David Jaffe can breathe a little easier today. According to the embattled developer, Bissoon Dath v. SCEA and David Jaffe, a copyright infringement lawsuit over various themes in the God of War series, was dismissed by a federal court judge last week.

Unless your domicile is under a rock you are probably aware that Activision has sacked the two heads of Call of Duty maker Infinity Ward, over what it termed insubordination.

Following their dismissal, President Jason West and CEO Vince Zampella filed a lawsuit against Activision Publishing, alleging that the pair’s contracts were terminated “weeks before they were to be paid substantial royalty payments as part of their existing contracts for Modern Warfare 2.” The suit claims “breach of contract, breach of the implied covenant of good faith and fair dealing, wrong termination in violation of public policy, and declaratory relief.” 

The duo’s lawyer, Robert Schwartz of O'Melveny & Myers LLP, stated:

Instead of thanking, lauding, or just plain paying Jason and Vince for giving Activision the most successful entertainment product ever offered to the public, last month Activision hired lawyers to conduct a pretextual 'investigation' into unstated and unsubstantiated charges of 'insubordination' and 'breach of fiduciary duty,' which then became the grounds for their termination on Monday, March 1st.”

Additionally, a press release announcing the lawsuit stated:

Modern Warfare 2 is arguably one of the most successful games in history and together with Call of Duty, has generated more than $3 billion in sales for Activision.  In addition, Activision seized control of the Infinity Ward studio, to which Activision had previously granted creative control over all Modern Warfare-branded games.  The suit was filed to vindicate the rights of West and Zampella to be paid the compensation they have earned, as well as the contractual rights Activision granted to West and Zampella to control Modern Warfare-branded games.

In response to the lawsuit, Activision stated that it “was disappointed” and believes that the claims are “meritless.” G4 managed to get their hands on internal legal documents from Activision which indicated that the company is looking for documents to possibly use against West and Zampella.

Here’s what Activision is looking for specifically:

• "Documents regarding past, current or future IW projects, including but not limited to any and all businesses analyses of future projects (e.g. Modern Warfare 3)"
• "Documents regarding any potential 'spin out' of IW, including but not limited to any communications with IW employees, West or Zampella regarding forming a new studio independent of Activision"
• "Documents regarding West and Zampella's communications with Activision's competitors, including but not limited to Electronic Arts"

So, it appears Activision’s actions against the IW pair may have been in reaction to a fear that they were going to jump ship to another publisher or form their own new studio.  Note that when Infinity Ward was formed in 2002, it was made up of a group of former developers from 2015, Inc., who developed Medal of Honor: Allied Assault, which was in turn published by Electronic Arts.

Those that need to catch up on the drama should head over to G4, which has been all over the “Fall of Duty” story.

A Florida man is free on bail following charges that he funded terrorism by shipping Sony PlayStation 2 consoles to Paraguay.

Khaled Safadi of Doral, a suburb of Miami, was the recipient of an eleven-charge indictment from federal authorities for shipping the game consoles and digital cameras to the Galeria Page Mall, located in Ciudad del Este, between 2007 and 2008. The Miami Herald reports that Treasury Department officials believe that the shopping mall is a front used to fund the activities of Lebanese-based Hezbollah.

Safadi reportedly sold $720,000 worth of PS2s and cameras to the mall. Authorities said that he provided false addresses on invoices in an attempt to hide the shipments. Safadi was granted release on a bail of $1.55 million, but will be confined to his home.

Speaking to a judge, Safadi’s lawyer stated, “He is being accused of shipping a children's toy to Paraguay. It's a shame that the government has pumped this thing up as a terrorism case.”

Ulises Talavera and Emilio Gonzalez-Neira were also arrested for their part in forwarding the freight to the South American country. The operator of the Paraguayan mall store in question was not charged.

The arrests, on February 18th of this year, were a result of an investigation by Custom and Immigration officials in conjunction with the Joint Terrorism Task Force of the FBI.

Safadi is a Paraguayan citizen with U.S. residency.


|Image from the New York Times|

A judge has dismissed a lawsuit filed by a disabled gamer against Sony Corporation of America, Sony Computer Entertainment America and Sony Online Entertainment which alleged that the defendants denied access to their services for people with disabilities.

The suit was originally filed by plaintiff Alexander Stern in the U.S. District Court for the Central District of California last October. The dismissal notice (PDF) was handed down on February 8 of this year.

Stern had argued that, “his visual processing impairments prevent him from fully enjoying the video games manufactured by Sony, some of which are played on gaming systems with internet connections through which players in different locations can communicate and play with or against one another.”

The court noted that, “According to the Ninth Circuit, to prevail on an ADA (Americans with Disabilities Act) Title III discrimination claim, “the plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of her disability.”

In its ruling, the court stated, in reference to point number 2 above, that Sony is not a “place of public accommodation” and was “therefore not liable for violating Title III of the ADA.”


|Via The Hollywood Reporter|

The Texas-based Patent Compliance Group has filed a lawsuit against Activision Publishing over what it terms false marking, or products improperly labeled with patent or patent-pending language used for the purpose of “deceiving the public.”

