Gamers Rights Law

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.

Legal stories updates

jaymoffitt — Wed, 25 Aug 2010 18:31:53 +0000

http://www.flickr.com/photos/jmd41280/2975427277/ Creative Commons non-derivative license.

Kinect Story, keeping the name of XBox360 Motion Controller secret (from Joystiq game site, legal blog by Mark Mathenitis) More legal updates after the jump…

Lineage 2 sued for being “too addictive” Smallwood v NCSoft (Other related article from Kotaku here; and video clip from MSNBC here)

SF City Attorney threatens to sue Zynga over “Mafia Wars” (Article in SF Chronicle)

Blizzard v. Scapegaming; http://www.rfcexpress.com/lawsuit.asp?ID=51340 (Lawsuit Summary)

http://www.geek.com/articles/games/blizzard-wins-88-million-from-scapegaming-over-illegal-wow-servers-20100817/ (Article at Geek.com)

Supreme Court review of CA videogame law; Another comprehensive, excellent article by Sheppard Mullin

Why Education is so Important in EULA negotiations; by Aber Law Firm

Sony PSN Terms of Service(An evolving animal)

jaymoffitt — Thu, 19 Aug 2010 17:59:28 +0000

Changing Terms of Service Agreement(TOS) and the lost art of redlining.

With a 50-100 page agreement in the legal world, there are often changes made. Bilaterally. And those changes are put in a format known as “redlining”. There’s a certain courtesy extended to opposing attorneys which involves “redlining”; that is leaving the new parts of the agreement “redlined” to show the new changes. In case you object to those changes. Today’s consumer does not have that option. Today’s article will concern whether that removes the right to call that an actual “contract” in the familiar sense of the word.

Let me reiterate; and emphasize, the links provided are purely for your research purposes and expressly do not reflect the opinion of this lawyer and law firm. (Hopefully, it will help you and/or your friends make an informed decision about the Playstation Network).

Photo courtesy of Flickr: http://www.flickr.com/photos/marcobellucci/3534516458/ Marco Belucci; Creative Commons license; attribution required.

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http://us.playstation.com/support/termsofuse/index.htm

Current North American PSN TOS

http://www.digitaltrends.com/gaming/sony-warns-of-possible-3d-health-risks/

July 2010; TOS changed to warn of 3D gaming (Version 7.5?)

http://us.playstation.com/support/termsofuse/index.htm?EMC-PSUWelcome&ATTR=PSU_PSNTOSUAEM_W001_PPP_AL2_001_TOS_T#PSNToSUA

(Ostensibly) a screen grab from June 29, with Qriocity change (Version 7.0?)

http://www.psx-scene.com/forums/showthread.php?t=64143

(Ostensibly)March 2010; authorizes SCE to make automatic updates “without notice”

http://playedstation.blogspot.com/2010/04/sony-changes-terms-of-service-regarding.html

Comparison of 2008 and 2010

http://www.sonyinsider.com/2008/10/20/playstation-network-terms-of-service-is-downright-scary/

November 2008

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Well, what do you think? Do the changes fundamentally change the agreement from the earlier version? Opinions?

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.”

Real ID and the worldwide impact of gaming

jaymoffitt — Sat, 31 Jul 2010 16:29:33 +0000

(Photo courtesy of FoxSpain; Flickr CC attribution license)

Starcraft II will be a worldwide phenomenon. The RealID requirement, since retracted, is causing some ripples across US gaming blogs, and some other places. I’m going to explain why the U.S. is, perhaps, not as important as we like to think…. right after the jump….

Let me give some background. It’s gathered from a couple of very good, well-researched articles by people who are much, much more tuned into the worldwide gaming scene than myself. (Announcement of Starcraft II at an Olympic Stadium in Seoul.) (From MyMim an estimate of first-day sales of 1 million in U.S…. huge… and 3-4 million in Korea.. astounding.) The long story short is that Starcraft II is going to have much more of an impact in Korea and other parts of Southeast Asia than in the U.S. That’s the pure numbers speaking, not my own insignificant opinion.

And if you’re talking “worst-case scenario”, remember, if gamers in the U.S. don’t like the way a game’s forums work, they can refuse to purchase a game. If a government such as China, or some other government with that power, wishes to strictly regulate or prohibit a game, they can (and will). Just look at China and the difficulties of Blizzard’s World of Warcraft in keeping servers open and available there. (See my related post).

