This Video Game Law blog is on an indefinite hiatus. I do expect to resume posting here in the future.

For the time being, I’m channelling my spare time into iPhone application development efforts and my wishhh.com service.

I will continue to blog regularly on The Daleisphere. Please join me there.

After “good faith efforts to enter into a patent license agreement”, and subsequent yesterday’s filing of law suits against Activision’s Guitar Hero retailers, Gibson has filed another patent infringement suit against MTV, EA & Harmonix in the Federal District Court in Tennessee. Gibson owns patent no. 5,990,405.

Gibson claims Harmonix infringed its patent as the developer of Guitar Hero 1 and 2 (now published by Activision – previously published by RedOctane). After Harmonix parted ways with RedOctane, it was purchased by MTV. Harmonix subsequently developed the successful video game – Rock Band. EA distributes the game. Gibson claims that Rock Band infringes its patents and as such Harmonix, the game developer, MTV, the game publisher and EA, the game distributor, are all infringing its patents.

Harmonix has responded in an email to Wired Blog’s as follows:

“Gibson’s patent, filed nearly 10 years ago, required a 3D display, a real musical instrument and a recording of a concert. Rock Band and Guitar Hero are completely different: among other things they are games, require no headset and use a controller only shaped like a real instrument. It is unfortunate that Gibson unfairly desires to share in the tremendous success enjoyed by the developers of Rock Band and Guitar Hero,”

While Gibson previously threatened action against the current Guitar Hero publisher Activision, as far as I know, no law suit has been filed against Activision.

The 405 patent’s abstract reads:

A musician can simulate participation in a concert by playing a musical instrument and wearing a head-mounted 3D display that includes stereo speakers. Audio and video portions of a musical concert are pre-recorded, along with a separate sound track corresponding to the musical instrument played by the musician. Playback of the instrument sound track is controlled by signals generated in the musical instrument and transmitted to a system interface box connected to the audio-video play back device, an audio mixer, and the head-mounted display. An external bypass switch allows the musician to suppress the instrument sound track so that the sounds created by actual playing of the musical instrument are heard along with the pre-recorded audio and video portions.

Dale’s Comment: I have not yet found the text of the claim online. If/when I do, I will attach it to this post.

Sources: Wired Blogs 1 | Wired Blogs 2 | CNNMOney.com (DJN) | Reuters | Joystiq | New York Times 1 | New York Times 2 | Wall St. Journal | MTV Blog | PC World | AP

Text of Sanction Order (March 20, 2008)
Text of Show Cause Order (February 19, 2008)

wo Florida bar disciplinary proceedings are pending against Jack Thompson. On April 12, 2007, the Supreme Court of Florida warned Jack Thompson that he could be sanctioned if he continued to submit inappropriate filings. Thompson filed over 50 subsequent filings. On February 19, the Court issued a ‘show cause’ order:

It appears to the Court that you have abused the legal system by submitting numerous frivolous and inappropriate filings in this Court. Therefore, it is ordered that you shall show cause on or before March 5, 2008, why this Court should not find that you have abused the legal system process and impose upon you a sanction for abusing the legal system…

Apparently Mr. Thompson was unable to show such cause. The court decided Thompson’s “constant abusive filings” were repetitive, frivolous and insulting. As such the Court (per Curium – 7 concurring judges) has issued the following order sanctioning Mr. Thompson:

Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject for filing any future pleadings, petitions, motions, documents, or other filings submitted by John Bruce Thompson, unless signed by a member in good standing of The Florida Bar other than himself. Under the sanction herein imposed, Thompson is not being denied access to the courts; that access is simply being limited due to his abusiveness. Thompson may petition the Court, but may do so only through the assistance of counsel, whenever such counsel determines that the filing has merit and can be filed in good faith. However, Thompson’s frivolous and abusive filings must immediately come to an end. Further, if Thompson submits a filing in violation of this order, he may be subjected to contempt proceedings or other appropriate sanctions..

Sources: GamePolitics.com | Joystiq | Wired | Next Generation | ars technica | Escapist | Law.com

As previously reported: (i) in January, Gibson pressed Activision to pay it royalty fees alleging the video game Guitar Hero infringes its patent; and (ii) on March 12, 2008 Activision filed a preemptive lawsuit in the District Court for Central California seeking, among other things, to invalidate Gibson’s patent claims.