Specifically, the suit, filed February 12 in the U.S. District Court for the Northern District of Texas (though we are looking at an amended complaint filed February 22), levels three charges against Activision:

• Marked products with patents having a scope which does not cover the marked products
• Marked products with language indicating that the products are the subject of pending patent applications when no relevant application is pending and/or
• Used in advertising in connection with unpatented products the word “patent” and/or any word or number importing that the product is patented.

The complaint alleges that “false patent marking is a serious problem,” and that “acts of false marking deter innovation and stifle competition in the marketplace.”

The complaint lists a plethora of specific patents and accuses Activision of using them “out of scope” in products including DJ Hero, Guitar Hero 5, Band Hero, Guitar Hero Van Halen and Guitar Hero Metallica. As an example, one patent the complaint calls out is number 5,739,457, entitled Method and Apparatus for Simulating a Jam Session and Instructing a User How to Play the Drums.  The suit labels Activision’s use of the patent as out of scope because, as an example, the original patent covered “an apparatus that comprises a money validation unit to accept and validate a user’s money and a video display system and a control system for receiving an input from the money validation unit,” faculties which consoles do not possess. Patent 5,739,457 can be viewed as a call out at the bottom of Activision’s Guitar Hero Mobile site.

Regarding use of the phrase “patent pending,” plaintiff accuses the defendant of using such terminology on DJ Hero, Guitar Hero 5, Band Hero and Guitar Hero Smash Hits when “defendant knew that the Patent Pending Marked Products did not have any associated patent applications pending.”

The suit was filed under a qui tam action, which permits members of the public to sue on behalf of the government and seeks damages of “not more than $500 for each of Defendant’s violations, with half going to the Patent Compliance Group and half to the U.S. government. As Gamasutra notes, with the titles listed in this complaint having sold millions of units, per incident damages could wind up totaling an extremely hefty amount of cash.

If anyone’s interested in receiving a copy of the complaint, email me (pete@...).


|Via Gamasutra|

U.S. District Court Judge Claudia Wilkin has denied the NCAA’s request to dismiss a class action suit filed last year by ex-UCLA star basketball player Ed O’Bannon which alleged that the collegiate association misused the likenesses of college athletes in a variety of licensed materials, including videogames.

Rivals.com notes that the ruling will now open the door for the discovery process to begin, which could shed some light on the inner workings of the NCAA. Lawyer Jon King, a Partner at Hausfeld LLP—one of the law firms handling the class action suit—thinks such discovery could be a big deal:

This is a truly historic day – to our knowledge, no one has ever gotten behind the scenes to examine how student-athletes’ current and future rights in their images are divided up and sold.

It was also noted in the article that the Hausfeld firm is attempting to link the O’Bannon  case with a similar class-action suit filed by ex-NCAA football player Samuel Keller.

If O’Bannon et al were to win the case, Rivals offered that such a judgment could “lead to former student-athletes getting a cut of the multi-billion dollar college sports revenue pool and dramatically impact the way college athletics operates.”

We will have to find a new nickname for professional plaintiff/serial suer Erik Estavillo, as he is dropping all his lawsuits.

Estavillo wrote that his medical conditions, particularly symptoms related to panic disorder and Crohn’s disease, contributed to his decision to abandon the cases. He indicated that the long wait for cases to be heard was starting to get to him, causing his doctors to advise him to walk away from the lawsuits in order to improve his health. Estavillo also provided us with some individual reasons for dropping each case, mostly due to those being sued making improvements or fixes which seemed to appease Erik.

Estavillo had sued Sony over being banned from the PlayStation Network following Resistance: Fall of Man online gaming sessions. He had alleged that Sony was ineffective at stopping players under the age of 17 from playing the game and that banning him from the network amounted to theft, in regards to his PSN pre-paid points. Estavillo wrote that a signup page for PSN appears to have been added, which requires a parent or master account to add a new account to a PS3, addressing his concern of younger kids playing the game.

Erik has also sued Microsoft over a red ring of death on his Xbox 360 and Nintendo over a Wii system update that rendered his homebrew channel unusable. Estavillo said he just learned that Microsoft is not charging 360 owners to fix a console that received a RROD and that he has found many websites that would easily allow him to re-install the home brew channel if he so chose to do so.

A suit against World of Warcraft maker Activision Blizzards had alleged that characters in WOW walked to slow, thus enabling the game’s publisher to continue to reap monthly subscription fees as it took long periods of time just to travel in the game. Estavillo notes that now, it appears that WOW avatars walk much faster in Ghost mode.

Another factor in dropping the suits was that Estavillo could not afford to pay the process server fees needed to serve the people he had subpoenaed for some of his cases. Those subpoenaed by Estavillo had included Bill Gates, Winona Ryder, Depeche Mode’s Martin Lee Gore, Lady Sovereign and Krayzie Bone.

Estavillo will also drop his most recent case, which targeted a variety of gaming and popular websites for libel.

In a ruling that could have a trickle down effect on online videogame dealers, the Ohio Supreme Court has issued its opinion on what constitutes the distribution of material that is harmful to juveniles, regarding the Internet as a medium.

