law posts (Subscribe to this feed)

The office of New York Attorney General Andrew M. Cuomo is investigating several well-known retailers, including GameStop, for deceptive advertising practices. According to the office's announcement, GameStop and 21 other businesses are directing consumers to fraudulent discount programs where they unknowingly share credit card information with a third party. These third-party programs then place recurring charges on customers' accounts. "Well-known companies are tricking customers into accepting offers from third party vendors," said Cuomo, "which then siphon money from consumers' accounts."

Online movie ticket company Fandango has already agreed to stop the practice and pay $400,000 to a consumer redress fund. The Attorney General's office rightly warns that consumers should take care in reading all fine print when signing up for any kind of discount offer.

Are there any Joystiq readers out there that have run into this problem with GameStop? (You might want to check your credit card statement before you answer that.)

Update: For clarification, as some commenters have pointed out, the investigation applies to GameStop's online business, not its physical retail stores.

[Via GI.biz (account required)]

Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

I noticed an interesting point brought up in the comments to the last LGJ: that the new NBA Jam was certainly a derivative work, so even if the trademark issue weren't a problem, the holder of the copyright to the original game could certainly bring suit for copyright infringement. Given that no one seems to know who acquired those rights in the Midway dissolution, I can see why this is brought up as an issue. However, a deeper look at the derivative works analysis suggests that EA's NBA Jam might not be a derivative at all; of course, much of this depends on the final product, which we have yet to see.

The old standby statement that sequels are derivative works is, for the most part, a true one in the broad context of all copyrighted works. After all, sequels to books and movies are derivatives, or at least I cannot think of a single sequel that is not one in those media. And for the most part, game sequels are derivatives as well, but not always. And to understand the difference, you have to look at what a derivative work is, what it isn't, and how sequels are different in a book and movie context than they can be in a game context.

Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

So, you heard the rumors about EA working on NBA Jam, and then the confirmation of a new NBA Jam for the Wii, and you, like so many other people, thought to yourself, "Hey, what ever happens to trademarks that aren't being used? And why can't we figure out what's going on with NBA Jam before the press release by searching the Trademark office?" Well, I'm glad you asked, because these are questions that it's high time I answered. Most people have a good idea that a trademark is a brand name or logo, and most people know that they can be registered with the government to be better protected. But what about those other general trademark issues? LGJ has focused on trademark disputes on many occasions, but we're overdue to go over some of the expanded trademark basics for the benefit of the Joystiq readers.

So, with trademarks, as with copyrights, there's a common law protection as well as a Federal registry in the US. There are also state registrations for trademarks, but, ultimately, the Federal registry offers the greatest protection. In fact, there is a whole list of benefits to registration. But the point remains, simply using a name for a product creates at least some level of trademark protection. From a practical sense, though, as long as you qualify for a registered trademark, it's much better to have a registered trademark. And that trademark can basically last forever as long as you meet two relatively straightforward conditions.

Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Image Credit: http://www.flickr.com/photos/diaper/ / CC BY 2.0

You may have seen the news that ASCAP, one of the major music licensing groups, is asking for royalties over Guitar Hero arcade units because they view them as jukeboxes. This kind of story demonstrates a gray area that LGJ has touched on before: music down stream licensing in games. Given just how nebulous and complex this can be, it seems as though this is an appropriate time to discuss the issue in full. It's a complexity that speaks to the age of the industry, and just how many elements out there really haven't been sorted out as well as other media, like movies and television, have. It's also something that doesn't just affect game developers, but also establishment owners and musicians, like frequent Guitar Hero artist An Endless Sporadic.

This is one of those instances where there are so many moving pieces it's difficult to determine the most logical point to begin. The idea of collective music licensing is probably as good a place as any. Copyright law dictates that the creator of a work holds certain rights to that work, which we've discussed at length in LGJ. Based on those rights, if you want to integrate a copyrighted work into another work, you would need a license. As you could imagine, however, if you're creating a film or running a radio station, tracking down each and every artist for every song you want to use would be a labor intensive process that would likely never end. Enter companies like ASCAP and BMI as the solution to that very problem.

