Video game repression has surged in Thailand following last month's killing of a taxi driver by a 19-year-old man who told police he was re-enacting Grand Theft Auto.

Jesada Chandraprasert (left), who pens Cnet's Technology Thailand blog, reports this morning that five games have been officially banned by the Ministry of Culture:

• Hitman
• 300
• Killer Seven
• Hitman: Blood Money
• Fifty Cent: Bullet Proof

In a story broken by GamePolitics, Thailand stole its list of "dangerous" games from an outdated list offered by Detroit prosecutor Kym Worthy during the 2007 holiday season. The five banned games constitute half of the list.

Chandraprasert writes:

To say that Thailand's ministries are conservative is like saying the Pacific Ocean is a puddle. In their efforts to maintain a level of control and conformity... they issue laws and regulations faster than a geek can whip out his credit card at a Pantip going-out-of-business sale. Such is the case with video games and Internet cafes...

 

Their official press release at the Government's Web site clearly states that they see gaming as "a problem which is obsessive and has an (adverse) effect on the behavior of children and teens...".

Chandraprasert also reports on a recent government and law enforcement conference which was held to discuss the video game issue - with ominous overtones:

The conference, held at the Queen Sirikit Convention Center on August 21, had an audience of over 1,500 people, mostly public officials and the police. The main focus of this conference was to find solutions to unregistered gaming stores (basically an Internet cafe like a setup where people can go in and game all day long on computers, not the traditional arcade) and "dangerous games". Their aim is to eliminate the "dangers" associated with said problem within 90 days of the conference.

Toward the end of a Games, Politics & Policy panel I was moderating at PAX yesterday, a guy in the audience asked a question that was really more of a challenge. He wanted (demanded?) to know whether each of the four panel members and myself as moderator played games.

As it turned out, we did. Everyone explained their own gaming habits. I mentioned that I've reviewed games for more than a decade for the Philadelphia Inquirer and that if it's out there, I've probably played it. The questioner seemed satisfied.

But that particular question stuck with me after the session. The more I thought about it, the more frustrated I became.

The panel, you see, was packed with experts who work hard to make the gaming scene better. At least two attorneys were seated at the table. Jennifer Mercurio works on policy and legislative issues for the Entertainment Consumers Association (ECA). Bo Andersen heads the Entertainment Merchants Association (EMA), which represents video game retailers. Both spoke passionately about the First Amendment rights of game creators, game sellers and game consumers.

Also on board were Jason Della Rocca, executive director of the International Game Developers Association (IGDA) and Alex Quinn, head of Games For Change. Jason workes tirelessly on behalf of the people who make the games we love. Alex spearheads a movement to exploit the power of games in positive ways.

As it turns out, they all game to some degree, but - so what? Do you need to have a level 70 WoW character to be a good advocate for games? If I blow my knee out playing softball, do I care if the orthopedic surgeon has a catcher's mitt at home? No. I just want her to use her professional skills to patch me up.

And so it is with our panelists. I retrospect I feel that the question was insulting, although probably not intentionally so. What I wish I had said to the guy was: Sure, it's good to play games in order to understand their context, but professional expertise on issues like the First Amendment, Fair Use and Net Neutrality transcends the game space. And, as a gamer, it's comforting to know that skilled people are fighting on my behalf. Whether they are also fighting the Horde on WoW is not so important to me.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

Kevin Fuchs does not dispute that he was a software pirate.

As GamePolitics reported yesterday (see: ESA Happy to See Game Pirates Going to Jail), Fuchs copped a plea to federal charges that he was part of a warez group which shared pirated game software. He will begin an 8-month stretch in a federal prison soon, followed by another 8 months of house arrest.

So what did Kevin Fuchs do? The ESA's press release didn't specify, except to say that Fuchs supplied and tested software for his warez group. But GamePolitics has obtained a copy of Fuchs' indictment, which alleges that he targeted the following games and software products:

• NCAA Football 2004 (Xbox)
• NFL Street (Xbox)
• MS Encarta Deluxe 2004
• Unreal Tournament 2004
• MS Windows 2000 Professional
• Kill Bill, Vol. 2

Fuchs' role in his warez group was to download software cracked by other members, test to make sure it worked properly, and then re-upload it for distribution. He also supplied "key generators," software which creates access keys for copyrighted software.