The American Booksellers Foundation for Free Expression originally levied the suit (Am. Booksellers Found. for Free Expression v. Strickland)  in Ohio, asking a court to overturn Ohio code 2907.31, which broadly deals with the dissemination of matter harmful to juveniles. A federal district court originally concluded that the code was too broad and a violation of the First Amendment, and suggested shelving enforcement of the law. That decision was appealed to a 6th Circuit Court.

The 6th Circuit Court eventually asked Ohio’s Supreme Court for an answer on two specific legal questions swirling around the case:  A) should the scope of the code be applied to instant messaging, person-to-person emails and private chat rooms and B) should material posted on general websites and chat rooms be exempt from liability?

The Ohio Supreme Court answered each question in the affirmative in a 7-0 vote.

The matter will now be returned to the 6th Circuit Court who will determine the codes constitutionality.

The San Francisco Examiner noted the importance of the case for a variety of online sellers:

The group had argued the law could be applied broadly to online material and erode the constitutional free speech rights of online booksellers, newspaper publishers and video game dealers. Technology, they say, can't always keep the harmful information from children.

Jellyvision, the minds behind the popular “You Don't Know Jack" series of games, has filed a lawsuit against insurance company Aflac for trademark infringement.

The complaint, filed last week in the U.S. District Court for the Northern District of Illinois, seeks an injunction to prevent Aflac from using the phrase "You Don't Know Quack" as part of their online web-game marketing scheme. 

Here's where the weird part comes in: Jellyvision also owns a website called Healthcare Mentor, presumably why Aflac's insurance game bothers them so much. The site even touts Jellyvision's history as a pioneer in "Interactive Conversation" (GP: Fancy word for quiz games?).

The interesting question will be whether Jellyvision can claim that Aflac's use competes with its own. Trademarks are categorized by a "goods and services code", which as the name implies, limits the fields of goods and services that the mark can exercise power over. While Jellyvision's only active trademark for "You Don't Know Jack" dates back to 1995, it is registered under the goods and services code for "computer game programs recorded on CD-ROMS."

Jellyvision used to have three more trademarks for "You Don't Know Jack" falling under goods and services codes for things like "online computer game services",  "providing on-line interactive computer games [...] providing computer games that may be accessed network-wide by network users" and the like, but those marks have all been either cancelled or abandoned. Jellyvision certainly will have an uphill battle on their hands.
 

Dan Rosenthal is a legal analyst for the games industry.

A class action suit filed against Microsoft alleges that the Xbox Live operator engages in point fraud in reference to incomplete or partial downloads from the service.

Plaintiff Samuel Lassoff filed the complaint in the U.S. District Court for the Eastern District of Pennsylvania on January 19, which also alleges breach of contract, negligence, unjust enrichment and unfair business practices. The complaint claims that Microsoft “received and retained money paid by the plaintiff in response to incomplete and or partial downloads of digital goods and services.”

Lassoff, upon reviewing invoices of his Microsoft Points purchases, found that he was a “victim of Microsoft Point fraud,” and attempted to contact Xbox Live customer support on the phone, with no response. He also spent time with his credit card company in an attempt to fix his account. In all, Lassoff estimated spending a total of “over 15 attorney hours over several days” to rectify his accounts.

The complaint warns that “unless restrained by this court,” Microsoft will “continue to engage in the unlawful, unfair, and/or fraudulent business acts or practices” alleged within the complaint.

The complaint seeks compensatory damages for plaintiff and other Class members, pre and post judgment interest, punitive and exemplary damages and a reimbursement of costs and expenses incurred by the action.


|Via InformationWeek|

Erik Estavillo, the litigious gamer who has gone after Microsoft, Nintendo, Sony and Activision Blizzard (among others), has turned his sights on the gaming press.

In a complaint filed January 25th in the U.S. District Court for the Northern District of California, Estavillo listed GameSpot.com, IGN.com, G4TV.com, GameInformer.com, 1UP.com, Joystiq.com, Kotaku.com, GayGamer.com, QJ.net, SarcasticGamer.com, MMORPG.com, NBC, FOX and DepecheMode.com as defendants.

Plaintiff wishes to charge all previously listed entities with libel, as “many of the articles [on these websites] are full of intended insults to the plaintiff.” Additionally, Estavillo is charging QJ.net and SarcasticGamer.com with worker discrimination. Plaintiff claims that emails with these two sites will show that they agreed to hire him as an intern, or unpaid writer. After “a week of silence” from both sites, both indicated an unwillingness to employ Estavillo.

GamePolitics and The Escapist were two sites labeled by Estavillo as being “fair and neutral” to the plaintiff, resulting in the pair not being sued or charged with wrongdoing.

DepecheMode.com is also being charged with barring plaintiff from their forums, subsequently stopping him from “expressing himself in their forums via his First Amendment Right.”

Estavillo is seeking $10,000 per article written “ingenuously” against him and $5,000 per message board thread (specifically mentioned in this category are DepecheMode.com, MMORPG.com and IGN.com).

