Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:
In a recent Sessler's Soapbox, Adam took the opportunity to comment on some of the trash talking on Xbox Live. During the course of that diatribe, he mentioned that he thought the First Amendment argument was a "crock of s***" with respect to trash talking. Well, as the resident lawyer here on Joystiq, I'd like to take this opportunity to explain the First Amendment argument is just flat out wrong. In fact, it's one of my greatest pet peeves that the First Amendment gets thrown about as an excuse for most everything that is said in the realms of gamer culture, from trash talking in online matches, to posts on forums, to comments on gaming blogs.

In case you're one of the thirty-four people worldwide who has never experienced the phenomenon in question, this is essentially what's being talked about: Typically, someone will do something offensive online, be that posting something in a forum or saying something on Xbox Live. Then, someone in power will either reprimand that user, often through censoring, or banning for the behavior. This is typically either followed by that user or some other user decrying this exercise of authority as a violation of their 'rights.' The responses do vary, but as a moderator of one of the biggest forums on the internet, I've seen everything from 'OMG U R VIOL8ING MY FURST AMNDMT RYTES!!!11!' to some very lengthy and polished answers. The only commonality between these varying levels of responses is that they are all wrong.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Summer is typically a "low season" for game releases, except for one particular annual tradition: new football games. As of late, those games have been all from EA, most notably the Madden and NCAA franchises. Last week it was made public that two gamers brought suit to disrupt EA's stranglehold over the football game market. Since the pleadings are online, I thought I would take the opportunity to offer some commentary on the issues presented. Of course, these are just my thoughts on the matter, not a prediction as to what result a trial may bring. EA's actual response may vary.

Professional sports are no strangers to antitrust and other anti-competition based legal actions. More or less every major professional sports league has faced these suits in the past, and some of them even hold specific anti-trust exemptions. For example, the Sports Broadcasting Act of 1961 is a specific anti-trust exemption for the NFL to be able to negotiate the broadcast rights for all teams. While none of the leagues have a true monopoly over the sports they represent, the barriers to entry are fairly great and most leagues are ultimately unable to compete (need I remind you of the XFL?). From the perspective of the NFL or MLB, exclusive licenses are likely viewed the way TV rights are, and I'm somewhat surprised that exclusivity has only become an issue in recent years.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Today we're going to discuss enforcement of intellectual property, which is a much deeper topic than simply "what is it going to cost me?" There are enforcement considerations on both sides of the issue, and it's often a rather sticky situation for the rights holder in a copyright scenario. Interestingly enough, there are some pretty important economic and public relations considerations with regard to enforcement as well as the legal ones.

There's a burden trademark owners face that isn't applied to copyright holders, specifically that those who don't protect trademarks lose them. Copyrights, on the other hand, aren't lost in this way. Theoretically, a copyright can only be lost once the time period for the copyright has elapsed, though recovery may soon be limited on so-called "orphan works" whose authors are difficult to locate. Alternatively, a copyright holder can formally release a work into the public domain, which is the equivalent of "abandonment" of a copyright.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Ah, the library (the place with books, not the bar). The once quiet and relaxing readers' domain has moved into the digital age, now containing computers and video games. In fact, a number of non-profits, like libraries, churches, and schools, have all found video game based events worthwhile to attract players of all ages to their establishments, or to add more entertainment to an existing event. GamePolitics actually raised an interesting question I had also received from a reader related to library and church game nights, specifically: What are the potential ramifications of holding these events from a copyright and EULA perspective?

It's actually a very good question, albeit one with a fairly nebulous answer. As was pointed out by the GamePolitics piece, there are licensing services that will acquire the proper license for the public performance of a movie. Similarly, groups like ASCAP have well established licensing procedures for music. The reasoning is that public display and performance are within the bundle of rights a copyright holder has. Therefore, in order to publicly display something, you need to have the copyright holder's permission in the form of a license. Of course, if it were this simple, I wouldn't be writing a column about it.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

It's only fitting that during the same week Red vs. Blue: Reconstruction premiers, Law of the Game on Joystiq would finally get to the topic of machinima. The game-based machinima issue boils down to one of copyrights and licensing. To be more specific, there are issues of copyright involved in all machinima productions, which give a need for licensing; which are addressed by Microsoft and Blizzard by means of a "machinima policy."

