By: Dale Dietrich
Microsoft has began banning Xbox 360 Users that have modded their consoles from Xbox Live. According to CrunchGear, some users of non-modded boxes are getting caught up in the cross-fire.
Sources: CrunchGear | Planet Xbox 360 | The Inquirer | Xboxic | Xbox 360 Fanboy
The new Mortal Kombat Armageddon game has a built-in character editor. Gamers can mix and match clothing, body types, hairstyles and facial characteristics to create original characters to be played/fought in the game. The enterprising e-zeen Gaming Target posted this story providing character editor formulas for gamers to use to create famous, and infamous, characters including a formula for creating anti-game-violence crusader Jack Thompson.
Jack Thompson, apparently not quite understanding the character editor distinction, sent off a cease and desist letter to Midway, the game’s publisher, with the following contained therein:
“It has today come to my attention that the newly recently Mortal Kombat: Armageddon contains an unauthorized commercial exploitation of my name, photograph, image, and likeness within the game.”
“You are commanded to cease and desist immediately from the distribution of this game because of this unauthorized, illegal content…”
“It would appear that your company has done this at least in part because I sued you all in the Paducah school massacre case and further because I appeared on CNN’s Anderson Cooper 360 when your company came out with your profane, violent, and idiotic Blitz: The League.”
To be clear, there is no crusading Florida lawyer character that is shipped with the game. On the presumption that Jack Thompson is aware of the Marvel v. NCSoft decision (see linked posts below) which is on point, this demand will likely just fade away once Mr. Thompson realizes what has happened here. The mere inclusion of a character editor does not, in itself, infringe anyone’s IP or personality rights any more than the manufacture and sale of Etch-a-Sketches does.
Sources: GamePolitics.com| Gaming Target | Gamasutra | joystiq | The Inquirer | GameSpot | EuroGamer | GWN | Pro-G | igniq.com
In July of last year a concerned 81 year old grand-mother, Florence Cohen, filed a class action lawsuit against Take-Two for false, misleading and deceptive practices with regard to the hidden ‘Hot Coffee’ sex scenes hidden within the popular video game Grand Theft Auto: San Andreas. She had purchased the game for her 14-year-old grandson. A Manhattan federal judge has now denied a Take-Two motion to dismiss this, and four similar suits, which Cohen’s lawyers are consolidating into one. Take-Two and its subsidiary, Rockstar Games Inc., had argued that the plaintiffs could only file claims in the states where they resided, not all 50 states. In denying the motion District Judge Shirley Wohl Kram wrote:
“If class certification is granted, the court will have the benefit of a well-defined class and a more fully developed treatment of potential choice of law questions,”
Sources: Gamasutra | GameDaily.biz | GamePolitcs.com | TheState.com | Reuters | IGN.com | ars technica | GameSpot | New York Daily News | New York Post | ZDNet | Fox News (AP)
Cohen Class Action Suit:
Stanhouse Class Action Suit:
This Gamasutra feature article is a very interesting article on the Effects of ‘Hot Coffee’ on the game modding scene. Mods can inprove and extend the life of video games but since Hot Coffee, there is a keen awareness of the liability that game modding can expose developers and publishers to.
Sources: Gamasutra
‘Hot Coffee’ Related Posts:
An initial hearing was held in the contempt hearing requested by Take-Two’s lawyers, Blank-Rome. (See Destructoid’s Youtube video of the proceeding below). Judge Friedman accused Thompson of wanting the judge to provide him with a soapbox – something he refused to do. After Thompson argued openly and personally with the judge, Judge Friedman then informed Thompson that he was going to personally file a complaint against Thompson with the Florida Bar and because of that he went on to recuse himself from further contempt hearings. At one point the Judge seemingly threatened Thompson with immediate incarceration if he continued to hold up a large bristol-board presumably showing the Court’s contempt rules. Neiro at Destructoid took a Video of Initial Contempt Hearing on YouTube.
[Update: The Prior YouTube Video of Proceeding No Longer Available]
Post-Contempt Hearing Sources: Destructoid | Calgary Sun | Canoe.com | BoomTown | GameSpot | CNet | Kotaku | Gamasutra
Text of ‘327 Patent
The suit alleges that ATI’s Radeon graphics charge infringe its patent 6,650,327 describing a display system with floating point rasterisation and buffering. The patent was filed in 1998 and granted in 2003. SGI is just emerging from reorganization after bankruptcy while ATI is in the midst of being taken over by AMD.
The Complaint seeks unspecified damages and a Court Ordered injunction against future infringement by ATI. According to SGI’s press release:
“The Company’s technology covered by the ‘327 patent is an important resource in achieving enhanced graphics processing demanded by today’s computer systems,” said Dennis McKenna, CEO of SGI. “SGI has licensed this technology to ATI’s major competitors and, as I have previously been stating publicly, SGI intends to aggressively protect and enforce its IP. This is the first visible step in that process.”
