Microsoft has added a single line to its "Game Content Usage Rules" (found over in the community section of Xbox.com) that restricts gamers from earning money from videos that contain footage of Microsoft games like... every Halo game every made (thanks Rpad.tv). So if you are one of those YouTube stars with a large following that may have benefited from ad dollars, the party seems to be officially over for you...

The Declaration of Internet Freedom may not be getting as much national attention as it should from the mainstream media (despite several members of Congress and the Senate strongly and publicly supporting it), but Reddit co-founder Alexis Ohanian (who also had a hand in helping draft the document) has some plans to get it noticed by the general public.

Rights groups are turning up the rhetoric on the Trans-Pacific Partnership (TPP), claiming that the new treaty being negotiated by the U.S. Trade Representative (USTR) and other countries in the Pacific Rim will bring back controversial copyright enforcement provisions pushed by some US policymakers in recent bills and treaties such as ACTA, SOPA and PIPA.

On Friday a few short paragraphs of text were leaked from the Trans-Pacific Partnership treaty negotiations. The TPP is being negotiated by nine Pacific Rim countries (in secret) with the goal of producing a free-trade agreement that tackles issues related to intellectual property rights. The next round of negotiations is set to take place sometime in September in Leesburg, Virginia.

A federal judge has denied a motion by Electronic Arts to dismiss counter-claims in a trademark lawsuit filed by Textron Innovations and Bell Helicopter Textron related to helicopters depicted in its popular Battlefield games. Textron Innovations and Bell Helicopter Textron make the AH-1Z, UH-1Y and V-22 helicopters. They filed a lawsuit in 2008 claiming that the game's depiction of these helicopters infringed on Bell-manufactured vehicles in the "Battlefield Vietnam," "Battlefield Vietnam: Redux" and "Battlefield 2" video games.

The highest court in Canada has delivered some depressing news for music and other rights holders today: they can't charge additional fees to educators, video game makers, and Internet service providers. In a ruling on multiple cases today the Supreme Court of Canada struck down five cases that had to do with tariffs.

Earlier this month the federal district court in Nevada issued a declaratory judgment that made it a lot harder for copyright holders to file lawsuits over excerpts of material being used on web sites and online forums. The judgment is a direct blow to law firms like Righthaven, who filed a ton of lawsuits against websites claiming that they had infringed on copyright holders it represented.

After licensing talks broke down between Textron - the parent company of Bell Helicopter – and Electronics Arts, the company has decided to take the legal route to get around paying any licensing fees. Publishers are often pretty heavy handed when it comes to depictions of their work – even when the target claims fair use - but when the shoe is on the other foot, EA has a habit of seeking remedies through the court.

Forbes has an excellent editorial up about the ESA's support of the Stop Online Piracy Act that does a great job of explaining - in simple English - how it could affect every day web sites who might not necessarily be engaged in anything but providing content.

Anti-virus and security software maker Kaspersky is not happy with the Business Software Alliance's early support of SOPA and Protect IP in the U.S. Even though the BSA later walked back its support of SOPA, the Russian firm has had enough. It announced that it plans to leave the BSA over its support for SOPA. Kaspersky has announced that on January 1st 2012 it will withdraw its membership of the BSA.

Left-leaning political blog DailyKOS joins the editorial pages of the New York Times and Los Angeles Times in opposition of the House's Stop Online Piracy Act and the Senate's Protect IP Act. In a post titled "Congress is close to destroying the internet (no hyperbole)," DailyKOS says that it is not hyperbole when they say that lawmakers, big Pharmaceutical companies, and the recording, and movie industries are out to destroy the internet.

A new article over at TechDirt penned by the Entertainment Consumer Association's Vice President and General Counsel, Jennifer Mercurio, explains why the Stop Online Piracy Act (SOPA) and PROTECT IP are bad for everyone - especially gamers. Mercurio lays out what this means to everyday internet users when it comes to video performance and fair use in the first paragraph:

The U.S. Chamber of Commerce has some strong language for critics of Sen. Patrick Leahy’s (D-Vt.) online piracy bill, the PROTECT IP Act. The group, which represents business interests in the United States (and is considered to be a largely conservative organization), fired back at critics on Friday who painted the bill as an effort backed by Hollywood and not businesses.

