I'm Taking a Break from BK

Dear BK Faithful-

I happy to report I have taken a new post, but sad to say that blogging is being put on hold. I guarantee that when I come back, it will be bigger and bolder.

See you soon

NY Assemblyman Proposes Bill to Restrict the Sale of Games with Profanity or Racial Stereotypes, Bangs Head Against Wall

NY State Assemblyman, Keith L.T. Wright, submitted a proposal to prevent people under the age of 18 from purchasing games with a rating that "reflects content of various degrees of profanity, racist stereotypes, or derogatory language, and/or actions toward a specific group of persons." It would also require retailers to ID when selling or renting M or AO games. This is Wright's second attempt, the first attempt failing in 2007.

Does This Guy Look At History?

Retailers voluntarily checked IDs for video games, same as they do at the movies. This area does not need to be legislated. Also, the language of the quoted portion above is so broad, that anything could fall under that umbrella. It would lead to inconsistency and undue complexity. No offense to Mr. Wright, but not only has legislation like this failed in his own state, it has failed in multiple others for the same reason - it is unconstitutional!

Sony Sues Datel, Maker of a PSP-3000 Hacking Extra Battery

Sony Europe has filed suit against UK-based Datel, maker of the Max Power Digital Battery accessory for PSP, alleging copyright infringement for Max Power's ability to circumvent Sony's encryption protection for the PSP. Interestingly, the Battery was originally sold as the Lite Blue Tool, an explicit hacking device already frozen by Sony previously. Sony believed that with the launch of the PSP-3000 piracy was "trending downward."

Changing the Name Didn't Fool Them? Damn...

The PSP has enjoyed quite a bit of hardware success but not as much software success, in part due to large amounts of piracy. It isn't surprising that Sony is going after them, especially in these lean times.

Worlds.com Sues NCSoft For Infringing Patent Related to Virtual Space Interaction

Worlds.com, suffering in the business world, has filed suit in the Eastern District of Texas claiming that NCSoft, with its myriad virtual platforms, is infringing patent 7,181,690, System and Method for Enabling Users to Interact in a Virtual Space. The patent relates generally, and I mean generally, to creating a 3D space with Avatars and displaying the relevant information for each player. Importantly, the filing date on this patent is in 2000.

Can Anyone Say Invalidation?

I hate to break it to Worlds, but the patent is written so broadly, that while they may have pulled a fast one on the examiners in the PTO, I highly doubt this patent will survive this litigation. The 2000 filing date leaves plenty of room for prior art in the MMO space to be considered. Ultima Online and Everquest were both up and running at this time. Jeez, even old MUDs kept track of player positions and delivered information based on that position. The claims are also so broad that they do not even narrow to more technologically useful specific cases, such as being used in a 3d world. This case has all of the markings of trollery (though Worlds is not a troll in the conventional sense). It will be interesting to see if NCSoft fights it on principle, or just settles out of convenience.

Game::Business::Law Conference Coming to Dallas January 14-15

Courtesy of Mark over at Law of the Game, I wanted to give the heads up about an upcoming gaming/business/law conference being held in Dallas two weeks from now. The slate of speakers is top notch, ranging from industry heads to lawyers in the field. The conference is affiliated with SMU's Dedman School of Law and Guildhall graduate program.

The Official Site

Let me know if you will be attending!

Irony: Spore the Most Pirated Game Ever

With all of the hoopla surrounding EA's inclusion of DRM technology to prevent the mass piracy of Will Wright's Spore, it is clear we have a winner in the battle against piracy: the pirates! TorrentFreak, a blog dedicated to all things torrent, declared Spore the most pirated game ever, breaking the single year record. It stated that 1.7 million copies of the game have been pirated thus far, far outranking no. 2, The Sims 2, at 1.15 million. The blog suggested that perhaps the piracy rate was so high because consumers did not want the hassle of DRM's "benefits," namely invasive software and limited installs.