In response to Activision’s lawsuit, Gibson has now filed suit against major U.S. retailers of Activision’s game, including GameStop, Wal-Mart, Target, Kmart, Amazon and Toys “R” US, seeking to enjoin further sails of “Guitar Hero”.

March 21, 2oo8 Upate: While Gibson has since separately sued Harmonix, MTV and EA over alleged infringements in both Guitar Hero and Guitar Hero, as far as I’m aware Gibson has not yet filed suit directly against Activision.

Dale’s Comment: I have not found the text of the claim online. If/when I do, I will attach it to this post.

Sources: GameSpot | Dallas Business Journal | New York Times | Joystiq | msnbc (AP) | Yahoo! Tech | Gamasutra | CrunchGear | Silicon Alley Insider | Kotaku

Click to hear Oral Arguments on Appeal

In another of a long line of such U.S. First Amendment video game cases, The United States 8th Circuit upheld the July 2006 permanent injunction enjoining Minnesota from enforcing a law that would have: (i) imposed $25 fines on children under 17 who bought or rented video games rated M (Mature) or AO (Adults only); and (ii) required retailers to post signs informing consumers of the law. The appellate court’s reasoning was as follows:

1. Video games are protected free speech (as per Interactive Digital Software Ass’n v St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003)).
2. As such, video game rental/purchase restrictions imposed by law must pass the ‘strict scrutiny‘ test, namely the law must: (i) be necessary to serve a compelling state interest; and (ii) be narrowly tailored to achieve that end.
3. The state argued that the compelling interest at stake was that of ‘safeguarding the psychological well being and moral and ethical development of minors’.
4. While the interest may be compelling in the abstract, in order to prevail the state must provide real and empirical support for its belief that ‘violent’ video games cause such harm – not merely conjecture.
5. The court agreed that Minnesota offered substantial evidence in support of its contention that video games cause such harm, but nonetheless ruled that the evidence fell short of the statistical certainty of causation required by the Interactive decision.

Wollman (CJ) noted:

Indeed, a good deal of the Bible portrays scenes of violence, and one would be hard-pressed to hold up as a proper role model the regicidal Macbeth. Although some might say that it is risible to compare the violence depicted in the examples offered by the State to that described in classical literature, such violence has been deemed by our court worthy of First Amendment protection, and there the matter stands.

The court did not go as far as other courts in deciding that the evidence did not establish a causal link between exposure to violent video games and subsequent behavior. Rather, it concluded:

Whatever our intuitive (dare we say common sense) feelings regarding the effect that the extreme violence portrayed in the above-described video games may well have upon the psychological well-being of minors, Interactive Video requires us to hold that, having failed to come forth with incontrovertible proof of a causal relationship between the exposure to such violence and subsequent psychological dysfunction, the State has not satisfied its evidentiary burden. The requirement of such a high level of proof may reflect a refined estrangement from reality, but apply it we must.

One wonders if Woman CJ was inviting the Supreme Court to take a look at, and perhaps overturn, Interactive on appeal.

Sources: GamePolitics.com | StarTribune.com (BugMeNot code)| GameDaily | Joystiq | 1Up.com | CNet | Jurist | Chicago Tribune | Gaming Today | KARE 11 | Yahoo! News (AP)

Sources: Bit-tech.net | Joystiq | Next Generation | Game Politics | Portalit | IGN | ESA Press Release

Rockstar appealed the ban to the Video Appeals Committee of the BBFC which ruled last December, 4 to 3, in Rockstar’s favour. The BBFC sought judicial review of the VAC’s decision from the British High Court. The court found that VAC’s decision was flawed by a clear error of law (see here, here and here). The High Court requested the VAC to reconsider its decision under new guidelines specified by the court.

In January 2008, the VAC did reconsider under the new guidelines but voted once again, 4 to 3, in favour of giving the game a certificate 18 rating, meaning it can be sold in Britain but is suitable for adults only.

