カナダの弁護士: デイビスLLP法律事務所－１８９２年創立

Manitoba Rolls Out Grants For Video Game Makers

The province, which last month awarded a total $300,000 to five video game projects and earlier set up a $350,000 incubator fund, has recently announced new grants to help video game makers with their labour costs. The grants, which cover up to 45% of labour costs to write new games, have no upper limit. They do require, however, that 25% of the salaries be paid in Manitoba. 

Coverage at http://shorl.com/gebodrulakase (the Star)

TAKE TWO TAKES MORE

We reported earlier this month that Take Two Interactive had settled the FTC complaints regarding GTA San Andreas. However, this step forward was recently offset by a lawsuit filed by Take Two shareholder Richard Lasky in the US District Court of New York. Lasky claims breaches of fiduciary duty with respect to executives' sales of stocks.

This lawsuit follows the grand jury subpoenas from the New York County district attorney, a lawsuit brought by the families of slain police officers, a lawsuit by the LA. city attorney, lawsuits in other jurisdictions including Delaware, North Carolina and Connecticut, and investigations from US security regulators. 
Coverage here  http://www.shorl.com/fedrevukydyne  (Reuters)

Japan Government To Shake Up Gaming Industry!

In a report issued last week, entitled the "Game Industry Strategic Framework", Japan's Ministry of Economy, Trade and Industry ('METI"?) has issued three recommendations that could seriously impact the gaming industry.

This report, only part of which has been made available to news agencies, was issued last week as part of the Game Industry Strategic Research Conference.

METI's first recommendation is that a qualification system be created for game developers. In Japan, government-approved qualifications are omnipresent, where ministries administer a wide variety of exams, covering everything from athletic instruction to the handling of dangerous materials. Obtaining such qualifications is often mandatory for many government and private company positions. METI's recommendation is that this practice should be extended to the gaming industry.

METI's second recommendation is that Japan's primary gaming showcase, the Tokyo Game Show, be linked up with other international conferences related to entertainment. Theoretically, this could mean the Tokyo Game Show, Tokyo International Film Festival, and Tokyo Anime Fair would be merged together into a single massive event. The report's recommendation to "rethink the timing" of related events implies at the very least that future conventions may be scheduled to take place simultaneously or consecutively.

METI's third recommendation addresses the social impact of games. While Japan's Computer Entertainment Rating Organization took a step in this direction earlier this year by redefining its rating system, METI's recommendation goes further, calling for the industry to develop a comprehensive communication strategy, incorporating awareness-raising activities related to the rating system and survey-based research. The idea, says METI, is to ensure that gaming is accepted by Japanese society.

METI has announced that the report will eventually be published in its entirety on METI's Web site , but has yet to set a date for its release.

Coverage at http://shorl.com/jestefystifehe

Another Day, Another Large-scale Banning Of MMORPG Accounts

Square Enix announced on July 21, 2006 that it had banned or suspended more than 2,000 accounts for its popular Final Fantasy XI video game, citing violations of the user agreement on account of 'malicious"? use of third-party programs that enabled 'abnormal in-game movement"?. Use of such programs, states Square Enix, can destroy in-game balance and encourage trade of in-game gold for real world money. 

The ban by Square Enix is but the latest in a series of similar account suspensions in MMORPGs, with similar events occurring in games such as Ultima Online and World of Warcraft.

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

Newscaster's Family Sues NFL Over Unauthorized Use In Madden 2006

The family of legendary football announcer John Facenda has filed a federal lawsuit against the NFL, NFL Films, and NFL Properties LLC in a Philadelphia court this week, for unauthorized use of Facenda's voice in a promotional video for the NFL-EA Sports title Madden NFL 2006, called "Making of Madden 2006." The Facenda family's attorney said that the league had been granted permission to use Facenda's voice in football highlights, but not in any endorsements or promotions of other businesses, and that the family is angry that his voice was used in a "30-minute commercial for the Madden game." The amount of damages they are seeking is unspecified.  We'll keep you posted.