Estavillo is also seeking to be unbanned from the DepecheMode.com forums.

GP: While Mr. Estavillo continued to remain active in recent times, we sensed here at GamePolitics that it was time to cut down on, or eliminate, coverage of him.

Erik did indeed inquire about an internship here at GamePolitics as well. Digging though sent items, here is what we relayed to Estavillo exactly:

I hope you don't take this the wrong way, but one reason I was cautioning you against all these lawsuits is that your credibility has been somewhat compromised, even as your name becomes "famous." I guess it's a trade off of sorts.

What’s a little unnerving about the lawsuit is that Estavillo, in emailing us at least, continually insinuated that it was OK for us to make fun of his statements and he really seemed to enjoy being labeled a “serial suer” or “professional plaintiff,” whatever it took to get his name out there and to become more “famous.” I suppose we are just helping his cause at this point, but it was thought that perhaps we could provide a little insight into the situation.

The Korean Supreme Court has ruled that the virtual currency of online games is effectively equal to real-world dollars.

The ruling came about as a result of a case against a pair of men (surnamed Kim and Lee) who had purchased Aden, the currency used in the online game Lineage. The men purchased 234.0 million won (approximately $207,614.00 U.S.) worth of Aden on the cheap, reports the Korea Times, and resold it to gamers, making a cool profit of 20.0 million won (approximately $17,747.00 U.S.) in the process.

The pair was arrested on charges of illegally making money and were found guilty by a provincial court, which cited a law banning the swapping of real currency for virtual. They were fined 2.0 million won and 4.0 million won respectively. An appellate court overturned that ruling, before prosecutor’s appealed to the country’s Supreme Court, who ruled that acquiring in-game currency was a factor of skill, not luck.

Prof. Chung Hae-sang at Dankuk University offered his thoughts on the judgement:

The ruling has brightened the future of the Korean game market. So far, the industry's growth has been interrupted by tough regulations.

One estimate pegged the amount of virtual currency exchanged online in Korea over the course of 2008 at over one trillion won (one trillion won = approximately $887.0 million U.S.).


|Via Massively|

UK Resident Yun Can Meng has been sentenced to 12 months in prison after pleading guilty to charges of illegally importing R4 game copier cards into the country.

Meng was arrested for importing over 26,500 of the R4 cards, which allows a user to use pirated content on a Nintendo DS, and was busted as a result of the combined work of The Entertainment and Leisure Software Association’s (ELSPA) Crime Unit, Hull City Council Trading Standards Department and the Humberside Police force.

Meng was sentenced in Hull Crown Criminal Court.

ELSPA Director General Michael Ralinson on the sentencing:

Our crime unit is pleased with the outcome of this trial and pleased to see the Court of Appeal’s copyright judgement is being robustly enforced. Intellectual property (IP) theft is an important issue for the country’s videogames industry - as is protecting it.

The Supreme Court of the United States is scheduled to hear the American Needle v. NFL case today and a decision could have an impact on gamers.

The crux of the case has American Needle contending that the NFL’s exclusive apparel agreement with Reebok limits competition and is a violation of the Sherman Act, in part because the NFL's (consisting of 32 privately-owned teams) and NFL Properties' (equally-owned by all 32 teams) agreement with Reebok does not allow for American Needle to negotiate apparel deals with individual NFL teams.

It’s also argued that the exclusive contract with Reebok has led to higher prices for consumers.

The NFL claims that it acts as a single entity, even though it is comprised of numerous teams.

LawsofPlay offers some opinions on the case and what might happen once a ruling comes down.

On the NFL as a single entity:

While there are a number of good reasons to maintain the NFL’s current licensing arrangements, it does not seem to me that the long history of competition between NFL teams–including ticket sales and media rights–supports the idea that the NFL should be considered a single entity.

Things could get weird in the videogame world if the NFL loses the case. LawsofPlay serves up this scenario:

Rather than appealing to a single business or organization, such as the NFLP, publishers would be able to negotiate with individual teams.  While this could lead to more competition in the sports gaming markets, it could also lead to really wonky arrangements–imagine EA releasing an NFL game with 20 NFL teams and a dozen or so fantasy teams to round out the roster while 2K releases a game with the 12 NFL teams missing from EA’s game and a handful of its own fantasy teams.

Additionally:

…publishers could consider the cost to license individual marks and opt only to enter into agreements with the teams that seemed economically “worth it.”  After all, it is possible that a publisher does not derive as much value from including the Lions in their game as they do from including the Packers.

The Entertainment Software Association (ESA) has won a preliminary injunction in its lawsuit against the Chicago Transit Authority (CTA) over the banning of advertisements for adult-rated videogames.

An ordinance (008-147) that took effect in January of 2009 prohibited any advertisement that “markets or identifies a video or computer game rated ‘Mature 17+’ (M) or ‘Adults Only 18+’ (AO).”  The ESA argued that such a ban unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.”

The United States District Court for the Northern District of Illinois granted the ESA an injunction, with Judge Rebecca R. Pallmeyer stating:

…the advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns.

