode does not seem particularly serious, it highlights the fact that game providers who collect players' personal information must be very careful about protecting that information from unauthorized access or disclosure. Consumers are increasingly aware of privacy issues, especially as fears about identity theft become more widespread and information security breaches are more widely publicized (e.g., there has been a great deal of news about the recent the US Veterans Affairs episode, in which a laptop containing personal information, including social security numbers, of millions of US veterans and military personnel was stolen). Privacy laws requiring the protection of personal information exist in many jurisdictions, and game providers should make sure that they protect and keep secure any personal information that they collect. To do otherwise risks, at best, some bad publicity and, at worst, regulatory fines or civil suits.

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

TAKE-TWO SUED BY ACTOR

Take-Two Interactive is reported to have been sued for $250,000 by actor Roger Hill for the unlawful use of his likeness in The Warriors, a game based on the film by the same name. He is also seeking an injunction to bar the use of his likeness. Mr. Hill claims that he turned down an initial offer made by Take-Two for the use of his name and voice in the game and that they never followed up. Take-Two has dismissed Mr. Hill's claims as groundless and affirms having the right to use his likeness as portrayed in the film.

 
coverage at http://shorl.com/gigrepistekogry (gamespot)

STAR WARS KID SETTLES

Those of you who regularly read our postings know that Dave and Chris are embroiled in an ongoing dispute about whether the USS Enterprise could defeat an Imperial Star Destroyer in a one-on-one fight. Dave says no;  Chris says yes.

That's just one of the reasons why Dave is affectionately known to his colleagues here at Davis as 'the Star Wars Kid"?. (The fact that he has a life-sized effigy of Darth Vader in his office probably helps too.)

Anyway, three years ago our office was abuzz with a rumour that Dave was prominently featured on the internet in a home-made video, twirling lightsabers about with all the dexterity of a newborn fawn. 

Sadly, we were all disappointed to learn that in fact there was (can you believe it?) ANOTHER Star Wars kid. The one in the video was much younger and much less of a video game lawyer. But he was equally good at twirling lightsabers.

What happened to that Star Wars kid is he shot a video of himself doing the Jedi Knight thing, but unfortunately the video fell into the hands of three schoolmates who posted it on the internet. The video soon became wildly famous, and as a result the kid endured years of humiliation. So, like any good Canadian Star Wars Kid would do, he sued. The case was due to be heard next week, but the parties have recently settled for an undisclosed amount.

You're probably wondering how this is a video game law case. It's not really (although we could make a point here about privacy and personality rights and the risks of including unauthorized content in video games). It's just that this story touched so close to home for our local Star Wars hero that we couldn't help but report it.
Coverage is here  http://www.shorl.com/fykyhyfrypypa (Globe& Mail)

IS BIG BROTHER WATCHING YOU?

There are recent reports that as part of the US Department of Justice's effort to enforce online pornography laws, it has petitioned a federal court judge to order Google to release information on millions of its users' search queries. While Google is, for the time being, challenging the USDOJ proceedings, three of its competitors - Yahoo, MSN and America Online - have previously acquiesced to similar demands and released said information.

As a result, net surfers are questioning and fearing the degree of government internet surveillance. Could a Google search for 'SEALs weapons for sale?"? trigger undesired attention on you? Would you resent having to justify your query? Having to disclose your interest on SOCOM Navy Seals for PS2?

While American citizens, residents or visitors may enjoy protection from undue surveillance and disclosure of private personal information under sundry legislation, how are surfers outside the US protected, if at all, when search information is stored in the US?

Pornography laws are a must, everywhere in the world. But we should be concerned about how they are being enforced in this instance.

Coverage at http://shorl.com/bystatotodrupri

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

A BLIZZARD OF PRIVACY QUESTIONS

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

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

Coverage at http://shorl.com/bogatygravuge

Video Games Get More Annoying

Massive Inc., a New York-based company which places ads in video games, has developed technology that downloads full-motion video ads from the internet and inserts them automatically into a certain PC game (Anarchy Online). Video game ad insertion has traditionally been problematic because ads would need to be integrated into the game's code, leading toward logo or brand placement instead of current ad campaigns or timely offers; however, because Massive's technology permits ads to be constantly updated via the web, ads can be current, timely, and frequently changed. Although currently a PC trend due to the broad-based availability of the internet for PC gaming, the next generation of consoles' drive for ubiquitous online availability means no one will have to wait long for their electronic avatars to be assailed by constant commercialization. Just like the real world, only with anti-aliasing!

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

EA WINS RACIAL LAWSUIT

Steve Neal is an African American male and former football player for Western Michigan University. He's also a Caucasian player for the New England Patriots.

Oh alright, they're two different football players with the same name.

EA used Western Steve's photograph in Madden NFL Football 2005, but (oops!) paired it with New England Steve's statistics. Western Steve sued EA for invasion of privacy "by appropriation", invasion of privacy "by false light", and defamation. In a recent decision, the US District Court ruled in favour of EA.

The court concluded that Western Steve had licensed the use of his photograph Western Steve had signed a contract with the NFL Players Association giving the Association the right to licence third parties (such as EA) to use his likeness and name. The Association sublicenced that right to EA. Therefore, Western Steve lost the invasion of privacy "by appropriation" argument.

The court also concluded that EA hadn't placed Western Steve in a "false light" by using his likeness as a representation for a Caucasian player. To win on this point, Western Steve had to show that EA's actions were highly offensive to a reasonable person. The court didn't think that portraying an African American player as a Caucasian player met the test (although the court might have come to a different conclusion if dancing were a larger part of football). For the same reason, the court concluded that EA hadn't defamed Western Steve by attributing the wrong biographical information to him.

The case is available here http://www.shorl.com/bubrajujymihe

The citation is Neal v. Elec. Arts, Inc., [2005] U.S.Dist. LEXIS 12324 (June 1, 2005).