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LGJ: Morrowind Mod Mayhem
Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: There's been quite the uproar over the past few weeks over Morrowind 2011, the now defunct project which collected and harmonized some 4GB of The Elder Scrolls III: Morrowind mods to make the game "appealing" to a current audience. To some this sounded like a way to pass the time until Skyrim released, to others this was "illegal." Let's see if we can piece together some of the story here to explore just where the rights of modders lay, both with respect to the original developer and with respect to one another. The most complete account I've been able to find is here, which boils down to the person who compiled and released Morrowind 2011 didn't have permission from any of the people who created the original mods in the package. I suggest everyone read both the article and the comments, as they summarize most of the points made by both sides of this debate. He did go to great lengths to put the package together and, more importantly, all of the documentation on how to make the mods work together, as apparently Morrowind mods can be a bit unruly. When credits were added to the package, the mod makers were still unhappy, and many words like "illegal" were thrown out on the table. The mod pack has been pulled, but there's been quite a bit of legal analysis thrown out by both the Morrowind 2011 side and the mod makers side. Since mod rights can be a complex issue, this seemed like a good time to discuss the mod issue.
LGJ: Blizzard, Cheating and Copyright Infringement
Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: Everyone else is talking about the Supreme Court, but I'm going to hold off on any further commentary until we have an actual decision to analyze. Instead, I want to bring your attention back to a suit filed by Blizzard in California, Blizzard v. VanKuipers, Simpson, and John Does 1-10 (aka the GameThreat.net case). This case seems to be the sequel of sorts to the "Glider" case from the not too distant past (Blizzard v. MDY Industries). In short, that case was about a World of WarCraft "autopilot" program called Glider. Glider circumvented Warden (the WoW cheat protection software). The short version of the result from that case is that MDY Industries, the maker of Glider, was held liable for contributory and vicarious copyright infringement for putting out Glider, which violated WoW's End User License Agreement and Terms of Service. The opinion also upheld Blizzard's right to sue over issues that diminished the player experience. That brings us to the GameThreat.net case. Some of this should sound pretty familiar. GameThreat.net put out a series of StarCraft 2 hacks and cheats, which worked in multiplayer. These programs were available very shortly after the launch of StarCraft 2, and that, of course, irritated Blizzard, which sent a cease and desist of some sort. While it may have initially appeared the two were in compliance, Blizzard discovered they have re-distributed their source code to others, who have continued to make it available. As a result, Blizzard is suing on basically the same premise as Glider. As is often the case, the ideas here present a bit of a double-edged sword.
Law of the Game analyzes ex-IW bosses' suit against Activision
[Maveric2003] When various legal fracases arise from time to time, we turn to Law of the Game's Mark Methenitis, an actual, real lawyer, for thorough analysis. So, Methenitis kindly looked over the full complaint filed against Activision by ex-Infinity Ward heads Jason West and VInce Zampella, and then described to us the importance of the little things: the wording of the contract between the two ex-heads and Activision, the financial implications of the possible loss of the Modern Warfare name (for either side), and the ... shall we say, flamboyant ... language used in the document itself. According to Methenitis, the complaint's colorful phrasing is "for dramatic effect and little more." Methenitis pointed out in an email exchange with Joystiq that "readers shouldn't place too much emphasis on the language in the facts" and that the story told by the claims "sounds like a relatively common 'business deal gone bad' kind of suit." As for this particular case, though, he allowed, "Granted, based on the value of Call of Duty and Modern Warfare, the stakes are high both for the royalties and future creative control of the brand." (Methenitis here is referring to the ex-studio heads' allegation that Activision had handed over creative control of all Modern Warfare-branded games, part of the "Memorandum of Understanding" that was agreed upon between the two parties before the creation of Modern Warfare 2.) The stumbling block for West and Zampella, Methenitis said, could be in the wording of the memorandum. "That [receiving their royalties and retaining control of the Modern Warfare name] may be more problematic if the wording of the Memorandum of Understanding isn't such that it can be enforced as a contract," he said, adding, "Given the context and description in the suit, it seems like the term 'Memorandum of Understanding' in this case is just a fancy title for a contract rather than a less-than-enforceable agreement similar to a Letter of Intent." (Head past the break for Methenitis' full analysis.) While Methenitis wouldn't weigh in on the possible end result of this suit, Wedbush Securities analyst Michael Pachter mentioned in his latest report that, "We think that West's and Zampella's claim for creative control over the Call of Duty and Modern Warfare brands has little merit, and we expect Activision to retain control over the brands." One thing's for sure, if a messy lawsuit does get underway (and isn't settled out of court like so many are), we'll assuredly catch wind of more dirty laundry.