In view of the second ruling, the BBFC released a statement saying it will not challenge the ruling any further and will issue the ’18′ rating. The edited version of the game (which is the same as the ‘reworked’ version of the game released in the U.S. under an “M’ rating) is expected to be on U.K. store shelves in June.

Click here for Wikipedia’s Timeline.

Dale’s Note: I have not yet found the text of the High Court decision or the ‘new guidelines’ it presented to the VAC. If I do, I will post them here.

Sources: BBC | Telegraph.co.uk | GameIndustry.biz 1| GameIndustry.biz 2 | MCV | BCS | Joystiq | Computer Active | Dose.ca | vnunet.com | Games Digest | EuroGamer 1 | EuroGamer 2

Activision has a long-standing license to use guitar-maker Gibson’s trademarks in its Guitar Hero video game franchise.

Gibson owns a hitherto unknown and unenforced patent ’405 (A System and method for generating and controlling a simulated musical concert experience) and claimed in a letter sent to Activision in January, that the Guitar Hero franchise, expansion packs and controllers infringe this patent. In the letter Gibson sought royalty payments from Activision:

Gibson requests that Activision obtain a license under Gibson’s … patent or halt sales of any version of the Guitar Hero game software.

In response, Activision has filed a preemptive lawsuit in the District Court for Central California asking the court, among other things, to invalidate Gibson’s patent claims and to bar it from seeking damages.

The abstract of Gibson’s patent no. 5,990,405 reads as follows:

A musician can simulate participation in a concert by playing a musical instrument and wearing a head-mounted 3D display that includes stereo speakers. Audio and video portions of a musical concert are pre-recorded, along with a separate sound track corresponding to the musical instrument played by the musician. Playback of the instrument sound track is controlled by signals generated in the musical instrument and transmitted to a system interface box connected to the audio-video play back device, an audio mixer, and the head-mounted display. An external bypass switch allows the musician to suppress the instrument sound track so that the sounds created by actual playing of the musical instrument are heard along with the pre-recorded audio and video portions.

Sources: Gamasutra | Next Generation 1 | Next Generation 2 | GameSpot | InformationWeek | engadget | Joystiq | MacWorld | Wall Street Journal | CNet | Yahoo! News (Reuters)

Harmonix claims that under its original agreement with RedOctane (subsequently assigned to Activision), it is entitled to a higher rate of royalties, amounting to $14.5 million, for the use of its intellectual property in Guitar Hero sequels. Harmonix claims that Activision has paid royalties based only on a prior lower rate.

Viacom (the parent of MTV and Harmonix) has reportedly withdrawn the suit for now. The companies have agreed to continue discussions outside of court.

Dale’s Comment: I could not find the text of the claim online. If I do, I will attach it to this post.

Sources: Variety | Gamasutra | GameSpot | Wired Blogs | CutScene | ars technica | GameSpot | Spong | Kotaku | Game Informer | gameindustry.biz

establish private wishhh groups for the exclusive use of your family, friends, classmates, teammates, colleagues, worship group, whatever… • invite others to participate in your groups • post wishhhes and ‘don’t wants’ for group members to see • link wishhhes to details on other websites • tag another member’s wishhhes as ‘granted’ or ‘reserved’ pending purchase – without that person’s knowledge (… shhh!!!… it’s a secret) so other members won’t grant the same wishhh • protect your children by using wishhh.com’s oversight functions • receive only the gifts you really want

I do intend to resume blogging later this year or in early 2008. Thank you for your patience. And, please do visit wishhh.com after launch.

…Dale

No charges were laid but ornamental knives and a hammer were seized from his room. The student was transferred to another school. The parents are appealing the transfer.

Note: It is unclear from conflicting reports whether the student was arrested or not.

Dale’s Comment: This is an example of a talented Counter-Strike modder being in the wrong place at the wrong time. There is nothing unusual about high-schoolers making mods for the popular Counter-Strike video game. In a twist on the common writing adage “write what you know”, this unfortunate student modded what he knew, and got caught up in a storm of contemporary controversy.

