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Apple piles on Psystar, wins trademark suit
In yet another new facet to this already-draining legal battle surrounding Psystar's sales of non-Apple hardware that runs Mac OS X, Apple has amended its original suit after it discovered "additional information," according to Computerworld. Apple now claims Psystar circumvented Apple's copyright protection code, in violation of the Digital Millennium Copyright Act. Apple said in its original filing that Psystar was in violation of the Mac OS X End-User License Agreement, but tacked on this additional charge last week. The amendment also names 10 "John Does" -- persons who were not part of the Psystar company, but broke the copyright protection scheme. Apple doesn't know who they are yet, but plans to name names when its lawyers find out who they are. In other Apple legal news, Apple won a trademark infringement case in China against New Apple Concept Digital Technology Co., Ltd., based in Shenzen. Judges decided that the Chinese company had a logo too similar to Apple's. New Ap -- aw, eff it -- NACDTCL was ordered to pay 400,000 yuan (≈ US$58,000) to Apple, Inc. [Via Cult of Mac.]
LGJ: The Name Game
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: I received an e-mail this week asking a common question I've neglected to answer in LGJ to date. The question is generally what laws prevent a game developer from using actual car/gun names in their titles? There's also a follow-up question that generally asked about whether this is the same in movies, especially as it relates to cars. The answer to this question is relatively straightforward, and it's one of trademark law. At least, the answer starts in trademark law.
Psystar's antitrust claims against Apple dismissed
Well, we can't say we didn't see this coming -- Judge William Alsup in the federal Northern District of California today dismissed Psystar's antitrust counterclaims in Apple's copyright infringement lawsuit against the wannabe Mac cloner. According to the judge, Psystar's hotshot legal team failed to provide facts "plausibly supporting the counterintuitive claim that Apple's operating system is so unique that it suffers no actual or potential competitors." Not only that, but the judge also found that Psystar actually contradicted itself in pointing out that Apple has to advertise heavily to promote OS X against competing operating systems that perform the same tasks, and that Apple is "certainly entitled" to ask its customers to only use OS X on Apple machines. Yeah, that's a smackdown. Psystar has until December 18th to amend its complaint and try these arguments again, but we can't say we think it's got a shot in hell here -- and something tells us that that court-mandated alternative dispute resolution process isn't going to get very far in Psystar's favor either.Disclaimer: Nilay's a lawyer and sells bootleg OSx86 machines out the back of his van, but he's not your lawyer and this isn't legal advice.[Via Macrumors]
LGJ: User Content Continued
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: Between Guitar Hero: World Tour and Little Big Planet, user content is king going into this holiday season. Last time on LGJ, we talked about the issue of the rights of the user. This week, I wanted to take the opposite approach and hopefully outline the legal issues that make Microsoft and Sony's lawyers cringe. These are the reasons for the complex terms of use and mildly mysterious disappearances of some content from the sharing servers. While there are a myriad of potential legal theories that could be employed if someone wanted to sue based on user content, I'm going to focus on what I think are the more likely and/or more plausible ones.In case you're still living in a dial-up world and haven't experienced user content, the basics are fairly simple: People who play the game create content and upload it for others to use. In the games I mentioned above, that content is put up on servers for the game maintained either by the network (PSN, Xbox Live) or by the developer/publisher. This content varies by game, but it may be new levels, scenarios, maps, or songs. The content is based on in-game editing tools, and has been really successful in games like Halo 3 with Forge. It can also help develop a community around the game and extend the shelf life of the title.
LGJ: User Content Creation Crisis
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: It appears there has been a bit of a controversy over the recent changes to the PSN Terms of Service with regard to user-generated content, which seems to be at least in part tied to the release of the Sackboy epic Little Big Planet. Of course, user-created content is nothing new, and neither is the management of the licenses associated with that content. However, it seems like as good a time as ever to discuss the issue of managing the intellectual property rights of user created content and what that can mean for you, the user, and them, the game companies. I guess we should get back to basics, though I'll skip the intellectual property primer this time around. When users create content for games, they're creating intellectual property that would likely qualify as a derivative work. After all, what good is the content outside of the game? Some types of mods are more derivative than others, depending on how much is taken from the original work. But the point remains, it's at some level a derivative work. In this case, however, there is at least an implicit authorization for the user to create the work based on the virtue of the developer giving the user the tools to do so. In this way, we're not dealing with a situation identical to, say, machinima.
LGJ: First Sale, Re-Sale, Everything's on SALE!
