They say that you can sell just about anything on Craigslist. And if allegations by SCEA are correct, a pair of enterprising - if not especially bright - game pirates used the popular online service to advertise their illegal PSP modding operations.

In August SCEA filed suit in U.S. District Court in California, alleging that Gabriel Garcia and Timothy Joey Zoucha, Jr. modded PSPs and loaded them with over 500 pirated games. Both men live in San Jose, California.

In its complaint, Sony alleges that Garcia billed himself as: "THE ONLY TRUE FIRST PSP MODDER ON CRAIGSLIST," offering "cash only package deals" that included "500+ PSP games". Sony said that Garcia even went as far as to display a PlayStation logo in his Craigslist ad.

Sony apparently used private investigators to track the pair down. One P.I. met with Garcia at his residence, according to the complaint, and paid the alleged pirate $80 to mod a PSP and load it with 100 games. Garcia apparently advertised such a transaction as his "Super Spring Deal". The complaint further alleges that Garcia sold the investigator 11 DVD-Rs containing more games and then showed the investigator how to transfer the games to a PSP via PC. Ever-helpful, Garcia also gave the investigator a "How to Use Your PSP Mods" guide on DVD.

Among the pirated games allegedly sold by Garcia were Grand Theft Auto: Vice City Stories, Parappa the Rapper and Twisted Metal: Head On.

Zoucha was taken down in similar fashion, according to the complaint, which alleges that he agreed to mod the P.I.'s PSP for $28 and supply a DVD containing 100 pirated games for another twenty bucks. The complaint also says that, like Garcia, Zoucha sold the investigator five DVD-Rs containing additional pirated games and told the investigator that he would give her a deal if she brought him more PSPs to mod.

Among the titles allegedly supplied by Zoucha are: Burnout: Legends, Call of Duty: Roads to Victory and Madden NFL 08.

From the complaint:

Defendants Gabriel Garcia and Timothy Joey Zoucha, Jr... brazenly offer their services on Craigslist.org to "mod" or "unbrick" PSP consoles so as to allow illegal unauthorized copies of SCEA's video game software to operate on the unlawfully modified PSP console... Defendants were caught red-handed...

A court date is scheduled later this month. Read the complaint here.

How much of a threat are mod chips to game publishers?

Quite a big one, according to U.K. newspaper The Independent. A lengthy article from today's edition deals primarily with a Nintendo DS mod chip known as the R4:

The R4 is a tiny Chinese-made device – costing around £14 – that for more than seven million owners of Nintendo's hand-held console, the DS, has blown wide open its capabilities. Combined with a small memory card and plugged into the back of the DS, it enables the console to play MP3s and videos, as well as store copies of games you already own.

 

Crucially, however, it also enables the user to play pirated games from the internet [which] can be downloaded for free. Add to this that it's simple to use, and available through retailers such as Amazon, and you can see why the R4 and devices similar to it are bringing video game console piracy to the mainstream.

Enabling a DS to play digital music and video is a wonderful thing. Obviously, playing pirated games is not.

In mentioning Amazon, the article is believed to be refering to Amazon UK. Mod chips are illegal in the United States under the terms of the Digital Millenium Copyright Act (DMCA). An English appeals court, however, held recently that the devices do not infringe on copyrights in and of themselves.

On the other side of the coin, British parent Nick Welsh explains why the R4 is attractive:

The trouble with kids is you pay £20 or £30 for a game, and they could only play it once. Let's say I sit down and download 10 new games, the way it ends up is they'll only really play one or two or those, and the others get replaced. I wouldn't be able to afford that number of games.

 

You can have 70 or 80 games on a 2GB card, and they're all on the back of the machine. There's no fiddling around with cartridges – it's all there to hand... If there was some sort of iTunes equivalent where it was relatively easy and you could try a game for a week for a quid, and pay another four quid to keep it, then I think it's likely I would use it.

In addition to publishers, some game retailers are concerned about the popularity of the R4, which they link to declining sales of DS game cartridges.

Another alleged game software pirate sued by publishing giant Activision has agreed to a $100,000 settlement, according to federal court documents obtained by GamePolitics.

Last month GP broke the news that Activision was quietly suing - and obtaining large settlements - from private individuals in the United States who were not represented by counsel. A case against a sixth defendant, James R. Strickland, had not been resolved at the time of that report. In the interim, Strickland signed off on a stipulation in which he confirmed that he does not contest Activision's allegations and agrees to pay the publisher $100,000. He also waived his right to appeal and agreed not to make public statements about the case.

Strickland signed the document in pro per, a legal term which means that an individual is representing himself.

Activision was represented in the case by attorney Karin Pagnanelli of Los Angeles firm Mitchell, Silberberg & Knupp. As GamePolitics previously reported, Pagnanelli has an extensive legal background involving anti-piracy matters for clients including the Recording Industry Association of America. The RIAA's tough tactics against music file sharers have been a source of increasing controversy in recent years. Pagnanelli, however, told GamePolitics last month that the Activision cases do not involve file sharing.