Coverage http://www.shorl.com/gytygruprykigo  and at http://www.gamepolitics.com .

RACE IN GAMES A PROBLEM?

Robert Parungao, a student researcher at the University of British Columbia, says that his research shows that certain video games perpetuate racial stereotypes about Asians. He has examined four games from various times in the past 20 years, and says that Asian characters are generally portrayed in the same negative ways (including as 'hokey kung fu artists"?).

Parungao points out that video games have been criticized for other forms of content (e.g., violence, negative portrayals of women, etc.), but not generally for racial stereotyping.

That being said, racial issues certainly arise in the video game context.  For example, see our previous post about claims by Chinese-speaking WoW that English-speaking players assume that all non-English speaking players are gold-miners, working in virtual sweatshops, etc.

Coverage at http://shorl.com/dydrurydynaku (CBC)

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)

Sony Patents New Video Game Interface

Sony's patented process, which is intended to let users control the action in a video game, would allow a game system (such as the Playstation 3) to view a rod-like controller in a 2D camera image and map its position in 3D. Microsoft has already been granted a patent for a similar system but, unlike Sony's process, it requires two cameras.  A wireless motion-sensing controller has also been announced for Nintendo's forthcoming Wii game system.

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

ESA, ESAC Praise Mounties On Piracy Raid

The Entertainment Software Association (ESA), the video game industry's trade body, and the Entertainment Software Association of Canada (ESAC) jointly issued congratulations to the Royal Canadian Mounted Police (RCMP) for its action against retail outlets offering pirated and counterfeit entertainment software for sale at Pacific Mall in Markham, Ontario.

During the operation, which took place on July 13, the RCMP raided three stores in Pacific Mall, seized thousands of copies of pirated game software, and arrested one person implicated in the counterfeiting operation. Pacific Mall was a suspected high-traffic venue for the sale and purchase of counterfeit products, including illegal entertainment software.

Danielle Labossiere Parr, Executive Director of ESAC, stated 'We are grateful that the RCMP continues to target this criminal activity. However, as the Pacific Mall outlets were raided just over one year ago with little deterrent effect on the targets hit last week, it is clear that the severity of the penalties imposed in this case needs to be increased to include the imposition of a prison sentence in order to deter any future sales of pirate game software by Pacific Mall outlets and others engaged in the pirate trade."?

The ESA and its members have had an active industry enforcement program in Canada since 2004, working with local counsel and investigators and identifying instances of pirate activity involving game software.

Coverage at http://shorl.com/dubrasekamoji

Always On, Off?

Nintendo might be taking one for the team in the name of energy conservation.  The UK is contemplating a new law to get citizens to save energy which would outlaw stand-by switches on electronics, after research found that electronics set on stand-by use eight percent of all domestic electricity in the country.  This is bad news for Nintendo's upcoming Wii console, an "always on" next generation machine whose selling point was its 24-hour connection to Nintendo's WiiConnect 24 download service, which would automatically download new content and the latest demos to consoles, 24 hours a day. Although it's not all bad news no other European market has enacted a stand-by switch ban, which means Wii would really only be sunk in Old Blighty.  Read Gamespot's coverage here .

TOO MUCH CARBO-LOADING BY EA?

An Italian news service reports that Ambra Pasta, an Italian pasta company, has commenced legal proceedings against EA over the use of the trade-mark AMBRA in EA's FIFA 2006. The exact nature of the proceeding, and the grounds for the claim, are not clear. If the mark does not appear in association with the game when it is sold, Anglo-American trade-mark law suggests that EA is not in fact 'using"? the mark in an infringing manner. Ambra might be claiming that by having the AMBRA mark appear in its games, EA is suggesting a sponsorship or endorsement by Ambra that does not exist, or is otherwise degrading the marks' reputation.

