Gamers Rights Law » Activision

The Fall of Infinity Ward – And the New Rise of the Personal Service Contract

jaymoffitt — Sat, 15 May 2010 16:01:06 +0000

Photo Credit:

http://creativecommons.org/ns#” about=”http://www.flickr.com/photos/-cavin-/747847877/in/photostream/”> rel=”cc:attributionURL” href=”http://www.flickr.com/photos/-cavin-/”>http://www.flickr.com/photos/-cavin-/> / http://creativecommons.org/licenses/by/2.0/”>CC BY 2.0

(Flickr Creative Commons, attribution required) [You should visit the photo to read to read the narrative, no one was killed in this explosion].

What led to the destruction (total?) at Infinity Ward Studios?(read the other stories tagged Infinity Ward if you’re not familiar with the mass defections). I’m going to give a short history lesson… and instructions to big companies (as if they’re listening… HAHA) on how to gain allegiance.

It’s been detailed in many places, including Activision publications, how Infinity Ward was founded from the ashes of another War title. Those developers formed Infinity Ward. Activision became their biggest company user, and later sole supporter, and later owner. The last title became bigger than Avatar (in gross money terms) and then the bubble went “pop”.

Going back a little earlier into “tech history”, IBM, Xerox, Honeywell (look it up), these ground-breaking companies wore starched shirts, ties, and no one on the outside knew the programmers’ names. Later, names like Jobs, Gates, and then of course West/Zampanella came into being. It goes without saying the stock prices of Microsoft and Apple are dependent upon their leaders, so why would anyone think Infinity Ward would be different? Arguably, they lose their biggest asset from their biggest asset.

[The rest is stirctly commentary]Let me get into my “modest proposal”. Years ago it started, and runs currently, the “personal service contract” would be the preferred method by which big stars Sinatra, Bruce Springsteen, Mariah Carey, Katy Perry, etc… would be held to perform. It’s a personal obligation, binds personally (with penalties including restrictions on future work in the industry) and compensates fully and fairly. For example, no one ever seriously said, “Springsteen is gone, but the E Street band is still here, so we’re cool with it, K?” You knew the talent, and if you’re a multinational corporation YOU SHOULD KNOW that the lead programmer is the talent. Inspires the troops. Maybe is not (or has been for years) the best programmer…. but is THE COACH, the chief, the leader, and it’s undisputed. (Don’t believe it, just check the couple of dozen pink slips from Infinity Ward people over the last months… and don’t think Activision has not…. and you should look at this when all the court docs come out, and not just now… been throwing some serious money at these other departing IW developers.)

The day of strictly “buying a company” is over; recognize your talent, put them into lucrative personal service contracts, make it public, don’t just “buy the asset”…. BUY THE TALENT. Maybe I’m way off base, but the way all this has rolled out makes me think I am not. Welcome your comments, and as always if someone has REAL proof that it’s shaken out in a different way, I’d love to hear that.

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.

New lawsuits update

jaymoffitt — Tue, 04 May 2010 05:19:14 +0000

Infinity Ward Developers sue Activision (for unpaid royalties)

From Lawsuits and Settlements Web site (talking about the California state law factor) ; and story from the Vancouver Sun.

A slightly different take…The Lawsuit and Public Relations, from Gamasutra. Other lawsuits, after the jump….

Linden Lab “land-owners” sue for the change in Terms of Service over the years

In California… AGAIN… article here at this online mag.

The story from Virtual Worlds News… ; From the Los Angeles Times Business blog; the always dependable Massively

Linux Users sue for loss of that capability on PS3 (via the latest PSN update “killing” any Linux installation).

Gamespot article here….; and from Kotaku.

All of these lawsuits are very complicated, and interesting, and I hope to discuss them in full, at a later date.

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.

Stefani vs Activision

jaymoffitt — Thu, 15 Apr 2010 03:22:29 +0000

Well, I was going to promise not to talk about “the Big A” until next week. But I read perhaps the best legal article on gamer’s law in six months. You can read it here… http://copyrightlitigation.blogspot.com/2010/04/law-of-avatars-copyright-act-doesnt.html (Copyright Litigation Blog) Read the whole thing, and then pop back in here. I’ll wait.