Activision sued for 'false patent marking' (and what that means)
Activision is being sued by the Patent Compliance Group for "false patent marking." Don't walk away! It's not that complex, we promise. What it basically means is that this private group of patent police is trying to ding Activision on patents it has on products that are beyond the scope of what it's producing. The reason for the lawsuit, according to the PCG, is that "false patent marking is a serious problem. Acts of false marking deter innovation and stifle competition in the marketplace. If an article that is within the public domain is falsely marked, potential competitors may be dissuaded from entering the same market." LGJ columnist (and lawyer) Mark Methenitis explains, "Some claims may have some merit like the '753 patent, which is basically for a DDR pad, which wouldn't necessarily apply to Guitar Hero; or the '689 patent, which is for the DJ Hero turn table which does not work with Guitar Hero 5 or Band Hero. To me, it looks like the shotgun approach: hit everything and hope something sticks." Check out Methenitis' full response to us after the break. PCG is seeking $500 for each of Activision's violations, which is set by statute. As Gray on Claims notes, Activision isn't the only company caught in the crosshairs of the "patent police." What these groups are attempting to do is keep companies (like Activision!) from putting a patent on ideas or concepts that aren't in development. PDF -- Patent Compliance Group v. Activsion Source -- Patent Marking Police out in full force [Via Edge, THR]
Firm considers class action over Xbox Live bannings
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]
Jack Thompson vs. Mark Methenitis debate: The whole shebang
After dropping a clip from the surprisingly civil debate between ex-Florida attorney Jack Thompson and Joystiq LGJ author Mark Methenitis last week, the fine folks at Screw Attack nabbed the entirety for all to see. Okay, okay, we didn't watch the whole thing -- it's an hour long and we have to work! You think this Internet's going to write itself, people? For those of you pressed for time like us, SA's got you covered too. They've cut down the whole thing into a more easily digestible 15-minute clip (found after the break). And yes, that is the clip that we watched. Sorry, Internet!
Thompson vs. Methenitis: 'Because history happens'
And now, a word from Jack Thompson: "Frankly, folks, I'm the pro-liberty, pro-personal choice person here because history happens." Eh, maybe not quite the rhetoric to spare him federal disbarment, but by many accounts, Thompson was actually articulate and well-spoken during last weekend's "Debate of the Century" at the ScrewAttack Gaming Convention. His opponent and Joystiq legal columnist, Mark Methenitis (pictured right), described the subdued, silver-haired crusader (not dude on left) as "largely misunderstood" in a post-debate interview on this week's Late Nite JengaJam [audio link].Sporting a gentle grandpa look, Thompson certainly appears (see clip after the break) as an entirely different character than the "internet bogeyman" who has haunted, well ... his own career. While it's a pleasant surprise to see Thompson show up in human form, he's gonna have to do better than forewarn the coming of "the 9/11 event for this industry" (sensational much?) to do any convincing around these parts. Now, excuse us while we take a break to go commit horrific acts of depravity (virtually, of course), and then go back to our ordinary, good-natured lives.[Image credit: 4Player]
1 vs. 100 prizes unavailable in certain states and Quebec
There's going to be some drama when folks really start to catch on, so let's get it out of the way now: residents of Connecticut, Iowa, Maryland, Vermont, and the great province of Quebec, are not eligible for Xbox Live Primetime's 1 vs.100 prizes. This isn't spite on Microsoft's part, because, according to the company there are laws.The statement from Microsoft's lawyers is that "due to gaming laws, which vary from state to state, '1 vs 100 skill-based prizes' cannot be offered in every state." The response neglects to provide any concrete reasoning why those four states and Quebec were unique, but does mention that players can participate through a sweepstakes.We contacted Joystiq's Law of the Game columnist, Mark Methenitis, to see if he could give us a clearer explanation regarding the exclusions. The attorney -- who just happens to have gambling law as one of his practice areas -- explained, "When you see restrictions like these, it's either because