While the FBI alleges Fuchs committed piracy for personal gain, his indictment reads more like that of a gardern-variety warez kid. Even the feds acknowledge this aspect of the warez scene in the indictments's introductory paragraphs:

Other motives in addition to profit include the thrill and social comradery members obtain through clandestine participation in the illegal activity; and the reputation and fame that attends membership and participation in the "top" warez groups.

Indeed, if Fuchs was in it for the money, it wasn't working. A March, 2008 motion filed by Fuchs' attorney with the U.S. District Court for the Western District of North Carolina (where the case originated) asks for a continuance of Fuchs' sentencing because he and his parents could not afford to travel from New York to North Carolina.

The motion also notes that Fuchs has apparently engaged in efforts to rid himself of the pirate's stain:

Professor William Haslinger, of the Hilbert College Economic Crime Investigation Department located in Hamburg, New York... has worked with Fuchs since his arrest and plea to enhance awareness of the illegality and economic harms associated with digital downloading of music and software via the internet, which remains widespread and is often perceived as legal activity. Professor Haslinger will provide evidence of Fuchs’ post offense rehabilitation and his participation as a speaker in forums for college students regarding the illegality downloading and what can happen if you are caught.

An attorney not named Jack Thompson has loaned credence to the use of the  video games made me do it defense.

Writing for the Palm Beach Post, Terry Bosky dishes on the increasingly familiar defense tactic of blaming violent behavior of video games. Illinois attorney James Waller told Boesky:

The goal of the ‘video games’ defense is to both shift blame and to explain to a judge and jury why this good kid is suddenly acting like a terrorist. Portraying your client as the victim of outside forces... humanizes the client and shifts the culpability... my job is to present ANY theory to a jury that would explain why my client did the things he did...

 

[The games made me do it defense works on] an unsophisticated, typically older, somewhat more rural jury pool or judge. To an extent, the defendant is playing on the prejudices that these members of society already have towards video games...

 

The manufacturers do everything they can to make sure that [the games] are a household name... Restricting supply to create buzz, sensationalizing their own violence to the media, doing idiotic things like leaving the “Hot Coffee” code in the game…the jury knows that a lot of kids today are playing this Grand Theft Auto game and that it’s very violent or adult before we even walk into the courtroom.

Law Prof. Ashley Lipson agreed:

A good defense lawyer will blame everyone in sight, except of course the client - When he or she runs out of people to blame - it’s time to look around for objects. What could be better than a popular videogame?

Thursday's newsletter from gamesindustry.biz contains a terrific editorial on the controversial targeting of file sharers by five U.K. game publishers.

It's a real eye-opener.

Although many gamers were incensed by the attack, gi.biz goes beyond mere opinion and lays out some troubling facts behind the ham-fisted campaign being waged by Atari, Codemasters, Topware Interactive, Reality Pump and Techland:

None of the big publishers or platform holders have touched the action with a barge pole... A group of tier 2 and tier 3 companies... have hired a firm called Davenport Lyons to take action against private individuals for using file-sharing networks to distribute games. This, it appears, is a Davenport Lyons "speciality"...this is a company whose reputation is coloured by a history of threats against private individuals...

 

Davenport Lyons... appear to be using data from a company called Logistep... there have been serious concerns over the legality of Logistep's methods in several European states. In... Switzerland, it stood accused of violating the law in its pursuit of pirates...  In France, a lawyer who was working with Logistep was recently banned from practising law for six months for almost exactly the same behaviour which Davenport Lyons has just demonstrated in the UK...

 

That seems to be why the shock-and-awe tactics of this mass mailing are being employed. £300 or thereabouts is a nice figure - enough to sting badly... but not enough for most people (innocent or guilty!) to be willing to go and hire a lawyer and fight the case...

 

In that case, "grubby" doesn't begin to describe it - just as, when innocent people start receiving those letters and clamouring in large numbers to the media, as they inevitably will, "PR disaster" doesn't begin to describe what will happen next. 

 

Fight piracy. Fight it with every weapon in the arsenal - but play fair. This kind of dirty, nasty and legally questionable action will do nothing other than bring the industry into disrepute...
 

