Avocats chez Davis S.E.N.C.R.L.

Medal of Disapproval?

EA's latest Medal of Honor instalment is set for release in October 2010, but is already causing a stir. The reason? The single-player game involves US soldiers operating in Afghanistan, but the multi-player game allows players to play as the Taliban.

Peter MacKay, Canada's Defence Minister, has sharply critized the game on the basis that soldiers (including Canadian soldiers), aid workers and civilians in Afghanistan are regularly attacked, and sometimes killed, by Taliban fighters. The Minister believes it is inappropriate for game players, who may include children, to play as the Taliban in the game.

EA has pointed out that there are no Canadian soldiers in the game, and that the game is rated M for mature and therefore should not be sold to anyone under 17.

This situation highlights once again the issues that arise from portraying real-world settings and situations in video games (remember the episode involving the Manchester Cathedral in Resistance: Fall of Man? If not, refresh your memory here). Real-world settings add verisimilitude and enhance the gaming experience but, as these examples show, may also be perceived as offensive or inappropriate.

Media coverage here.

DRM Firm Launches Second Patent Infringement Suit

Submitted by Jennifer Whincup

Digital Rights Management (DRM) firm, Uniloc, has filed a copy protection suit against several large corporations, including Sony, Activision Blizzard, Aspyr Media, and others alleging that the named defendants infringed on a software registration patent.

This claim comes in the midst of a 7-year long battle against Microsoft for a similar patent infringement. While the district court awarded $388 million in damages in 2009, the verdict was later overturned and Uniloc intends to appeal that decision.

Uniloc claims that because of the publicity of the prior lawsuit with Microsoft, the defendants had notice of their infringements and should have discontinued their unauthorized use of the patented software.

Coverage at GamePolitics

UK Rules R4 Cards Illegal

A UK court has ruled that R4 cards, commonly used to allow users to play pirated games on the Nintendo DS, are illegal in the UK.

Although defendants Wai Dat Chan and Playables Limited argued that the cards had a non-infringing purpose (to allow players to play homemade games on the handheld system), the London High Court held that because the cards must circumvent Nintendo's security systems in order to work, they are illegal. According to the ruling by Justice Floyd, "the mere fact that the device can be used for a non-infringing purpose is not a defence."

However, as the coverage at MCV points out (and as we blogged about here), the UK ruling is an interesting one in light of a recent decision by the Librarian of Congress to allow an exemption under the DMCA for the "jailbreaking" of smartphones.

Kinect Banned in China

Submitted by Julio Mena

It has been reported that the Kinect motion control device for the Xbox 360 console, much like the Xbox 360 console, will not be sold in China as a result of an edict issued in 2000 by China's Ministry of Culture. Although Microsoft China COO Michel Van Der Be did not indicate whether Microsoft would appeal the ban, he reportedly stated that the company does intend to cooperate with Chinese laws.

Despite the ban, it has been reported that although there are some legal game consoles available in China, there exists a significant "grey market" for these products.

Coverage here (gamasutra.com)

College Athletes Sue for Video Game Revenues

Submitted by Brigitte Lenis

Sam Keller, a former collegiate quarterback, along with other NCAA athletes are reportedly filing a class action law suit against EA sports and the NCAA, citing their intellectual property rights.

It had been reported that EA sports is introducing another installment of its "NCAA Football" video game this summer, and while the game does not include players' names, it supposedly features virtual players with the same number, skin tone, height, throwing arm as well as home state as the real-life players.

Compensation for college athletes has been a controversial issue in the past. A similar yet distinct class action was reportedly filed by collegiate basketball player Ed O'Bannon for using player's images without compensation. (see our coverage)

It will be quite interesting to see how these play out...

Coverage at:AOLnews

SouthPeak fights for My Baby and the bathwater

In the midst of legal battles involving payments owed to its publishing partners, South Peak has sued Majesco Entertainment over the publishing of My Baby 3 & Friends. The issue is who has the right to publish the game in the US. SouthPeak claims it has that right, despite the fact that Majesco announced that it would be publishing the game.

Coverage here (Joystiq)

Digital Locks and Video Games

Digital locks and anti-circumvention prohibitions generally say that it is illegal to bypass technological copy-protection measures. Such laws are contentious because of the fear that these prohibitions will apply even if the protected work is being accessed for legal activities (for example, under fair use or fair dealing exceptions).

The US Digital Millennium Copyright Act contains anti-circumvention provisions, but has a built-in mechanism by which the Librarian of Congress periodically determines whether there are classes of works that should be exempted from those provisions. The Librarian of Congress recently designated several new classes of exempt works, two of which are relevant to video games:

1. Computer programs that enable wireless handsets to execute software applications, so long as the circumvention if for the sole purpose of enabling the interoperability of lawfully-obtained applications. This exception opens the door to "jailbreaking" smartphones so that they can run unauthorized applications (including games).

2. Video games accessible on personal computers, so long as the circumvention is solely for the good-faith testing for, investigating, or correcting security flaws or vulnerabilities. The information generated from the testing must be used to promote the security of the owner or operator of a computer or computer system or network, and the information must be used or maintained in a way that does not facilitate copyright infringement or other violations of the law.

These are narrow exceptions, but they demonstrate the ongoing evolution of how anti-circumention laws are approached in different circumstances.

Coverage at Gamasutra; see the Librarian of Congress's statement here.

Another Lawsuit against Activision

Submitted by David Beckstead

As a follow up to our blog dated March 5, 2010 and entitled West and Zampella Sue Activision, another lawsuit has allegedly been brought against Activision by some of its workers in California. This time, the reported suit was launched by a group of nearly 40 former and current employees. According to kotaku.com, the employees are suing Activision for breach of contract, alleging the company withheld bonuses from employees, demanding that they develop, produce, complete and publish the Modern Warfare 3 game by November 2011.

A hearing to see if the two suits can be consolidated has reportedly been set for August 5th.

Industry Issues Statement on California Law

As California prepares for its day in front of the US Supreme Court to justify the constitutionality of its latest video game legislation, the Entertainment Software Association (ESA) has issued a statement in advance of its own brief, reiterating its position that video games (read: violent games) are deserving of the same First Amendment protection as other forms of expression.

In the statement, ESA President and CEO Michael Gallagher writes:
"Computer and video games are First Amendment protected speech. There is an unbroken chain of more than a dozen previous court rulings agreeing. Courts across the country recognize that computer and video games, like other protected expression such as movies, books, and music, have an artistic viewpoint, and use sounds and images to create an experience and immerse the player in art. That is why other courts have unanimously affirmed that video games are entitled to the same constitutional protection as movies, music, books, and other forms of art."

California is taking another run at legislating against the sale of violent video games to youth, hoping that a more "narrowly tailored" bill banning sales and rentals of "excessively" violent games will pass muster. The primary architect of the bill, State Senator Leland Yee, issued his own statement, saying that "[n]o rational justification exists for treating violent material so vastly different than sexual material under the First Amendment when reviewing restrictions on distribution to minors."

A decision is expected later this year.

Great Canadian Threat

TIGA, the UK game industry trade association, has recently identified Canada as a "major threat". The reason? Canada's game-friendly business environment makes Canada more appealing to game companies and developers than the UK, which does not offer much in the way of tax breaks or other incentives to game companies.

This is a compliment, as Canada is being held out as a country that's "doing everything right" in terms of encouraging game companies to do business. Canadian tax incentives certainly help (see our coverage of some such programs here and here), but we also assume it's at least partly because Canada has such awesome video game lawyers.

Coverage at the Develop site.