Righthaven has been ordered to pay nearly $119,488 in attorney fees, court costs after losing a lawsuit against former federal prosecutor Thomas DiBiase. The company, which trolls internet sites and sues them for alleged newspaper copyright infringement (it represented the rights of the Las Vegas Review-Journal in this case), couldn't afford to pay a previous judgment of $34,045, and likely faces an even bigger judgment in another case involving the Democratic Underground.

The government of Canadian Prime Minister Stephen Harper has resubmitted a revision of the Canadian digital copyright law (C-11) to Parliament. The bill is being described by Canadian media as pretty much the same as the previous bill submitted by Harper's government the last time. This time the bill will probably pass.

GamePolitics Contributing Editor and Maryland intellectual property attorney Daniel Rosenthal offers and in-depth analysis of Bill S. 978 (also known as the "anti-streaming bill") in this guest editorial.

S.978, the "anti-streaming bill" has been introduced in Congress, apparently in response to the White House's Intellectual Property Enforcement Legislation Recommendations white paper (PDF), which recommended to Congress that they should amend the Copyright Act to "clarify that [copyright] infringement by streaming . . . is a felony in appropriate circumstances." While that seems innocuous enough on its face, the bill presented by the bipartisan trio led by Sen. Klobuchar is deeply flawed for a number of reasons.

The Entertainment Consumer Association (ECA) has issued a call to arms to its members and the gaming community at large, urging everyone that will listen that Bill S. 978 (the anti-streaming law) is bad for everyone. The law has the potential to affect everyone - from YouTube video posters that make gameplay videos to Netflix users that share their account information. You can check out the alert here and send a letter to your Senators voicing your strong objection to this bill.

The alert can also be found below:

When does fair use go too far? That's a hypothetical question ask by a columnist over at the New York Times, who, after snapping photos from several home decor magazines and books at Barnes & Noble for a home design project (using their iPhone), wondered if he might be breaking the law.

So he turned to several experts on the subject including Julie A. Ahrens, associate director of the Fair Use Project at the Stanford Law School; Stan Liebowitz, a professor of economics at the University of Texas at Dallas and the director of its Center for the Analysis of Property Rights and Innovation; and Charles Nesson, the Weld professor of law at Harvard Law School and founder of the Berkman Center for Internet and Society. Their answers varied.

Brazil seems to have taken a more compassionate and even handed approach to copyright protection, according to the Inquirer. The country has implemented rules that offer protections for both copyright holders and the public. For the public fair use is just as important as copyright infringement and so the rules take that into account. The rules also punish those copyright holders who game the system and bully people using copyrighted material under fair use.

This means that the law can be used on anyone that commits a copyright crime like illegally breaking copyright protection and sharing media, and any firm that uses unfair copyright protection tactics.

Canadian law professor Michael Geist recently talked about Brazil's approach on his blog, saying that it "establishes equivalent penalties for hindering or preventing the users from exercising their fair dealing rights." By his thinking "over-protection" of copyright is just as wrong as protecting it.

Phoenix Online Studios, which had received a cease-and-desist from Activision over a fan-made King’s Quest game, has now been given the go-ahead by the publishing giant and will release the first episode of The Silver Lining on July 10.

At the end of June, the development team wrote that Activision reached out a few months earlier with “a desire to revisit their decision.” After some negotiating the cease-and-desist was rescinded and Phoenix was granted a non-commercial license.

Ironically, Phoenix went through the exact same scenario when King’s Quest was still under the control of Vivendi. That publisher too had issued a C&D on the project, only to cave to fan pressure later on and bestow a non-commercial license on the game.

A group of King’s Quest enthusiasts who have been working on their own content for the 1990s-era adventure game have been forced to abandon their project due to action from Activision.

A variety of King’s Quest games were released under the Sierra label in the 1990s. Volunteers began work on their project, dubbed The Silver Lining, back in 2002 under the name of Phoenix Online Studios, reports Kotaku. While initially they ran into problems with Sierra’s parent company Vivendi Universal—receiving a cease-and-desist order in 2005—a public backlash over the cancellation of the game more or less forced Vivendi to grant a non-commercial “fan license” to the project.