GP: Bravo, gi.biz!

Nintendo once again finds itself the target of a patent infringement case.

As Cnet reports, Maryland-based Hillcrest Labs alleges that the Wii Remote infringes on Hillcrest's patents for a motion-sensitive remote control device known as The Loop. A Hillcrest press release says in part:

While Hillcrest Labs has a great deal of respect for Nintendo and the Wii, Hillcrest Labs believes that Nintendo is in clear violation of its patents and has taken this action to protect its intellectual property rights.

GamesLaw has court documents available.

A British woman who uploaded a PC pinball game to a file-sharing network has been ordered to pay publisher Topware Interactive £16,086 (roughly $30,000).

As reported by the BBC, Isabella Barwinska's troubles began when the London woman uploaded a copy of Dream Pinball 3D (retail value about $30). The case was heard at London's Patents County Court. Victorious Topware lawyer David Gore said:

The damages and costs ordered by the Court are significant and should act as a deterrent. This shows that taking direct steps against infringers is an important and effective weapon in the battle against online piracy. This is the first of many. It was always intended that there would be a lot more.

IP lawyer David Harris, who has no stake in the Topware case, told the BBC:

This is a proper Intellectual Property (IP) court that has made this judgement. The previous ones were default judgements where defendants never turned up. It's a much more interesting case in that respect.

Becky Hogge, director of the UK's Open Rights Group commented on the ruling:

An open court process with a full report is certainly preferable to justice of the type being mooted by the government on P2P, where activity takes place behind closed doors through industry action... In relation to the orders for release of personal data, it is important that court processes do not become rubberstamps for industry action but retain judicial safeguards and independence.

Meanwhile, the Daily Mail reports that the defendant is an unemployed Polish immigrant and mother of two from London's downscale East End. As GamePolitics reported last month, four alleged file sharers made lesser settlements with Topware.

Kotaku reports that PlayStation 2 favorite God of War 2, officially banned by Saudi authorities, is available for purchase on the black market.

In fact, a Saudi reader even describes the process to Kotaku in great detail. It seems that a local mall peddles GoW2 discs concealed inside shrinkwrapped boxes for other games. In the instance described, GoW2 was covered up by box art showing Winning Eleven 7, a several years-old soccer sim. (see pic)

GP: It's nice to see that Saudi gamers aren't totally limited in their choices. And we hope that the store clerk still has possession of his thumbs now that this info is public.

The Entertainment Software Association, which represents the interests of US game publishers, issued a press release today announcing that it had received a check for $282,794  from the state of California.

The money represents legal fees incurred by the video game industry while contesting California's 2005 video game law. The statute was declared unconstitutional by a U.S. District Court Judge in August, 2007.

Commenting on the payment, ESA CEO Michael Gallagher said:

California deserves more from its legislators than pursuing flawed legislation. State employees are facing pay cuts. California’s services are being scaled back. And, anxiety is rising in Sacramento to find funds. Rather than tackling real problems affecting Californians, they chose to waste time, money and state resources. It is shameful that legislators pursued personal agendas in spite of the facts.

 

Caregivers are not well-served by court battles and legal fees. Rather, they would have been far better off if state officials worked together with our industry to raise awareness about video game ratings and the parental controls available on all new game consoles—both of which help ensure that the games children play are parent-approved.

It is unfortunate that the state is stubbornly pursuing an appeal that is likely to lead to even more court-awarded fees.

As GamePolitics has reported in the past, the Entertainment Software Association (ESA), which represents the interests of US game publishers, is backing a proposal to bring tougher, DMCA-syle copyright laws to Canada.

Along those lines, GP just picked up on this video of a May, 2008 TV debate on the issue between ESA VP Stevan Mitchell and Howard Knopf, a Canadian attorney. Mitchell is specifically worried about mod chips. He holds one aloft during the program.

For his part, Knopf is aghast at the notion that American corporate interests might force copyright changes in Canadian law. Knopf seems to have the interests of Canadian consumers at heart.

Unfortunately, Knopf does not articulate his points especially well - perhaps due to the tight time frame of the debate - while the hosts of the program seem to jump right in line with Mitchell of the ESA. Maybe that's because the program aired on the Business News Network. shiny dot bulletin comments:

It’s amazing how the hosts are really willing to bend to American market interests as opposed to listening to Howard about the facts and issues.