Pore

This time I am siding with the fan boys: the answer to piracy is not to treat the consumer like a criminal (ahem, Xbox!), but to make it easier to pay and play than just play.

MTV, Harmonix, EA, Viacom Sued Over "Defective" Rock Band Pedal

Harmonix, Viacom, EA, and MTV have been named in a class action suit brought by Monte Morgan alleging that the following companies put out a defective product in an attempt to “deliberately cheat large numbers of consumers out of individually small sums of money.” The suit comes on the heels of the expiration of EA's no-questions-asked warranty extension (which ended Oct. 1 2008). Now all replacements are free only for the first 60 days after purchase. Lawyers for Morgan are arguing that not only did Harmonix et al know that the equipment was defective, but they are now attempting to exploit that fact by offering new drum pedals with Rock Band 2. They also argue that the new 60 day extension is not nearly enough time. Naturally, MTV and Harmonix deny these allegations, calling them "baseless" and "opportunistic."

Baseless...hmm

I have quite a bit of personal experience with this: I'm on my third pedal, second guitar, second USB hub, and second set of drum heads. Having spent probably a thousand dollars or so on Rock Band in the past year, let me say that when my equipment breaks, EA should be there to fix it - especially the drum pedals. It is nearly impossible to not break a pedal once you start playing on expert and kicks are coming 200+/song. I have gone so far as to do some preventive medicine on my pedal so it won't break and I won't have to deal with EA again. I bought the wireless RB2 drums and they were broken out of the box. EA lost my order so it has been more than two months now since I bought the drums and I haven't played them one bit (supposedly they are on the way).

So far, my experience with EA has been very positive: I say it is broken, they send me a new one, no questions or fees. Now, if my equipment breaks and I have to pay - that will become a problem. Seeing as how I am still giving Rock Band at least $20/month for new songs, I expect that the equipment will last longer than 2 months, at which point it will no longer be under warranty. Frankly, the ease of replacement has kept me playing, so hearing that they will no longer be acting like that is unsettling. I am constantly reminding players at my house, "Be careful...this IS a toy."

This warranty issue could seriously affect the longevity of Rock Band - I do not know why they changed their approach, but I can imagine that the fan boys out there (including myself) will get really angry when their equipment breaks and the only option for replacement is an $80 outlay for "new" "instruments."

As for the suit itself, I do not believe that Harmonix was deliberately selling faulty equipment - they were taking many steps forward with Rock Band and the drum pedal's inadequacy become apparent early on. When the warranty was in place it was excusable; without it though, it is much less so.

Midway Cleared in Psi-Ops Case

I reported earlier on William Crawford's suit against Midway alleging that they stole ideas from his script, Psi-Ops, when they created the game, Psi-Ops. The judge thought differently. Despite the similarities in title, characters, and events, the judge found those elements of Crawford's script unprotectable and granted summary judgment for Midway. Crawford's arguments about Midway's access to his script via publicity events and web postings likewise failed.

Psi-Pop

Great news for Midway, except that they will be bankrupt in 50 days...

A Day of Settling - Capcom Wins Dead Rising Lawsuit and THQ Drops Suit Against Activision Over Box Art

Two Suits Concluded Today:

Capcom vs. MKR Productions (Dawn of the Dead guys) - The judge found that a story of zombies invading a town and someone trying to stop them is not protectable. Despite MKR's arguments that there were unmistakable similarities such as a fight scene in a mall, a helicopter ride, and zombies in plaid, the judge sided with Capcom. Another MKR's argument was that the products both contained social commentary about sensationalist media. The judge disagreed, leveling Dead Rising to a pure action experience with no social commentary - good for the suit, bad for the ego. The conclusion of the suit opened the door for Dead Rising 2: Already in Development.

Dawn of the Dead: The Lawsuit

THQ vs. Activision - The Baja Box Art Case - Activision agreed to change the box art in a settlement which will dismiss the case with prejudice. Why didn't Activision just do that the first time THW asked them to...it worked out well for me, the lawyer (well, not me, exactly, you know what I mean).