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: While it seems like the rest of the known universe is busy talking about subprime mortgages and bailouts, the game industry and associated news outlets have been talking about sales. Specifically, they've been talking about resales, and how that's affected by the first sale doctrine. The most recent development has been talk of incentives to buy Gears of War 2 new, but even that's in the wake of the recent comments from Marty O'Donnell, which has been commented on in other columns on Joystiq. Of course, none of this quite gets to the root of the issue: What is this first sale doctrine and why does it exist? More importantly, assuming it applies to all kinds of software, is there another way to accomplish what we're doing now within those legal constraints? So, let's start at square one. The first sale doctrine is a rule which says, in short, that once an item that is copyrighted is first sold, then the author no longer has the ability to prevent the resale of that item through copyright law. Without the first sale rule, a copyright holder could theoretically continue to control the item because copyright includes the right of distribution. The first sale doctrine, however, does not protect someone who bought an item if they're illegally reproducing it, for example. It only allows for the legitimate resale of the item itself. The courts have even recently held that this idea extends to demo CDs marked not for resale.
LGJ: The PRO-IP Act and Gaming
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: Congress has recently passed the Prioritizing Resources and Organization for Intellectual Property Act (the "PRO-IP Act"). While it has not been signed by the President yet, it seems as it's only a matter of time before the Act has the force of law. The PRO-IP Act does three things, generally: 1) it increases the penalties for infringement by expanding what is considered a 'work;' 2) it broadens the ability of the government to permanently seize goods; and 3) it creates an Intellectual Property Enforcement Coordinator, a new cabinet position whose sole job is to increase intellectual property enforcement. In short, it's a load of bad news for consumers, but really, it's not that much good news for many intellectual property owners either, as I'll explain. Because this act is so broad and will be applied in so many ways, I'm actually writing two articles about it. Here on Joystiq, I will be covering the PRO-IP Act as it relates to gaming while on Law of the Game, my blog, I've (shameless plug) posted an article discussing the act as it applies to other media. I consider myself to be in a pretty neutral position with respect to weighing the pros and cons of various IP regulations. I'm a consumer, I represent producers, and as a writer, I'm a producer myself. Being in that position, I've always admired the game industry for typically not being in favor of or enforcing the most draconian regulations to their fullest extent. In that respect, many game companies and gamers seem to understand that their relationship is symbiotic. Without one, the other would not be able to function. And with that understanding, the majority of gamers and game producers see the need for some intellectual property protection but also see the need for reasonable protection to balance the interests of the producer and consumer. And in that respect, the PRO-IP Act starts to shift the balance in ways that aren't necessarily desirable for either, but are certainly not desirable to the consumer.
Court bans sales of RealDVD indefinitely
It look like Hollywood's won the first round in court against RealNetworks' RealDVD DVD-ripping software -- Judge Maralyn Hall Patel (of Napster fame, remember her?) ruled yesterday that a temporary restraining order blocking sales of the software will stay in place indefinitely until she decides whether it violates the DMCA. The central issue is whether or not making a bit-for-bit copy of a DVD constitutes circumventing copy protection: the studios claim the encryption keys must be read off the disk under the terms of the license agreement, and RealNetworks obviously disagrees. There's a lot at play here, including the studios' argument that fair use doesn't serve as a defense to backing up DVDs, so we'll be tracking this one closely -- it's sadly clear to us that Hollywood's fight here is against consumers having flexibility with their media, since it lost the battle against actual piracy ages ago.
Guitar Hero World Tour won't condone your awful cover songs
"We can't condone people putting up covers of music. It's really there for original content." That's the word from Guitar Hero World Tour director Brian Bright, who's well aware that his upcoming game's music creator may also double as a copyright infringer. Speaking to 1UP, Bright explained that uploaded, custom-made tunes will be monitored by Activision and indiscriminately yanked should they contain any suspiciously familiar riffs."If there's a licensed song and someone holds the copyright to it, we'll take it down regardless of whether or not someone complains," added Bright. We sincerely hope this gives you pause before you decide to share your unoriginal, ill-advised rendition of "Motel" California with the rest of the world.Guitar Hero World Tour and its 86 master tracks are out on October 26th.
LittleBigPlanet to feature personal 'copyright' system
We love it when games like Soul Calibur IV challenge us to add a personal touch to our favorite pastime, whether it be in creating our own fighters or stitching together a brand new level. But if there's anything this bounty of creative tools and user-generated content has shown us, it's that people aren't very original. When they're done recreating all of Nintendo's intellectual properties, they'll likely start copying, editing and spreading all of your creations too. They must be stopped!Thankfully, the PlayStation 3's impossibly cute platformer, LittleBigPlanet, will feature its own "copyright" system for user-generated items. "You can basically dictate the distribution rights on any object you create," Media Molecule's Alex Evans tells Eurogamer. "If you put something in your level as a collectable item, people can collect it. People can control who comes into the level, both by how hard it is and by giving away keys, but you can also choose whether to copyright that object."Items sans copyright can be modified and shared with wild abandon (perfect for the inevitable penises!), while those cherished by the creator must be collected and remain within the confines of the user's level. Which is probably just a recreation of Super Mario Bros. World 1-1 anyway.