Everything remained status quo until recently, when Activision, which merged with Vivendi in 2008, issued a cease-and-desist to Phoenix Online, indicating “that they are not interested in granting a non-commercial license to The Silver Lining.”

GP’s own legal guru Dan Rosenthal offered his take on the revocation of the non-commercial fan license:

It's always unfortunate when you have a lot of hard work on a fan project go to waste. Unfortunately the real problem here for Phoenix Online was the bad luck of Sierra changing hands from Cendant to Vivendi Universal to Activision Blizzard. Changes of ownership often bring with them changing priorities, and who knows what sort of future Activision sees for the IP. Like many independent studios, Phoenix Online simply wouldn't be able to afford the cost of ignoring the cease-and-desist letter and risking a potential copyright infringement lawsuit.

The real damage here, however, comes from the chilling effect that this sort of action places on fan studios operating under non-commercial licenses (or even worse, no license but a "wink and a nudge" from the IP holder). Now, every fan project going forward is going to be reminded of the Sword of Damocles over their heads from pouring their efforts into someone else's IP.

While game modifications are generally looked at as derivative and infringing works, an academic paper argues that it would be fair to apply a licensing provision currently used in the music business to the mod community in order to advance the genre.

Cover Songs And Donkey Kong: The Rationale Behind Compulsory Licensing Of Musical Compositions Can Inform A Fairer Treatment Of User-Modified Videogame (PDF) was penned by John Baldrica, an attorney, and is published on the North Carolina Journal of Law & Technology website.

Baldrica believes that a compulsory “mechanical” license provision of the Copyright Act, which allows musicians to record cover songs as long as they pay a “statutorily determined royalty” to the original song’s copyright holder, would do wonders for the mod market. Such movement would “feed the professional talent pool” in addition to granting the “freedom to produce the kind of new and creative works that the copyright system was intended to promote.”

The author notes that under the U.S. Copyright Act currently, “the creator of an original copyrightable piece of expression is given the exclusive right to authorize any derivative works,” meaning that game developers can effectively kill a modification to their game anytime they want to.

The problems are; what exactly defines a derivative work and who owns the new modded material that has been created?

…such analysis has been inconsistent in key cases involving modification of videogames. As discussed, treating a mod as nothing more than an alteration of the underlying copyrighted videogame would cause mods to fall under the doctrine of derivative works. It would also strip modders of copyright protection and subject them to liability if the modifications were unauthorized by the original copyright holder.

The compulsory licensing scheme for music has been called “instrumental in the development of the recording industry.” The author goes on to draw a series of parallels between the early days of the music business and the current state of computer software, calling the similarities “striking,” and furthering his belief that “mods’ similarities to musical recordings should merit analogous treatment under a similar statutory licensing regime.”

Unfortunately, Baldrica does not see any changes being made in the near future to the current system for two reasons: “a lack of political will from those outside of the videogame industry and a vested business interest in the status quo from those within.”

Expanding on the first reason, Baldrica writes:

Yet, unlike its concern for the promotion of musical recordings in the first years of the twentieth century, Congress does not appear inclined to grant statutory protections to promote development of videogames in the first years of the twenty-first.

And more on the second reason:

…the game developers and game publishing industry are reluctant to abandon a scheme in which they already enjoy substantial benefits and negotiation power.

Attorney Mona Ibrahim has published an analysis of the legal implications involved in reverse-engineering games.

The article follows a hypothetical game developer who is frustrated that her favorite game has poor server support, so she reverse-engineers the network protocols to create a private, lag-free server.  The concept isn't so far-fetched: guides on how to create a private World of Warcraft server abound and some reverse-engineered games, like SWGEmu have gained quite a bit of attention.

Ibrahim's article outlines the various laws and doctrines that come into play with reverse-engineering, from the Copyright Act to the Electronic Communications Privacy Act, and provides practical examples of where enterprising coders can go wrong.

For instance, regarding the DMCA, Ibrahim notes:

If Mallory's new server doesn't provide the same safeguards that control access to the original game servers (like a CD key or a version verification protocol), then her own server is circumventing access controls to the online component of the game. Therefore, by distributing the program, means (such as DIY instructions), or code to access servers that don't use the game's original access controls, she would be violating the anti-circumvention provision.

