Gamers Rights Law » Uncategorized

Used games; Ethicality and legality

jaymoffitt — Tue, 31 Aug 2010 23:56:25 +0000

I. THQ comments fuel debate about $10 DLC

THQ doesn’t care if you don’t like DLC (From Computer and Videogames)

Penny Arcade comic that ignited the debate

The Legal Satirycon takes Penny Arcade to task

Wired explains Used games: not a simple debate

Dubious Quality blog says its a dangerous game developers are playing

Why Punish the Customer? (Bitmob blog)

II. Used games debate; the new players… the new tactics

Best Buy expands trade-in program; here (Miami Herald), and here (Gamespot)…

Target expands buy-back program; here (CNBC), and here(Kotaku)…

The tactics and positions of the old players… Gamestop: Used doesn’t hurt new

Gamestop industry position; Gamestop: 75% from 5 retailers

Game industry general feeling… used games blamed for sales decline (1Up)

Fav quote: Sure, if you want to, you can call the guy who only buys used games a parasite, but what about the guy who sold his copy to get money to buy another new game? What do you call him?

Economic breakdown of used sales (World of Discourse)

FINALLY, in tactics… some of the “non-resale” tactics being used lately by game publisher…

EA skirts first sale doctrine with limits on resale Great article by Ars Technica to introduce the “first sale doctrine”…much more discussion in last section. Favorite quote; “While much of the buzz about Spore has revolved around the DRM and now the lawsuit, what’s important to remember is that the DRM isn’t in place just to “fight” pirates. No, the activation limit and the one-account system are also strong deterrents against selling your copy of the game; EA would much rather everyone bought it instead of taking part in a second-hand market.”

http://www.gamepolitics.com/2010/08/24/sony-looking-online-pass-solution-first-party-titles

Sony looking at Online Pass solutions

http://www.teleread.com/2010/08/26/used-game-controversy-continues-e-book-vendors-could-stand-to-learn-from-valve-again/

From the E-readers point of view

III. Peripheral legal issues involved

First sale doctrine (First of all, the case… though you may want to skip below to the discussion) http://ia311030.us.archive.org/2/items/gov.uscourts.wawd.145432/gov.uscourts.wawd.145432.71.0.pdf UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON TIMOTHY S. VERNOR, Plaintiff, v. AUTODESK, INC.,

Defendant. CASE NO. C07-1189RAJ ORDER

Verner vs AutoDesk (First Sale Doctrine) … extension to digital goods?

P. 14; line 2-8

For example, a person who buys a home is nonetheless restricted in his use and subsequent transfer of the home by property laws, zoning ordinances, and fair housing statutes. No one would characterize the person’s possession, however, as something other than ownership.

Similarly, the court cannot characterize Autodesk’s decision to let its licensees retain possession of the software forever as something other than a transfer of ownership, despite numerous restrictions on that ownership.

http://blog.softwareinsider.org/2009/03/05/pollsurvey-join-us-in-updating-the-enterprise-software-licensee-bill-of-rights/

Enterprise Software bill of rights (Great discussion of a company’s effort to give customers some rights in software)

http://blog.softwareinsider.org/2009/06/21/news-analysis-used-software-rights-upheld-in-susensoftware-win-over-sap/

Because a first sale exhausts the copyright holder’s distribution right, future distributions of the copy do not implicate the Copyright Act. Opinion, p.7, citing United States v. Wise, 550 F.2d 1180, 1187 (9th Cir. 1977). A first sale does not, however, exhaust other rights, such as the copyright holder’s right to prohibit copying of the copy he sells. Id. For example, the first sale doctrine permits a consumer who buys a lawfully made DVD copy of “Gone With the Wind” to resell the copy, but not to duplicate the copy. Id.

http://www.pcworld.com/article/120767/consumer_watch_software_licensesfight_for_your_rights.html

Consumer Watch: Software Licenses – Fight for your Rights

http://williampatry.blogspot.com/2008/05/first-sale-victory-in-vernor.html

Vernor First Sale doctrine

http://www.joystiq.com/2008/10/17/lgj-first-sale-re-sale-everythings-on-sale/

Mark Mathenitis column

IV. My personal take on this

At the used bookstore where I frequently shop (more for the selection than the prices) there are often a row of new, sometimes collectible books marked; CASH ONLY, no trade-in credit. If a small privately-owned company can do that… certainly it is within the purview of larger publishers on their newest games to ask the same for their titles.

I think this is more a practical argument than a legal one; but I’m not one to take my gaming with a “heaping helping of guilt”. Readers; tell me what you think of this debate, or if there is possibly a legal argument that should prohibit the modern-day gamer from buying used instead of new? Or do you feel that this thrifty gamer is instead akin to piracy and putting publishers out of work by torpedoing the all-important sales figures?