Warcraft Orc art on European ghost train ride
Paul sent us this picture (thanks!) he saw on a ride at a traveling fair -- he doesn't say where he's from, but he does play on the EU realms, so we imagine this to be somewhere in the gypsy country of France (France has some gypsy country, right?), in among the carnies and popcorn. As you can see, it's everyone's favorite Warcraft image, "repurposed" into a scary ghost train ride. And if you click to embiggen the photo, you can see that it's not just Thrall on the sign. Apparently ghost train ride artists aren't scared by a little thing like copyright law.Of course, while non-Warcraft players would probably see a sign like that and think it's gross or scary, we know the truth: Thrall's a loveable badass. He's the guy you elected the supreme leader of Azeroth by a huge margin, so using him on a ride that's supposed to be scary kind of defeats the purpose. While most might leave that ride screaming in fear, we'll probably just leave it screaming, "For the Horde!"Update: I'm told that the art is not of Thrall but is instead Grom, something that has shaken me to the very foundations of the day I first bought Warcraft III. I always thought it was Thrall on the box cover. Oh well.Also, I apologize to Paul, our French readers, and the gypsies of the European continent. Paul didn't say where he saw this ride, and my overactive imagination pushed me to envision a traveling gypsy camp somewhere in the wilds of France. I meant no offense -- in fact, even though I'm a lifelong American (Midwestern, even), I feel a kinship with the traveling gypsies of the old country. That's probably why I thought it was them.
Weemote maker wants Nintendo to buy his trademark, release him from this iron cage
We're going to guess you've never heard of the Weemote, a little blue remote control made by a company called Forbis. The egg-shaped remote control and its parent company are reportedly in financial trouble ever since another company came out with something a lot of people are calling the "Wiimote." While the Nintendo Wii Remote's official name isn't that word (we refuse to type it again), evil bloggers and retail chains have taken to the term and Forbis claims its brand has been diluted, confused, and passed up. Owner John Stephen told Game Politics that he would like nothing more than to have Nintendo buy out the trademark and let him move on to something called, oh, let's say, the X Bocks, a new microbrewery project. The big surprise out of all of this? Nintendo isn't interested. In fact, it has no legal reason to do so, either -- it's never officially called the Wii Remote anything else. Of course, that's not to say Ninty shouldn't do the right thing here (and make our jobs just a hair easier) by buying out the mark and sanctioning the nickname, but don't hold your breath.
Apple demands Psystar recall Mac clones
We noted yesterday that the Mac clone maker, Psystar, was sued by Apple for copyright infringement, among other things. According to a recent ZDNet post, Apple wants Psystar to recall all of the Mac clones sold since April. "Psystar's actions have been committed with intent to damage Apple and to confuse and deceive the public," Apple claims. "As a direct and proximate result of Psystar's infringing conduct, Apple has suffered and will continue to suffer lost sales and profits in an amount not yet fully ascertained in an amount to be proven at trial," Apple notes. I really don't see how Psystar will be able to recover all of the Mac clones sold since April. But, if you bought one, would you send it back? I certainly wouldn't. Engadget, our sister blog, is also looking deeply into this high-profile lawsuit. They take a look at what each allegation means for both Apple and Psystar.
Apple files suit against Psystar for copyright infringement, mellow-harshing
C'mon now -- you saw this one coming down the road, didn't you? Apple has officially taken legal action against Mac clone-maker Psystar, according to court documents. On July 3rd, the Cupertino giant filed suit in the federal district court of northern California alleging violations against its shrink wrap license, trademarks, and copyright infringement. Clearly this doesn't look real promising for the Florida-based cloner, but we're confident they'll handle this situation with the tact and aplomb we've come to expect from them. Which is none.Read - Confirmed: Apple files suit against PsystarRead - Apple goes after clone maker Psystar[Thanks, ginger.al]
Japan to abandon iPod copyright fee
For years, legislators in Japan have wanted a portion of the price of a digital recording device (up to 3%) to go to recording companies, songwriters and artists. The so-called "iPod tax" has met opposition from electronics manufacturers, as you could imagine. However, it looks like it's not going to happen. A group failed to create an agreement yet again this week, prompting official Masafumi Kiyota to say that "...there is virtually no hope for getting the legislation passed." Certainly good news for consumers.Other electronic devices like minidisk players and DVD recorders have a copyright tax built into the price tag in Japan. The logic (if you want to call it that) is that consumers will use these devices to illegally acquire copyrighted material, so why not have them pay for it before hand, as a preemptive strike? Sounds to me like someone has contempt for their customers.