The article concludes that while reverse engineering itself is not illegal, it does run a gauntlet of legal issues and that "[t]his isn't the type of project you want to pursue if you're risk averse".


Dan Rosenthal is a legal analyst for the games industry.

Where does art inspired by videogames fall under the fair use doctrine? A U.S. Intellectual Property lawyer takes a look at just such a topic in an interesting entry on his blog.

Ben Manevitz centers his article on three pieces of art from Brock Davis, which show interpreted scenes from Dig Dug, Donkey Kong and Missile Command.

The four factors (for the U.S.) for determining fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted workas a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work.

Manevitz argues that the art in question meets the criteria of points 1 and 4:

The fair use analysis is actually fairly straightforward. You've got a transformative use that will have no impact on the market for the games, or even the potential derivative market for the games. That's factors one and four in favor of fair use.

The author claims that the works do not meet the second factor however:

Admittedly, the game screen is a creative work, which puts factor 2 in the not-fair-use column and it could be argued that the amount taken is substantial - it would depend on the determination of what, exactly, constituted the work; is it the game overall or individual screens.

Manevitz goes on to examine possible trademark implications:

… Atari might be able to argue that a consumer seeing the paintings might be confused as to the source or - in this case the stronger argument - sponsorship of the paintings.

He concludes that game makers might be able to make an “objectively reasonable trademark infringement case against the artist,” before noting that the “saving grace” for the artist might be “the practical factors militating against the manufacturer's bringing suit, to wit, the negative publicity, the paucity of available damages, the relative age (value) of the marks allegedly infringed, etc.”

Rep. Rick Boucher (D-VA) has been picked to lead an important Congressional subcommittee, and that's good news for game consumers.

As MediaPost reports, Boucher will chair the House Energy and Commerce Subcommittee on Telecommunications and the Internet. From MediaPost:

As a longtime proponent of consumers' rights to lawfully copy films, books and other material, Boucher is considered a likely opponent of any entertainment industry efforts to restrict the Web. Among other measures, he is likely to oppose attempts to require Internet service providers to filter networks for pirated material.

Boucher also has tried to revamp the Digital Millennium Copyright Act to make it more consumer-friendly... Boucher's bill would have specified that the anti-circumvention rules do not apply in certain situations, such as when the purpose of getting around the restrictions was to access a work in order to criticize it or report about it...

In 2002, Boucher authored a strident column extolling the benefits of fair use... Boucher also supports net neutrality initiatives, as does President-elect Barack Obama.

In 2007 the Entertainment Consumers Association endorsed Rep. Boucher's fair use legislation, although the bill ultimately failed to pass.

Full Disclosure Dept: The ECA is the parent company of GamePolitics. 

Will Wright's Spore, due for a September 7th release, is one of most anticipated PC titles ever.

But, as CNN reports, some users of the Creature Creator utility, released last month, have built animals which are apparently intent on breeding. Or, at least coupling.

...Buried among the more wholesome attempts [at Spore creature creation] were two-legged dancing testicles, a "giant breast monster" and a four-legged, "phallic fornication machine," for starters...

 

For EA, the developer of "Spore," it's the downside to tapping into the booming user-generated content arena, which has made sites like YouTube, Flickr, MySpace, Facebook and Second Life so popular... Many of the popular user-generated content sites have faced similar challenges in trying to control obscene material...

 

The creatures are not just static. Users can create animated scenarios for the characters to engage in, some of which include sexually graphic acts.

When EA got word of the "Sporn" creations, it began working with YouTube to pull them down. Spore executive producer Lucy Bradshaw told CNN:

Whether it's modeling clay, dolls or crayons, a small number of people can be counted on to use it for something vulgar.

CNN also spoke to the "Spornmaster," a 37-year-old man who has created a number of reproductively equipped Sporn creatures:

I admit it is silly and juvenile, but I don't think there's anything perverted, vile or awful about it. If people find it offensive, they can simply not search for it online. No one is forcing anyone to see this content.

One Spore fan told CNN:

I consider this very similar to child pornography, at least to the extent of distributing the material to children.

GP: Buzzfeed has additional NSFW links...

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.