For those of you who have been living in a cave -- on Mars! -- since 2003 (the year Red vs. Blue stormed the internet), machinima is the use of a pre-rendered engine to make a film. It's often been compared to digital puppetry. It's become a popular art form, in part because it minimizes production costs and requirements, and in part because it often utilizes games that people enjoy. Of course, because the art often makes use of someone else's game engine or game assets, there are a lot of copyright issues involved. Thankfully, both Microsoft and Blizzard have made many of these concerns much simpler by publishing machinima policies.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Based on the comments to the last few copyright-oriented columns, it seems like everyone wants to talk about fair use. In fact, fair use is one of the most misunderstood aspects of intellectual property law, even though it's popular to play the "fair use" card in response to alleged infringement. Much of the confusion stems from the fact that there are different fair uses of copyrights and trademarks; still, other confusion stems from the fact that many of the tests for what qualifies as fair use are not terribly clear -- but I'll be clearing much of this up for you today ... hopefully.

For the most part, trademark fair use is far simpler to understand than copyright fair use, so trademarks will be our first stop. Simply put, it is fair to use a trademark nominatively or for identification. That means if you re-sell a BMW, you are allowed to refer to it as a BMW. If you're writing a book or game dialog, you are allowed to refer to brand names. You are also allowed to refer to brand names in comparative advertising too; for example: "Our console has more games than the PlayStation 3!" or "Our hardware is more powerful than the Nintendo Wii!" or "Our system is more fun than the Xbox360!" Now that I've angered all the fanboys, that's pretty much the entire universe of trademark fair use. Copyright fair use, on the other hand, is far more complicated.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Today's column has nothing to do with math. (Sorry to disappoint some of you!) For most, I'm sure, it's a relief -- myself included. What may not be such a relief, though, is that the topic of the day is once again copyright, which is often confusing. I've received quite a bit of e-mail over the past few months regarding game footage on YouTube or streaming footage, and how exactly that relates to copyright. What this article won't address specifically is machinima, but rest assured that Law of the Game on Joystiq will visit the territory of Red vs Blue at some point in the future.

When last we discussed copyright, we talked about what was protected under the law and what was not. But what the previous article didn't spell out were the rights granted to the copyright owner. In this way, "copyright" is a bit of a misnomer, as the person who holds a "copyright" actually has a number of rights with respect to the work. In fact, there are 5 generally identified rights in the copyright:

1. The Right to Reproduce the Work
2. The Right to Distribute the Work
3. The Right to Create Derivative Works
4. The Right to Show Display the Work Publicly
5. The Right of Public Performance

Rights 4 and 5 vary with the particular type of work. The issue we're tackling today falls somewhere in the rights listed, although it's difficult to precisely label.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

From cheating to piracy, game security has become a major issue. In fact, the most recent Computer Law & Security Report features a piece by Steven Davis, author of PlayNoEvil, and W. Joseph Price about the state of security in the gaming industry. Their verdict was less than reassuring if you're a player or developer. Sure enough, just a few weeks after the report was issued, Grand Theft Auto IV was leaked prior to release. So what is a developer to do? What about the video game community?

To start, a "pirate" is someone who illegally reproduces or distributes something that is protected by an intellectual property right. In simple legal terms, that person is infringing on the rights of the copyright, patent, or trademark owner. While any intellectual property can theoretically be "pirated," I'm only talking about items that can be copyrighted. And before anyone points this out, yes, this is what groups such as the RIAA have taken pretty extreme steps to combat. Of course, the music industry and game industry are two different beasts.