The ESA further challenged that the CTA ordinance is redundant since videogame-related marketing is already regulated by the Entertainment Software Rating Board’s (ESRB) Advertising Review Council.

ESA President Michael Gallagher was obviously pleased:

This ruling is a win for Chicago's citizens, the video game industry and, above all, the First Amendment. It is our hope that the CTA sees the futility of pursuing this case further. To do so will waste taxpayer money and government resources.

With these words, litigious gamer Erik Estavillo introduces you, the reader, to his new website.

Estavillo is known in our community, of course, for suing Sony, Microsoft and Nintendo and Activision Blizzard, in addition to subpoenaing Bill Gates, Winona Ryder, Depeche Mode’s Martin Lee Gore, Lady Sovereign and Krayzie Bone.

The site features a game review section, message board, a poll for game of the year, a virtual valentine to The Guild’s Felicia Day (pictured) and—coming soon—an advice column, in which Estavillo encourages gamers to “ask him anything.”

Estavillo also outlines his lawsuits and reiterates that he is done suing game companies, introducing his World of Warcraft suit with the preface: “The last lawsuit I filed and ever will.”

Estavillo claims that his health problems— OCD, Agoraphobia, Panic Disorder, major depression and Crohn’s Disease—cause him to rely heavily on videogames for a sense of happiness.

Please keep Estavillo’s afflictions in mind when commenting and keep things civil.

Science Fiction author Peter Watts (pictured), whose work has also appeared in videogames, was detained at the U.S./Canadian border last week after a dispute with U.S. Customs officers.

The Toronto-based author was returning to Canada, reports the Times Herald, using the Blue Water Bridge crossing when he was apparently selected for a random inspection.

This is where the story takes two different tangents depending on which side is offering the account.

Watts asserts that as the inspection began, he exited the car to ask officers what was going on. He claims they asked him to return to the car, at which point he asked them again what they were doing. Watts said that this act then resulted in him being assaulted, punched in the face, pepper-sprayed and thrown in jail for the night on charges of assaulting a customs officer.

Custom officials claim that Watts was “aggressive” from the beginning and refused to get back in his car. At this point Watts was about to be handcuffed, but resisted arrest said officials, and tried to choke an officer. This is when officers used pepper-spray.

Watts was arraigned last Wednesday, December 9, and released on $5,000 bond. He claims his computer was seized and he was released across the border in shirtsleeves.

On his blog, Watts categorically denies choking an officer and says he “looks forward” to seeing security camera footage of the incident. He is due back in court on December 22 for a preliminary injunction. If convicted, Watts faces up to two years in jail and/or a $2,000 fine.

BoingBoing’s Cory Doctrow has jumped to Watts' defense, donating $1,000 to his legal defense.

Watts contributed to Relic Entertainment’s Homeworld 2 and also served as a writer and art consultant for Crytek on the upcoming Crysis 2.

Six executives from a videogame accessory manufacturer have pled guilty to conspiracy to commit mail and wire fraud charges.

Back in October we reported on the Securities and Exchange (SEC) Commission investigation into Florida-based 3001 AD, alleging that the firm raised approximately $18.0 million through a series of fraudulent security offerings.

The Federal Bureau of Investigation (FBI) now states that on December 4, six members of the firm pled guilty to one count of conspiracy to commit mail and wire fraud. The six are Jimmy L. Barker, Jr., Theodore Ginocchio, Ronald Bowsky, Jack Maddock, Robert Pozsony, and Rodger Brownson. Codefendants Robert Ladrach and Marc Rifkin previously pled guilty to the same count.

A sentencing hearing is scheduled for February 12, 2010. Each defendant faces a maximum imprisonment of up to 20 years and may also be subjected to fines or restitution.

3001 AD was a marketer of the Trimersion First Person Shooter Gaming Accessory, a virtual reality system aimed for use in the home on consoles or a PC. The company also operated virtual reality gaming centers, called Beta Zones, at theme parks around the country.

Activision has filed a countersuit against rockers No Doubt, alleging breach of contract and unjust enrichment.

The move comes in response to No Doubt’s suit of Activision over the ability of gamers to use No Doubt on-screen avatars to perform other band’s music in the game Band Hero. No Doubt claimed that such an implementation relegated them to a “virtual karaoke act.”

Activision’s counterclaim was filed December 3 in the U.S. District Court, Central District of California, Western Division. As part of the complaint (full PDF available here), Activision attached a copy of a Professional Services and Character License Agreement between the parties, dated May 21, 2009. Activision wrote that the contract “speaks for itself,” and denied allegations of wrong doing.

In response to No Doubt’s main complaint, Activision wrote:

Activision admits that although it is possible to program a videogame whereby particular in-game characters can only be selected when certain songs are played, Plaintiff first requested this only after the "Band Hero" programming was finalized, had been submitted to all of the U.S. console manufacturers for approval and had been approved for manufacture by most console manufacturers…

Activision is seeking judgment in its favor, unspecified damages and interest, a return from No Doubt of all benefits and payments, an order for No Doubt to pay the “full cost of this action” and “reasonable” attorney fees, along with further awards and relief that the Court “deems just and proper.”


|Via The Hollywood Reporter|

A class action suit filed against the Zynga Game Network and Facebook alleges that “most, if not all” of the advertisements presented in Zynga’s social games are scams.