Sources: Gamasutra | Inquirer | Silicon Valley Business Journal | The Register | CNet| ars technica | GameSpot | Daily Tech | Engadget | SGI Press Release
The newly formed consumer advocacy association, the ECA, has announced that it has acquired the popular video game politics website GamePolitics.com
Dale’s Comment: Hey ECA! Would you like to acquire a terrific video game law blog? For the right price I may be available! 🙂
Sources: GamePolitics.com | Gamasutra | GameSpot | GameDaily.biz | IGN | GameSpy | a+e Interactive | Kotaku
Thompson’s Post-Ruling Letter to Judge Friedman [.doc]
In the wake of the recent Floridian court review of Bully, Take-Two’s lawyers, Blank-Rome, filed a “Petition for Order to Show Cause” asking the court to find controversial lawyer in contempt of court. GamePolitics.com reports that after hearing of the petition Thompson fired off an e-mail that included the following fiery excerpts that appear to both threat
‘You want to play hardball…? You want to try to throw me in jail? You have no idea what you are unleashing in doing this. You’re at the brink…”
“If this court in any fashion proceeds toward issuing a show cause order, given its utter baselessness and the bad faith goo in which it slithers, then Thompson will add whatever judge should do so as a defendant in the aforementioned federal civil rights action…”
Dale’s Comment: I have not seen the contents of the petition but I do note that immediately following the judges ruling Thompson sent Judge Ronald Friedman this highly charged, disrespectful and threatening letter.
Reports of Contempt Filing: GamePolitics.com | GameSpot | Next Generation | 1Up.com | PressStart.com | GameShout | Spong| Destructoid | Gamasutra
Sony has won a High Court Judgment in the U.K. banning Hong-Kong based Lik-Sang.com from selling PSP consoles into the European Economic Area. While Hong-Kong-based Lik-Sang did participate in pre-trial activities, it did not show up in court to contest the case. Thus, a default judgment was awarded to Sony.
This action was launched in August of 2005 when Lik-Sang sold PSPs into Europe after Sony delayed North American and European shipments for many months after the Japanese PSP launch. The same sort of delay is about to occur with the PS3. Sony is launching the PS3 in the Japanese and North American markets months before Europe.
[October 24 Update:]After years of fighting Sony, Lik-Sang has closed its e-doors. In an interesting side-story, Sony’s European management purchased Sony products from Lik-Sang when unavailable in Europe (See BBC Story). Pascal Clarysse, former marketing manager for Lik-Sang, had this to say on closing:
“Blame it on Sony. That’s the latest dark spot in their shameful track record as gaming industry leader. The ’empire’ finally won. A few dominating retailers from the U.K. probably will rejoice (in) the news, but everybody else in the gaming world lost something today.”
Sony dismissed this as sour grapes. A similar Hong-Kong-based case between the parties continues.
Dale’s Comment: I understand Sony’s need to protect the interests of its European distributors and its trademarks. I also understand its wanting to protect its own economic interests by means of region-by-region product launches. But its claim that the lawsuit was brought to protect consumers’ safety is, of course, nonsense.
In a world of global markets with the ability to deliver products throughout the Globe overnight, one wonders if this market-by-market distribution model is appropriate any more. It certainly is far from consumer friendly or fair. Lik-Sang met a real consumer need. Through Lik-Sang, Sony’s most loyal fans had a means to purchase Sony products long before Sony had the wherewithal to launch/distribute products in their particular country. Sometimes it takes years before Sony launches a product into a given market (if ever). With this ruling, there is no legal way for etailers to sell into markets not served, or underserved by Sony and its resellers.
As a Canadian living right next to the U.S., I have oft experienced the frustration of not being able to purchase products and services only made available in the U.S. I relish the fact that etailers such as Lik-sang are willing to serve the needs of consumers in under-served regions of the world.
Lawsuit Stories: Gamasutra | Engadget | GameIndustry.biz | GameSpot | *GameDaily.biz | PC Pro | IGN | ars technica | TVG | BetaNews | Pocket-lint | GameIndustry.biz| Daily Tech
Lik-Sang Closing Stories: Lik-Sang.com Notice | Gamastura | ars technica | Outlaw.com | ZDNet | Engadget | BBC | GameSpot | GameDaily.biz | GameShout | CNet | afterdawn | PC Pro | IGN | NeoSeeker | Pocket-Lint | Gizmodo | Inquirer | Hexus | GameIndustry.biz | EuroGamer | Kotaku | Gadgetspy | PC World | Games Digest
Blogosphere: Bit-tech.net
Engadget Podcast 93 Coverage (Time Index 4:44-12:33).
It appears Konami won this one. Roxor has agreed to transfer all IP rights in and to In the Grove to Konami.