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.

Developer’s Corner (What’s My Job, anyway?)

jaymoffitt — Thu, 05 Aug 2010 23:29:24 +0000

Wearing Multiple Hats is Tough (From the Christopher M Park blog) Talking about the conflicts of an indy developer… interesting stuff…(Note: stole the title for this from one of his subtopics)

Picture by qThomasBower; Creative Commons license 2.0 on Flickr…The rest after the jump

A True Fairy Tale…. a tech support story with a happy ending!! (From Pink PigtailInn) A great story that illustrates how tech support actually works…(Ed. note - I’m so tired of posting on this blog slams, criticisms, and glitch reports about games… I know for every glitch that makes it through, a thousand were resolved, for every tech-support horror story, there are hundreds ably solved. I can say this as confidently as someone who worked tech-support for over a year in the late 90s… I know techsupport in games and quality control in programming are long, hard work and you have to take the satisfaction where you can, it won’t come in “thank-yous”.)

The Deaths of Game Narrative (From Gamasutra) Discussion about whether the deaths make the story; or whether the story’s built around the killing.

I’ve a Job in the Game Industry…. (Escapist Magazine; Talking about expectations and reality)

A great game-plan for a profitable freemium (From Andrew Chen… with many other excellent articles as well)

Now, for a legal viewpoint… Law of the Level, “Social Games and Privacy Policy Pandemonium” The best thing about this article is its excellent research, authoritative tone, and finishing-line quality. The worst thing about this article is that it totally bums me out about my own ongoing research into the same phenomenon. (Takes second to whimper like a little girl). Nonetheless, read the article and maybe in a month or two I’ll have my own groundbreaking work which will make your reading of this a total waste of time (or not).

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Commentary: I think the answer is that it’s what you make it. Myself, I’m amazed at how many developers or entrepreneurs put the planning of good legal help as their last priority. Law is such a specialized field that I wonder how it is that people feel that it’s a “last-minute” decision that can be made easily. It’s like a good suit (and NOT lawsuit), it’s a personal fit that may take 1,2, or 3 visits (or calls) to determine if a business/IT/game attorney fits your needs. I focus on this area of law almost exclusively, but it’s amazing how many conversations I have with great people with problems that are “just outside” of my expertise. But I still try to direct them in the right direction, and I’ve found nothing but great help so far from the developer community in my quest to “learn to serve.”

Interesting posts concerning game law

jaymoffitt — Fri, 25 Jun 2010 21:28:04 +0000

Here is a very insightful article Gamasutra ran about Game Actors…

Great article about contracts (from another law firm)

Great law review article; The End of the Virtual World: cite as Fairfield, Joshua, The End of the (Virtual) World. West Virginia Law Review, Vol. 112, No. 1, p. 53, 2009; Washington & Lee Legal Studies Paper No. 2010-7. Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1611672

That’s all I have for now. Just wanted my readers to know I’m working for them and should have something big to post soon. (You can call off the search party.)

Links to great Virtual Worlds law podcasts

jaymoffitt — Mon, 31 May 2010 13:35:08 +0000

Here’s the best audio feeds (podcasts) I’ve found about Virtual Worlds. I’ve neglected the subject lately; not because of lack of material, but because authors (such as these) are doing such a great job covering the field.

http://feeds.feedburner.com/SLCN-Metanomics (Great series of lectures about virtual worlds, including one with Professor Robert Bloomfield and Professor Joshua Fairfield.. both extensively quoted in my previous blog posts)

http://singularitylaw.com/podcast/the-singularity-law-podcast-episode-3-virtual-law Tigran Palyan, a 3L at Southwestern Law School in Los Angeles, talks about his research into Privacy in Virtual Worlds)

http://bpgradio.podbean.com/2009/10/15/ip-on-the-bench-a-chat-with-us-magistrate-judge-arthur-boylan/ Podcast Interview with Federal Judge (talking about IP law, etc.)

Second Life sued (again) for land values??

jaymoffitt — Sat, 22 May 2010 22:39:10 +0000

Report on the lawsuit from “Courthouse News”
http://www.courthousenews.com/2010/04/20/26549.htm

CNN coverage of Second life class-action over land values
http://www.cnn.com/2010/TECH/05/10/virtual.property.second.life/?hpt=Sbin

Inc. Magazine coverage of the lawsuit
http://www.inc.com/news/articles/2010/05/second-life-virtual-land-dispute.html

LA Magazine short article
http://articles.latimes.com/2010/apr/30/business/la-fi-lazarus-20100430

Blogger’s article quite skeptical of the lawsuit
http://terranova.blogs.com/terra_nova/2010/04/bragging-again.html

