“That’s one small step for a man, one giant leap for mankind.” – Neil Armstrong.

That is probably how consumers, developers, manufacturers, and the like all felt when the first “Television Gaming Apparatus,” the Magnavox Odyssey, and the game PONG were introduced and jumpstarted the video game industry. Since then, the industry has become more competitive in their patenting tactics which could consequently delay or potentially ruin future innovative ideas that try to build on past concepts. This probably isn’t surprising because, as a simple rule, patent owners of gameplay mechanics should profit off of their creations. However, when a broad patent description is submitted and filed, the effect becomes so overly-inclusive that it prohibits other developers from creating something that may even slightly resemble the patented concept. So are these software patents reasonable or absurd?

Remember Sega’s Crazy Taxi where the key to arriving at your customer’s chosen destination is to follow that bright green arrow atop the playing screen? Well, that bright green arrow is also known as U.S. Patent No. 6,200,138. Unfortunately for Fox Entertainment, EA, and Radical Games, their use of a similar floating arrow in the Simpson’s Road Rage resulted in a lawsuit from Sega, which was eventually settled out of court for an undisclosed amount.

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The timing of Sony’s addition of a binding arbitration clause to the PlayStation Networks Terms of Use (“PSN Terms”) is, in no doubt, directly correlated the Supreme Court’s recent decision in AT&T v. Concepcion 131 S. Ct. 1740 (2011). In that case, the Court upheld a contract which barred class-action suits and forced arbitration to all users of the service provided.

A quick explanation of the case is necessary. Section 2 of the Federal Arbitration Act (“FAA”) says that a “contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction… shall be valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract” (9 U.S.C. §2). The Supreme Court in Concepcion clarified that any grounds that exist in law or equity for revocation of any contract include fraud, duress, mutual mistake or unconscionability.   Read more

Ever wonder how Electronic Arts and the NCAA can make so much money off their video game series and not give a dime to the players the game is based off of? Well as it turns out, so did a few of the players. Ryan Hart, a quarterback playing for Rutgers University, sued Electronic Arts in a New Jersey Federal Court alleging the company did not have the legal right to use his likeness in its NCAA Football titles. His case was dismissed, but the points discussed are very important to the future of the gaming industry.

The game itself never actually refers to Mr. Hart by name, however, he claimed the “imaginary” quarterback for Rutgers in the game shared his appearance, height, similar skill sets, uniform number, home city, and even a very distinctive left hand wristband Hart commonly wore.

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Case Comment

Glaser v. The9, Ltd., No. 09 Civ. 08904 (RJH)., 2011 BL 81285

(Southern District of New York Mar. 28, 2011)

This case is complex but frames the issue of whether there should be more corporate transparency about possible financial risks between companies specializing in online operation of game networks and their shareholders to prevent shareholder lawsuits.

Lead plaintiffs, Lawrence F. Glaser and Chen Kuang, brought a punitive class action suit against several former high level directors of The9 Ltd. (“The9”) claiming violation of §§§10(b), 10b-5 and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”).  “Class action suit” means a suit brought by a few people on behalf of a large number of affected people, and “punitive” means the plaintiff wants to punish the alleged wrong-doer.

On February 3, 2004, The9 entered into a contract with non-party Vivendi, Blizzard’s parent company, to act as the exclusive operator of the servers and networks of the massively multiplayer online game World of Warcraft (“WoW”) in China (“WoW Contract”).  The WoW Contract was amended in 2007, replacing Vivendi with Blizzard and setting an expiration date of June 7, 2009.  The game was launched in China on June 5, 2005.  In the third quarter of 2005, The9’s income rose 2,096%.  The game had produced the defendants a revenue stream of $22.3 million.  “WoW would go on to account for over 90% of The9′s revenues in 2006, 2007, and 2008.”

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Sprocket Rocket Design and Conquer is a game on the Wallace and Gromit website in which the player can “create” and learn about intellectual property as they play.  Before the player starts, they are encouraged to create a logo using any text they’d like from a combination of text styles and colors provided by the game developer. Once the player picks his logo, the game stamps it with the “TM” – the international abbreviation for trademark. As the player plays the game, they fly a ship through different levels and build different gadgets on their ship to beat different obstacles on each level. Once a player makes an improvement to the ship, the game stamps it with a patent pending – something an inventor would do if they filed a patent application that has yet to be granted. Finally, certain checkpoints in the game state the British intellectual property law.

