__________________________________________________________________________________________

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.

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.

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.

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.

Meanwhile, today’s post centers on the great work that other lawyer-bloggers are doing, as well as a few professional papers I recommend you MUST read. 

The one you absolutely must study is The Global EULA, by the lawyers at  Sheppard Mullin.  I really felt like breaking down the article or doing my own synopsis, but instead, go there, read it, consider it.  Beautifully done.

Other great articles I have found after the jump……

Recently I posted about the separation of work and play.  Great article about hiring practices entitled “Facebook and Privacy” in the Minneapolis Tribune.  It discusses pre-employment checks of Facebook pages by employers.  My favorite quote:  “35 percent found something that caused them to not hire the candidate.”  In my mind this is a soon-to-be-exploding area of practice, based on disappointed job-seekers.

Mumbo Jumbo games won a victory over casual game-manufacturer Popcap Games in a lawsuit.  Here is the link to the original complaint, (via Courthouse News), and the full story  on Gamer/Law(UK). (note: I read almost a dozen summaries of the case, and this British one was the best by far).  My favorite quote: “a jury…  agreed that PopCap breached the contract when it went behind MumboJumbo’s back and decided to market and sell its games on its own.” (from the MumboJumbo PRNewswire Story).  Popcap vehemently denies the claim, and by all indications may choose to appeal.

Yale School of Medicine receives a large grant to make a vide0-game/simulation for children 9-14.  Full story here… usually I would save this for my education/grants posting, but  $3.9 million is just too large a number to postpone posting this, it is reportedly a game to teach children how to avoid HIV-causing behaviors(sex/drugs/alcohol).  Follow-ups posted here as the national news catches up.

As far as important scholarly papers go, I would like to mention The Fair Labor Standards Act in Cyberspace. Please cite as Cherry, Miriam A., Working for (Virtually) Minimum Wage: Applying the Fair Labor Standards Act in Cyberspace (November 4, 2009). Alabama Law Review, Vol. 60, No. 5, pp. 1077-1110, 2009. Available at SSRN: http://ssrn.com/abstract=1499823.

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.

Here’s some other thoughts about taking fun out of gaming.

Player Perspectives: Is it Time to Quit, a good article from MMOPRG.com My favorite quote is “The MMO Industry doesn’t want you to quit, of course. It makes money by your loyalty to its game styles and brands, just like any other entertainment business.”

Respecting your Players at the excellent gaming blog “Eating Bees”. (Yeah, I sometimes wish the Bar would let me name a legal blog something really cool… ain’t gonna happen though). My favorite quote from this insightful article is ” I took this job because I thought the product was worth believing in, and because people are pretty much people no matter what the topic is. But having deep, sincere respect for what it is that my players love is going to fuel me for the long haul.” It’s a reminder there are, and will always be, a lot of developers, moderators, and administrators in the video-game and online game business who treat it as more evangelism than simply business. Thanks to them!

Sunk Costs, Pre-orders, and Game Over at the deep-thinking blog “The Psychology of Videogames”. It talks about the reasoning behind following “good money after bad” in a video-game purchase. My favorite quote is ” Robyn M. Dawes even describes in his book Rational Choice in an Irrational World4 how this is pretty much the same logic that a heroin addict would use to avoid treatment before reaching rock bottom. Yeah. Think about THAT. ”

Maybe I’m alone in thinking of an insidious “long-tail of excessive-lawsuit fever”; known forevermore as Lota Elf. I’d be interesting in hearing from developers if they’ve ever scrapped a cool feature of an online game because of worries over possible litigation, or if an online community administrator decided to shut down an otherwise pleasant community because of one or two “dangerous characters” who were repeatedly threatening lawsuits over one topic or another. Remember, it’s the game that doesn’t get made, or the really cool “wave of the future” mod/add-on/enhancement that we will never miss because we never meet (sorry for the chick-flick reference!).

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.

Virtual Worlds (116 resources via Educause)Most are from their own magazine but some are from presentations you could find no where else. Plus, did you know there were Education in Virtual Worlds podcasts?

“>PageFlakes (Training blogs) links Some very helpful material, even though a lot of commercial activity. Many are to virtual worlds, most to more traditional methods.

Ten great sites for finding Educational games. Many of these are sponsored by conglomerates (National Geographic) or software companies, but some are put together by smaller outfits. Well worth a look.

There’s way too much wealth to comment upon everything. One intellectual property note to consider when visiting all these sites sponsored by universities, software companies, and private website: when the university uses a professors’ ideas for an original creative game; do they have the right to make money from it? Right now it’s not an issue; so many free choices and educational games for the most part are licensed by software companies…. but that day is coming when? I wonder when we’ll have the first well-publicized dispute between professor and university about a game/website/application that just “takes off”?