Knopf runs the Excess Copyright blog, the motto of which is:

Copyright is good. Excess in copyright is not.

A consumer's difficulty in canceling a Final Fantasy XI account has led to a new Illinois law which mandates that MMO providers make an online cancellation option available. Companies are also required to provide online instructions on how to cancel.

As reported by Silicon Alley Insider:

Alex Edwards played Final Fantasy Online for a few months, then grew tired of the game... His parents Frank and Cinda, who were paying the $13 a month subscription, tried to cancel the account online.

 

But Final Fantasy didn't offer Cinda a way to do that online, and didn't offer her a contact phone number, either. The Edwards finally found the number via their credit card statement -- but when they called, they spent an hour and 45 minutes on hold before someone answered the phone...

 

But unfortunately for Square Enix, who makes Final Fantasy, Frank Edwards is an alderman in Springfield, Illinois and a good friend of his local State Rep. Raymond Poe.

After hearing the Edwards' story, Rep. Poe (R) introduced a bill, HB4178, which passed both the Illinois House and Senate in May. Gov. Rod Blagojevich (D) signed it into law on Tuesday.

Here's a summary:

...an Internet gaming service provider that provides service to a consumer... for a stated term that is automatically renewed for another term unless a consumer cancels the service must give a consumer who is an Illinois resident: (1) a secure method at the Internet gaming service provider's web site that the consumer may use to cancel the service, which method shall not require the consumer to make a telephone call or send U.S. Postal Service mail to effectuate the cancellation;

 

and (2) instructions that the consumer may follow to cancel the service at the Internet gaming service provider's web site. Makes it an unlawful business practice for an Internet gaming service provider to violate the new provisions.
 

GP: From a consumer standpoint, it's hard to argue with this one. Plus, Gov. Blagojevich gets to sign a video game bill that might actually survive this time. His 2005 attempt to regulate violent game sales was declared unconstitutional and cost Illinois about a half-million bucks in legal fees.

So you handled all the killing and thuggery in GTA San Andreas but found yourself traumatized by the hidden, pixelated sex?

Don't spend your Hot Coffee lawsuit settlement money just yet.

The New York Times reports that the Hot Coffee class-action lawsuit, which was nearing settlement, has been tossed by a federal judge:

...Judge Shirley Wohl Kram wrote that purchasers of the game could not be lumped together in a class action. The claims of members of the proposed class would be affected by the law in each purchaser’s home state, Judge Kram wrote, and therefore could not be resolved in a single proceeding in federal court in New York.

 

“Accordingly, the court decertifies the settlement class on the grounds that common issues do not predominate over individualized issues,” the judge wrote.

 

The judge’s latest decision undermines a settlement agreement reached between lawyers for purchasers of the game who contended they were offended by the hidden scenes, on the one hand, and lawyers for the game’s makers, Take-Two Interactive Software and Rockstar Games.

The NY Times notes that less than 3,000 GTA San Andreas buyers had applied to join the lawsuit. The paper had previously questioned the size of the plaintiffs' legal fees in the case. Meanwhile, attorney Ted Frank of Overlawyered writes:

Take Two spent millions negotiating and administering a settlement because the court refused to rule on its decertification motion last year; that wasted effort demonstrates why it is important for courts to resolve certification questions early in the case. But with no certified class, there can be no class settlement...

Frank, who joined the class and filed objections to the proposed settlement, wonders whether there will be an appeal.

The judge's ruling may be found here...

The ESA's 2008 Annual Report indicates that the video game industry hopes to uphold the controversial Digital Millenium Copyright Act (DMCA) against critics who claim that it restricts Fair Use of copyrighted material.

Based on the following passage from the report, the industry's position seems to be that gamers can create user-generated content only to the extent that in-game tools allow them to do so:

The interplay Between Fair Use and Digital Rights Management User generated content (UGC) is a high-profile policy issue in the copyright community, sparked by the phenomenal success of social networking sites like YouTube.