That being the case, the exact nature of the allegations against Strickland remain unclear. A document filed by Activision with the Copyright Office of the Library of Congress names only one game, the Xbox 360 version of Call of Duty 3. COD3 was named in several of the earlier cases as well. It is unknown what connection, if any, may have existed among the six defendants.

Also unclear is just how firm the $100,000 figure specified in court records might be. GameCyte reported last month that an unnamed defendant in one of the earlier cases claimed that the $100,000 amounts were inflated for shock value, while still terming the monetary loss "substantial."

The Strickland settlement appears to bring to a close this round of piracy lawsuits by Activision. Neither the company nor the defendants are saying much, so we don't know what form of copyright violation took place. Also unknown is whether these cases were an anomaly or signal a new, aggressive anti-piracy strategy for Activision.

Read the stipulation document here.

The BBC reports that Blizzard has won a $6 million damage award against the creator of a botting program used illegally within World of Warcraft.

Glider, distributed by MDY Industries, infringed upon Blizzard's WoW copyrights, a judge ruled earlier this year. From the BBC:

The Glider software is the creation of MDY founder Michael Donnelly who is thought to have sold more than 100,000 copies of the $25 (£14) program.

 

It proved popular with many WoW players as it helped them automate the many repetitive tasks, such as killing monsters and scavenging loot, required to turn low level characters into more powerful ones...

 

The case is due to go to court again in January 2009 when the remaining issues in the legal conflict look likely to be settled.At issue will be whether MDY broke the US Digital Millennium Copyright Act and whether Mr Donnelly will have to pay the damages from his own pocket.
 

According to a report on GameCyte, a second defendant in Activision's campaign of secret lawsuits against alleged game pirates has spoken out, albeit briefly.

The news that Activision secretly sued a half-dozen private citizens for pirating its games was broken on GamePolitics last Friday.

As did a previous defendant, the unnamed pirate said that he too paid Activision much less than the huge amount listed in court documents. Apparently afraid to go into any sort of detail, he simply told GameCyte:

I wasn’t doing anything more than an average college student does with torrents or MP3s, so it’s surprising companies like this are wasting time on people with little money.

GP: Interesting comments. It would seem that Activision owes consumers an explanation of just what went on with these cases.

As GamePolitics has reported in the past, the Entertainment Software Association, which represents the interests of U.S. video game publishers, is keenly interested in seeing Canada adopt legislation similar to the Digital Millenium Copyright Act. The DMCA however, is controversial even here in the United States. Many Canadians are opposed to seeing a similar law adopted north of the border.

We note that the U.S. Embassy in Ottawa gave ESA VP Stevan Mitchell (left) air time on a recent podcast to explain the ESA's position on a couple of issues, including a condemnation of mod chips. These devices, which are currently legal in Canada as well as Australia and the U.K., are a long-standing target of the ESA.

INTERVIEWER: Hello. This is Ryan Stoner, an economic officer with the U.S. Embassy here in Ottawa. I am here today with Stevan Mitchell, Vice President of Intellectual Property Policy of the Entertainment Software Association, and Jason Kee, Director of Policy and Legal Affairs of the Entertainment Software Association of Canada. We are here together today to talk for a few minutes about the North American video game industry...

 

Stevan, can you tell me are there any particular aspects of U.S. intellectual property law that have been helpful in growing the entertainment software industry in the United States?

MR. MITCHELL: There are, Ryan, thank you... U.S. law contains strong prohibitions on the manufacture, sale, and trafficking in circumvention devices which, for our industry, are mostly known as MOD chips. These are devices that are installed in video game consoles to bypass the protections that our publishers and the hardware manufacturers build in that prevent the play of a pirated game. If you just simply download a game and burn it to a CD or DVD and insert it into one of your modern game consoles, it will not play. But, with these MOD chips installed, unfortunately, it does enable the play of pirated games, which makes them tremendously popular and they can sell for as much as $80-$100 U.S.

 

For that reason, they really do fuel the demand for pirated product and they are integral to piracy and, for that reason, they should be separately prohibited as well because oftentimes people who are involved in the manufacturer of these devices might not actually be involved in the making of the sale of pirated copies.

 

In the U.S., we do have civil prohibitions against the creation, trafficking of those devices, incredible provisions which have been used quite effectively in taking down large manufacturing and distribution operations...

INTERVIEWER: Well, thank you both very much for joining us today. I really enjoyed this conversation.

GP: While one supposes that it is part of the mission of the Embassy to help push U.S. trade policy goals, we would have liked to have seen the Embassy podcast include at least a passing mention of the opposing view. Maybe then it wouldn't have sounded so much like propaganda...

The governments of the United States, Canada, European Union, Japan and other countries are negotiating an anti-piracy agreement that could have a massive impact on digital media consumers.

And they're doing it in secret.