But is the player really creating IP as they are playing? Sure it’s just an educational game meant to introduce the basics of intellectual property law, but let’s put it to the test. Intellectual property governs territorially. We’ll use U.S. law to analyze this question, because, although the site references U.K. law, this blog and I, as a player, are located in the U.S.

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Darren Shield and myself recently had the opportunity to ask a few questions from Professor Jim Blaschovich (University of California, Santa Barbra) and Professor Jeremy Bailenson (Stanford University) about their new book Infinite Reality. Infinite Reality is available at most retailers. If you didn’t catch our posting on the introductory chapter, you can find it here.

When did you first get the idea to write about this topic?

We decided to do this book in 2007 and began in earnest in 2008. Having studied human-to-human interaction in 3D immersive virtual worlds for over a decade, we thought we had something to say to a more general audience than scientists and academics.

What was the most surprising thing both of you discovered after doing the research for this book?

The most surprising thing about immersive virtual experiences is that even though people know at some level that they are in a virtual as opposed to a physical environment they can’t escape the pressures and influences from these worlds. The “pit” demo experiences in which a person refuses to walk over a virtual pit even though they know consciously that it isn’t there is quite convincing.  In some cases, even if you try very hard to disbelieve everything about immersive worlds, you often cannot. Read more

One would think that with Activision’s announcement last month of its decision to terminate the once hugely successful game franchise, Guitar Hero, the game would only be referenced from now on as a thing of the past, a once popular breed of music-based video games that changed the landscape of interactive entertainment.  Yet, today the brand is still making headlines, but not in a good way.  The video game and legal communities are now confronted with the always controversial issue of unauthorized use of avatars in games.

No Doubt, a mainstream band that gained prominence in the late 90s and early 2000s, has brought legal action against Activision for unauthorized use of avatars depicting the band’s members in Band Hero, a spin-off of Guitar Hero.  According to the members of No Doubt, the band licensed to Activision their likenesses in the form of avatars to be used only in connection with No Doubt songs.  Read more

Despite high-powered gizmos and gadgets at her fingertips, the modern law student remains chained to textbooks the size of anvils. After a valiant stab at capturing airborne lecture material, she’s expected to cough up a clear diamond of legal analysis in a couple hours on exam day.  Across town, the typical law firm recruits new talent by rifling through reams of paper, looking for matador red. Recipes of future successes are trashed based upon gelatinous criteria.

Given this cloak and dagger routine, it’s no wonder that the marriage between these two parties isn’t always perfect.

But there is hope for the future.

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What happens when you try to mash up lawyers and video games? Sometimes you get the misadventures of Phoenix Wright (who, by the way, would be disbarred if he practiced that way in America). But on April 21^st, you get the 2011 panel on Legal and Business Trends in the Video Game Industry hosted by New York Law School’s Institute of Information Law & Policy.

Moderated by Dr. S. Gregory Boyd, Attorney at Davis & Gilbert LLP, NYLS Adjunct Professor and faculty advisor to this blog, we will hear from Take-Two Interactive, Majesco Entertainment, and the ESRB about the rise of social games in the marketplace, the evolution of ratings in a world of digital distribution, changing demographics in the game industry, and the future of “core” games in the new marketplace.

Our speakers include:

Take-Two Interactive - Seth Krauss, Executive Vice President and General Counsel

Entertainment Software Ratings Board – Evie Goldstein, Senior Vice President and General Counsel

Majesco Entertainment - Adam Sultan, General Counsel and Senior Vice President of Business and Legal Affairs, Head of Product Acquisition, Licensing and Strategic Partners

Date: Thursday, April 21, 2011

Time: 6:00 p.m. – 7:30 p.m. (with Q&A and cocktail networking reception, sponsored by Kenyon & Kenyon LLP, to follow)

Where: New York Law School, Events Center, 185 West Broadway

We hope you can join us in person by RSVPing to Naomi.allen@nyls.edu by Monday, April 11^th. Or join us online by following our tweets at @aylabtu!

Valve is making a sequel to the hit Defense of the Ancients (DotA) and, naturally, wants to trademark the word mark for this game. Normally a simple affair, except Valve did not make the original. Neither did Blizzard. DotA is a community developed game mod and based on Blizzard’s Warcraft 3. So who should own the mark?

Blizzard developed and published Warcraft 3, which community members used to make the game mod Defense of the Ancients. Blizzard has now tapped Valve with the development of a sequel. To further muddy the waters, there was no centralized development in the DotA community with multiple variations on the theme. The original designers were not involved in what has ultimately become the most popular rendition. Riot Games, comprised of a collation of DotA designers, has sought to challenge Valve’s registration. Read more