Sources: Gamasutra | GameSpot | GameIndustry.biz | Yahoo! Games | joystiq | Konami Press Release | Roxor Press Release
Related Posts:
The WWE filed a lawsuit against THQ on October 12th claiming games using the WWE trademark were improperly sold in Japan and Asia. The WWE is seeking a declaration that it has the right to terminate its license agreement with THQ.
WWE claims that THQ sublicensed out rights to the game that they were not granted the right to sublicense. Indeed, WWE claims that the license explicitly precludes sublicensing without written consent from the WWE which such consent was not sought nor received.
WWE claims that THQ sublicensed rights to Yukes (partly owned by THQ) and that Yukes paid royalties directly to THQ that should have been paid to WWE.
THQ, for its part, says that WWE has been aware aware of and consented to the manner of distribution it uses in Japan.
Sources: Gamasutra | Pro-G | GameSpot 1 | *GameSpot 2 | Gamers.com | XBoxic | THQ Press Release
Once again Germany’s USK has decided not to rate a violent video game. This time the highly anticipated game, Gears of War. This does not result in the game being banned. It prevents Microsoft from marketing it in Germany. Stores cannot display it on racks. Rather, it can only be sold under the counter.
Sources: Gamasutra | GameIndustry.biz | GameSpot | Next Generation | CVG | Fox News | Portal IT | Pro-G | Hexus | Gears of War | GameDaily.biz | TeamXbox | Xbox 360 Fanboy
JEC Press Release The Chairman of the U.S. Congressional Joint Economic Committee (JEC), Jim Saxton, believes taxing virtual economies would be a mistake. The goal of a forthcoming JEC study is to head off any premature attempt to impose tax on virtual economies.
[November 9, 2006 Update: Despite heavy Republican House losses in the November 7 midterm elections, Rep. Jim Saxton held his seat and won for a 12th term.]
Sources: GamePolitics.com | Reuters | nzherald.co.nz | TaxNews.com
Former employees of DICE Canada, an EA subsidiary until recently, have opened a new game development studio, Red Jade, in London Ontario. Red Jade has two deals in the works, one with former owner EA and another concerning the Battlefield series of games.
Sources: GameIndustry.biz 1 | GameIndustry.biz 2 | EuroGamer 1 | EuroGamer 2
Text of Thompson’s Complaint [.doc]
After ordering Take-Two to provide a pre-release copy of Bully for review in chambers, Judge Ronald Friedman, a Miami-Dade County Circuit Court judge ruled that Bully is not a public nuisance and dismissed Thompson’s complaint. According to Niero of Destructoid, who was in the court, the judge said the following:
“I have spent a couple of hours viewing the game. It was produced to me by an operator using a cheat, which allowed him to skip through the game and show me ‘key points’ that would require an average gamer hundreds of hours to reach. There is a LOT of violence, but not more than the general public has access to on television”
…
“As I said, there is a lot less violence in this game than what we see on television, and although it is pervasive, but not to the extent that it would cause a public threat that would require me to prevent these folks from selling it”
…
“Would I want MY kids to play this game?” His palm is open like a starfish on his chest. “Absolutely not. But this game is not a nuisance.”
Sources: Destructiod in-Court Summary | GamePolitics 1 | GamePolitics 2 | GamePolitics 3 | Miami Herald | 1Up.com | CNet | OUT-LAW.com | InformationWeek | IGN | afterdawn.com | GameIndustry.biz | Inquirer | Next Generation | Gamasutra
This is an interesting Gamasutra featured article on the problems facing the games development industry. It presents common pitfalls and problems to avoid.
Source: Gamasutra Feature Article
Text of Thompson’s Complaint [.doc]
Jack Thompson has convinced Judge Ronald Friedman, a Miami-Dade County Circuit Court judge, to order Take-Two Interactive to provide an advanced copy of the “T”een rated video game Bully for review in chambers by the court. Contrary to some early reports, the judge did not order that the video game be provided to Jack Thompson for his review. Rather, the judge has ordered that along with the game, Take-Two provide someone to play the game in front of the judge so the judge can review it. Thompson had called this game a “Columbine Simulator” without ever having seen the game.
Dale’s Comment: After months of controversy and fears that this video game would celebrate and promote bullies, all the reviews I have read and listened to make the point that, to the contrary, being a bully is not celebrated. The main character is not a bully at all, but, rather, has to defend himself against school-yard bullies and form alliances with other schoolyard mates. This critically acclaimed game is more akin to a high-school simulator letting players relive in a very realistic way, what it was like to be in high school and deal with the trials and tribulations of growing up.
While I was somewhat pleased that the order was limited to handing over the game for review by the court and not by Thompson (goodness knows what kind of a precedent that would have been), I still find it disconcerting that a court interposed itself into the process to decide for himself whether the game is suitable for sales to minors. Who appointed him the emperor?