At issue is the Anti-Counterfeiting Trade Agreement (ACTA). As Ars Technica reports, public interest advocacy groups Electronic Frontier Foundation (EFF) and Public Knowledge have filed suit in federal court against the U.S. Trade Representative, a part of the executive branch. The suit is essentially a demand for information about ACTA and is based upon the Freedom of Information Act (FOIA).

Art Brodsky of Public Knowledge told Ars:

We believe they should conduct these negotiations with some transparency for what goes on, particularly when the talks are transparent to one side and not to the other (us). At a minimum, we should know how the US delegation is formulating its positions and have access to what they are doing.

Meanwhile, p2pnet reports criticism of ACTA by Canadian Internet Policy and Public Interest Clinic (CIPPIC) counsel David Fewer:

If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.

Hal Halpin, president of the Entertainment Consumers Association (ECA) has also expressed concern about ACTA:

Because ECA supports the balance that must exist between the rights of copyright owners and the right of copyrighted material consumers, we do not think it wise to include any portions of the Digital Millennium Copyright Act (DMCA) in the Anti-Counterfeiting Trade Agreement (ACTA) currently being discussed by the US Trade Representative (USTR) and the Department of Commerce. 

 

We are concerned that any DMCA language in ACTA may cause enormous, unforeseen negative implications in US law.  That is why ECA, together with the Consumer Electronics Association, the US Internet Industry Association, Intel, Yahoo, Verizon and others, sent a memo asking the USTR to carefully consider that any discussions of “Internet issues” in ACTA be carefully circumscribed, consistent with U.S. law, and not include any portions of the DMCA.

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

On Friday GamePolitics revealed that Activision has been quietly suing private citizens who are alleged to have pirated some of the mega-publisher's console titles.

According to a report posted on GameCyte last night, one of the defendants has spoken anonymously about the case and criticized Activision's tactics:

Asked the extent of his guilt, our source was unwilling to provide concrete details. “There was some [wrongdoing],” he admitted. But over the course of a brief telephone conversation, he remained adamant that the punishment did not suit the crime. Audibly shaken, our contact explained how he was scared into a costly settlement by attorneys who determined how much to sue based not on the actual material infringed, but on his purchase history, the equity on his home, and the number of cars in his driveway.

 

If he were to get an attorney, he was informed, he would have to pay even more...

 

Though the defendant believes that Activision shouldn’t be ruining lives over the matter, he told us that his in particular was “not totally” ruined, in part because the $100,000 figures touted in the lawsuit were inflated for shock value. Though he said the monetary loss was still substantial...

GP: The GameCyte report provides an important defendant's perspective to Activision's tactics. In regard to the anonymous pirate's comments about the amount of the settlements, the figures cited by GamePolitics came directly from court documents which we included with the original article. According to those documents, three cases were settled for $100,000, one for $25,000, one for $1,000, and one remains pending.

To be sure, there are lingering questions about the case:

• what exactly did the "Activision Six" do? Not file-sharing, an attorney for the publisher told GP, but beyond that we are left to guess. Cracking? Mod chipping? Disc reproduction?
• why did Activision keep the lawsuits secret? Isn't deterring other prospective pirates a major reason to bring such actions?
• what did Activision know of the tactics its lawyers employed? If GameCyte's source is correct in his assertions, he was persuaded not to exercise his right to counsel.
• why did Activision pursue this course, as opposed to a more coordinated, industry-wide strategy? Activision, of course, dropped its membership in publishers group ESA earlier this year.

An attorney who has represented Activision in six recent copyright lawsuits involving video games has told GamePolitics that the legal actions were not related to file sharing.

Karin Pagnanelli, a partner with Mitchell Silberberg & Knupp, wrote in an e-mail:

While we don’t comment on litigation involving clients, we can advise you that we have never filed any litigation against a file-sharer on behalf of Activision.
 

GP: It would appear, then, that the six defendants we reported on in our earlier story were sued for something more complex than mere file sharing.

The Entertainment Software Association (ESA), which represents the interests of U.S. video game publishers, will be among the organizations exhibiting at EXPOnential 08 on September 24th in Washington, D.C.

The event is being staged by the Copyright Alliance, a consortium of content-side groups which includes the ESA, the Recording Industry Association of America (RIAA), the Motion Picture Association of America and others.

EXPOnential is being held in the Senate Russell Caucus Room, and runs only from noon-2 pm.

 

Frustrated Spore users are slamming Will Wright's new release with poor, 1-star reviews on Amazon.com.

Of 642 user reviews posted as I write this, 586 are of the 1-star variety, hardly what one would expect for such a hotly-anticipated game. The negative reviews invariably mention the digital rights management (DRM) system built into Spore. This one, posted by Amazon user dwemer22, is fairly typical:

I was EXTREMELY excited about this game... Then I got on Amazon and noticed that a large number of the forums devoted to Spore were complaining of something called "SecuROM." I did a little digging and discovered that SecuROM is a piece of [DRM] software that is installed along with the game to prevent you from installing the game more than three times, in an attempt to combat piracy.

