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.

Two gamers have filed a lawsuit against Electronic Arts, alleging that the publisher's exclusivity agreements with the NFL, NCAA and Arena Football have led to anti-competitive practices. The focus of the suit, according to Gamespot, stems from EA's actions after sales of Take-Two's NFL 2K5 pushed the publisher to drop Madden 2005 from $50 to $30. Instead of competing with Take-Two, according to the suit, EA entered into multiple exclusivity agreements and was able to raise the price of Madden 2006 back to $50.

Additionally, the suit notes that should the EA-Take-Two acquisition come to fruition, it would "remove one of the few companies with the ability and expertise to compete in the market for interactive football software." The plaintiffs seek restitution for all those who purchased an EA football game after August 2005, "disgorgement of all profits made as a result of anticompetitive actions, and that the infringing agreements be declared null and void."

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.

Nintendo has called a €149.1 million ($233.6 million) fine levied by European Union regulators for price fixing "unfair, illegal, [and] even shocking." In 2002, the commission fined Nintendo and seven distributors a total of €167.8 million for colluding to raise prices of game consoles and software from 1991–1998. While Nintendo isn't denying the profit boosting efforts, it claimed yesterday in the European Court of First Instance in Luxembourg that the portion of the fine owed by the game company is unjustified and discriminatory -- and indeed, at the time, was the largest ever punishment for colluding with distributors. The commission stood by its initial ruling that the steep penalty reflected Nintendo's role as producer and supplier of the price-jacked goods. It was Nintendo's responsibility to prevent price fixing and failure to do so merited the fine, the commission stated in court filings.

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.

Friends, we have a traitor in our midst. Our very own Law of the Game columnist, Mark Methenitis, has given the enemy a point-by-point plan on how to regulate games. He thought we wouldn't find it on his personal blog, and many Bothans died to bring us this information, but here is a small sample of his treachery.

• "1. Forget the idea that you're only regulating games: If you want a regulation to stick, targeting one media without credible proof of the difference between that media and all of the other things kids are exposed to isn't going to fly. So, if you want to regulate games, the bill needs to also regulate movies, maybe music, and potentially even books. It needs to be a universal approach to put parents in control. ..."
• "5. Forget the 'AO' rating for games: The argument is often made that some games should be rated 'AO.' Forget it. An 'AO' rating is basically banning the game from sale, or classifying it with the most hardcore pornography. Unless the game is some sort of sexual simulation, it shouldn't garner an 'AO' rating. In general, the sexual content in an 'M' game falls short of what is in many R rated movies or even what is on television. Arguing that a game like GTA IV should be AO is just an effort in futility."
• "9. This should be a fine only offense, and only a fine against the store: It is the requirement of the store to perform their due diligence on each sale. Keeping that in mind, this isn't injecting heroin into the veins of children. The idea that it should be a criminal offense is just silly, and the idea that individual cashiers should be punished is equally inane. If a store has a problematic cashier, then the store should be held accountable and be allowed to deal with the cashier as they see fit."

There are six other points of treason! To reward Mr. Methenitis for his disloyalty we have dispatched our battle cats. May Cthulhu have mercy on his soul.

[Thanks, geonex88]

A bipartisan bill proposed in the House seeks to require video game retailers to check IDs before selling M- or AO-rated games to minors. Variety reports Reps. Jim Matheson (D-Utah) and Lee Terry (R-Neb) have proposed the Video Games Ratings Enforcement Act to protect children, as Terry puts it, from some games where "scores are often earned by players who commit 'virtual' murder, assault and rape."

As GamePolitics points out, both representatives have tried and failed at taking on video games before. If the bill becomes law, retailers who don't post a sign explaining the ratings system or sell an M-rated game to a minor would be charged a $5000 civil penalty.

[Via GamePolitics]

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

A few weeks ago, a copyright issue was posed to me for discussion via e-mail, highlighting some key misunderstandings of copyright and its purpose as it applies to video games. The e-mail pointed out that a copyright for a game doesn't really protect the game, and to that end, the writer of the e-mail didn't completely see the point to copyrighting game software. In fact, he pointed out that casino games are often patented. This observation leaves me with four issues to discuss: (1) what is protected when you copyright a game; (2) what isn't protected when you copyright a game; (3) why game patents are rarely used in a video game context; and (4) why patents aren't necessarily a good idea for the industry or gamers.

Even the basic ground rules that govern copyright and intellectual property concepts can be confusing. The lines that various legal protections have drawn are not necessarily the most logical, especially with respect to newer technology.

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.

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

I have a great deal of respect for fellow Joystiq columnist and GamePolitics.com Editor Dennis McCauley, but I have to disagree with his most recent column on the EA Take-Two situation. Or at least, while I agree in spirit with his assertion that EA is trying to eliminate the competition in the sports games market with this buyout offer, in practice I don't think EA absorbing Take-Two will have any actual effect on the sports games market. This is in part why I think the Federal Trade Commission's recent inquiries are likely just routine investigation. However, I'm getting ahead of myself. Before explaining why I think this is the case, I should explain the basis for the complaints about the merger: anti-trust.

Anti-trust deals with the law of competition among businesses. In a capitalist economy, there are proven economic detriments to having monopolies or unfair competition, and therefore the government has seen fit to place restrictions on certain practices that can be injurious to a capitalist economy. In fact, the first US law dealing with anti-trust was the Sherman Act of 1890. Of course, this is not universally approved of, nor is the act universally welcomed; even economists as notable as Alan Greenspan have found fault with the Sherman Act, but I digress. The important point to note is that anti-competitive and monopolistic practices are regulated.

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.