Warcraft III's Orc appears on fireworks
What better way to celebrate the Fourth of July today than to sit outside with some good beer, some tasty BBQ, and a whole lot of cheaply made fireworks? Brom and Seku on the Llane server were kind enough to send us this picture they took of a firework they found at a store in Pittsburg, Kansas -- apparently the "Behemoth," made by the Consumer Fireworks company in China, not only "emits showers of sparks," it also blows copyright law completely out of the water. Very nice.One more gigantic pic of the Behemoth and its Warcraft III orc cover art after the jump. If you do use fireworks (or break copyright law) today, do it safely, and have a great holiday!%Gallery-26839%
MPAA backs yet another anti-piracy technology: DreamStream
As the Motion Picture Association of America continues on its unending (we mean that quite literally) quest to banish digital piracy, it has just announced its unbridled support for yet another technology. The MPAA has approved the use of DreamStream's secure online file streaming system "as a solution to curb digital piracy," and according to Michael Jay Solomon, founder of Solomon Entertainment Enterprises, the software will "allow the content providers to recoup the billions of dollars that they are loosing [sic] right now." If you got a chuckle out of that, get a load of this. Ulf Diebel, chief development officer for DreamStream, went so far as to say that in order to "win the war on piracy, the studios need DreamStream's military grade capabilities." Heck, the company even asserts that its "unpublished encryption has never been compromised by hackers or digital pirates." Sheesh , don't you all know what happens when you just beg to be circumvented?
The Middleman throws broadcast flag on ABC Family
Sheesh, again? Not even a month after the collective HTPC community begrudgingly forgave Microsoft / NBC / whomever for throwing up the broadcast flag on select NBC programs, we've got yet another instance of Media Center users being unable to record a (late) primetime show. Reports around the web are suggesting that ABC Family's The Middleman threw the flag on a number of systems -- not just Vista -- and it's hard to say right now who is at fault. TVSquad's Brett Love had no issues capturing the show in HD and SD via his cable company-provided HD DVR, thus he's guessing the finger of blame is pointing in the general direction of Redmond. So, what gives? Will users continue to see these things followed by a quiet apology, or will the kinks really be ironed out so our perfectly legal time-shifting can resume?
Blizzard responds to Public Knowledge about WoW Glider
As we've been posting on WoW Insider, Blizzard is entangled in a lawsuit with the makers of WoW Glider, a bot program that is against WoW's terms of service. And there's been a wrinkle in the case -- an advocacy group called Public Knowledge has filed an amicus brief in the lawsuit arguing for Glider, and saying that if Blizzard wins this case, it could set a precedent for copyright law that would make any copying of a computer program (including the simple act of copying it for an install to the hard drive) be illegal at the IP owner's will. That's unacceptable, says Public Knowledge, so even though they agree that Glider may be against the ToS, they don't think Blizzard should win the case.And now Blizzard has responded to Public Knowledge, and their argument isn't all that new. They claim that when you "buy" your WoW software, you don't actually own it -- you're just "licensing" it to use it on your computer. This is an argument that's long been used by copyright owners to claim that end users don't have the right to hack or otherwise modify their software, and it opens up a whole other can of worms, not least of which is that Blizzard is claiming if Glider wins this case, then all software "sales" ever really will give end users the ability to hack or modify it at will (something that a company like Microsoft, with their Windows OS, wouldn't want to happen).As we've said before, there are a few ways this case could pan out, and it's likely that it won't end with either of the doomsday scenarios that Blizzard and Public Knowledge are describing -- the court could still rule narrowly in favor of Blizzard, stopping Glider but staying away from the other messes brought up here. Oral arguments in the case started this week -- we'll keep an eye on what happens next.[via Massively]
Peering Inside: The rights of creators
On 14 November, 2003 Linden Lab caused quite a stir by announcing that users who created or published content via the Second Life service would "retain full intellectual property protection for the digital content they create, including characters, clothing, scripts, textures, objects and designs." Essentially, the same rights that they'd have anywhere else (barring assorted terms of use/service to the contrary). It seems obvious, in many ways, but ultimately it's actually very rare. Terms of use/service which express a contradictory position are in the majority. In fact, go to the filing cabinet and pull out the contract for your current RL job. Odds are, there are a whole slew of creator rights that you've already signed away that have little or nothing to do with your job. That, unfortunately, is the normal condition. When it comes to the new, novel, or creative -- almost everyone wants a piece of your pie, and few want to leave a slice for you, if they can avoid it. Even taking Sturgeon's (second) Law into account, competition for the remaining portion of human content and pop-culture is quite stiff.