 

I was fine with that. I then read further through the forums and the Wikipedia article and discovered that SecuROM does a number of other things too, including sending mysterious packets of data back to the company from your computer (identity theft, perhaps?), prevents you from using certain programs, such as DVD and CD burners, makes it impossible for you to modify your root drive and, worst of all, will NOT uninstall without the help of a third party application. So I canceled my order...

 

I encourage EVERYBODY to not buy this game until the SecuROM Digital Rights Management is patched out or removed from later releases. On a final note, the SecuROM didn't do a thing to stop the pirates: the day after it was released in the UK, a pirated copy was to be found on the internet, SecuROM and price free.

 Via: gamesindustry.biz

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.

Game publishers lobbying group the Entertainment Software Association (ESA) today issued a press release high-fiving jail terms handed down to a pair of software pirates.

As GamePolitics reported recently, Kifah Maswadi of Florida received a 15-month sentence for peddling nearly $400,000 worth of Power Player handhelds. Each contained ROMs of dozens of old NES games.

The ESA is also pleased to see Kevin Fuchs of West Amherst, New York headng off to the Big House for 8 months of jail time followed by another 8 months of house arrest. Based on court records reviewed by GamePolitics, Fuchs wasn't in it for the money, but rather was part of the game warez scene in a big way.

We'll have more exclusive details on Fuchs' case in Friday's GP coverage.

ESA boss Michael Gallagher commented on the sentences handed down to Maswadi and Fuchs:

We commend the U.S. Department of Justice Criminal Division’s Computer Crime and Intellectual Property Section, the U.S. Attorney’s Offices for the Western District of North Carolina and the Eastern District of Virginia and the Federal Bureau of Investigation for their work in bringing these criminals to justice. These decisions illustrate, once again, that game piracy will not be tolerated and the extent at which these criminals will be prosecuted.  The ESA and its members will continue to support law enforcement’s efforts to protect the intellectual property of our industry.

 

CNet's Declan McCullough reports that Sen. Joe Biden (D-DE) has an anti-consumer track record when it comes to technology.

In the past the Democratic VP nominee-apparent has stood with the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) on copyright issues.

From the Cnet report:

[Biden] has spent most of his Senate career allied with the FBI and copyright holders... ranks toward the bottom of CNET's Technology Voters' Guide, [his] anti-privacy legislation was actually responsible for the creation of PGP [encryption]...

 

Biden became a staunch ally of Hollywood and the recording industry in their efforts to expand copyright law. He sponsored a bill in 2002 that would have make it a federal felony to trick certain types of devices into playing unauthorized music or executing unapproved computer programs...

 

A few months later, Biden signed a letter that urged the Justice Department "to prosecute individuals who intentionally allow mass copying from their computer over peer-to-peer networks." Critics of this approach said that the Motion Picture Association of America and the Recording Industry Association of America, and not taxpayers, should pay for their own lawsuits...

 

All of which meant that nobody in Washington was surprised when Biden was one of only four U.S. senators invited to a champagne reception in celebration of the Digital Millennium Copyright Act hosted by the MPAA's Jack Valenti, the RIAA, and the Business Software Alliance. (Photos are here.)

McCullough reports that Biden has "steadfastly refused" to answer Cnet's questions on his tech voting record.

GP: It's ironic that Biden has chosen to portray himself as an intellectual property rights champion. He has twice been outed for plagiarizing.

As GamePolitics reported earlier this week, the Entertainment Software Association (ESA), the lobbying group which represents the interests of U.S. video game publishers, announced that it has hired Kenneth Doroshow to serve as the organization's General Counsel.

Doroshow was formerly employed as Senior Vice President, Litigation and Legal Affairs for the Recording Industry Association of America (RIAA). During Doroshow's tenure the RIAA gained a reputation for employing heavy-handed legal tactics against individual file sharers.

New York attorney Ray Beckerman, who runs the Recording Industry vs The People blog, worries that gamers will now face the same type of oppressive enforcement strategies:

I guess we may have to rename this blog "Gaming Industry vs. The People" some day, as we have just learned that Kenneth Doroshow -- the RIAA executive who was supposed to debate the statutory damages issue with me back in March, but who chose to avoid that subject and instead recounted his opinion of the facts in Capitol v. Thomas, and who later inserted some paper he'd written into the transcript of the conference instead of allowing his talk to be reported -- has left the RIAA and joined the ESA (the "Entertainment Software Association").

 

If he accomplishes for game manufacturers what he accomplished for the recording industry, I would say the industry's prospects are bleak.
 

