The resale of used digital games might never be as successful as the resale of physical games. Not only has there been an attempt to restrict used games of all types by the publishers, it also remains unclear whether a used digital game market would even be legal in the United States.

Used disc sales are protected in the United States under the longstanding “first sale doctrine,” codified in section 109 of the Copyright Act. But the next generation of consoles is poised to reduce (if not eliminate altogether) the user functionality of pre-owned discs. Microsoft is rumored to be planning implementation of single-use online game activation codes in its next Xbox generation. A Sony executive recently told Eurogamer that used discs will be playable on the next PlayStation console, although further details have not been announced. Read more

Piracy is back: pushing more buttons than ever. In reaction to this button-pushing, Microsoft has promised “vigorous action” against those who illegally downloaded complete copies of Gears of War: Judgment. The pirated versions of GoW: Judgment appeared on popular Internet torrent sites more than a month before the March 19 release date. By the morning of February 19, 2013 Microsoft discovered the leak and that some of those pirates had the not-so brilliant idea to play their illegally obtained copies online.

What does Microsoft mean by “vigorous action”? Microsoft has promised a lifetime account and console bans for people caught playing the game early. To any who would call Microsoft’s bluff on this, it would be wise to look at the history the company has with pirated copies of non-released games. Read more

In the wake of the Sandy Hook Elementary tragedy, Congress has turned its attention to gun control. Where gun violence is involved, we have seen a scramble to pinpoint the exact cause of such tragedies. Like in the cases of Columbine and the Virginia Tech shootings, violent video games have also come under scrutiny by both sides of the aisle as a contributing cause, along with easy access to guns and mental health, in what causes such tragedy. Those who oppose further gun control, like the National Rifle Association, have argued that video games are the sole factor, rather than a contributing factor, to bolster their stance on guns and shift the blame to violent media.

Senator Lamar Alexander (R-TN) has stated, “Video games [are] a bigger problem than guns.” This was his response when asked about his support of universal background checks (in regard to guns) in an interview on MSNBC. Senator Alexander’s rationale: “because video games affect people.” This rationale has yet to be proven. In fact, more research has been proposed in order to find a connection between video games and its “effect on people.” Read more

In the wake of the tragedies at Sandy Hook Elementary School and Aurora Colorado, legislators have been looking for ways to curb gun violence. Much like comics and films in the past, video games are now a popular target to attack for supposedly causing or promoting violence.

A new Bill – the Video Games Rating Enforcement Act – proposed by Representative Jim Matheson (D-Utah) seeks to limit the sale of violent or adult video games to minors. The Bill would make adhering to the Entertainment Software Ratings Board (ESRB) rating system, which has always been voluntary, a mandatory requirement. It would also impose fines on any retailers selling “Mature” or “Adults Only” titles to minors; a requirement that the Entertainment Consumers Association (ECA) highlights is only present in the porn industry. The ECA has been outspoken about the new Bill, arguing that it would stifle creativity since it would force indie developers to obtain ESRB ratings, which can be expensive. Read more

Well, it’s official.  On January 31, 2013, the United States District Court of New Jersey issued a consent order and permanent injunction against XIO Interactive for its blatant copying of Tetris, one of the world’s most beloved video games.  The original decision, issued on May 20, 2012, marked the beginning of a trend that has continued over the last year; courts are protecting copyright holders against those companies that choose to rely too heavily upon the works of their predecessors.

The case, Tetris Holdings v. Xio Interactive, examined the relationship between Tetris and Mino, a strikingly similar game created by Xio.  The central issue in the case was exploring the boundaries of the Idea-Expression Dichotomy.  Under this distinction, the idea underlying the game is not protected, however, the specific expression of that idea is granted protection.   In general, anything that is necessary to the function of the game, such as the rules and functionality of the gameplay, is not copyrightable material, while expressive elements that make the game unique are afforded protection. Read more

The fallout continues from the massive security breach of Sony’s online PlayStation Network (PSN) in April of 2011, where the network was shut down for over three weeks following an external hack that compromised the personal financial data of almost seventy-seven million user accounts.  Recently, the United Kingdom’s Information Commissioner’s Office (ICO) levied a £250,000 ($396,000) fine on Sony for violating the country’s Data Protection Act, calling the breach “preventable” had Sony properly strengthened PSN’s security.