Sources: Gamasutra | Play | ars technica | The Register | OUT-LAW.com | GameSpot | GamePolitics.com 1 | GamePolitics.com 2 | Miami Herald | Washington Post Destructoid | BBC
Former head of the Interactive Entertainment Merchants Association, Hal Halpin, has launched the newly formed, not-for-profit gamer advocacy group – the Enterianment Consumers Association (ECA) with the following mission statement:
“The mission of the ECA is to give gaming consumers a voice and ensure that state and local politicians hear their concerns and appreciate their demographic power. The organization is designed to be an advocate for the interactive entertainment consumers who represent nearly fifty percent of the population, whose average age is 33, and spends $10 billion annually on gaming, yet are continually overlooked by politicians and the mainstream press.”
Sources: ECA Website | GamePolitics.com | Next Generation | Gamasutra | GameSpot | IGN
Related Posts:
Text of Preliminary Injunction
Text of Law (HB 3004)
As expected, the Oklahoma law that would make it a felony for anyone to sell, rent or display games which contain “inappropriate violence”, has been enjoined. The law would require stores to keep such games hidden in a similar manner to pornographic magazines and videos. The law was set to go into effect on November 1, 2006.
Sources: Gamasutra | GameDaily.biz | ars technica | Law.com | GameSpot | Next Generation | GamePolitics.com
GamePolitics.com Full Coverage of Oklahoma ‘Games as Porn’ Law
Related Posts:
GameStop has launched its new Internet-based digital distribution service “Download Now“. The service launches with some 1,000 titles including games from Capcom and Eidos.
Dale’s Comment: Internet video game distribution is an inevitability. The only thing surprising about this is that it took GameStop this long to get into the game that Valve has been in for several years with its Steam digital distribution system. I believe third party digital distribution has a very bright future. GameStop may face the same challenge that the likes of Cinema Now and others have faced in the context of online movie distribution – an industry reluctant to share revenue from 3rd party online distributors in the hopes it can bypass such distributors. But just like movies, in the main, I believe gamers won’t want to surf from publisher web-site to publisher website when searching for online game purchases. They’ll want a choice of one stop online game aggregaters just as they have a choice of brick and mortar shops to shop for games today.
Sources: Gamasutra | GameDaily.biz | GameIndustry.biz | Next Generation
On September 11, 2006, U.S. District Court Judge Claudia Wilken assessed more than $9 million in penalties against France-based mod-chip maker Divineo for trafficking in mod chips and the associated HDLoader software. HDLoader allows users to copy their games from CD/DVD disks to their hard drive. Despite legitimate use by legions of honest gamers, this mod-chip/software bundle works by circumventing copy protection measures contained on the game CD/DVD and thereby contravenes the controversial DMCA.
Dale’s Comment: Mod-chips and software like HDLoader is hated by game developers/publishers because they are commonly used to distribute pirated video games on PS2 consoles. For honest gamers, they are a terrific way to install all purchased games on a hard drive so that they can be quickly and conveniently served up like records in a jukebox. Without it gamers must manually flip game disks each time they want to change the current game.
Sources: Gamasutra | Digital Trends | GameDaily.biz | Businesswire | ars technica | Next Generation | Engadget | ESA Press Release
While photographing palm trees and foliage for its much anticipated tropically set Crysis video game, Crytek’s art director discovered that it is illegal to chop down trees or remove even a single leaf from a tree.
Source: Gamasutra
After initially being denied, Konami has been granted a European Patent for a system that identifies which player in a soccer game has the ball, and to which nearest player the ball can be passed.
Sources: Out-Law.com | Gamasutra | The Register
Jack Thompson is involved in yet another wrongful death suit brought against Rockstar, Take-Two and Sony. This one involves the case of Cody Posey who confessed to killing his father, stepmother and stepsister. Once again Thompson, representing the surviving Posey relatives, argues that the game acted as a simulator that trained Cody to be effective killer. Thompson had filed a similar suit in Alabama where he was forced to remove himself from the case shortly before his temporary Alabama license was revoked in a shroud of controversy.
Sources: Albuquerque Tribune | Gamasutra | GamePolitics.com 1 | GamePolitics.com 2 | joystiq | Wall St. Journal Law Blog | Pantagraph.com
The Ant Commandos (TAC) is countersuing RedOctane, alleging the guitar controller was first designed by TAC’s part owner Topaway and its trade dress later copied by RedOctane after RedOctane’s CEO visited its Chinese factory and subsequently purchased several hundred of its controllers. In addition TAC has filed for an injunction asking that Activision and RedOctane be prevented from infringing on the “trade dress” and that Guitar Hero software be unbundle from SG controller to allow for fair competition.
Sources: GameSpot | Gamasutra | Next Generation | Kotaku | Joystiq | IGN | Silicon Era | GameDaily.biz
