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>Clickwrap Agreements and the iPhone

>I was thinking about this issue the other day as a potential blog posting, but now that I’ve sat down to write the post, this may be deserving of an entire paper. Clickwrap/browsewrap/shrinkwrap agreements all have the same fundamental characteristic: “automatic” consent to the terms of the agreement as a condition to use the product. The documents are generally non-negotiable. The quid pro quo is that a software vendor would have to double, triple (or more) the software license fee if it were required to negotiate each agreement with each customer. While initially controversial, these form of agreements have become the accepted manner of entering into agreements in the software (and video game) arenas. As software delivery continues its shift to the internet, the issues of the legality and enforceability of clickwrap agreements may end up being revisited.The thing that brought this to mind is the latest version of the… Continue Reading

>Rocket Jumping in Fallout 3?

>A couple of days ago, we found out that legendary developer id Software has sold itself to ZeniMax Media Inc., the parent company of Bethesda Softworks. This means that the company that defined the PC shooter genre (and is responsible for me missing more than a few college classes) will now be owned by the current leader in role-playing games, with titles like Fallout and the Elder Scrolls series. The sale marks the end of id?ÇÖs long and impressive run as a stand-alone company (it was founded in 1991). id’s press release said the deal will not affect its daily operations much, as it becomes one of four studios within the ZeniMax family. John Carmack, lighting effects genius and space rocket builder, will continue to head id as “Technical Director.” It is unclear whether id will continue its unique policy of releasing the source code for its older games to… Continue Reading

>Xbox Live Targeted for Patent Infringement (again)

>A patent infringement suit targeting Xbox Live that we?ÇÖve been keeping our eye on went to trial yesterday in the U.S. District Court for the Eastern District of Michigan. The suit was originally filed back in September, 2004, by two inventors claiming Xbox Live infringed two of their patents covering voice and data communications technology. This case already produced some fireworks last month, when the judge overseeing the case threatened Microsoft?ÇÖs counsel with sanctions for a “frivolous objection” to a discovery request. Microsoft?ÇÖs counsel had objected to a request by the plaintiffs for a document relating to a ?Ç£2008 deposition?Ç¥ of a certain Microsoft employee, when they meant to say ?Ç£2009 deposition.?Ç¥ The judge asserted that Microsoft?ÇÖs counsel improperly used a typographical error to raise an objection on the ground of vagueness. The judge also chided Microsoft?ÇÖs counsel for producing over 140,000 documents without an index, saying the action demonstrated… Continue Reading

>Nintendo Granted Summary Judgment in V-Chip Lawsuit

>Nintendo of America Inc., producer of the Wii home video game console, scored a victory on June 2, 2009, when a federal district judge in the Central District of California granted Nintendo?ÇÖs motion for summary judgment, holding that the Wii does not infringe a V-chip censoring technology patent. Nintendo had asserted all along that the parental controls that allow Wii users to selectively prevent the play of games based on Entertainment Software Ratings Board (ESRB) classifications were fundamentally different than the technology taught by the patents, which are owned by Guardian Media Technologies, Ltd., a Texas-based limited partnership and non-practicing entity. The court?ÇÖs findings of fact and conclusions of law, issued on June 8, 2009, identify such a fundamental difference and justified Nintendo?ÇÖs opposition of a complaint that has already prompted several defendants settle with Guardian rather than see the matter through to trial. Not just a victory for Nintendo,… Continue Reading

>Massachusetts Data Security Regulations

>Massachusetts is on track to became the first state to mandate that game companies (and other companies) storing the personal information of state residents must comply with specific data security practices. Massachusetts enacted a data protection statute on October 31, 2007, authorizing the Massachusetts Office of Consumer Affairs and Business Regulation (?Ç£OCABR?Ç¥) to develop regulations implementing the statute. OCABR has now issued regulations set to go into effect on January 1, 2010. These regulations require game companies (regardless of where a company is located) to comply with certain administrative and computer security requirements when storing or transferring personal information that has been gathered from gamers or company employees living in Massachusetts.Under the regulations, games companies must create and follow a security program that includes, among other things, assignment of personnel to oversee and update the security program, identification of all records containing personal information, identification of security risks to those… Continue Reading

>Tip: Video Game Copyright Registration

>Most folks in the industry know about filing copyrights to protect their source code. One area of concern that I see, though, is a lack of awareness of the some of the Copyright Office requirements buried in the Copyright Office regulations. When filing a copyright registration for a book, it is generally pretty easy to decide when to register (when the book is finished) and what to register (the book). However, software (and games, in particular) is a much more fluid situation. When is a game truly ever finished? And, if we don’t know when the game is finished, what exactly do you decide to register with the Copyright Office? More importantly……the Copyright Office requires that “each separately published version of a computer program that contains new, copyrightable authorship must be registered separately, with a new appliation and fee.” (Circular 61) So, now the question becomes, how are defining a… Continue Reading

>Tip: Work Made for Hire vs. Get the Assignment

>One of the more common missteps involving intellectual property is the concept of a work made for hire. This concept is defined in the U.S. Copyright Act and there is a lot of case law over the years regarding it. Many people believe that “if Company A paid for Person B to develop The Thing, then Company A owns The Thing”… like all things lawyer, the answer is “maybe.” If Person B was an employee of Company A and it was part of Person’s B to develop The Thing, then The thing is a work made for hire. There is a second concept for work made for hire……that is spelled out in the statute, but it requires many other extra hoops for The Thing to qualify as a work made for hire. However, as you can see, not every instance qualifies as a work made for hire. And, if The… Continue Reading

>Activision v. Double Fine

>Another day, another publisher-developer lawsuit. This time, Activision filed a suit against Double Fine (headed by Tim Schafer, of Psychonauts and Day of the Tentacle fame) last week in an effort to prevent the release of the new game Brutal Legend. Activision claims it still has the rights to release Brutal Legend, which it acquired by way of its merger with Vivendi Games last year. In its complaint, Activision says that Vivendi Games invested roughly $15 million in Brutal Legend before the merger. However, Activision dropped Brutal Legend after the merger was complete, and didn’t continue efforts to publish the title. When a publisher loses interest in a half-finished game, developers can be left in limbo. At that point, publishers have invested money in the game, and usually have been granted certain rights in return. And without those rights, developers can have a hard time getting a new publisher on-board… Continue Reading

>Killer Hardware Can Trigger Killer Lawsuits

>All three leading console makers previewed new motion-sensing controller technology this week at E3. With the success of the Wiimote, the industry may have realized that killer controller hardware can sell consoles just as well as killer game titles. Whenever a large company launches a significant new product like a game controller, there are numerous intellectual property ?Ç£clearance?Ç¥ issues that play out behind the scenes. Not only does the company have to worry about protecting its new hardware design from infringers, but it simultaneously has to worry about infringing everyone else?ÇÖs intellectual property.Today at E3, Sony unveiled a motion-sensing system with a controller that can translate player movement as a sword, a bat, a gun, etc., while Nintendo announced a few technological tweaks to the Wiimote. Sony’s and Nintendo?ÇÖs unveilings came just a day after Microsoft announced that it developed a system that allows game control through tracking of players’… Continue Reading

>Bilski is going to the Supreme Court

>The blogosphere is all abuzz about Bilski going to the Supreme Court. When Bilski was first issued, I didn’t expect it to go to the Supreme Court — but after seeing how broadly it has been applied and interpreted, I expected no less. As the video game industry continues to evolve, patents are becoming more of an issue, both from an enforcement and defense position. A Supreme Court ruling could go a long way toward determining whether the software and business method patents obtained by software companies are a hollow or substantive asset.

June 2009