Joystiq's sister site WoW Insider is dedicated like a Night Elf Hunter's pet leveled up to the highest loyalty to bringing you news from all over Azeroth. From the upcoming patch 2.4.2 to everything you need to know about the next expansion, Wrath of the Lich King, we've got your your back just like that sneaky Shadowstepping Rogue. Ok, well not quite in that way, but you know what we mean. Here's our top posts from the last week in Warcraft.

News

• Patch 2.4.2 notes released
  Blizzard announced what's coming down in the next (bugfix, not content) patch.
• Undocumented changes in 2.4.2
  And we cover what they didn't announce.
• Blizzard to Boll: Thanks, but no thanks
  Well at least we can say one good thing about the Warcraft movie: Uwe Boll won't be directing it.
• Macro for a prettier WoW
  Type this into your console, and spice up the look of Azeroth's environments.
• Drysc reveals Arena Season 4 ratings requirements and rules
  News about the Brutal Gladiator gear coming in Season 4, and how Blizzard is fighting win trading.

Features

• Guildwatch: "officers dont do officers like u did"
  Drama, downed and recruiting news from around the realms -- oh my!
• Blood Sport: No scrubs allowed in Season 4
  Our Arena PvP column lays out the changes to requirements in Season 4, and if you're not good, you're not getting gear.
• Spiritual Guidance: Three priest specs your raid shouldn't leave Shattrath without
  Tips for holy priests, or raids who want their help.
• The Care and Feeding of Warriors: Are Warriors underpowered?
  Matthew Rossi might be crazy -- but he also might be right.
• Five tips to minimize raiding downtime
  Five ways to keep the mobs coming while raiding with a larger group of players.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Last week, Sean Bersell of the EMA directed me to a lawsuit out of California that had him concerned. Once I had a chance to read over the suit, I didn't just share Sean's concern, I was actually cringing at the potential of this suit to bring about the death of consumer rights as we know them. If you have ever bought a DVD, CD, or video game, then this suit could affect you. I sincerely hope that the courts will, in their wisdom, not side with Universal Music Group's expansive view of the copyright law. But, I'm getting ahead of myself. The suit in question is UMG Recordings Inc. v. Augusto. (The EFF has many of the court documents available at that link, if you would like to read the filings.)

To summarize the lawsuit, UMG puts out early release promo CDs, which go to radio stations and reviewers. Augusto runs an eBay business selling music, and one of his big focuses is re-selling these 'rare' promo CDs. UMG claims that re-selling these CDs is a violation of its copyright, and Augusto obviously doesn't agree. The case turns on interpretation of what is commonly known as the 'first sale doctrine,' even though it isn't as tied to a sale as the name would suggest. To put the gravity of this into perspective: UMG's claim, essentially, is that a copyright owner can control what the consumer can do with a product once it is in the marketplace. In other words, the copyright owner can prevent you from reselling a game you bought, or even throwing it away. That level of control, besides being wholly impractical, should sound as crazy to you as it does to me.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

First, I'd like to apologize to all of the aspiring beaurocrats out there. This is not an announcement post for World of Taxcraft -- I hope I haven't ruined your favorite time of the year: tax season. Yes, with April Fools' behind us there are no distractions left to cling to. We're headed into the big tax crunch and that dreaded day, April 15. So what do taxes have to do with gamers, other than the fact that we probably pay them and are either reveling in our refund or frantically finishing 1040s right now? Well, looming on the horizon is a concept that may strike fear into the hearts of Azeroth: taxing the virtual world.

The virtual taxation concept isn't a new one. I discussed it in 2005, Prof. Bryan Camp wrote about it at length in 2007, and Dan Miller and the Joint Economic Committee are working on a report on the topic right now. At this point, it seems to be more of a 'when' rather than an 'if' we will start seeing taxation applied to the virtual realm. The US government is bent on spending an almost impossible amount of money, and this is yet another way to earn some revenue. What is more curious is how exactly the idea of virtual taxation can be applied, given the methodology behind the US income tax system. Tax law can get rather complex, so this column will try to keep things as elementary as possible.