Nicholas DeLeon on Crunchgear talks about Blizzard and hypocrisy. (It details the move as more of a “trial balloon”, like a politician would use to gauge public-opinion impact of a policy move.

One last link, from an English-language Korean site, that explains the anti-anonymity movement in Korea.

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[Note: This inspiration brought on from Entertainment on Saturday's post about point of view.] Second, largely ignored issue about RealID and bloggers. You cannot, as a public blogger, make a realistic argument that total privacy is your utmost goal. You’ve already made yourself known, publicized, and you have no synchronicity of thought with the TRUE anonymous individual. The individual that shuns RealID, doesn’t link their Google page to their Youtube, doesn’t automate their comment-posting ID, and is otherwise paranoid to have any trace of their actual identity linked to their UserID. In this regard a blogger, though myself and others may “argue” a viewpoint about anonymity, do not share a common ground. We are speculating about reasons, as myself (and other attorneys and/or gamers who blog) have decided that being heard is more important than keeping a total anonymous persona. Of course many great gaming bloggers use personas, but as an attorney-blogger (who also collaterally solicits business in the areas of my expertise) we must fully disclose all email and point-of-contact information if requested by any potential client or contact.

Privacy; Blizzard; and being the only one in costume…

jaymoffitt — Sat, 17 Jul 2010 14:36:56 +0000

Lucious the Luscious; Sabrina the Sorceress; Paul Philbaum, Crombie, PA, acct.; Rena Tsolitias, adm. asst to Mr. Philbaum; Larry Goldberg, CPA; Crombie, PA. (All names totally fictional, for the purposes of illustration)

Maybe your teammates figure out that you’re an accountant, too. After all, if your friends all go by their real name and you’re simply “Grandmaster G”; you go from part of a club to “that guy”. No one wants to be “that guy”. We want to be “that group”.

If you opt out when all else are “opting in”, you go from being cool to being an insider trying to be an outsider. More after the jump…

Photo courtesy of Flickr; http://www.flickr.com/photos/katclay/4449231084/, Creative Commons, attribution required.

An outstandingly thought-out article about Blizzard’s plan to use RealID for Starcraft MMO. (From Networkworld)

Another incisive guess (or discovery) from a Harvard law student’s blog about WHY this Blizzard game makes RealID necessary. (Korea?)

A gamer’s blog with a decidedly even-handed description of why RealID is a bad idea. (Epic Slant) My absolute favorite quote, “The internet is full of cowards. These cowards delight in forums and message boards because they can say terrible things with little to no consequence”

A gaming blog’s listing of reasons why it is a good idea, from MMOsite.com, Celkie’s blog. (Total disagreement; but the logic is impeccable, that’s why it’s included)

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Other blogs giving their opinion on the debate, (including an incident with the de-privatization of an executive’s identity, and an about-face by Blizzard[perhaps] on this being a firm rule). These presented without comment.

http://www.gamingunion.net/news/blizzards-community-manager-the-first-victim-of-real-id–2141.html

http://arstechnica.com/gaming/news/2010/07/esrbs-privacy-badge-all-about-best-practices-not-anonymity.ars

http://kotaku.com/5585451/people-complaining-about-blizzards-real-id-have-their-email-addresses-exposed

http://www.digitalsociety.org/2010/07/is-world-of-warcraft-headed-into-privacy-troubles/

http://news.bbc.co.uk/2/hi/technology/8806623.stm

http://content.usatoday.com/communities/gamehunters/post/2010/07/blizzard-backs-down-from-real-name-requirement-on-its-forums/1

http://www.strategyinformer.com/news/8551/battlenet-removes-veil-of-anonymity-on-forums-real-names-used

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Voice acting (in videogames); notes and advice

jaymoffitt — Mon, 12 Jul 2010 14:13:10 +0000

(Photo: http://www.flickr.com/photos/vancouverfilmschool/3650728107/ Creative Commons, attribution required license. )

Some helpful links about voice-acting in videogames, more after the jump…..

People behind the Video game actors (Unreality Magazine)

5 video game voice actors (Edmonton Journal)

Faces behind the Videogame voices (Meodia)

Voices of Video game (Montreal Gazette)

Behind the Voice Actors (Great website for matching up characters with their voices)

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Some more technical articles discussing production and legal concerns

Article on blog discussing dubbing versus subtitling (Dubbing versus subtitling)

http://blogs.voices.com/voxdaily/2009/08/95_podcast_resources_for_voice_actors.html
Resources for voice actors

http://blogs.voices.com/voxdaily/2008/12/voice_overs_tough_legal_questions_answered.html
Great post from this online voice blog; legal questions answered… dated… but still very specific and useful.