Coverage at http://shorl.com/gobryvapofafre

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)

Developing Massive Black Files Civil Suit Against Former Employees

Gamasutra is reporting that San Francisco firm Massive Black , which designs and outsources art, textures, and 3D models for developers, has filed a civil suit against two former employees.  Massive Black alleges that the employees, who were terminated last month, stole clients, more than $100,000 in cash, and confidential design assets while employed in the Shanghai office of the company.  The complaint alleges fraud, unlawful access to computer network/trespass, and interference with potential business advantage.  We'll keep you posted as further details become available.

Coverage here and here .

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. 

SONY GETS SUED AGAIN

Agere Systems recently sued Sony for patent infringement, claiming that technology in the PSP, PS2 and possibly the PS3 violate Agere's patents. Agere is claiming that Sony knew about the patents and intentionally violated them. Under US law, intentional patent infringement can result in the damages being tripled. 

Sony has denied the claims and is arguing that it actually has licences to 7 of the 8 patents. Sony is also challenging the patents, claiming that they should not have been granted. 

Sony is no stranger to patent infringement lawsuits. In March 2005, a U.S. District Court ordered Sony to pay Immersion Corp. over US$90 million in damages for patent infringement. Immersion alleged that Sony's 'DualShock"? controllers for PlayStation 2, which produce vibrations and rumblings in response to what is happening in the game, infringed Immersion's patent in a similar technology, and a U.S. District court found that the PS2 console, the DualShock controllers, and the 47 games which offered DualShock features, were an infringement of Immersion's patent. Immersion settled a similar suit with Microsoft in 2003.

The last couple of years have been full of patent litigation in the game industry. Another well-known example is that in 2005, Yahoo! and XFire became embroiled in a patent infringement fight over the use of online messaging technology. Yahoo! had obtained a patent for its GameProwler IM application, which allows gamers to see when their friends are playing online and communicate with them. XFire later developed its own in-game IM application which Yahoo! alleged had been created by an ex-Yahoo! employee now working at XFire. Yahoo! sued XFire for patent infringement and the two companies spent most of 2005 in a protracted legal battle, eventually settling in early February 2006.

This has encouraged game developers and publishers to be a lot more cautious about the technology they incorporate into their games. It's also encouraged many publishers to start increasing their own patent portfolios"?if only for defensive purposes.
Coverage of Agere at  http://www.shorl.com/fyhodisegudu (Gamespot).

Add This One To Their Troubles

Take-Two Interactive Software, Inc. is one among a number of companies which are being investigated by the US Securities Exchange Commission for option grants to its executives dating back to 1997. Take Two had begun its own investigation initiated by the Company’s independent directors prior to the SEC got involved.

Take-Two Interactive Software, Inc. of New York is a leading worldwide publisher, developer and distributor of interactive entertainment software, hardware and accessories such as Grand Theft Auto and Sid Meier's Civilization video games. Take Two is listed on the NASDAQ under symbol TTWO.

Coverage at: http://shorl.com/fustagegrogreju (Gamasutra)

Read more about Take two at: www.take2games.com

View the stock price at NASDAQ: http://shorl.com/fofrokystufani

EA Requests Stock Option Revamp To Retain Employees

In an effort to retain valuable employees, videogame maker Electronic Arts will ask its shareholders this month to approve a plan to let employees swap 'underwater options"? for restricted shares, in an effort to boost morale at the company, whose stock has lost about a third of its value over the last 12 months.

EA has, of late, been competing for talent not only with other video game makers but also with technology giants like Google and Yahoo.

Options are considered 'underwater"? when a company's shares are trading at a level lower than the price at which an employee can exercise his or her option to buy shares.

EA shares fell 62 cents to close on Wednesday at $42.81 on the Nasdaq, down from a 52-week high of $63.12 on July 21, 2005.

If approved at EA's shareholder meeting on July 27, 2006, employees holding significantly underwater stock options would be able to trade those in at an exchange rate of between 3-to-1 and 4-to-1, with some of the restricted shares becoming eligible for vesting in as little as two years.