Chalk up another frustrated party accusing SouthPeak of wrongdoing. The company has been sued by Section 8 developer TimeGate, which alleges that the publisher has withheld royalty payments and entered into a PS3 licensing deal on the game with Russian company IC, an arrangement that TimeGate claims SouthPeak had no right to make.

In legal documents obtained by Joystiq, TimeGate also alleges that this SouthPeak T-shirt promotion was unauthorized, that the publisher had mislead TimeGate about sales figures and that the publisher has stated it should not have to adhere to TimeGate's original agreement, as it had been made with Gamecock, which SouthPeak purchased in late 2008. We've reached out to SouthPeak for comment.

If you prefer your language far more formal, the lawsuit puts it like this: "[SouthPeak] failed to provide a sufficient sales report, withheld royalty payments and did not adhere to the obligation to act in good faith and fair dealing when they established the sham transaction in order to deprive TimeGate of royalties despite the special relationship between the parties and being in a position of trust."

No specific amount is mentioned in the suit, with TimeGate asking only for "compensatory damages in an amount to be determined" following an independent audit of Section 8's sales.

It seems the Dungeons & Dragons franchise has brought more legal troubles upon Atari than it's probably worth. In August, Turbine Entertainment, developer of the MMO based on the tabletop game, sued the publisher for failing to "devote the necessary resources" to promoting and distributing the online RPG. Now, Hasbro, owner of subsidiary company Wizards of the Coast, which is the current owner of the D&D franchise, is suing Atari for allegedly breaching a licensing agreement the two parties struck up concerning Atari's use of the popular role-playing brand.

Hasbro's main complaint in the suit is that Atari might have taken part in an "unauthorized sublicensing relationship" with Namco Bandai during the latter's purchase of Atari's European distribution company this past March. According to the suit, Namco Bandai is a direct competitor to Hasbro and Wizards, and allowing them any access to the D&D license is a violation of the contract agreed to by Atari. Hasbro seeks compensatory damages, and also to terminate the allegedly violated licensing agreement, denying Atari further access to the brand.

In a press release statement, Wizards of the Coast president Greg Leeds said, "while unfortunate that we had to take this action, it is crucial for us to protect the Dungeons & Dragons brand." Leeds later added, "we have been working for several months now to reach resolution with Atari, and they have left us with no other choice than to pursue legal action."

Atari isn't taking these complaints lying down -- the publisher just distributed its own statement through PRNewswire, claiming, "Hasbro has resorted to these meritless allegations, in an apparent attempt to unfairly take back rights granted to Atari." The statement goes on to say, "we regret that our long-time partner has decided to pursue this action. Atari will respond appropriately through its legal counsel in court."

We've heard from Australian Attorney General Michael Atkinson in the past on why he thinks certain games shouldn't be available to Australian consumers. And when he was asked recently by ABC why the upcoming Aliens vs. Predator was refused classification in his country (read: banned), he echoed previous sentiments on the interactivity of games having a stronger affect on people than other mediums. "I accept that 98 percent, 99 percent of gamers will tell the difference between fantasy and reality, but the 1 to 2 percent could go on to be motivated by these games to commit horrible acts of violence," Atkinson said.

When the subject of AvP comes up, though, Atkinson put on his game reviewer cap and offered, "You don't need to be playing a game in which you impale, decapitate and dismember people." So, what're you thinking, Mr. Atkinson -- 5.0/10 maybe? 4.7/10? We're all ears.

[Via GamesIndustry.biz]

Last month, the extremely certain pop-rock outfit No Doubt sued Activision for allowing their likenesses to be used in Band Hero, where players could perform the game's entire catalog of songs as the Stefani-fronted group. According to the complaint, this feature turned the band's appearance in the game into a "virtual karaoke circus act." Earlier this week, The Hollywood Reporter dug up a countersuit filed against the band by Activision, who claimed No Doubt was in breach of a contract between the two parties, and had reaped unjust enrichment as a result.