Here’s the background links:

http://www.reuters.com/article/idUSTRE5A400320091105

Stefani vs. Activision Reuters story.

http://reporter.blogs.com/files/gov.uscourts.cacd.460150.3.0.pdf

Activision’s response (December 2009)

http://www.gamerlaw.co.uk/2009/12/no-doubt-vs-activision-legal-analysis.html

Gamerlaw article (December 2009)

I absolutely wholeheartedly recommend the article. It’s thought out and reminds one of the main problem of multinational corporations…. “jurisdiction, jurisdiction, jurisdiction”. In a world with no “there”, when does state law trump federal law? I’ll update the case notes on this as event warrant.

Developer Dischord at “The Big A”…. a historical fairy tale

jaymoffitt — Tue, 13 Apr 2010 11:10:47 +0000

Once upon a time the pre-eminent development firm for computer games had several top developers.

These developers were responsible for a goodly portion of the market for this top firm.

And the developers were looking at the dollars they were making, and what the company was making… and weren’t happy.

It did not end well…. for any reconciliation.

The company’s name was Atari, and the independent developers formed a company called… Activision.

Here’s a couple of links to the historical story of Activision’s formation.

http://www.gamasutra.com/view/feature/1537/the_history_of_activision.php

Movie Props page of Atari http://www.movieprop.com/videogames/atari/

Classic Retro http://www.retrothing.com/2007/09/the-poultry-tha.html

I’m inviting my readers to contribute in the comments their own ending for this latest modern-day nursery rhyme.

Gaming Cases Updates

jaymoffitt — Sun, 21 Mar 2010 18:39:00 +0000

Links to Activision vs. West/Zampanella (IW) case – my original post HERE: more links after the jump

Infinity Ward lawsuit in depth (Crispy Gamer)

Infinity Ward Update; developers sign with C.A.A. (LA Times blog)

IW firings may impact COD future (Game Career Guide)

SEC filing Activision/Blizzard, Official filing (http://investor.activision.com/secfiling.cfm?filingID=1047469-10-1649)

____________________________________________________________________________________________

Links to O’Bannon vs. NCAA, my original referral to the subject HERE

Chicago Sun-Times article (from Gannett) that tells of other ex-players joining lawsuit.

Article from Joystiq describing NCAA’s failure to get case dismissed.

Here’s the link to the amended complaint of March 10: http://www.scribd.com/doc/28209552/O-Bannon-v-NCAA-Amended-Class-Action-March-10-2010

Response to NCAA’s motion to dismiss case, February 2010: http://www.scribd.com/doc/26623903/O-Bannon-v-NCAA-Order-re-Motion-to-Dismiss (Notes about Scribd links – this is an external link to a third-party Website that is clearly a secondary source… it apparently is the scanned copy of the original court document, but if I receive information any third-party link is compromised… I will remove the link)

Daily News, UCLA (Feb 2010)

Professional articles on this Subject

http://www.thefreelibrary.com/To+license+or+not+to+license:+that+is+the+question+for+professional…-a0216352319 (From Sports Marketing Quarterly, September 2009)

Photo credits: Library of Congress collection, Flickr, no known copyright restrictions (Note: titled UniformNoNumber… get it?)

How to make a “forum” policy (Developers Corner)

jaymoffitt — Fri, 19 Mar 2010 15:25:22 +0000

There are four essential parts to a fourm policy: 1. Instruction 2. Limitation 3.Legal protection 4.Input/Discourse Of course, there’s more to it than this: full discussion after the jump…

The first part is instruction. Even though a game maker has seen dozens of forums, for many users they have no idea what is OK or not OK to talk about. The instructions should be fairly clear about the general range of topics allowable in the forums, or if the forums are categorized, the instructions should direct the user towards what category where a certain post should be posted.

The second part is limitation. Most common limitations include language, racism, religious discussions, personal attacks, and other common-sense limitations on touchy subjects. Also often excepted is discussion of the developer’s choice’s in the game making, known bugs and cheats, and unsolicited suggestions as to how to improve game-play. This part depends upon the developer’s concept of what a forum is for. Other limitations include commercial posts, spam, linking-out to other games/sites, or any subject that doesn’t help the game-player.

Legal protection: This in some way reiterates the topics in the second section. Limits on personal attacks on other forum users, racism, religious rants, off-color language, and off-topic posts are prohibited. This gives a legally defensible position if there is litigation related to some one feeling they were libeled or illegally attacked on a forum topic. For the legal protection to have the best effect, the developers’-publishers’ have to have a person(s) moderating the forums for these unacceptable posts. If the legal protection language is done properly, then the administrators have the right to warn, and then eventually ban the person from the forum, and even from the game/MMO itself.