As a side note: This teen looks like he may have a career in the video game industry. As can be seen on this Fox News Video Report the mod is very good.
Fox News Video Report

Sources: FortBendNow | Houston Chronicle| GamePolitics.com | Kotaku | Kotaku II | Joystiq | Joystiq II

Where to go from here? Over the next few days I intend to back-fill many of the more important video game law-related stories I’ve collected in the interim and then move forward with new stories.

Following my system-wide conversion to Vista 64 bit Ultimate Edition (so far so good), I updated this blog to WordPress 2.1.3. Let’s take her out for a spin shall we.

[Update: As of Sunday May 6, I have back-filled March stories and started in on April - see new stories below. This is taking longer than I thought but I'm plugging along. It's been a busy week.]

[Update: As of Friday April 27, I have back-filled some 20 stories for January and February. I'll be moving on to March and April as time permits. Stay tuned. I hope to finish the backlog next week.]

Settlement Agreement and Mutual Release

Text of Amended Answer and Counterclaim

Take-Two and Jack Thompson have settled their GTA IV/Manhunt 2 suit and counter suit. Thompson has agreed:

1. not to sue or threaten to sue over the sale and distribution of ANY game – not just Manhunt 2 and GTA IV as sought in the original complaint – designed, published, manufactured, distributed or sold by Take-Two, its affiliates, subsidiaries etc.;
2. not to threaten such suits; and
3. to communicate with Take-Two only through its lawyers.

However, Thompson will still be free to criticize the content and distribution of such games and to represent third-party plaintiffs in actions against Take-Two, its affiliates, subsidiaries etc. alleging individual harm.

Dale’s Comment: It is odd for a settlement to contain an explicit agreement to limit communication with an opposing party to communication through counsel as the rules of professional conduct in most jurisdictions specifically prohibit lawyers from communicating directly with persons represented by counsel.

Sources: GameSpot | Next Generation | Gamasutra | GamePolitics.com | TheStreet.com | ars technica | GameDaily.biz | GameCareerGuide.com

Nintendo objected requesting:

1. dismissal of the suit with prejudice (meaning WeeWorld would not be able to re-institute the case at a later date); and
2. recovery of its legal fees incurred on the matter to date – estimated at around $400,000.

According to an open letter from WeeWorld’s CEO, Celia Francis:

The court has ruled in our favor and while we have been asked to pay a small part of Nintendo’s legal fees, the case was dismissed “without prejudice.”

Sources: Open Letter from WeeWorld

Activision has settled with John Tam and Corey Fong. The two have consented to a permanent injunction restraining the two from:

• distributing a demo created by TAM incorporating elements of Guitar Hero II;
• using or disclosing any Activision trade secrets;
• taking steps to develop drum, guitar or synthesizer-based games for the next year;
• “working on” a guitar controller for the XBox 360 version of Guitar Hero II for six months after release; and
• competing against an undisclosed list of peripheral devices for six months after Activision commercially releases them.

The two were also ordered to return all materials relating to Activision’s proprietary information.

As far as I’m aware, no settlement has thus far been reached with Jamie Yang, Reverb or TAC.

Dale’s Comment [written April 26, 2007]: On a personal note, I was one of the lucky one’s to pick up Guitar Hero II for the Xbox 360 on launch day. The local Best Buy had about 100 of them on the morning of the launch. As I understand it, they sold out within hours and, to the date of this writing (owing partially to extreme demand and problems with some versions of the initially released guitar peripheral), I still can’t find them for sale anywhere in Toronto. I would like to purchase a second guitar peripheral. I’m having a blast with this game. As one of the commentators in a recent Joystiq Podcast pointed out, my fingers ache and want to stop playing long before the rest of me does!

Sources: GameSpot | Gamasutra | GameIndustry.biz | 1Up.com | CVG | Kotaku

Sources: Rocky Mountain News | GamePolitics.com

Nintendo obtained a summary judgement in its favor over a similar lawsuit in 2003 when a woman claiming her son died of a seizure when playing Nintendo 64 failed to respond to the summary judgment motion.

Dale’s Comment: Given the warning label, this doesn’t seem like a winning case. Parents may wish to take these precautions suggested by epilepsy action to minimize the possibility of their children experiencing video-game related seizures.