Beckerman also reports that Doroshow defended the $222,000 verdict levied against single mother Jammie Thomas (seen at left) for file sharing mp3s:

At Fordham Law School's annual IP Law Conference this year, [Beckerman] had a chance to square off with Kenneth Doroshow, a Senior Vice President of the RIAA, over the subject of copyright statutory damages. Doroshow thought the Jammie Thomas verdict of $222,000 was okay, he said, since Ms. Thomas might have distributed 10 million unauthorized copies. [Beckerman], on the other hand, who has previously derided the $9,250-per-song file verdict as 'one of the most irrational things [he has] ever seen in [his] life in the law', stated at the Fordham conference that the verdict had made the United States 'a laughingstock throughout the world.'

GP: For more the Jammie Thomas case, click here.

Speaking at GCDC in Leipzig, EA exec Peter Moore said he did not favor the heavy-handed approach to file sharing embraced by five U.K. game publishers this week.

As GamePolitics reported yesterday, Atari, Codemasters and three smaller firms said they would demand £300 from 25,000 people alleged to be file-sharers. Those who fail to pay will be sued in court. A U.K. woman found guilty of sharing a PC pinball game recently was ordered to pay publisher Topware Interactive £16,086.

gamesindustry.biz reports on Moore's comments:

GP: Kudos to Peter Moore for having the brass to take a stand against the consumer-hatin' tactics of Atari, Codemasters, Topware, Reality Pump and Techland.

Let's hope that Ken Doroshow is paying attention.

Yesterday GamePolitics covered the Justice Department's announcement that 24-year-old Kifah Maswadi had been sentenced to 15 months jail time and fined $415,000.

His offense?

Selling the Power Player system, a handheld which connects to a television and offers players access to 76 old - but still copyrighted - NES games.

While federal court documents indicate that it took an FBI undercover operation to bring Maswadi down, we note that the Super Joy Power Player III remains available for purchase - right out in the open - on Amazon.com. While the system is not sold by Amazon itself, seven Amazon "sellers" offer the item under the Amazon logo, including Texas-based Anythingonsale and Darmah76 from New York. Prices range from $11.99 to $40.00.

The Amazon product description page describes the system, along with some of the NES titles it plays:

Included: Main System Controller, Joystick Control Pad, Light Gun, AC Adapter & AV Cable. Play Games Like Super Mario Bros., Pac-Man, 1942, Stargate, Joust, Dig-Dug, Galaga, Contra, Hogan's Alley, Donkey Kong, Space Invaders & Popeye.

Although Amazon provides the sales platform for its registered sellers, it is unclear how much oversight takes place. The Amazon sellers program website offers the following blanket disclaimer regarding copyright violations:

Amazon is not involved in the actual transaction between Sellers and Buyers... As a Seller, you may list any item on the Site unless it is a prohibited item... Without limitation, you may not list any item or link or post any related material that (a) infringes any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights... or (c) is counterfeited, illegal, stolen, or fraudulent.
 

With other sellers still openly peddling the Power Player, why was the FBI so interested in Maswadi?

The Entertainment Software Association (ESA), which represents the interests of U.S. video game publishers, has hired a former executive of the Recording Industry Association of America (RIAA) as the organization's new general counsel.

According to an ESA press release, Kenneth Doroshow will take up his new position with the ESA in September. He succeeds Gail Markels as GC. As GamePolitics reported earlier this year, Markels, who had been with the ESA since its formation in 1994, did not have her contract renewed under new ESA CEO Michael Gallagher. Of Doroshow, Gallagher said:

The ESA continues to attract and recruit the brightest individuals. Ken has remarkable expertise in the protection of intellectual property and an excellent understanding of the increasingly connected, dynamic, and innovative entertainment environment we live in. The computer and video game industry will be well-protected with Ken’s guidance and I know he will help facilitate our growth to even greater heights.

Doroshow served as Senior Vice President, Litigation and Legal Affairs for the RIAA, the trade group that represents the U.S. recording industry. As the head of the RIAA’s litigation department, he led efforts to protect the copyrighted works of recording artists and managed cutting-edge anti-piracy lawsuits against companies like LimeWire, Usenet.com and AllofMP3.com.

The copyright community is fortunate to have strong advocates in Washington at a number of trade associations who are working on their behalf, and I am so pleased to see one of these seasoned professionals continue this work to the benefit of the entire creative community. Ken brings a wealth of intellectual property knowledge and experience to the Entertainment Software Association. He has worked in multiple facets of the copyright industries and will be a knowledgeable addition to the ESA. The Copyright Alliance looks forward to continuing to work with Ken in this new role.

The United States Attorney's Office has announed that a Florida man who dealt in pirated video games has been sentenced to 15 months in prison and fined $415,000.

According to a press release, Kifah Maswadi, 24, of Oakland, Florida had pleaded guilty in June to selling Power Player handheld units which were pre-loaded with more than 75 titles, mostly owned by Nintendo and Nintendo licensees. According to the feds, Maswadi earned more than $390,000 peddling the handhelds.

From the press release:

In addition to the 15 month prison term and restitution order, Maswadi was ordered to serve three years of supervised release and to perform 50 hours of community service, which includes educating the public on the perils of criminal copyright infringement.