Input/Discourse: This is why most people come to a forum to participate. If the first three elements are taken care of efficiently and seamlessly, the valued customer can discuss, suggest, and gently vent to their hearts content. A little teasing, good-natured ribbing, or even over-familiarity are allowable if the administrators can guide the discussions in a firm yet direct way. And the meaning of community is most at evidence here if you can use that forum to worry about building inertia and good-will for the game rather than constantly fighting the legal aspects, which can be invisible yet well-done if you use some foresight, planning, and a good lawyer (with the common sense of a gamer). Most gaming lawyers will have a solid template that you can customize for your independent or small gaming site.

Finally, here are some links (for example’s sake only) given without commentary.

World of Warcraft Forum Rules http://forums.worldofwarcraft.com/forum-coc.html?sid=1

Eve Online Forum rules http://wiki.eveonline.com/en/wiki/W/index.php

Second Life Forum rules https://blogs.secondlife.com/community/features/blog/2009/02/25/second-life-discussion-guidelines

Activision Forum Rules http://forums.activision.com/viewtopic.php?f=41&t=517

EA Forum Rules http://forum.ea.com/eaforum/posts/list/335106.page

Activision/Infinity Ward Studios Dustup: THIS COULD BE THE ONE

jaymoffitt — Sun, 07 Mar 2010 21:07:22 +0000

http://www.flickr.com/photos/jorgemiente/ / CC BY-NC-ND 2.0

Yes, the one that hits the mainstream media. Allegedly security called, developers dismissed from their office, power struggles, money struggles, the biggest one-shot in gaming history (bigger than movie Avatar). This could be “THE ONE” that the mainstream media reports on as if it were a movie star or a rock star. Anonymity goodbye? More after the jump…

This disagreement is not about money, this is about power. Within the past month Activision has taken major personnel moves at 3-4 studios they control, and also announced the possibility the next Call of Duty Title (which has always been done by Infinity Ward; all 6 versions) would be a subscription-based MMO.

I’ll provide a couple of links to the core news story; and then I’ll conclude with a couple of my own thoughts as to why THIS IS HUGE!

In sequence:

Security called to Infinity Ward (from Maximum PC)

Lawsuit filed by Infinity Ward (from Kotaku)

Infinity Ward suing for unpaid royalties (from Kotaku)

Activision accused of conspiracy (from Escapist Magazine)

Legal Warfare Break out over Modern Warfare (from Barrons)

__________________________________________________________________

Now, to the commentary part. This isn’t about money. This isn’t about whether Activision is paying a king’s ransom (which I’m sure they are) to keep the developers happy. This isn’t about whether the developers are giving the best efforts to produce a good product and other good products for Infinity Ward and Activision (they obviously have, and obviously have done that… in a groundbreaking fashion). As pointed out in the Barron’s article, this is about control. Control of the Future of THE BIG ONE, THE ONE THAT CHANGED EVERYTHING.

This is parallel in the Gaming Industry to the legacy fights over the Tolkien books, to the final editing fights about “The Godfather” between Robert Evans and Francis Ford Coppola; this is parallel to the “Palimony” case in the 1970s in California. THIS IS THE BIG ONE.

Drama, Security Called, The biggest retail gaming franchise launch (by far) in gaming, and entertainment history, and now this? All the mainstream media, not just Joystiq, Gamasutra, G4, and the other gaming magazines, but Barrons, the Wall Street Journal, the LA Times, and yes, even Newsweek, the New York Times, and CNN and Fox News will have their say about this. Ladies and Gentlemen, this is the one that changes everything and “Gaming” will no longer be a niche industry; behind Movies, Publishing, and Network TV.

Go Big or Go Home

jaymoffitt — Sat, 14 Nov 2009 11:48:17 +0000

From a great article in First Monday: The key question in legal analysis of videogame law: “Should cyberspace (or subsets of cyberspace) be treated as distinct “places” for purposes of legal analysis?”

To me the biggest single question in the analysis. Every question in this division (and I say it is a FIRM DIVIDE, or FD) should focus first on that question. The article is great, you should read it, allow me to be egotistical enough to give my thoughts on a couple of outstanding points in the article.

“First, because the characteristics of online spaces and online conduct will often make it inappropriate to apply the rules governing “similar” conduct offline.” That’s why every videogame lawsuit, or every virtual worlds lawsuit, should clearly delineate that there SHOULD BE AND MUST BE a recognition of that gulf between real-world conduct and “in-world” conduct (what I will refer to forever as IWC)

“Second, thinking about cyberspace communities as potentially separate law–making and law–enforcing places will help clarify the profound jurisdictional muddle that cyberspace presents.” My friends in the legal community know I personally get enraged when this is not a primary question. Jurisdiction. It influences which law will apply, where it will go to court, which locality has a claim to “community standards” as is so important in U.S. constitutional law, and also crucial in non-U.S. law.