Sources: GameSpot | EuroGamer | joystiq | GamesDog | Kotaku

Dale’s Comment: In my opinion GRAW 2 along with Gears of War are the best shooters released on the 360 to date. Terrific Game! But, Halo 3 is just around the corner.

Sources: GamePolitics.com | GameSpot | Kotaku | Yahoo@ Games | XBox 360 Fanboy | joystiq

The Canadian federal agency, Telefilm, has announced the four finalists in round 2 of its video game developer competition. The finalists are:

• Mindhabits of Montreal for Mindhabits Trainer
• Hothead Games of Vancouver for Swarm!
• Big Blue Bubble of London Ontario for Hobby Shop
• Cerebral Vortex of Toronto for Ambush! Trivia.

The finalists were chosen at this years’ Game Developers Conference.

In the prior round, each finalist had won $50,000 to explore their proposed game, seek venture capital etc.. In this round 2, each of the four finalists received a further $250,000 to develop a prototype of their game. In September a winner will be chosen at Vancouver’s VidFest. The winner will receive a further $500,000 to launch their game.

In addition to the four finalists above, on January 15, 2007 the following additional $50K round 1 winnners were announced:

• Dark Matter Entertainment of Toronto for Vertical Ascent
• HB Studios & TPB Productions of Lunenburg, Nova Scotia for Trailer Park Boys: The Game
• Hop To It Productions of Toronto for Create-A-Date
• Humagade Studios of Quebec City for Tamano
• LiveWires Design of Vancouver for Reckless
• murmur of Toronto, Vancouver, Montreal for Echelon

Good luck to all.

Sources: Gamasutra | GameCareerGuide.com | CBC.ca | PlayBack | Canada.com

In response to last-week’s Take-Take-Two law-suit seeking to preemptively stop him from bringing suit:

1. to stop the sale and distribution of Manhunt 2 (due out in the summer of 2007) and GTA IV (due out in October 2007); and
2. seeking pre-publication review of the games;

as he did in the past with Bully, Thompson has predictably brought a countersuit accusing Take-Two of racketeering and violation of his civil rights.Astonishingly, Thompson, in the original counterclaim (subsequently amended), Thompson accused Take-Two of conspiring with prominent online gaming publications GamePolitics, Kotaku, Spong, Joystiq, Gamespot, IGN, Game Informer, Electronic Gaming Weekly, Penny Arcade, and others to commit racketeering activities!Specifically, Thompson originally claimed that such “conspiracy” violated section 18 USC 241 which states, in part:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in ny State, Territory, Commonwealth, Possession, or District in the free exercise or njoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;… They shall be fined under this title or imprisoned not more than ten years, or both;

Wow, this is, err, novel! As noted by GamePolitics.com, however, Thompson subsequently amended the counterclaim from 20 pages down to the following single pargraph:

If the court finds that it has jurisdiction over this matter, it should review the video games in question, allow a review of those games by this defendant and then hear argument if requested by this defendant as to wherein the Plaintiff should be enjoined from distributing video games to minors.

Sources: GameSpot | GamePolitics.com I | GamePolitics..com II | Jack Thompson Press Release [.doc]

WeeWorld’s system allows users to create cartoon-like avatars for use with Skype, AIM, Windows Live Messegner and other instant messaging programs. The Nintendo Wii allows users to create Nintendo Mii avatars for use with the Nintendo Wii’s gaming system both on and offline.

Recently, WeeWorld asked the judge to dismiss the suit without prejudice (meaning they could re-institute the case at a later date) citing an intent to seek relief in the UK before resuming any action in the U.S.

Arguing that its Mii system does not infringe upon WeeWorld’s WeeMee trademarks because there is no possibility of confusion, Nintendo has filed an objection to WeeWorld’s dismissal request, seeking both:

1. dismissal of the suit with prejudice (meaning WeeWorld would not be able to re-institute the case at a later date); and
2. recovery of its legal fees incurred on the matter to date – estimated at around $400,000.

Sources: GameSpot | GameStooge | Kotaku | GamePro.com | Qj.net | Open Letter from WeeWorld

It appears the game was being hosted by the website’s U.S. service provider without Mindscape’s knowledge.

Since the story broke the game was taken off the site. The Australian Communications and Media Authority told Screen Play that penalties of up to $110,000 may apply to corporations selling computer games that have been refused classification.