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.

There aren’t any lawsuits for griefing, or glitches, or general screwball hatefulness that goes on in MMOs or online worlds. But I’m always taking emails if you’ve found one or know of one. Here’s a list of the different types of Griefing articles I’ve found lately.

Pixels and Policy has a very interesting article about antisocial gaming.

Ten Ton Hammer discussesThe Seven Types of Spies, Like the Seven Habits of Highly Successful People, but for internet sociopaths.

Play No Evil discusses the Ten Ton Hammer article along with its own persepctive on dissension.

Not quite an other-gamer issue with fun, but a game-based complaint. The blog In Between the RPG has a great article about the disappointment of an MMO. Not a rant, but a thoughtfully written interesting article that you should read for perspective and hopefully your feedback on your disappointments of the past year.

Offline play really stinks in the MMO world(From Anyway Games Blog).

Griefing for Academia; Univ. of Loyola professor reviled in City of Heroes Older article, but still one of the best in-depth pieces on Griefing. And ironically, it’s told from the “Griefer’s” Standpoint.

And finally, a currently hilarious article in Destructoid Magazine about The Five Stages of Griefing.

Lost Garden discusses Games as Government, the surrogacy that each online world must project and administer.

More serious lumps of coal:

Metaplace is closing down. Official letter can be found here. Key points, ” over the last few months it has become apparent that Metaplace as a consumer UGC service is not gaining enough traction to be a viable product, requiring a strategic shift for our company. We’re sorry to announce today that Metaplace.com will be closing to the public at 11:59pm on January 1st, 2010. ”

Personal note: I have an account on Metaplace.com, and I also subscribe to Raph Koster’s blog (for about 2 years). I love open-form MMOs/Games (no rules) and it’s a shame to see it close.

_____________________________________________________________________________________________________________________________________

Below the fold, the indepth viewpoints:

An Avatar’s Day in Court: A Proposal for Obtaining Relief and Resolving Disputes in Virtual World Games
by Farnaz Alemi, cite as 2007 UCLA J.L. & Tech. 6. You really should read this to see her suggestions on alternative in-game courts sytems for expedited relief.

Virtual Parentalism: (In a way criticizing too much energy used on becoming a “virtual parent” instead of a games publisher/administrator). Cite as Fairfield, Joshua, Virtual Parentalism (September 30, 2009). Washington & Lee Legal Studies Paper No. 2009-08. Available at SSRN: http://ssrn.com/abstract=1480701

As always, any suggestions, comments, or ideas for upcoming articles are welcome.

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.

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.

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.

This is not a long, dry exposition on the intricacies of estate law. Heck, there’s not enough case law out there to do a seminar or a paper about this subject. Here’s just a couple of talking points to get your mind thinking about your own personal online experience and how you want to protect your interests, pass on your interests, or wind up your online life in case of the worst.

A good article at Massively about the possibility of an MMO Will and Testament.

CNN has a very good thought piece about the different options available to protect your online legacy. My favorite quote, “Assuming the site is handled with respect, virtual memorials respond to a basic human need to remember our deceased family, friends and colleagues,” said Robert M. Fells, general counsel for the International Cemetery, Cremation and Funeral Association.”Based on our members’ feedback, I’d have to say that virtual memorial sites are gaining popularity with the public as a very practical alternative to being present at the grave site,” he added. “There’s nothing ‘weird’ about them as far as we have seen.”

World of Warcraft had a very interesting discussion in one of the forums about accounts after the death of the account-holder.

Digital Immortality and Death 2.0; Article on PSFK. Amazing quote, “To further complicate matters, while the space continues to evolve at an accelerated rate, the legal system struggles to keep pace, leading to a current situation where notions of who exactly owns these digital assets – individuals or sites – remains unclear. Though you may have spent the last 20 years building your character’s dominance in the dungeons and on the battlefields of World of Warcraft, if you never pass along your login information to anyone who can carry on your legacy, what then?”

An amazing article about the symmetries between a life in Second Life and the real-life story of a player. Like all good writing, the article makes you feel like a voyeur for reading, but somehow freed up with the insight of the article. A haunting quote is “Not only were people commodifying themselves, but their commodification had a long tail. Their inner personal lives would remain product for the platform owners long after they had passed on.” You can read the Second Life Terms of Support here discussing serious issues.

Other games are taking it a step farther. Mindark is working on virtual wills for its game Entropia.

Here are a last couple of links about Virtual legacy, one is a project to preserve the legacy, and another finally a Goodbye to this article.

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.

The Escapist reports Sony being sued over PS3 firmware update, the article focuses on the gamers perspective.

The Edge reports about Sony being sued in class-action because of PS3 update, be careful if you’re on a slow connection, it has an embedded video clip.