Baja Suit Goes Baja

Brush that dirt off your shoulders video game legal world.

EA Faces New SecuROM Class Action Suits

Continuing the EA SecuROM debacle, not one, but two new class action lawsuits have been filed. The first involves EA's inclusion of its ultra-invasive, questionably effective, SecuROM technology with the free Spore Creature Creator software. Despite there being no risk of piracy, EA included it anyway. The second class action suit involves an avid Sims player who after installing Sims Bon Voyage could no longer access certain files on her computer. Both cases were filed in the Northern District of California and both plaintiffs are represented by the same law firm. An earlier suit was filed in September regarding the SecuROM in Spore.

Sec-Two-Wrong

If EA wasn't listening before, they should be now...

Activision Sued by THQ for Baja Box Art

THQ has filed suit against Activision alleging copyright and trade dress infringement. SCORE International Baja 1000 actually does look "virtually identical" to THQ's packaging for Baja Edge of Control. THQ urged the big A to uses different art, but after a million dollars worth of advertising, the A said no. THQ requested the game be enjoined and believes it will be entitled to the profits from the game.

Baja the belt, Activision!

Comparing the two packages, it is pretty clear that Activision at least referenced THQ's artwork. The similarities are ridiculous. The real question is why would Activision do this? Somehow, I doubt that they are actually trying to usurp THQ's customers in such an obvious, but not obviously effective, way.

UNLV Fight Song Composer Suing EA

EA, master of the official, released-every-year, sports video games, is being sued by the composer of the UNLV fight song, "Win With The Rebels," Gerard Willis. Willis claims that his song was not properly licensed and has been used in 10 EA titles including NCAA Basketball 2009, NCAA Football 2006 through 2009, NCAA March Madness 2006 through 2008, and NCAA Basketball 2006 and 2007. He is seeking $150,000 per count of copyright infringement, ie per game used, for a total of $1.5 million.

EA, You Rebels!

If he wins, not a bad payday for Mr. Willis. Somehow, I do not think UNLV pays him this much to use the song...

New Anti-Piracy Regulation Passes, ESA Stoked, Artists Not So Much

Congress passed the Prioritizing Resources and Organization for Intellectual Property Act of 2008, or the PRO-IP Act, putting in place many provisions to help protect America's IP in the future. The Act creates an IP Czar tasked with overseeing US IP protection who reports directly to the president. It also outlines specific programs for IP enforcement, targets criminal organizations, and provides additional funding for the FBI and DOJ to crack down on hackers and pirates. While the bill is supported by the big dog media conglomerates, such as the RIAA and MPAA, consumer groups are not as happy as they see this as a victory for large media and an encroachment into legitimate fair use user's rights.

What's With All of the Czars?

Will this lead to more consumers being found by the government and nailed to the wall for piracy?

Obama Advertises in EA Games

Barack Obama, living the "Change We Can Believe In," began advertising in video games this past week. He bought ad space in a variety of EA titles that utilize Xbox Live, therefore allowing for constant updates. As the article notes, one game Burnout, came out in January but the ads will be running for a limited period of time right now. There was no mention of the price of the ads, but they were bought to target the video game sweet spot demographic of young males, traditionally tough to reach for political candidates.

Oburnout

Good to see that politicians are heeding the times.

EA Sued Over Spore DRM

Melissa Thomas did what many on the message boards have threatened but none had actually done: she is suing EA for its use of SecuROM, a anti-piracy device that apparently cannot be uninstalled, alleging deceit and concealment for bundling SecuROM with Spore. She thinks that the DRM software is too invasive and is seeking $5 million in damages. EA responded that, well, Spore has sold a million copies! I cannot tell if that hurts them or not...

SuckyROM

There has been so much hoopla about this DRM, it is hard to gauge whether its is a huge deal or if it is an overreaction. My impression is that 1.) never mess with a gamer's rig and 2.) the reaction should work as more of a deterrent for future behavior, as opposed to, there being actual damage caused by the DRM technology. What do you think?

