Gamers Rights Blog: What exactly IS that, anyway?
I tried to lay out a definition when I started, but didn’t know exactly what was out there. I think I can give a little more refinement to my ideas at this point. Today’s lesson covers THE BASICS.
The lawsuits I’m commenting on are strictly the types of actions a small firm is capable of prosecuting or defending, either alone or with co-counsel. In the broadest terms they seem to fall into three categories.
Today; (I) intellectual property disputes, aka who owns what? Okay, that is VERY broad, but mainly is
1. developer against publisher (D v P); (Activision/West and all associated litigation)
2. Publisher against Developer (P v D); (Zynga suing opposing company AND former developer)
3. player/User against publisher/developer (U v P) (not so much p/d against player/user as they simply kick them out of the game or ban them from the forum); (Eros vs Linden Lab, Estavillo vs Sony Network, etc.)
4. third-party claimant that publisher/developer has stolen an idea (or rights) from them (3P v P); (Gibson Guitar vs Harmonix, Stefani vs Activision, Jaffe vs God of War)
5. publisher/developer that OTHER publisher/developer is stealing from them(P v P). (Zynga vs Playdom – over Mafia Wars)
Below, I’ll list the links I have to those stories, (except Activision v West/Zampanella, which I’ve cited twice in the past month)
Stern vs Sony http://www.onpointnews.com/docs/Stern-v-Sony_MTD_order.pdf
Eros vs Linden Research http://www.wired.com/images_blogs/threatlevel/2009/09/linden.pdf
Estavillo vs Sony http://cdn4.libsyn.com/gamepolitics/Sony-Estavillo.pdf?nvb=20100417202352&nva=20100418203352&t=0708220eacd52243a2bf6
More on Estavillo http://blog.ericgoldman.org/archives/2009/10/online_game_net.htm
Jaffe, God of War sued for copyright infringement? http://www.gamepolitics.com/2008/09/17/sony-designer-david-jaffe-sued-alleged-god-war-copyright-infringement
Zynga vs Playdom http://www.scribd.com/doc/16668771/Zynga-Lawsuit
Zynga vs Playdom http://techcrunch.com/2009/09/10/zynga-v-playdom-the-documents
In the broadest terms, these are intellectual property discussions similar to other types of software, or other types of writing (Hollywood screenwriting, book publishing) and the decisions follow along the same precedents. The new wave of cases, while undecided, are definitely not an entirely new type of law but can be categorized best by the type of plaintiff, and the type of defendant. This at least gives one a clue as to the relative resources and a good rule-of-thumb in determining the “endgame” of settlement/judgment. The publicity, while helpful initially, can not substitute for a good legal theory and a line of historical precedent that shows the IP law pertains to your particular situation. Most of the five situations are fairly equal resources, except #3 is a decided disadvantage to the individual player/user, unless a cogent and applicable class-action label can be applied for and enforced. The results thus far have been mixed (even though older judgments against AOL and other computer companies along similar lines do give SOME hope).
Types 1 &2, as well as 4 & 5 tend to categorize more towards classic employer/employee law, with a little trade secret precedent for good measure.
Footnote: The posting schedule for the next couple of weeks will focus on more serious topics in the beginning of the week (Sunday/Monday), a Mid-week Meat post on something more authoritative or authoritative links (Tuesday/Wednesday), and a Developers Corner post late in the week (Friday/Saturday). If other posts are made they will be mainly “Breaking News” with little or no commentary.
Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.
Tags: Activision, Harmonix, Linden Lab, Zynga
Very interesting that you view player vs developer as disadvantageous to the player. In the UK companies are very nervous of that type of case for 3 reasons:
1) If the plaintiff eschews professional legal services it’s actually reasonably cheap to get a first instance judgment. Also courts take a dim view of appealing if the only reason for appealing seems to be to price the plaintiff out of the market.
2) the plaintiff may get legal aid or legal assistance, types of welfare for people on low incomes in legal disputes.
3) the courts are, very deliberately, mildly biased against the companies. They feel that they should make allowances for an individual self-representing being worse than a professional lawyer. I was told this by the magistrate in charge of a Small Claims Court case I undertook.
jaymoffitt Reply:
April 20th, 2010 at 12:05 pm
Always look forward to your viewpoint. Yeah, you’re right the U v P (User vs Publisher) lawsuit is indeed a big judgment waiting to happen. Trouble is, I’m just quoting what I see in the press, and in the last several months I’ve not seen a BIG judgment for an individual against a corporation. Of course there’s non-disclosure agreements with some judgments/settlements, so all I can do is go by the press. You can’t google “confidential court settlements”, unfortunately, because I’m sure you’re right that if it’s close a judge or jury may certainly favor the pro-se or small-time litigator against a multinational corporation.
Let me take your points in order; #1 if it’s a point of law/fact that the publisher wishes to protect against future legal actions or class actions (ownership rights, copyright/trademark rights) then the publisher will defend it vigorously regardless of whether its going to be a de minimus judgment. (That’s just to prevent a “rush of lawsuits” or a class-action from thousands similarly situated). The concept aka “Legal reality does not equal economic common sense”.
#2 The Legal Aid attorneys I have known are some of the more competent/multi-faceted attorneys out there. They are, though, overworked, underfunded, and copyright, trademark, trade-secret, online-forum rights are just not subjects they encounter often. If they are claiming fraud, slander, or other more common types of cases it might be the type of action that a Legal-Aid attorney would be a real asset on the case.
#3 I don’t doubt your story. There are many states (especially here in the Southern U.S.) that I believe share that attitude. Of course I’m useless in commenting on “the other side of the pond”, but I really appreciate you sharing that, and it’s probably something I should have pointed out in my story laying out the pros/cons.
Appreciate your comment; and of course I’m eager to ferret out any lawsuit lately that has an individual (not represented by a union/professional organization) that’s won a large judgment against a video game company. Their EULAs and player agreements are for the most part plainly(from a lawyer’s standpoint) and completely written out, and I haven’t seen a success against a game company lately.