Website ostensibly dedicated to the lawsuit
http://www.virtuallanddispute.com/ , with pdf (unverified) of filing http://www.virtuallanddispute.com/pleadings/evan_spencer_carter_v_linden_labs_virtual_land_property_rights_class_action_lawsuit.pdf

Related discussions along the same theme (for background or entertainment)

(OLD_SCHOOL DISCUSSION)Sherrifs Of Norrath (Yes, from 2003 – read comments from Koster and other well-knowns)
http://terranova.blogs.com/terra_nova/2003/10/sheriffs_of_nor.html#c234193

Virtual World Fedualism (A related view)
http://works.bepress.com/james_grimmelmann/21/

Why Do People Buy Virtual Goods
http://www.slideshare.net/vlehdonv/why-do-people-buy-virtual-goods-ten-attributes-that-influence-item-desirability

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Quick commentary. I don’t recall a lawsuit of this type being successful. Maybe my readers can update my knowledge. But one of the compelling arguments, the “real estate” argument, does remind one that in property law there is “real property” law and then all the other types of law. I’m not going to get into that (RE law being one of the reasons I’m a big-city and not a small-town lawyer), but I’m interested in seeing how this lawsuit rolls out. Read the complaint and I’ll be really looking forward to seeing if any of my readers think it is different than the previous ones, or if this one may be successful.

Gamers Rights Blog: What exactly IS that, anyway?

jaymoffitt — Mon, 19 Apr 2010 14:42:05 +0000

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.

Gamestop Sued: Used Games not have retail-only DLC

jaymoffitt — Sat, 03 Apr 2010 01:00:26 +0000

If you keep up with this sort of thing, you might say “Duh!” If you don’t, you might say, “Why don’t they rip off the sticker?

After the jump, here’s the roundup of points of view for these two thoughts:

Industry Gamers article detailing the lawsuit, Gamestop sued for having $15 free DLC; (but it’s only for a first-retail purchase)….

Class Action Lawsuits in the news…

The Consumerist …

The Escapist …

Destructoid site

Ars Technica site.

Some of the more “rantier” articles… GamersSyndrome (For me the best part was Google “adwords” plastering a Gamestop ad directly in the post)

Game Stooge, well written… always enjoy the site

The semi-official links to a pdf scan of the lawsuit:

From IGN , and from Courthouse News.

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My comments: I side initially with those who say this is no small deal. After all, $15 times all the sales of a game, at every Gamestop store, adds up. Now the proof is yet to be made: and Gamestop can legitimately point out, “Who is to say $15 of DLC is worth $15? There’s no resale value, no comparison value… and who’s to say that the product wouldn’t have been sold anyway.” I characterize this more of a Federal Trade Commission case, a retail accusation of fraud case… rather than a pure game case. I’ve yet to see a legal analysis along that line, even though the complaint does circle that very well.

Image: “http://www.flickr.com/photos/myklroventine/3210068573/”> a rel=”cc:attributionURL”

Making Money on Rock Band Network, can it be done?

jaymoffitt — Thu, 25 Mar 2010 21:44:13 +0000

Let me first declare – this is likely the most unbiased blog posting you’ll read. I’m not trying to sell you something, and frankly don’t know how as an attorney I can “cash in” on the Rock Band Network (if you know an idea, please leave a comment). Harmonix, or Apple for that matter, is not negotiating with your band/publisher/songwriter. So this is purely for informational purpose and hopefully your group can gain something from these articles I’ve noted and my opinion at the end. Article continues after the jump…..

http://gighive.com/the-buzz/2010/03/how-to-get-your-music-on-the-rock-band-network/ (Gig Hive)

http://g4tv.com/thefeed/blog/post/697475/rock-band-network-website-breaks-down-how-to-sell-your-music-step-by-step.html (G4TV)

http://gameinformer.com/b/news/archive/2010/03/04/news-hands-on-with-rock-band-network.aspx (Game Informer)

My favorite quote, “Nordhaus said the worst part of the Rock Band Network development process was the legal tangles. He said the legal hassles added months to the launch of the service. When developers want to do anything new with user-generated content, Nordhaus said lawyers will get involved, and the inclusion of music made this particular process doubly complicated”

Older article (Kotaku) on putting content in, included again because I frankly think it’s the most clearly written on this topic. (Important note: 35 cents to label/artist, 65 cents to PSN)

For completion’s sake, the RBN official starting point.

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Comparisons to Itunes:

http://blogcritics.org/music/article/q-how-much-of-a-99/ (Their answer, 34 cents to Itunes, 55 cents to major label, 10 cents to the artist)

Some Itunes demographics (75% of songs downloaded at least once)

NY Times article explaining how much Itunes is making, and why.

As usual, saved the “egghead” stuff for last… http://papers.ssrn.com/sol3/papers.cfm?abstract_id=952019 (Jonathon Sprigman, The 99 Cent Question) Excellent article for either the band’s manager, or the economist.