Sources: Syndey Morning Herald | GamePolitics.com | theage.com.au

In what seems to be little more than another “look and feel” decision specific to the video game industry, the U.K. Court of Appeal upheld a prior Chancery Division decision ruling against Nova Productions in finding, yet again, that general ideas behind computer games, or in this case specific game mechanics, and other programs are not protectable under U.K. copyright:

“Merely making a program which will emulate another but which in no way involves copying the program code or any of the program’s graphics is legitimate,”

In this case, the court found no copyright in the “imagery” relating to either: (i) lines of dots indicating the direction of a pool shot; or (ii) an “in-time” mechanic that permits the player to alter the power of a simulated pool shot by timing the shot relative to a pulsing power level – see the images in the Annexes of the HTML version of the Chancery Division decision. Providing similar, but different, “imagery” to depict the same game mechanic idea is not infringing.

In the words of Lord Justice Jacob, when handing down the Court of Appeal decision:

“A series of drawings is a series of graphic works, not a single graphic work in itself. No-one would say that the copyright in a single drawing of Felix the Cat is infringed by a drawing of Donald Duck. A series of cartoon frames showing Felix running over a cliff edge into space, looking down and only then falling would not be infringed by a similar set of frames depicting Donald doing the same thing. That is in effect what is alleged here.”

In the Chancery Division decision, Mr. Justice Kitchen concluded that while the competitive games were inspired by Nova’s Pocket Money, no substantial part of the work was reproduced and therefor, no copyright infringement occurred.

“The ideas that Mazooma have taken have nothing to do with the skill and effort expended by the programmer. They do not constitute the form of expression of the computer program for Jackpot Pool. They are generalised ideas at a high level of abstraction. The features taken collectively or separately do not amount to a substantial part of the program.”

Justice Jacob’s Court of Appeal conclusions provide a particularly apt summary of the limited scope of copyright protection as applied to the video game industry:

“….Both sides submitted that this case had significance for the computer games (and computer program writing) industry. Mr Howe submitted that if the decision below is upheld there is no effective protection for games against copying of the game where a party copies the rules of a game but not its graphics. Mr Carr submitted that that not all things are covered by copyright, that most if not every work is, to some extent, influenced or derived from other works. So it is very important that copyright is not allowed to intervene to stifle the creation of works that are actually very different, as the individual games are here.

I agree with Mr Carr. If protection for such general ideas as are relied on here were conferred by the law, copyright would become an instrument of oppression rather than the incentive for creation which it is intended to be. Protection would have moved to cover works merely inspired by others, to ideas themselves.”

Other High Court Decision Commentary: Out-Law.com | TwoBirds.com | Davis LLP | SportandTechnology.com | Mondaq | EDRI.org

Other Chancery Division Commentary: IPKat | Clintons | Out-Law.com | IPRights

Crawford claims that Midway should have known about his screenplay and its premise because:

• he had set up websites with concept art;
• he attended the 2001 E3 to promote it.
• his company, Mindshadow Entertainment, had received media coverage for a possible  Psi-Ops movie project.
• he had registered “Psi-Ops” with the U.S. Copyright Office six years prior to Midway’s registration.

Crawford seeks an accounting and share of revenue made from “Psi-Ops” sales in an amount no less than $1.5 million.

Dale’s Comment: On a personal note, immediately following its release I purchased this game for the original Xbox. It was unplayable. Like several games of its era, it made me nausious within five minutes of firing it up. Too bad. It looked like a fun game.

Sources: GameSpot | gameindustry.biz | SoftPedia | Yahoo! Games | Kotaku | IGN | 1Up.com

Atari counterclaimed Sawyer alleging he induced game developer Frontier to breach its contract with Atari in creating a demo based on the RollerCoaster Tycoon franchise.

Apparently the UK’s law on inducement to breach is in flux and the outcome of Atari’s counterclaim is contingent on two cases pending before the House of Lords. Nonetheless Judge Lord Justice Chadwick is permitting the RollerCoaster Tycoon case to proceed to trial, but subject to the outcome of the other two cases.

Sources: GameIndustry.biz