Activision Suing Call of Duty Pirate

James Strickland is being sued by Activision for allegedly pirating Call of Duty 3 (that is so a few years ago!) and distributing it, along with some other unnamed games. Activision has since discovered what the unnamed games were and is seeking to amend the complaint to include those as well. The big A is suing for $150,000 per infringing copy. Ouch!

All My Booty 3: Gone

Without the details of the case, it is hard to judge whether this pirate is one of the masses of pirates out there or whether his operation was massive and worthy of being targeted like this. My guess is that Activision has better things to do than become the Metallica of video games (aren't they partners now?), but you never know with the juggernauts - sometimes they just roll.

Sony, Jaffe Sued Over Alleged God of War Idea Theft

Jonathan Bissoon-Dath and Barrette-Herzog, plaintiffs, sued for copyright infringment after claiming they sent creative materials to Sony before the production of God of War, including a script and illustrative map, and that Sony subsequently ripped them off in making their huge blockbuster of a game. Sony responded claiming that the allegations were inaccurate, incomplete, and misguided. Plaintiffs wanted to name the game The Adventures of Owen: Owen's Olympic Adventure.

At Least We Know Sony Didn't Take The Name!

I find this case hard to believe based on the name of P's game alone. Who would think up the awesomeness that is GoW, only to name it like it should feature, Izzy the Olympic douche?

Tecmo Japan Settles Overtime Suit, Readies for Merger

In an effort to tidy up its legal affairs, Tecmo has settled with two employees who claimed approximately $77,000 is unpaid overtime wages due to Tecmo's illegal "flexible hours" work schedule. In addition, the employees alleged that the company then covered it up with false accounting paperwork. The parties reached a judicial settlement.

"Flexible Hours" Tec' Mo' From Workers

Good to see a game company pay the fair amount for the hard work of their employees - too bad it took the legal system to make it happen.

SL User Files Suit Against LL, Other Avatar for TM Infringement of SLART

Richard Minsky, Second Life artist and owner of the trademark "SLART," has sued Linden Labs, Philip Rosedale (head of LL), Mitch Kapor (head of the board for LL), and an avator named Victor Vezina, claiming trademark infringement, TM dilution, and fraud. Apparently, Victor Vezina is using the SLART trademark without Minsky's approval and after LL would do nothing to protect his mark, he filed suit. For now, Minsky's claims are just claims...but the implications about TM enforcement in SL are huge. If he can win here, what will stop all of the other companies with valid TMs from suing LL for not removing infringing material?

SLART, a Sleeping Fart

Another interesting part was LL's reaction of trying to get Minsky to drop the rights to the mark by offering perks, such as a feature in the SL magazine. LL holds the mark to SL Art, which is different enough from SLART to warrant a unique TM. They were hoping to fold Minsky's mark into their own, but he refused.

Why not make the case that the mark is generic? Many people refer to art in SL as SLART, so it seems unfair for one user to hold dominion over the word (USPTO just cannot keep up!). I know that for many, SL is their livelihood and protecting their IP there is of the utmost importance, but this seems a bit ridiculous. And, I would love to hear the justification for the $1000/day "injury"...

Connecticut Court Dismisses WWE Suit Against THQ, Jakks

A Connecticut State Court dismissed all of WWE's claims against THQ and Jakks, the developer and licensee respectively, of WWE video games. WWE alleged bribery, anticompetitive behavior, conflicts of interest, and other dastardly deeds. The court dismissed the claims after reviewing the record: there is no antitrust injury and therefore no cause of action, and all of the federal claims were dealt with in the Federal Court's dismissal of the issue. WWE was hoping to nullify its licensing agreement as a result of the lawsuit, but it will not happen this time. WWE is appealing.

WWE gets the Smackdown

Sounds like WWE wants more money.