Rebecca Swift of Santa Cruz, California filed the lawsuit on November 17th in the United States District Court, Northern District of California. Swift claims that in April 2009, she provided her cell phone number to a Zynga advertiser/lead generator (offered in the form of an IQ test) in order to be texted a code that she could redeem for virtual currency in Zynga’s YoVille! game. Swift was then billed $9.99 on three different occasions as a result of her transgression.

On another occasion Swift signed up for a program centered around the “risk free trial” of a green tea herb supplement that promised to bestow Yoville currency on participants. Swift claimed the ad said she could cancel within 15 days of her order, so she went ahead and signed up using her debit card and was charged $5.95 for shipping and handling of the product. After receiving the product on June 24, 2009, Swift attempted to cancel the agreement, but on July 6 was charged $79.95, plus a $2.38 foreign transaction fee. On July 20, defendant was charged another $85.90, plus a foreign transaction fee.

All in all, for $165.85, Swift received 60 green tea pills and six tea bags from China. She believes that “Facebook and Zynga both profited and shared the funds” that she contributed, and that “both were aware, or should have been aware, of the false and misleading nature of the advertisement.”

The candor displayed by Zynga’s CEO Mark Pincus earlier this year, in discussing how he would do anything to make money for the company in its early days, may come back to haunt him, as the defendant cites direct quotes from Pincus on the subject in her complaint.

Defendant stated that the “aggregate amount in controversy for the Class exceeds $5.0 million.”
Zynga-developed applications include Farmville, Mafia Wars and Roller Coaster Kingdom in addition to the previously mentioned Yoville! The company claims 60.0 million daily users.

Fool me once, strike one. Fool me twice, strike three.


|Via USA Today|

In a ruling very similar to one handed down in Spain just last month, a French court has decreed that makers of Nintendo DS flash carts are not breaking the law.

French company Divineo was one of the defendants brought to court by Nintendo for making flash carts for the DS, which allow non-authorized games and media to be played on Nintendo’s handheld game system. The court ruled that the carts are legal and extend the usefulness of the DS, states MaxConsole.net.

The court also apparently took umbrage with Nintendo for “illegally” protecting its system and locking out users and developers, though it should be noted that the MaxConsole site, according to various sources, is owned by Max Louran, the same individual that heads Divineo.

This is not Louran’s first brush with console modification enforcers either: a 2007 GP story indicated some relation between Louran’s Divineo company and a firm (Supreme Factory Limited) at the center of a mod chip raid in Hong Kong.

Assentek, a fellow defendant in the case and also a manufacturer of console modifiers, was pleased with the ruling, but cautioned (Google translation):

However, in our view, this is probably a first episode in the general confrontation between France and Nintendo players in the world of gaming consoles including Assentek in particular.

|Via TechDirt|

Erik Estavillo has outdone himself once again, this time subpoenaing a pair of rappers to testify at his civil lawsuit against Sony Computer Entertainment America over his banning from the PlayStation Network.

Those to be summoned are Louise Amanda Harman, better known as Lady Sovereign (pictured left), and Anthony Henderson (aka Krayzie Bone) of the group Bone, Thugs & Harmony. The pair were subpoenaed because Estavillo desires to, “highlight how rappers are not censored/banned/or punished for ‘cussing/trash talking’ on private property i.e. clubs, concerts, music channels/events or award ceremonies.”

Estavillo previously promised to be done with filing lawsuits. Today he indicated that these would be the last of his subpoenas. Musicians, actresses and billionaire titans of industry around the globe can now breathe a little more easily.

The latest “celebrity” to be subpoenaed by Erik Estavillo? None other than Microsoft Chief Bill Gates.

Estavillo sent us a copy of the subpoena, dated November 30 and filed in the U.S. District Court for the Northern District of California. The subpoena is related to a lawsuit filed by Estavillo earlier this month, in which he targeted Microsoft over the “red ring of death” affecting his Xbox 360.

The subpoena instructs Gates to bring “documents pertaining to the true and relative number of actual Xbox 360 units that have been fixed by Microsoft over the past 3 years.” Estavillo is also seeking statistical data showing the true number of Xbox 360s that experienced the RROD (or other break-downs) and data on the actual number of people banned from Xbox Live for “piracy” over the period of 11/28/2008 through 11/28/2009.

GP queried Estavillo on what might be the basis of his next lawsuit. He responded that he doesn’t plan to sue anymore companies, and that we could “quote him on that.”

For his most recent lawsuit against World of Warcraft maker Activision Blizzard, Estavillo subpoenaed actress Winona Ryder and Depeche Mode member Martin Lee Gore.

World of Warcraft maker Activision Blizzard is the latest target of a lawsuit by serial suer (or professional plaintiff) Erik Estavillo.

Filed this morning in the Civil Division of the Superior Court of California, County of Santa Clara, the civil complaint charges Activision Blizzard with “deceitful” business practices, as it “continues to maintain a harmful virtual environment to many of its customers by forcing them to follow the game’s sneaky and deceitful practices.”