Microsoft's legal department or the contest administrator isn't comfortable with some aspect of the state law. Taking Iowa as an example, their laws are such that many scholars believe participation in a game for any property of value would be illegal gambling. There's also a provision that if, for a fee, anything of value is delivered, and given that this is limited to Xbox Live Gold members, it may be the wording of the statute that leads them to believe the paid membership plus the game may be problematic."Methenitis expresses that it's difficult to conclude why Microsoft chose those particular locales, but that it's "the direct result of the patchwork legislation among the states." If this seems unfair, then might we suggest contacting your congressman or, um, member of parliament? Something spooked Microsoft's lawyers into excluding those particular states. Find the full statements from Microsoft and Methenitis after the break.[Thanks, Justin F]
EU Commission proposal wants two-year guarantee for games
European game developers are up in arms about a recent EU Commission proposal that, if approved, would require devs to abide by the EU Sales and Guarantees Directive, a rule that mandates "a minimum 2-year guarantee on tangible movable consumer goods." While this guarantee sounds great for consumers, Dr. Richard Wilson, head of game developer advocacy group Tiga, is worried it may "stifle new ideas as [developers] could end up just playing it safe."Developers' qualms go deeper than that, however -- they're worried that consumers might abuse a two-year guarantee on video games by returning the game with a complaint about a bug or glitch that doesn't actually exist. Furthermore, Business Software Alliance director Francisco Mingorance argues digital content isn't tangible, and shouldn't follow the "same liability rules as toasters." He also pointed out digital content isn't technically sold to consumers -- it is licensed for private use.Joystiq's Law of the Game writer (and radical lawyer) Mark Methenitis threw in his two cents, explaining that patches and updates have ended the age of game-ruining glitches, and that a potentially exploitable two-year guarantee on games is unnecessary. He adds, "if you're unsatisfied with an ongoing pattern of bugs you encounter from a developer's product, you should probably consider whether you want to continue purchasing that developer's products, thereby letting the market correct the problem." [Image]
Activision: The Ultimate Lawsuit -- day two
Day two of news regarding the Scratch: The Ultimate DJ LLC vs. Activision lawsuit has arrived, and with it a comprehensive analysis of the "full 30-page complaint" by way of Gamasutra. Before we launch into that though, we first put this question to you, dearest readers: What the heck do we call this thing? Scratch-gate? Court Scratch Fever? Breakin' (the law) 2: Electric Boogaloo? You tell us!Aside from the litany of information we already know, the piece paints an interesting tale of tortuous interference on the side of DJ Hero publisher Activision ostensibly strong-arming Scratch: The Ultimate DJ developer Genius Products (and its partner, Numark) into releasing its game later than Activision's. Furthermore, the suit alleges that 7 Studios, former contracted developer of Scratch for Genius Products (and recently purchased by Activision), is still withholding "nine custom-manufactured turntable and beat-button game controllers" belonging to Numark.To help break down the analysis with significantly more expertise and clarity, we contacted LGJ columnist Mark Methenitis, who had this to say:"If you thought Silicon Knights vs. Epic had the potential to get ugly, imagine the stakes when the next major branch of the music game genre hangs in the balance. Taking Genius's claims at face value, Activision is basically trying to bully them out of the market so that Activision's own DJ Hero can become the top billing DJ-based music game. This is similar to the claim that Silicon Knights made, where they alleged Epic was neglecting the Unreal Engine 3 licensees to benefit Gears of War. The major difference here is when Activision couldn't buy the game, it bought the developer to control the game's development and attempt to force the hand of Genius. This gets into tortuous interference with the existing development agreement, the basic gist of which is that as a third party, you're not allowed to interfere with someone else's contract. Of course, there's likely another side to this story, which I'm sure Activision will present in its answer to Genius's claims."