Of note is the fact that executives and directors would not eligible for the program. The company's compensation committee already has approved a retention plan for "key employees", which includes certain named executives, that would grant new stock options and restricted stock unit awards. This plan does not require shareholder approval and EA expects to grant a mix of stock options to purchase about 2.2 million shares and 600,000 restricted stock units under this plan.
Coverage at http://shorl.com/dufevuvogripa

So Much For Virtual Inflation. EA Confiscates 15 Trillion Gold In Ultima Online

The video game publisher has announced that, along with the confiscation of the 15 trillion gold pieces, 180 user accounts have been cancelled for the long-running MMORPG. Electronic Arts claims that the virtual gold in question was obtained 'through the abuse of bugs or exploitation of game mechanics"? and that the cancelled accounts were connected to the accumulation of that 'dirty money"?.

Coverage at http://shorl.com/japuprubomika (Gamasutra)

THROWBACK PART II

In an earlier posting we reported that Throwback Entertainment had acquired several properties from now-bankrupt Acclaim Entertainment. Now Gamespot has run an interview with Throwback, providing more detail regarding the company's plans.
Coverage at  http://www.shorl.com/bohistejapyly

SCi Denies Theft Of Game Source Code

SCi is denying allegations made by MGE and Mithis Entertainment, developers ofBattlestations MidwayandJoint Task Force,that SCi employees broke into the Hungarian offices of the developers last week and stole software, including the source code forBattlestations Midway.  The parties have been involved in a contractual dispute regarding the game since last November, when SCi exercised a contractual right to oversee development of the game.  SCi's corporate brass are fighting back against what they say are "misleading statements" and "material inaccuracies"...see coverage at Gamasutra here .

Former Gizmondo Exec Loses More Swag

Ferrari Enzo aside, it's been a rough ride for former Gizmondo executive Bo Stefan Erikkson.  First he was convicted for fraud and other charges relating to his involvement with the Swedish mafia .  Then, Gizmondo went bankrupt .  Then he was charged with grand theft auto for bringing two Ferraris and a Mercedes that he did not allegedly own into the United States, and got himself in even more hot water for crashing one of those Ferraris in California while allegedly under the influence.  Now, his cars are being shipped back overseas to the British banks that allege they are the rightful owners of the cars.  Erikkson is awaiting trial in California.  Read coverage from CBS here .

EUROPEAN PSP AD CAUSES CONTROVERSY

Sony Computer Entertainment is introducing a new PSP in 'ceramic white"? (the original PSP is black). However, some ads for the new PSP in the Netherlands are causing a bit of a stir. One ad shows a white woman grabbing a coloured woman's jaw, with the slogan 'PlayStation Portable White is coming"?. Many people are claiming the ad is racist, and should be removed. In fact, the NAACP (a US civil rights group) has issued a statement lambasting Sony's 'archaic advertising techniques"?.

Sony has stated that the ad campaign, which is only being used in the Benelux countries, uses images that were designed to emphasize the colour contrast between the black PSP and the white PSP, and which 'have no other message or purpose"?.

Coverage at http://shorl.com/gudryfrofikihu and at http://shorl.com/bonafigosara (EuroGamer.net)

ACCLAIM REDUX

Last year we reported that the trustee for Acclaim Entertainment had been liquidating Acclaim's assets since Acclaim's bankruptcy. We're pleased to report that one of our clients, Throwback Entertainment , has acquired a number of Acclaim's titles including multiple Acclaim Gladiator Sword of Vengeance™, Vexx™, Extreme-G Racing™, Legends of Wrestling™, Re-Volt™, and Summer Heat Volleyball™.

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

Reservoir Dogs Video Game Banned In New Zealand

Eidos'Reservoir Dogsvideo game, already banned in Australia, has now been banned in New Zealand as well. At issue is the game's 'extreme level"? of violence, with New Zealand's Chief Censor citing the game as one of the most 'violent and callously sadistic"? that he has ever seen.

Coverage at http://shorl.com/banarimobrory (NZHearld)