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Personal commentary… if you add a voice actor instead of static graphics or word overlays, then you have an additional person to pay, as well as probably another Non-disclosure Agreement(NDA). It all depends upon your budget; and if you must have voice actors supervised or work live with another voice actor; you should probably have an appendix to your employment agreement stipulating the range of dates you might require from him/her.

Making Money on Rock Band Network (III)

jaymoffitt — Mon, 05 Jul 2010 20:41:40 +0000

Here’s some of the latest links and information I have found for Rock Band Network. (Unfortunately none of them has any extra information about a rags-to-riches on RBN… yet!)

Harmonix’s Rock Band Network partners with Distribution, Promotion Sites (Gamasutra) The article talks about cross-promotion between musician tools Tunecore, Nimbit, Reverb Nation, Indaba Music, and Topspin; while those sites are promoted to RBN users. On a related note; Rock Band Aide noted a RBN preview channel on Youtube.

A quite nice article about the difficulties of charting for Rock Band Network. (Music Think Tank)

A similar article decrying the arduousness of making the music ready for the game.

Another article, but hopeful, about a Vancouver band that is putting material on RBN. (Straight.com; Vancouver’s Music Source).

Regularly updated blog about RBN updates that has some impartial opinions. (Plastic Axe)

And last but not least; some very substantial information about Microsoft’s contribution to the RBN project that were given during the Game Developer’s Conference, but are now available for download.

Rock Band Network post-mortem (from Microsoft Website; contains a zip file of a Powerpoint and also audiocast)

Highly enjoyable critique of the above source material from professional gaming Website (Joystiq). I especially enjoyed the fact that Microsoft’s programmers were much more consumed with the language and graphic images portion of the programming; but commented very little on the copyright-clearance filtering software… which I for one thought was masterfully done.

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Editorial comment: I wondered how it was that RBN was able to filter out any copyright-infringing content? The articles imply that it was because of direct input from developers/programmers at Microsoft; and that this might be an indirect or even direct reason the songs premiere first on Xbox live (or maybe just coding reasons). But I’d be interested in reading any more indepth studies of how this was done. (Any of my readers feel free to enlighten me).

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.)

Another Brick in the Wall…..

jaymoffitt — Sun, 06 Jun 2010 18:05:59 +0000

Or so say users of Final Fantasy XIII for the Playstation III. You can find a copy(non-verified) of the lawsuit here.

More information and links after the jump….

Here is a news source from Courthouse News. The California case, alleging Final Fantasy XIII causes some PS3s to stop functioning, is described, and includes primary and alleged anecdotal stories.

Very informative article from Gamesradar which includes forums threads, Youtube videos, and various unsusbtantiated claims from PS3 AND Xbox users. Unsubstantiated, but A LOT.

The usual sarcasm-infused response from Kotaku games-magazine.

A short article with background from 1UP gaming magazine.

Related: A very good background story from Gamasutra on the emotional attachment (or lack thereof) for Final Fantasy XIII.

Author’s commentary: Another class-action filed in California. This time by a Florida plaintiff. (Have to wonder; is Sony’s contract so great as to require California filing, or are California’s protections so wonderful as to lead to this? Not a California lawyer….only Tennessee, so I’ll have to take their word on it.) The one thing you have to notice about these lawsuits, the plaintiffs are getting a whole lot more anecdotal and real-life stories to supplement their own experiences. One day one of these lawsuits will succeed, maybe next year, maybe in 5 years, and we’ll see a flood of them. Sorry, we’re seeing a flood of them already and we’re still just waiting to see how they turn out.

Do you think that hopefully Sony/Square Enix and other publishers and big companies will change their policies and comment on these lawsuits? Are their merits to them, or is it just a natural result of big games on a huge number of game-systems that it’s going to cause death by natural causes to a large number of the systems? Or have all the updates, changes, and new types of game development just pushed the limit for the systems and caused a breakdown of a very, very tiny percentage (but still a substantial number) of the systems? Finally… does Sony even have access to that specific data? If so, would, or could they share it? I wonder.. but not aloud.

Photo credit: http://www.flickr.com/photos/kelloggphotography/3498982867/ ; Flickr; Attribution required, some rights reserved.