Activision's main response to No Doubt's claim is that that the band requested their likenesses be limited to perform the band's own songs in-game -- however, it made this request "only after the Band Hero programming was finalized." Activision seeks an unspecified amount of damages and interest from the band, as well as court and attorney fees, and a return of all payments dispersed to the band for their initial involvement. Jeez, Activision. Might as well go ahead and ask for the kitchen sink while you're at it.

[Via GamePolitics]

Though Brazil is no stranger to banning video games, a recently proposed bill from Senator Valdir Raupp certainly seems pretty drastic. Raupp's bill, which was recently passed by the Education Commission of the Senate, and will now go to vote in the Committee on Constitution and Justice, seeks to "curb the manufacture, distribution, importation, distribution, trading and custody, storage [of] the video games that affect the customs [and] traditions of the people, their worship, creeds, religions and symbols."

According to Brazilian news site UOL, if the bill passes, folks caught violating the law could be subject to one to three years imprisonment. That's quite a bit of jail time to serve for just importing a copy of Grand Theft Auto IV, dont'cha think?

[Via GamePolitics]

Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
I would imagine anyone reading this column has seen the coverage of the UK government's plan to create a "Pirate Finder General" and other new anti-piracy activities. The Pirate Finder General would have exceptionally broad powers to find and punish pirates with little supervision in an almost Judge Dredd-esque "I am the law!" kind of way. Of course, the whole matter is couched as a necessary measure to protect rights holders, ignoring what impact the ability to permanently revoke use of the internet might have on the average household. To me, this is just another sign of the times in the constantly tumultuous intellectual property ecosystem. While the situation could certainly turn out poorly for our friends in the UK, could something like this ever happen in the United States? The answer might not be as clear cut as you think.

We have been over intellectual property topics of all shapes and sizes in the history of LGJ, and the one universal truth is that intellectual property rights exist for one reason: to balance the rights needed by IP producers to be able to profit from their work with the rights needed by IP consumers to be able to enjoy those works. The concept of intellectual property has never been about granting unlimited power to rights holders, nor unrestricted access to consumers. However, since the advent of the Internet, we have been in the middle of a digital arms race between pirates and various parts of the entertainment industry, which we have seen to have substantial resources and connections given some of the legal changes like the UK law cited above or the infamous Anti-Counterfeiting Trade Agreement. Both sides have, at times, taken unsustainable or unrealistic positions, be that utopian unrestricted access to all intellectual property or draconian restrictions to simple use, like the position that ripping a CD you purchased to your iPod is copyright infringement.

Serial suit launcher Erik Estavillo is making a little name for himself in the game space, as his latest complaint seeks $1 million in damages from Activision Blizzard over the design of World of Warcraft. GamePolitics reports on the complaint, which claims that the publisher maintains a "harmful virtual environment to many of its customers by forcing them to follow the game's sneaky and deceitful practices." Estavillo alleges that the "calculated slow pace" of the game makes turning quests in take longer and thus generates more subscription revenue for Activision Blizzard.

If that wasn't enough, Estavillo also subpoenaed actress Winona Ryder and Depeche Mode's Martin Lee Gore to testify on his behalf regarding alienation. He explains that his health issues, which apparently include OCD, agoraphobia, depression (and more), mean that he "relies on video games heavily for the little ongoing happiness he can achieve in this life."

Estavillo had previously sued Sony after being banned from PSN and also has another suit against Microsoft and Nintendo, for his Xbox 360's Red Ring of Death and Nintendo's disabling of the Homebrew Channel in an update. Perhaps he'll have more luck suing over the design of a game in which millions happily pay to participate.

Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
The term "professional plaintiff" is thrown out at the idea that some people make their living as someone who partners with an attorney to bring so many lawsuits that their entire livelyhood rests on suing people. Googling the term will bring up dozens of results in many different areas of the law, but a series of events this week made me wonder if the game industry might just be the next target of this kind of behavior. Specifically, the reports of a class action over Xbox Live bannings and reports that the same person who sued Sony over being banned in Resistance is now suing Microsoft over red rings and Nintendo over homebrew.