 

Influential policy papers from the U.K. IP Office and the Organisation for Economic Cooperation and Development (OECD) cite UGC as a tremendous social benefit of the Internet and call upon policymakers to tweak current legal regimes to better accommodate UGC. This issue has captured the imagination of critics of the current U.S. copyright system, who argue that Digital Rights Management restrictions confound legitimate fair use.

 

ESA IP Policy staff is bolstering its ability to push back against this assertion. In discussions with domestic and foreign IP officials and the OECD, ESA emphasized the rich and varied UGC-features currently incorporated into DRM-protected games.
 

If they hope to enjoy video games while incarcerated, British prisoners need to be very well behaved - or suicidal.

That's according to a report on ITN which details a new video game directive from the UK's Prison Service:

The document bans prisons from spending taxpayers' money on buying hardware or computer games for inmates with immediate effect.

 

Last year the Government admitted spending more than £10,000 on 80 PlayStations and 15 Xboxes for young offender institutions... Only inmates on the highest level of Incentives and Earned Privileges (IEP) and those at risk of suicide will be allowed to play computer games.

In granting gaming rights to inmates who are suicide risks, the Prison Service seems to be accepting the idea that video games are a stress reliever.

Prisoners who do earn gaming priveleges won't be playing GTA IV or Manhunt 2, however. R18 games will be banned from British prisons as of September.

The National Law Journal offers a profile of Seth Krauss, executive VP and general counsel for Grand Theft Auto series publisher Take-Two Interactive.

Krauss, who came on board when the Strauss Zelnick team seized control of T2 in early 2007, lists his duties as:

Intellectual property (IP) concerns, First Amendment cases and securities law issues... When he joined the company, the legal department comprised exactly two in-house attorneys, neither of whom was well versed in IP law. The staff now numbers 15, including three full-time IP lawyers and several others who concentrate on licensing and development.

So, what is Krauss's take on T2's seemingly endless controversies?

In the kinetic world of interactive entertainment, the company's business leaders continually generate new challenges for the legal department. The company "creates content that I am very proud of," Krauss said.

 

Nonetheless, Take-Two has had to defend itself against those who consider this form of entertainment scary and dangerous. Krauss works with his counterparts at other game companies and other allies to meet criticism by politicians and critics "who try to politicize the video game industry."...

 

Broad questions about whether to regulate the industry are on the agendas of various legislative bodies, as well. Take-Two has engaged in lobbying in the past, and this responsibility falls under the scope of Krauss' duties.

Nintendo, which recently lost a $21 million patent case to Anascape, is currently litigating another federal patent lawsuit filed by an Illinois man.

In his complaint, John R. Martin alleges that he patented touch screen and pointing device gaming technology in August, 2005. The original Nintendo DS launched in November, 2004 in the United States. Martin's patent application describes his creation as:

An electronic game device system [which] is switchable between an amusement mode and a gaming or gambling mode and is useful for vehicles such as airplanes or boats which move geographically from jurisdictions where gambling is legal to jurisdictions where it is not...

 

An improved method of operating a touch screen on a CRT or ICD computer screen uses finger release as input registering... Mounting arrangements for mounting computer screens or monitors are also disclosed...
 

The drawing at left, from Martin's patent application, illustrates how he envisioned a user interacting with his device. While Martin does not specifically refer to the DS, the form of input he decribes seems to fit the DS as opposed to the Wii's motion-sensitive input.

In its response, Nintendo has denied infringing upon Martin's patent, of which it says it was notified in November, 2007.

Martin has a similar suit in the works against Apple, presumably over the iPod's touch-sensitive scroll wheel.

GamePolitics has a lodged a request with both Nintendo and the plaintiff's attorneys for additional information.

An attempt to block Activision's merger with Vivendi has ended with a ruling issued by William B. Chandler III (left), chief judge of the Delaware Court of Chancery.

As reported by the Wall Street Journal Law Blog, the judge has apparently taken notice of what World of Warcraft - one of the leading assets in the merger - is all about.

In denying a municipal pension plan's request for a preliminary injunction which would have put the Activision-Vivendi marriage on hold, Judge Chandler wrote:

In some ways, perhaps, the world of Mergers and Acquisitions is a massively multiplayer role playing game as well. Like in World of Warcraft... the participants in the M&A field take on certain roles, interact in their own community, hone specialized skills, and even develop a unique, somewhat curious vernacular.