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Last week, ECA boss Hal Halpin posted a column discussing the need for the game industry to re-evaluate the big block of text you click to 'Agree' to without reading; aka the End User License Agreement (EULA). While I could write a column about the pitfalls of some actual EULAs, as PC Mag did in January, I will instead address the broader issue that no one has yet pointed out. In general, copyright law and its application to new media has lagged well behind the curve of practicality. I want to start out by saying that I fully believe the idea of copyright is a positive one, as those who create works should be able to protect their rights with respect to those works. However, technology has now pushed the envelope to the point that it is generally impractical, if not nearly impossible to impose the centuries old concept of 'copyright' that originated with the printing press.

Now, that's not to say the powers that be haven't tried to adapt copyright to new media. The Digital Millenium Copyright Act (DMCA) was the last train wreck of an attempt to do just that. The problem with a lot of legislation is that the law is primarily drafted by legislators who, to be quite honest, know next to nothing about what they're trying to legislate, while being prodded by highly paid lobbyists who, generally, represent the side with the most money. Just to be clear, I'm pro-business, but the typical effect of one-sided drafting is that the other side is left in an unpleasant position. Given that I'm also a consumer, I see the need for balance on both sides of this issue, and unfortunately, there isn't much balance at this point in the equation. The addition of the EULA only continues to tip the scales away from the consumer. In general, this isn't a problem for most users, but it certainly has the potential to be one!

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

What the hell is a shareholder derivative suit? Ever since the Take-Two shareholder derivative lawsuit was announced, I've been deluged by various forms of that question. So this week I've decided to outline some of the basics of the law of corporations and explain the 'shareholder derivative suit' a little better.

So, really, what is a corporation? Put simply, it is an entity (i.e., an 'artificial person') that is created pursuant to the laws of a state. It is a separate legal entity from the people who make up the officers and directors of that corporation. Of course, the corporation is not the only business entity, but for this discussion, I'll limit the discussion to a standard corporation, or a 'c-corp' to those of you familiar with the terminology. While the specifics of corporations vary from state to state, there are a number of commonalities among all US corporations. (Corporations in other countries may vary more substantially from this description.) Those common features are:

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

With all the recent bru-ha-ha about Microsoft restructuring the XBLA royalty scheme, it seemed like an opportune time to discuss royalties as a whole. Royalties are a legal construct based around intellectual property, and are the basic way the business of intellectual property can function. In fact, I spend a good portion of my time writing up royalty agreements for all sorts of products, and while this may sound like a personal hell to many of you, I do actually enjoy it. And honestly, whether your dream is to create video games or make music or write books or something else along these lines, an understanding of royalties may help you out in your career. Given that Microsoft won't share its royalty specifics, I'm going to stick to the general concept.

So, what is a royalty, anyway? In a broad sense, it's a payment received for use of an intellectual property right. To be more specific, it's a payment for some right to a copyright, trademark, patent, or even a trade secret. (As a side note, certain kinds of payments for mineral rights are also termed 'royalties.') Here are some of the most common examples of a royalty in action:

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

We're here today to discuss the greatest threat to the world as we know it: Zombies. Or, rather, how that particular threat has become the topic of a lawsuit over who controls said brain-eating, reanimated corpses. Before I start commenting on the suit, I have to put forth this bit of a disclaimer: I'm not privy to the court documents, and my commentary is purely speculative. That being said, there are a lot of problems with this suit from a theoretical standpoint.

The suit cites, specifically, both trademark and copyright claims. I have my doubts about either claim being successful, but I'll begin with the trademark issue. For those not familiar, intellectual property law has three major areas that involve Federal registration in the US: patent, trademark, and copyright. In short, patents protect ideas, trademarks protects brands, and copyrights protect expressions. The trademark claim, then, likely involved some issue of dilution or confusion between George A. Romero's 'Dead' movie series (specifically Dawn of the Dead) marks and the 'Dead Rising' mark. Without some pretty substantial evidence, I don't think MKR group has much of a case based on this claim.