That's what the press release says. But GamePolitics has probed court records and has many more details on the case:

According to Maswadi's indictment, he charged $23.99 for wired versions and $47.99 for wireless units. Both types connect to televisions.

The case began in 2006 when an FBI agent, acting undercover, placed an order with Maswadi for 100 Power Play units at an agreed-upon wholesale price of $10 each. The agent told Maswadi that he planned to sell them at a mall in Manassas, Virginia during the holiday shopping season. The agent eventually purchased 80 more units from Maswadi. In April, 2007, agents raided Maswadi's facilities in Florida. According to the indictment, he admitted to both selling the units and knowing that they infringed on game copyrights.

Court documents indicate that Nintendo reps found 18 unspecified first-party titles on the Power Play units as well as 58 unspecified titles owned by Nintendo licensees. More than 8,500 units were sold by Maswadi. The ESA, which represents game publishers, estimated that the retail value of the Power Play units at $50 each (although the indictment states that Maswadi sold them for $23.99 or $47.99). While admitting his guilt, Maswadi disputed the government's valuation of the loss caused to game publishers. His sentence was below the typical minimum range for the crimes charged.

A Wikipedia entry on the Power Player describes the system and lists a number of the games included (which appear to be old NES titles). The WikiScanner utility indicates that the ESA edited the "legal issues" section of the Wikipedia entry in April, 2007.

BoingBoing co-author Cory Doctorow gives a wide-ranging interview to the Chicago Tribune in which he touches on misperceptions about violent video games and the Virginia Tech massacre.

There’s this broad consensus that the Virginia Tech murders had something to do with violent video games. When you actually read the coroner's inquest report, video games are mentioned twice. The first is his mother saying he never wanted to play those video games. The second is his roommate saying, "We always thought he was weird because he never wanted to play video games." Yet it’s still a [popularly held] truism that violent video games must be responsible for Virginia Tech.

 

GP: As GamePolitics has reported in the past, the official commission investigating the Virginia Tech rampage found only one game that the killer played - Sonic The Hedgehog.

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.

 

Earlier this week Hasbro DMCA'd Scrabulous right off of Facebook.

But the popular Scrabble knockoff has returned with a new name - Wordscraper - and a slightly new look.

Cnet reports:

The game has effectively returned, but with a redesigned board, a few original play options, a different points tabulation system, and a new name...

 

The reason for Scrabulous' extreme makeover has its roots in some pretty gray legal matters: the real problem wasn't that it ripped off Scrabble, but that it ripped off Scrabble so blatantly. The colors of the board were the same, the list of rules led to a Wikipedia entry for Scrabble rules, and the two names were similar enough for Hasbro to cry foul...

 

So will this end the legal spat? Maybe... Many other games on Facebook bear strong-but-not-too-strong resemblances to board games like Battleship and Risk, but so far haven't encountered the same corporate scrutiny.

 

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.
 

 

August 1, 2007 is a date that 32 American families are not likely to forget.

On that Wednesday, more than 100 federal agents from the U.S. Immigration & Customs Enforcement (ICE) service, a division of the Department of Homeland Security, executed search warrants on 32 homes in 16 states. The ICE agents, who were seeking mod chips for console systems, were acting in concert with employees of the Entertainment Software Association (ESA), the trade association operated by US video game publishers.

Among the feds and the ESA, the raids were code-named "Operation Tangled Web." The mod chip investigation began in the ICE field office in Cleveland and the case continues to be coordinated by the U.S. Attorney's office there. The raids generated a fair amount of publicity as well as criticism from some quarters.

In the more than 11 months since Operation Tangled Web, GamePolitics has been attempting to find out what happened to the 32 mod chip suspects who were targeted in the raid. In that time the feds have made no announcements concerning arrests or indictments. Although we've been in contact with ICE several times we have received no information so far.

Our search of publicly-accessible federal court records has turned up only one of the 32 search warrants. That's an indication that the others are still sealed. And in the one we did manage to locate, the probable cause section is not available, so we don't know the basis for the investigation, what the agents uncovered, etc.

But an April 7th website post may yield some clues as to the investigation's status. The author reveals that he received a target letter from the Department of Justice in relation to the raid on his home. The DOJ letter, as described by the author, seems to encourage a quick guilty plea in lieu of a full-blown indictment and federal court trial :

A few days ago I received a letter from the Department of Justice. The letter stated that I was the target of an investigation by Homeland Security (Immigration and Customs Enforcement). In the letter, they inform me, that the potential violations are:

 

1. Title 17 US Code, Section 1201 (in connection with the sale and installation of modification chips)
2. Title 18 US Code, Section 545 (relating to the importation or smuggling of modification chips)
3. Title 18 US Code, Section 1956 (money laundering)

 

The letter goes on to say that if I want to resolve the matter before I am indicted, they suggest I obtain a defense counsel. It also states that defense counsel will be in a much better position to explain the advantages of a one count felony plea. The letter goes on to say that a plea would present significant sentencing concessions on the part of the government, over the sentence that I would get, should I let the indictment process (and subsequent multiple felony convictions) proceed.