The original story that the gaming magazines refer to in Courthouse News, reporting the class-action filed in the Northern District of California.

The lawsuit vital statistics are as follow: termed CV 09 4791, filed in N.D. of CA, SF Div, on Oct 2, 2009. The complaint (linked here) alleges:

1. Breach of Implied Warranty

2. Negligence

3. Negligent Misrepresentation

4. Unjust enrichment

5. Trespass to chattels

6. California Unfair Competition Law, Business and Professions Code Section 17200

7. California Consumer Legal Remedies Act, Civil Code 1750

Jury Demand

If you’re interested in all the foundations of the allegations and complaint for relief, you can read that in the 18-page complaint mentioned above. Notable allegations include #12 “Although, as a general rule, Sony “encourages” PS3 owners to install the latest versions of system software, Sony required users to install the Firmware 3.0 update.” And another important factor, #21 “Upon information and belief, the class consists of at least tens of thousand of members in diverse locations throughtout the United States…” is listed.

This case is to my knowledge the first of this exact type, and I will be following it as events warrant.

Jay Moffitt is a TN attorney. The statements here are not legal advice, and no attorney/client relationship is created. Jay Moffitt claims no certification in this specialty, and TN does not offer a certification in this area of law. Copyright, Jay Moffitt, 2009. Comments are welcomed and will be answered promptly and courteously.

A critical blogger has been sued by the maker of Evony, an online free-to-play browser game.
The sued party has listed each and every page of the complaint, pages 2, 3, 4, and 5 here.

The Guardian (UK) is also being sued, unclear whether it is part of that lawsuit or a separate suit.

Most people feel the predominant role of a lawyer is to sue, most lawyers recognize many times the role of a lawyer is to simply say, “take a step back”. The lawsuit involves a game critic, who runs his own Website, that I frankly have never heard of though following the industry pretty closely. The other party is an online game which has rather memorable, and numerous, banner ads.

I would advise you go to The Escapist Magazine for their detailed analysis of the intricacies of the lawsuit. They do an excellent job with a very convoluted lawsuit timeline so hit that first to understand some of the basic lessons a lawyer, blogger, or game company might learn from this. Once you read that you will understand the common sense of what I will say next.

First, the short point I want to make is about “civility” in our litigious society. If you’re a law firm representing a game company, don’t make your first communication to a “blogger” a standard “cease-and-desist” letter. Chances are they’ve seen one before, and will do nothing more with it than post it to their Website, further ridicule your company, and basically say “bring it on”.

(Practice note: It is impossible to tell from the limited information…. the lawyer for the game company could have attempted to reason with the game blogger on one or multiple occasions. Large, income-producing corporations are not in the business to explain their reasoning to a blogger, or editor of an online gaming magazine, or anyone for that matter. And they certainly don’t have time to delve into the psyche of a blogger (pretty much any blogger) who puts their words out there for the sheer joy of expressing their opinion or exercising the first amendment rights. But if you’re a lawyer in a similar situation, it might be a good practice to “make a paper trail” showing all manner of reasonable constructive attempts to defuse a situation rather than inflaming the situation. )

Second, if you’re a blogger, look at your game plan. If you’re wanting to blow up the internet with your controversy and see your name at the top of Digg or Technorati or gamers’ forum, maybe this is a way to accomplish that. ( Practice note: most attorneys, and probably yours as well, will point out that sometimes you do not need to take “to the full extent” your freedom of speech. In a newspaper, or magazine, if there is an article about a subject, there usually is some indication in the article of the search for an opposite viewpoint, a balance, a regard for fairness and equity. And if dealing with lawyers, litigious subjects, and suits that would and could seem never-ending do not appeal to you, perhaps an attempt at reaching a “middle-ground” could be good for your own long-term wellness, too.)

Third, if you’re a reader, you certainly realize there is a middle ground. There are many sites Gawker , GameSetWatch, CostumeCraze heroically supporting the blogger that is sued, and one or two, PixelsandPolicy that support the game company being sued, but amazingly none seem to take the middle ground. The internet is all about having a viewpoint, but CMON let’s just all grow up just a bit and realize that probably both sides have some merit.

It’s my hope that, as an end result, a blogger that a great many people seem to read, and a game that a great number of people play and seem to enjoy, can reach a resolution that will preserve the pride and continued success of both, and allow each of them to emerge a little smarter and a lot more wary. This lawsuit covers so many aspects of jurisdictional law, freedom of speech rights, and libel law, that I am certain it will provide much entertainment for months and months to come.

DISCLAIMER: Jay Moffitt is a Tennessee attorney. The statements do not constitute legal advice and no attorney-client relationship is created. Jay Moffitt claims no certification in the subject matter and TN does not certify attorneys in this subject area. The blog post is copyrighted September 18, 2009.