The Data Protection Act 1998 is the governing legislation in the United Kingdom on the “…processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information.”  Passed to bring the UK into line with the European Union’s data protection directive of 1995, the DPA spells out the conditions under which personal data can be collected, accessed, stored, and transmitted under UK law.  The DPA establishes eight separate principles for data protection, the seventh of which states that “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.”  It is this principle that, in the eyes of the ICO, Sony violated as evidenced by the PSN breach. Read more

Sony is seeking to patent technology that will prevent gamers from buying used games. Specifically, it invented a new version of Digital Rights Management (DRM), a technology that content providers can use to prohibit undesired uses. This is part of Sony’s ongoing efforts to deter second-hand game sales and is a different solution than always-on DRM, a technology previously used by Blizzard and Ubisoft that required users to continually be connected to the internet to play a game. Sony’s new technology jeopardizes consumers’ access to games and threatens the existence of GameStop and GameFly.

Sony’s new “Electronic Content Processing System” and “Use Apparatus” create a form of DRM that limits a disc’s playability to one console. The patent application suggests that Playstation 4 (PS4) will only play discs that include “contactless tags that will be read by your console in the same way as modem bank cards.” This RFID tag on the game discs would include a unique ID that requires the console to provide permission to play the game by identifying, “whether a combination of the disk ID and the player ID conveyed from the reproductions device fulfill the terms of use or not.” Therefore, if a person played a new game on their console, the console permanently associates their game’s RFID tag to the console’s account ID. Read more

Axl Rose, the lead vocalist of the legendary rock band Guns N Roses (GNR), may have his lawsuit against Activision thrown out. The reason is because it took three years from the release of Guitar Hero 3 (GHIII) for him to file his lawsuit. The lawsuit stems from what Axl Rose feels is a breach of contract with Activision for GHIII. The dispute began when Rose and his agent discovered former lead guitarist of GNR, Saul Hudson, better known as “Slash”, was also featured in the game.  Slash and Axl Rose have been at odds for years; leading to Slash leaving GNR in 1996.

When making the arrangements for the game, Rose agreed to let Activision use Welcome to the Jungle in GHIII but was under the impression that neither Slash nor Slash’s new band Velvet Revolver would be featured in GHIII. Not only was imagery of Slash present in the game; the cover of the game featured a cartoon version of Slash in his signature top hat, holding a Les Paul guitar. This prompted Rose to file a lawsuit in Los Angeles Superior Court over three years after the release of the game. Read more

Competitive gaming, or eSports, has taken large strides and has reached incredible heights over the last two years. The concept is simple: take a game and make it competitive at the highest level, allowing spectators to watch and enjoy the fast paced action until an ultimate winner is decided, and potential prize money is awarded.

eSports has fully legitimized as a spectator sport and a business model. Multiple leagues have taken form such as Major League Gaming, who reported 11.7 million viewers in 2012 over the course of their four weekend-long events. A little over one year ago, Twitch.tv was created, an entirely gaming specific live streaming website that took the internet by storm; about 16 million people a month are watching eSports related content. In April, MLG partnered with twitch.tv and CBS Interactive, a subsidiary of the CBS which owns America’s most watched television network and maintains and runs the popular gaming website Gamespot. The deal gives CBS Interactive exclusive rights to the broadcasting of MLG pro circuit events as well as for advertising representation. While this doesn’t mean we will start seeing MLG events on TV, it is certainly a step in that direction. To top it all off, the Season 2 Summoner’s Cup Finals for League of Legends was held at the end of October and was the most watched single-day eSports event of all time recording 1.1 million peak concurrent online viewers and over 8.2 million unique viewers throughout the 2.5 hour match. The 1.1 million concurrent online viewers is more than double any previous record held by an eSports event.

One of the biggest questions people have about eSports is how the contracts work. In a recent book entitled Raising the Stakes by T. L. Taylor, the author provides a sample contract for the audience. The contract goes over everything from practice hours to insurance policies, but there are a few interesting clauses regarding player and team obligations. Read more

In the wake of programmer Aaron Swartz’s suicide, Congress has been considering new amendments limiting criminal sanctions for violating a company’s terms of service. Under the Computer Fraud and Abuse Act (CFAA), exceeding one’s authorization on a protected computer is a federal crime. Prosecutors have attempted to apply that language broadly and aggressively, going so far as to bring charges for jailbreaking a Playstation 3  and breaching MySpace’s Terms of Service. While appellate courts have reversed such broad interpretations of CFAA, prosecutors still use the breach of contract theory to threaten harsh prison time.

The CFAA is a federal statute passed in 1986 in attempt to punish hackers. It criminalizes “intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtains information from [a computer]… which is used in or affect[s] interstate… commerce or communication.” Prosecutors have repeatedly attempted to expand CFAA to include violations of terms of service or other private agreements. A broad interpretation of “exceeding authorized access” could open the door to felony sentences for merely violating the terms of click-through licenses (e.g., Apple’s Terms and Conditions agreement to which you click “I agree”). While case law has generally established that violating terms and conditions is a civil claim and not a crime, the prosecution against Swartz demonstrates that courts still allow this theory. Read more