To me the best part of the article is the authors reach a conclusion or at least a mission statement. “Sovereigns should allow their citizens who wish to travel to online spaces and, while there, to be governed by the rules applicable there, provided that those rules don’t allow the online spaces to become havens for actions causing substantial harm to outsiders.” That seems a very worthwhile goal and perhaps one that can be universally agreed upon.

__________________________________________________________________________________________________________________________________

The reason this article is so important at this time is that Call of Duty, Modern Warfare 2 came out this week and made $310 million the first 24 hours.

The story in the NY Daily News said in the first line “A bloody video game made more money in one day than any movie ever has.” In fact, “the largest opening in movie history was Warner Brothers’ “The Dark Knight,” which grossed a measly $158.3million over its first three days.”

For an opposing viewpoint to purchasing the game, read Opposition: an Army of Women. Personally, I hope the article was written at least partially as sarcasm.

And finally, the quote: “Go Big Or Go Home!”. Why? Well, this game made headlines, but consider these facts.
In 2008, Videogame Sales topped 21 billion. Full story from Reuters.

Contrast that to films. Last year, according to the MPAA, “The worldwide box office revenues increased by 5.2 per cent in 2008, reaching an all-time high of $28.1 billion.”

I think you would agree that the two main forms of entertainment are becoming very close in popularity. But can you name a single voice actor from Halo? What about the illustrator/developer for the Mario games? Who is the producer for the Playstation Network? I believe, as do many industry insiders, that gamers rights is a clarion call that many are starting to hear, and that games are becoming more popular because developers are responsive to the needs of their gamer buyers. Is that why the industry is growing so quickly? Or is the lack of this a reason it is not growing even faster? From a legal standpoint, what do you feel will be next “cause” litigated in the courts? Identity theft? Rights to participate in forums? Virtual property theft? Shutdown of longtime games you’ve invested time in money in?

I hope you feel free to comment on these topics. I will reply as quickly as I can to any and all comments.

World Of Warcraft China Server Now Reinstated

jaymoffitt — Fri, 02 Oct 2009 12:58:14 +0000

The World of Warcraft MMO, an Activision/Blizzard product, is now back online in China with NetEase as the administrator.

Earlier this year World of Warcraft was suspended in China. The Chinese government administration did not license the continuation of a server for WOW.
This online game has about five million active users in China, accounting for about 30% of its total users worldwide. In April 2009, Blizzard Entertainment terminated its operating contract with the game’s former Chinese operator, The9, and selected Chinese portal and online game provider NetEase.com as its new operator in China. Since the operator replacement, the operation of the game in China has been suspended and users of the game have consistently complained to get the game restarted.

World of Warcraft in China has seen some six weeks of downtime as government regulators process their approval of the transition to operator NetEase…According to the MMOSite report, the lack of specific age ratings for games in China make issues like showing bones or the undead a gray area. You should read this story to see the difficulties of running a worldwide game across multiple government environments.(legal and cultural)

Here are other links pointing to this monumental story in the MMO world.

The Escapist Magazine

Softpedia talks about the small section of China to the entire WOW market

MMORPQ discusses WOW online again

Gamasutra discusses WOW reopens

Article for background about WOW opening in China, 2005
Another excellent article by same author; great discussion about difference in subscription plans China to US

For the full scope of the story to the World of Warcraft community, read a couple of the stories linked in this article;
WoW shutting down one server in China (GREAT LINKS)

And just these last two; to show the extent of World of Warcraft’s growth.

Blizzard reveals WOW operations

WOW Audience Grows (Gamasutra)

Technically, I know this is a Chinese government administrative decision, and not a legal decision. But it shows the tremendous worldwide reach of these games, and the jurisdictional nightmares if a user wants to file suit against an entity spanning dozens of countries, and thus dozens of different legal environments. It’s also important to have this background when reviewing individual lawsuits against multinational games. Hopefully you’ll read these and have a little empathy for those writing End User License Agreements(EULA) to span five continents’ scrutiny, or a little sympathy for the players or even the lawyers trying to make sense of them.

Jay Moffitt is a TN attorney. The words do not constitute legal advice, and do not create an attorney/client relationship. Jay Moffitt is not certified as a specialist in the subject matter by the Tennessee Bar, and the Tennessee bar does not have a certification in this specialty. Copyright October 2, 2009.