 

One particular quest in the world of M&A is disclosure litigation. In the instance of disclosure litigation presently pending before this Court, the world of M&A meets the World of Warcraft.

 

In the role-playing game that is this disclosure litigation, both sides have played their respective roles well. Like any game, this one has rules, and the most essential rule of disclosure is materiality. Because the plaintiff could not establish the materiality of its final three disclosure claims, the motion for a preliminary injunction is denied. . . .GAME OVER.

GP: Very cool, indeed, your honor. Read the full decision here (31-page pdf).

Four UK citizens were slapped with fines after the publisher of a PC pinball game charged that they uploaded the product to file-sharing networks.

MCVUK reports that the four were each required to pay £2750 (roughly US$5,500) to Topware Interactive, publisher of Dream Pinball 3D. The company's attorney said that additional cases would be lodged against file-sharers this week:

Copyright owners spend millions of pounds developing copyright works for sale to the public for their enjoyment and yet many think it is acceptable to obtain te work illegally and for free by procuring a copy on a peer-to-peer network.

The New York Times takes a look at the controversy surrounding legal fees sought by attorneys in the Hot Coffee class-action suit.

Seth Lesser, lead counsel for the plaintiffs, told the NYT he was disappointed that only 2,676 buyers of GTA San Andreas filed claims:

Am I disappointed? Sure. We can’t guess as to why now, several years later, people care or don’t care. The merits of the case were clear... The game was sold as something that it wasn’t.

As previously reported by GamePolitics (see: Did Lawyers Inflate Fees in Hot Coffee Class-action Suit?), Lesser and his legal colleagues are seeking $1.3 in fees. Meanwhile, defense attorneys for GTA publisher Take-Two say it only cost them $30,000 to defend the case.

University of Kentucky law prof Mary Davis told the Times:

It doesn’t typically go that way. [To have legal fees far exceed what plaintiffs receive] is sort of backwards.

Ted Frank, an attorney who also writes for the Overlawyered blog, commented:

There are two possibilities. Possibility one is they have a meritorious lawsuit and they’re selling out the class for attorneys’ fees. The other possibility is that, and frankly I think this is the more likely possibility, they brought a meritless lawsuit that had no business being brought to court at all.

The Times also ponders why GTA's non-stop violence is seemingly more acceptable than the Hot Coffee sex animations. Here the newspaper turns to Craig Anderson, an Iowa State prof whose research on game violence and aggression is accepted in some quarters, disputed in others:

For some reason sex is seen as more harmful to kids than violence. The irony is that in terms of the research literature on harmful effects of various forms of media, television, movies, video games, the research is very, very clear. There are significant short-term and long-term effects of violent content.

A hearing on the proposed settlement is scheduled in U.S. District Court in Manhattan today.

UPDATE: Overlawyered's Ted Frank posts his impressions of the June 25th hearing...

Wired's Threat Level blog dishes on a U.S. District Court judge's ruling that promotional music CD's are owned by the person they were given to not the record company that distributed them.

The case surfaced when UMG Recordings sued a California man for selling promo CDs on Ebay. However, Judge James Otero ruled against the company, writing:

UMG's distribution of promo CDs provides the recipient with many critical rights of ownership, including the right to perpetual possession and the freedom from obligations to UMG... [Distributing the promo CDs] is properly characterized as a gift or sale, not a license, and title to the CDs transferred [to the recipient].

Lawyer-gamer Mark Methenitis offers some legal insight on his Law of the Game blog:

The victor here is clearly the consumer. This means that if you get your hands on a promotional CD, DVD, or game, even one labeled not for resale, you can keep it or sell it on eBay without worry about repercussions from the game's publisher. More importantly, it prevents an expansion of the first sale doctrine, which could have limited your ability to resell games you've purchased at all. Game resellers, both those on eBay and the major retail chains, should be applauding this decision as it supports their livelihood.
 

Corinne McSherry of the Electronic Frontier Foundation told Wired that the ruling has many beneficiaries:

This is a very important ruling for consumers, and not just those who buy or sell used CDs. The right of first sale also protects libraries, used bookstores, and businesses that rent movies and videogames.