Among Estavillo’s claims is that WOW is designed for a gamer “to walk or run at a calculated slow pace, resulting in the player taking longer to get where he or she needs to go in the game.” This slow pace, says the plaintiff, leads to a longer time needed to finish game play or quests, in turn leading to more subscription revenue for Activision Blizzard.

Estavillo also complains that faster transportation is not available until a player levels up accordingly, or purchases an expansion pack.

The plaintiff then likens his health problems (OCD, Agoraphobia, Panic Disorder, major depression and Crohn’s Disease) to the afflictions that ailed the late EverQuest gamer Shawn Woolley, who took his own life on Thanksgiving morning in 2001.  Estavillo stated that he “doesn’t want to end up like Shawn did as he [Estavillo] relies on videogames heavily for the little ongoing happiness he can achieve in this life.”

Estavillo subpoenaed Depeche Mode founder Martin Lee Gore and actress Winona Ryder to provide testimony on his behalf regarding the subject of alienation.

Gore was subpoenaed because “he himself has been known to be sad, lonely, and alienated as can be seen in the songs he writes,” and Ryder because of her and Estavillo’s common interest in the J.D. Salinger book The Catcher in the Rye. Ryder would be able to, “explain the significance of alienation in Catcher in the Rye and will also testify to how alienation in the book can tie to alienation in real live/video games such as World of Warcraft.”

Estavillo is seeking punitive damages of $1.0 million and a court order that WOW implement changes that address the issues of his complaint.

Other lawsuits filed by Estavillo include one against Sony Computer Entertainment America (SCEA), following a banning from the PlayStation Network, and a recent suit that targeted Microsoft and Nintendo—the former over an Xbox 360 red ring of death and the latter over a firmware update that disabled his Homebrew Channel.

Joystiq’s latest Law of the Game column takes a look at the intertwinement of professional plaintiffs and class action suits.

The article was written in response to a pair of recent news stories: a possible class action suit against Microsoft over Xbox Live bannings and Erik Estavillo, the banned Resistance: Fall of Man player, whose latest lawsuit targets Microsoft and Nintendo.

Author Mark Methenitis denotes a professional plaintiff as someone whose livelihood depends on suing people. He adds that plaintiffs who are gamers are more prone to demonstrate similar standing, versus attaching their suit to a statute, making them a perfect entry point to class action litigation.

Of course, class action lawsuits “tend to be larger and thereby more profitable, especially to a law firm on a contingency fee basis.”

Methenitis thinks it “unlikely” that we will see fewer lawsuits as time progresses, but tells us not to worry too much about game industry companies that are targeted, as they “have substantial legal teams to deal with these kinds of suits.”

He finishes:

What should concern consumers would be a series of victories against gaming companies. If plaintiffs are successful, then there are two potentially larger problems facing the industry: are companies becoming more dishonest and predatory, and should we be concerned about the continued viability of those studios with substantial legal settlements against them?

Datel, who expressed disappointment over a recent Xbox 360 firmware upgrade that eliminated the ability to use its third-party memory cards with Microsoft’s console, has responded with a lawsuit.

The complaint, filed in the Northern District of California U.S. District Court, alleges that the October 2009 Xbox 360 update, and subsequent lock out of Datel products, was designed to “to exclude competition from the Xbox 360 aftermarket for controllers, and to force consumers to buy Microsoft's own controllers.”

Datel claims that Microsoft informed them that the lockout of Datel products was an “unintentional effect” of the software update, but notes that Microsoft told G4TV that, “Unauthorized MUs are not tested for compatibility or certified for safety and compliance standards and thus could damage -customer's Xbox 360 consoles.”

Datel also says that Microsoft has changed the 360’s authorization protocols and Security Integrated Circuit process to prevent all Datel accessories, even a currently unreleased 360 wireless controller, from working with the console, stating:

In fact, it is Microsoft's anticompetitive conduct, including tying and predatory design, such as the erection of technological barriers to third party accessories and the disabling of otherwise functional third party accessories, not consumer loyalty or esteem, that primarily drives Microsoft's accessories attach rate.

The lawsuit asks that Microsoft be adjudged to have violated federal anti-trust laws and that the Redmond, Washington company “be preliminarily and permanently enjoined and restrained from disabling or erecting technological barriers to Datel accessories and add-ons for the Xbox 360. Datel is also seeking damages and to have its attorney fees paid.

The full complaint can be viewed here (PDF).


|Via Seattle PI|

A Spanish judge has tossed out a criminal complaint filed by Nintendo against a seller of memory cards that allowed users to crack their Nintendo DS handhelds.

Movilquick Group was the target of the complaint, and a seller of devices (pictured) designed to “allow the use of multimedia and homebrew files,” on a DS, though the company noted that it is “against piracy” and does not support the use of commercial software in conjunction with their devices.

The judge ruled that while purchasers could use the devices for piracy, they could also use them to further advance the operational capability of their DS (translation follows): “Ultimately what occurs is a manipulation of hardware to extend its utility, allowing users to use with both legitimate and illegitimate purposes, but not only illegitimate.”