GamePolitics has learned that at least one other individual has also received such a letter. It would seem likely that many, if not all, of the 32 suspected mod chippers will be offered quick plea bargains in this fashion. Perhaps ICE and the ESA are waiting for the upcoming anniversary to make an announcement.

On the fallsinc website, the author goes on to say:

I honestly do not believe that I have violated any law, and as such, I feel I should not be charged with any crime, nor should I have my property confiscated. The actions of big business lobbyists is very apparent in this action, and destroying the lives and livelihoods of 32 people just to satisfy “The Big Three” is not a move that I see in the best interests of the people.

 

At this point I need all the help I can get. If you are a video gaming or linux enthusiast, or just a user who enjoys the ability to get more out of legally purchased hardware, I need you at my side...

A copy of an Operation Tangled Web search warrant obtained by GamePolitics from publicly-accessible federal court records shows that 10 WiiKey modchips and one Xeno modchip were among items seized from an Ohio residence believed to be that of the author of the fallsinc website. 

Mod chips are illegal in the United States under the Digital Millennium Copyright Act (DMCA). They are not illegal, however, in some other countries, including Australia and Canada. Last month, a court in the UK dismissed a case against a British mod chipper, ruling that mod chips do not violate copyright under English law.

ESA CEO Michael Gallagher is quoted on Operation Tangled Web in the organization's 2007 year-end piracy report:

As an industry, we protect our intellectual property, encourage our government to crack down on those who break the law, and urge other governments to take similar action against video game pirates. Yearly worldwide game piracy costs total over $3 billion and it impinges on businesses and employees who create, develop, and distribute innovative products.

 

The ESA will work with federal law enforcement to ensure that those engaged in the illegal trade of circumvention devices are prosecuted to the fullest extent of the law.

 

The ESA's Canadian cousin, ESA Canada (ESAC), has issued a press release in support of a copyright reform bill introduced by the government of Prime Minister Stephen Harper (left).

Joan Ramsay, president of ESAC, praised the measure:

It's simple: Every time someone acquires an illegal copy of a video game, money, in turn, is not going to those Canadians who work so hard to develop and publish games. That's money that cannot be reinvested in creativity, job growth, and industry development. Copyright reform is essential to strengthen our competitiveness as an industry.

But not every Canadian is so pleased with the proposed new law. David Shipley of the Kings County Record writes:

I'm not opposed to making illegal to download copyrighted music, movies and video games... But I'm dead set against any law that would make it illegal to take music from legally-purchased CDs and put it on your own personal computer or MP3 player - that's fair use.

 

If the Tories include fair-use killing provisions in the updated copyright law, I hope it is defeated either in the House of Commons or by the courts.

A report in the Canadian Press labels the bill controversial:

The long-awaited changes [to the bill] are a hot political potato for [Industry Minister] Prentice, who must find a middle ground between business interests who want strict protection for intellectual property, including recordings and films, and Internet users accustomed to downloading material free.

 

There's speculation is that Mr. Prentice will try to come down the middle as much as possible, imposing a $500 fine on individuals caught downloading copyrighted files... The video game industry wants the law strengthened to allow Internet service providers to monitor high-speed downloads and shut down transfers containing unauthorized copies of games and other files.

University of Ottawa law professor Michael Geist is concerned that the legislation will be too restrictive - like the USA's:

I expect Minister Prentice to characterize the law as a Made in Canada solution, yet the reality will be that the key provisions are born in the USA. In doing so, the new law will have serious negative effects for Canadian consumers who could be locked out of their own purchased content, as well as for privacy, education, and research.

As GamePolitics has previously reported, here in the US, the ESA has been complaining for years about what it views as lax Canadian copyright protections. Yet, some officials north of the border are loathe to implement a Canadian version of the US's consumer-unfriendly Digital Millenium Copyright Act (DMCA).

While libraries and church groups are increasingly turning to video game events in order to attract teens, such get-togethers may have copyright implications, according to the School Library Journal.

Check out this Q&A posted yesteday:

Q. Lots of school and public libraries are hosting gaming tournaments, featuring popular video games like Guitar Hero and Madden Football. Since these games are intended for home use, isn’t that similar to purchasing a movie and showing it to a large audience?

 

A. Everyone seems to be asking that question! Video games come with licensing agreements, and before purchasers can play the games, they must agree to their terms. The video-game licenses that I’ve seen are strictly for “personal, noncommercial” uses—not public ones. So when libraries host gaming programs, they’re violating these agreements. Yet, lots of libraries are doing just that—and they’re getting away with it. And some are even charging an admission fee to attend these events. What gives?

 

My guess is that video-game distributors never anticipated their games would be used publicly. So when their lawyers drafted the licenses, they simply used language commonly found in software contracts...