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Here’s my take, purely commentary.

Cons: Even though I love Rock Band personally, (I purchased Rock Band 2 myself), it is not well known among music buyers. Furthermore, there are no established avenues to publicize your music. There are of course the Harmonix featured tracks, but even their Website does not tell how they are selected. Unlike Itunes which can be easily advertised over the internet, I do not know that Harmoix or PSN accept ads “pushing” a certain song. So outside of word of mouth, how is someone to find your music on Rock Band Network?

Pros: Most people who have Rock Band are real fanatics about bands. And if their favorite band has songs, they are probably much more inclined to buy than if it’s just on Itunes. (You get to play AS the band). The other factor is that while Itunes has an installed base of 7 years, tens of thousands of choices as well as podcasts and TVs/movies, RockBandNetwork has merely hundreds of choices and soon going into the thousands. That’s still a fraction of the competition of Itunes. And there are success stories(1Up) such as Aerosmith and others who make as much or more through game downloads as through Itunes.

Photo Attribution: http://www.flickr.com/photos/mangiechan/2626880129 (Creative Commons no derivatives, flickr)

Mass Effect 2 – I need glasses

jaymoffitt — Wed, 17 Feb 2010 17:24:37 +0000

First of all, the statement from Mass Effect 2 publisher: “Responding to user complaints on the matter on the developer’s forums, BioWare’s Michael Gamble writes, “I’ll have to talk to Casey about this (as any way to address it would have far reaching changes in the game), but please don’t expect any decisions or a fix in the near future (as we are supporting a number of issues at this time). This was a design choice, not a bug.” The rest of the story after the jump.

You can find this quote on the Kotaku story as well as the one below.

Here is the full story on Ars Technica. My favorite quote: “many playing the game are having problems reading the text. The problem is most acute for those with standard-definition sets or those with smaller high-definition televisions.”

The question that would logically follow is: what percentage of homes have HD Televisions; is it a necessity for a next-gen game?

The figure used in some of the information regarding the game’s install base is that 53% of homes have HD TVs. But a follow-up query would be is that the main gaming TV, or is a secondary television used for the next-gen gaming? Other figures have been put out there as well. An interview with Epic publisherMark Rain in Eurogamer said “ My point is, of the systems that are out there now, the majority of them aren’t plugged into HDTVs.”

Other stories out there, see the blog TV, lamps and bulbs, report the HD penetration at 46%.

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Now, back to the bigger question… should there be a warning on the box? A note, a sticker? Or even, (dramatic pause) an opportunity to return the game if you can’t read the words in the game?

First, no suspense, there’s no way it’s a returnable “defect”. It’s like returning that new foreign sedan for all your money back (not trade-in value) because the DVD player is a single and not a three-DVD player. The words are, for most of the players playing the game, a supplement to the gameplay experience and not a deal-killer.

“What is or is not “fit for [its] ordinary purpose” within the meaning of UCC § 2-314(2)(a), (c) has proved, in the main, to be an issue of ordinary understanding.”, this from the Lexis/Nexis study guide on product liability.

Now, we are not dealing with injuries, harm, or actual damages outside of making gameplay uncomfortable. And it is true that product liability is NOT an exact match with whether one should get their money back on a product. But the ideas are parallel and the customer, though not always right, should remain the ultimate high thought in the seller’s mind.

What about a warning, a sticker? The Restatement of Torts states: “The Restatement (Third) § 2(b) characterizes a product as “defective because of inadequate instructions or warnings when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provisions of reasonable instructions or warnings[.]” This is from Lexis/Nexis study guide on Product Liability.

Now, there have been literally hundreds of cases decided based on this narrow section. I have no foresight as to how Bioware might decide on how to handle this matter…. but the law makes it at least a “close” case. And from a common sense standpoint when it’s close it is good customer service to at least pursue the possibility of a public warning, statement, or sticker on the packaging.

Your thoughts, please. To many it’s not an important issue, but it is the biggest January release in video-game history, and according to chart has outsold any other game six-to-one. So there’s a lot of standard-def attention on this issue, and I hope I’ve given this a high-def inspection in this short article.

Gamers Rights News

jaymoffitt — Wed, 18 Nov 2009 03:29:17 +0000

A listing of Gamers Rights articles in the gaming media.

An article on Skewed and Reviewed with ECA president Hal Halpin. I’m not familiar with this Website but the article seemed to be balanced and informative.

Nearly a Million X-box users banned from X-box Live, according to an article on Redorbit.com

Excellent article about a Facebook group advocating the Gamer’s Voice

Is Easy Play an Entitlement? asks Game by Night.

Please feel free to contribute any other articles on this subject via comment.