A question further raised by the judge was whether or not Nintendo is the only company that can provide additional functionality to its devices (translation follows):

…this leads to another question that is if Nintendo has an absolute right as the only manufacturer to create accessories or, other manufacturers can produce and offer accessories for Nintendo consoles provided copies of attachments are not originally created by Nintendo and therefore protected by industrial property rights. That question goes beyond the criminal and should be terminated by the Civil Court…

|Via TechDirt|

Last week we reported on the story that a U.S.  law firm was accepting submissions as part of a precursor to a possible class action lawsuit on behalf of users banned from Microsoft’s Xbox Live service.

AbingtonIP had put up a form on its website asking those affected by the ban for more information. The firm called the timing of Microsoft’s ban “convenient,” as it happened just before the release of Call of Duty: Modern Warfare 2 and may ultimately have resulted in an increase in subscriptions to Xbox Live.

A Microsoft Spokesperson is quoted in the Financial Post reiterating that the company is well within its rights in enacting the ban, “Piracy is illegal and modifying an Xbox 360 is a violation of the Xbox Live Terms of Use. Microsoft is well within its legal rights to ban these users from Xbox Live.”

Marc Whitten, General Manger of Xbox Live, told VentureBeat that the estimated number of Live members banned was way off and defended his company’s actions:

It’s a cat and mouse game. These were people that were pirating software. We try to keep sanctity of life from a safety and anti-cheating perspective and we protect our partners. We didn’t release the number. I cannot explain to you why people would think it was a million people. It wasn’t a million people. Check the veracity of that claim. It was one news source. I think we do a really good job understanding what people are doing on the system. That applies to intellectual property (piracy) and how we treat the community in terms of harassment.

Erik Estavillo, the Resistance: Fall of Man gamer who sued Sony Computer Entertainment America (SCEA) over being banned from the PlayStation Network has targeted the remaining two major console makers in a new lawsuit.

Microsoft Corporation and Nintendo of America are defendants in a federal complaint, which was filed November 18 in the U.S. District Court, Northern District of California.

Microsoft is being sued for a “red ring of death” affecting the plaintiff’s Xbox 360 console. Estavillo notes that as he is disabled, he cannot afford to pay the “well over $100” fee to fix the console, nor can he afford to purchase a new one. He feels “that Microsoft should have to bear the burden that is now put on the shoulders of this disabled plaintiff.”

Estavillo is seeking $75,000 from Microsoft, due to the “undue stress” he has undergone since the 360 broke and the “sadness he will have in the mean time of finding one he can afford.”

The same complaint targets Nintendo over a Wii system update. Estavillo claims that update 4.3 disabled his Homebrew Channel, which he used to unlock characters in Mario Kart Wii. Plaintiff states that the only way to unlock characters in Mario Kart Wii is to purchase Super Mario Galaxy, which will unlock a single character in the former title. “In essence, Nintendo is forcing customers to buy another game to unlock one character in a different game.”

Damages to the tune of $5,000 are sought from Nintendo, for interfering in plaintiff’s “pursuit of happiness.” An injunction is also being sought to prohibit Nintendo from “deleting, blocking or prohibiting the Homebrew Channel and Ocarina applications.”

Estavillo says he suffers from depression, obsessive-compulsive disorder, panic disorder, agoraphobia and Crohn’s disease, all of which lead to his leaning on videogames “heavily” for happiness.

Estavillo plans to file a lawsuit in state court as well, which he wrote will “pretty much” be identical to the federal suit.


|Image from Flickr|

A Texas-based company has filed a lawsuit alleging that a group of game makers violated its patent related to voice recognition technology.

Filed on November 10 in the U.S. District Court, Eastern District of Texas, plaintiff Bareis Technologies, LLC names Ubisoft, Inc. Sony Computer Entertainment America, Inc., Electronic Arts, Inc. and Disney Interactive Studios, Inc. The lawsuit revolves around a U.S. Patent for “Optical Disk Having Speech Recognition Templates for Information Access,” which Bareis owns.

The games specifically called out as infringing in the complaint are Ubi Soft’s Tom Clancy’s Rainbow Six: Lockdown, Tom Clancy’s Rainbow Six 3, Tom Clancy’s Rainbow Six 3: Black Arrow, Tom Clancy’s Rainbow Six Vegas, Tom Clancy’s Rainbow Six Vegas 2, Tom Clancy’s Ghost Recon Jungle Storm, Tom Clancy’s Ghost Recon 2 Summit Strike, Tom Clancy’s Ghost Recon 2, and Tom Clancy’s EndWar, SCEA’s SoCom: U.S. Navy SEALs, SoCom II: U.S. Navy SEALs, SoCom III: U.S. Navy SEALs, SoCom Combined Assault, EA’s NASCAR 06 and NASCAR 07 and Disney’s Phonics Quest.

The plaintiff is seeking a jury trial and “all damages caused by the infringement of the ‘407 patent, which by statute can be no less than a reasonable royalty.”