'Law of the Game' lawyer explores GameStop used vs. new controversy
Joystiq LGJ columnist Mark Methenitis has written a piece analyzing the claims posited earlier this week by Kotaku surrounding the legality of GameStop's employee "checkout policy" and found that, in his professional opinion, the illegality of this practice may be in question for a variety of reasons. The main question at hand: Is GameStop deceiving customers who purchase employee-played (read: "used") games as new? His answer: Much like most legal matters, it really depends. Depends on what, you ask? For one, Methenitis says games sold at GameStop as new where, "the disc, packaging, or other materials are damaged in any way, or if one-time use download codes are used" could be "a deceptive act." The problem with minutiae such as this, he says, is that damages are so small (monetarily speaking) that a lawsuit would be ineffective in court. Furthermore, he says that laws put in place to protect consumers from used vs. new item fraud are often based on products that degrade rather than "nebulous" products like DVD discs and, to a greater extent, cartridge-based games (such as Nintendo DS titles). With legal ambiguities surrounding this issue, we'd simply suggest buying used titles from your friendly, online click-and-order retailer in the meantime, rather than contributing to billions of dollars in used game sales at your own and other gamers' expense.
California law may exempt game programmers from receiving overtime pay [update]
Do you work in California? Do you program games? Do you make over $75K a year? Well, it may be time to seek employment in another state, friend. As of today, California Assembly Bill 10 has gone into effect and means the future of game development in California for some may be marred by brutal crunch times with no compensation for overtime hours.Amending the existing overtime laws and clarifying exemptions barring certain employees from receiving overtime under various conditions, AB 10 seeks to lower the number of lawsuits taking place in the state under previous guidelines. Joystiq's Law of the Game author Mark Methenitis explained the downside of the amendment to us this afternoon, saying, "Practically speaking, that means if you're a dev with a salary of $75K, you can't claim overtime during crunch, which means the developer is more likely to use crunch cycles."Game developers looking to leave the state may want to inquire with 2K Boston Irrational Boston -- we hear the company's hiring![Update: Please pardon the confusion, dear readers. To clarify: California Assembly Bill 10, did, in fact, go into effect during October 2008. We have not -- as some emails have suggested -- become trapped in a time warp, perpetually repeating the day every store in town was inexplicably out of napkins and dill pickles.][Via superannuation]
Thompson vs. Methenitis: 'Debate of the Century'
Hear ye! Hear ye! Joystiq's own legal counsel, Mark "Minister of Mandate" Methenitis, has announced his 1-on-1 verbal brawl debut (that's a certified professional sport, you know) against -- none other than -- Jack "Attorney at Lawl" Thompson during the ScrewAttack Gaming Convention (pre-registration now open) at the Westin Dallas Fort Worth Airport arena on a sure-to-be-historic July the Fourth, 2009. The topic: video game restrictions. So place your bets in the comments section below -- and be sure to check out the pre-fight hype reel posted after the break! [Via Law of the Game]
GDC09: How to avoid new legal pitfalls in virtual world design and policy
At last week's Game Developers Conference 2009, we got the chance to sit in on Mark Methenitis' talk on How to avoid new legal pitfalls in virtual world design and policy. You may have noticed the sheer quantity of legal cases, rulings and issues surrounding virtual environments and MMOGs that have direct impacts on users and players lately. We found the talk to be an engaging and interesting one, which certainly went a long way towards clarifying some of the past, present and future problems and we've got a tasty summary of the highlights for you.
When white collar crime goes virtual
The writing is on the wall. Legislation of the virtual space is increasingly becoming the norm. Just look at the ways in which Sweden, South Korea, and China are looking into implementing virtual taxation. It stands to reason that this is only the beginning, and regulatory bodies in other countries will begin to take a closer look at what's happening, economically, on the virtual plane. The economic turbulence felt in the United States (and beyond) and the numerous problems this creates has more people eager to turn a buck, somehow, and eyeing the unregulated economies of massively multiplayer online games and virtual worlds... and their potential for unchecked exploitation. At least, this is the view of Mark Methenitis, who writes the Law of the Game on Joystiq column, which focuses on legal issues as they relate to video games. Methenitis looks at the possibility of insider trading being applied to a virtual economy, wherein a developer has advance knowledge of a price fluctuation and takes advantage of this fact. The situation becomes far more complex, and serious, when an individual within a game company has control over the trade between real currency and the virtual currency in question, or has the ability to duplicate digital products. Methenitis doesn't cite any specific examples of this kind of financial manipulation, but explores the potential for exploitation on this level. More than anything, his observations are of a 'what if?' nature, but every scenario Methenitis outlines is certainly within the realm of possibility.
Betrayal! Law of the Game columnist explains how to pass game legislation
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]