So how does this professional plaintiff idea work? Speaking extremely generally, to bring a lawsuit, someone has to have standing, that is they suffered an injury and are substantially related to the harm that caused that injury so that they can sue over it. Past allegations of professional plaintiffs have often been related to suits related to the Americans with Disabilities Act, such that one disabled person is suing multiple establishments because they have standing to sue based on the lack of compliance with the Act. I'm sure many readers are thinking, "But how would this work in gaming? There are no gaming statutes that could give gamers standing to sue like that." Well, it's a pretty straightforward answer, actually.

Boutique law firm AbingtonIP is "investigating" what it considers the "convenient" recent Xbox Live bannings. The firm posits that the "tens of thousands" of banned Xbox Live subscribers who used modded consoles deserve recompense due to the timing of the action. The firm believes that said timing -- i.e., after Halo 3: ODST and shortly before Modern Warfare 2's releases -- was executed to net Microsoft as much money as possible out of potential Xbox Live subscribers before banning the modded devices. The class action lawsuit would attempt to obtain a refund for the prorated sums left on the banned Xbox Live subscriptions.

According to Joystiq legal columnist Mark Methenitis' analysis: "To me, this certainly sounds a lot like a cash grab directed at a company with deep pockets, but perhaps there are more facts than they are letting on." He explains that a user savvy enough to have a modded console would also know not to connect it to Live without "serious risk." Methenitis concludes, "If, in fact, Microsoft is inducing people to buy a service only to terminate them, then there's certainly a deceptive business practice concern. But this seems far more cut and dry than that."

[Thanks, C. Carl Carlston]

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
Well, after the incident with Courtney Love and Kurt, it looks like the whole issue of famous musicians in games is back in the press with No Doubt suing Activision over Band Hero. A one time event is an anomaly, but twice in just a few months suggests something else. Of course, both of these all tie back to the contract, and since I'm a transactional attorney who spends the majority of most days negotiating and drafting agreements like these, I'm hoping I can shed a little light on what might be causing the problems. Since I wasn't involved in these particular negotiations nor have I read these contracts, all of what I'm presenting is speculation.

But before I begin, I suppose I should answer the simple question, "What is a contract?" I assume that most people reading this have at least some idea, but just in case, it's worth describing in detail. A contract is a legally binding agreement between two parties to perform certain promises in the future. In theory, to form a contract there are five elements: Offer and acceptance, consideration, intent, capacity, and formalities. In reality, it's fairly simple. The parties must have a meeting of the minds, that is agree to the same terms, which is often viewed as an offer by one party and acceptance by the other. Each party must put up something of value, called consideration, for the contract to be valid. The parties must intend to enter into a contract, and be of the appropriate mental capacity to enter into the agreement. And then the agreement is generally recorded in writing, as most jurisdictions have rules that require written agreements, which is then signed by the parties. And that is how a contract is born, in theory anyway.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: If you're like me, then you've likely been following Joystiq's coverage of 3D Dot Game Heroes and thinking "I really, really hope this gets translated and released in the US." After all, if you're a gamer like me then you love the idea of a 3D homage to the 2D games you grew up with. Of course, it's less likely that you're a lawyer like me, and so it's also less likely that you read through the comments and had an immediate reaction to the countless cries of copyright infringement in the game. Those repetitive, vocal cries have brought me to this column, which aims to answer the big question: is 3D Dot Game Heroes copyright infringement?

Let me start off by saying the analysis here is just my opinion, and a court could always find otherwise. Where this discussion really needs to start is what elements seem to be infringing. Now would be a good time to view the trailer or some screenshots, if you haven't yet. The main complaints I've heard, and can see from the trailer, are the environments (both overworld and dungeon) bear a striking resemblance to the Zelda universe (The Legend of Zelda and Link to the Past, specifically), while the hero characters bear a striking resemblance to those from the Final Fantasy and Dragon Warrior past. Some of the monsters also bear quite a resemblance to Zelda baddies. And, of course, the music is certainly inspired by classic Zelda music. So, case closed, right? Well, no, that's not how copyright infringement works.