 

Librarians can: (1) continue to offer video-game competitions and let the chips fall where they may; (2) contact the rights holders and ask if their licenses can be modified to accommodate your programs; or (3) email the rights holders and tell them you’re opting out of the portion of the contract that allows only home use—and unless they tell you not to, you’re planning to offer gaming tournaments.

GP: It's a fascinating question. Game publishers would look like big meanies if they tried to enforce this, of course. On the other hand, I believe that Internet cafes pay for some type of multi-user license for some online games.

UPDATE: A well-informed video game industry source dropped GP a line, offering some insight on this story:

For motion pictures, schools, libraries, and other institutions get licenses to exhibit the movies. It's pretty straightforward and no-one seems to have a major problem with it. See http://www.movlic.com/ and http://www.mplc.org/aboutMplc.php.  I'm not aware of similar services for video gaming. Probably should be.

 

Last week GamePolitics reported on a controversial copyright protection scheme which Electronic Arts was planning to institute on the upcoming PC version of Mass Effect as well as on Will Wright's long-awaited Spore.

The proposed SecuROM scheme would require periodic re-validations following initial activation. PC gamers were not happy, to say the least. Apparently that consumer discontent got some attention, at least at BioWare. In a message posted on a BioWare forum, community manager Jay Watamaniuk announced the good news:

There has been a lot of discussion in the past few days on how the security requirements for Mass Effect for PC will work. BioWare, a division of EA, wants to let fans know that Mass Effect will not require 10-day periodic re-authentication.

BioWare has always listened very closely to its fans and we made this decision to ensure we are delivering the best possible experience to them. To all the fans including our many friends in the armed services and internationally who expressed concerns that they would not be able re-authenticate as often as required, EA and BioWare want you to know that your feedback is important to us.

The solution being implemented for Mass Effect for the PC changes copy protection from being key disc based, which requires authentication every time you play the game by requiring a disc in the drive, to a one time online authentication. This system has an added benefit of allowing players to seamlessly play the game without needing the DVD in the drive.

UPDATE: Mike Doolittle of GameCritics wonders why PC gamers hate DRM.

Via: GameDaily

GP: Thanks to longtime GamePolitics reader Black Manta for the heads-up!

Hotly-anticipated PC titles Spore and Mass Effect will be among the first wave of PC games from EA to employ a controversial form of copy protection.

Techdirt reports that publisher Electronic Arts will use SecuROM protection, a scheme that has caused technical problems with some past titles. From the Techdirt story:

This new version is causing controversy due to an online verification system connected to its CD key. The system requires a connection to the internet during installation... After this the game will try to re-check the CD key every 5-10 days... If the game can't verify the key... it will continue to try for a further 10 days, after which it will stop working... The protection will also only allow the game to be installed three times.

So what's the beef? According to Techdirt:

A lot of gamers consider this intrusive and inconvenient, and that the publishers are effectively assuming their customers are pirates... Other concerns have been raised over users who don't play with machines permanently connected to the internet... or how the system will work in regards to resale.

These potential problems combined with SecuROM's past have made some call for a boycott of the titles and others to declare an intention to pirate the game out of spite.

Cnet's Daniel Terdiman weighs in on the brewing controversy:

Systems like this are never going to be winners for companies like EA. For every copy of one of its games that it successfully keeps from being illegally copied, it's going to lose a good customer who's beyond annoyed at the way the system works and the way they feel they're being treated.

To be sure, software companies feel they have to fight tooth and nail to avoid being robbed... [but] as the Sony rootkit scandal and other DRM PR nightmares have shown, users do not want to be controlled in this way. And they vote with their wallets.

The Raw Story has a lengthy expose on Tony Krvaric, head of San Diego's GOP committee.

According to the report, the 37-year-old Krvaric, a naturalized US citizen who was born in Sweden, was the co-founder of Fairlight, a  warez group formed in 1987. From Raw Story:

Fairlight... evolved into an international video and software piracy group that law enforcement authorities say is among the world’s largest such crime rings.

After co-founding Fairlight in Sweden, Krvaric established U.S. operations for the organization, including an arm headquartered in Southern California—a major center for the computer and video game industry.

Krvaric, known in the cracking community as "Strider," got his start pirating games for the Commodore 64, but apparently left Fairlight in 1992. In 2004, the ring was taken down following an international investigation which resulted in the arrest of 120 people. Krvaric was not among them, although another group member alleged that he remained involved.

Although Krvaric would not respond to The Raw Story's request for comment, he discounted the allegations in an e-mail to fellow Repubicans:

Apparently there’s a hit piece floating around on me, “exposing” my wild high school, teenage years where I was in a computer club where we swapped Commodore 64 games (similar to how kids swap mp3 music files these days). This was in the 80’s, on a computer that’s long since defunct!

...I don’t know who is spreading this, but just wanted to let you know what’s going on out there. Likely it’s someone who wants us to take our eye off the ball in 2008, be it the democrats, labor or someone else. Either way, we’re not going to let them get away with it.

Via: Laws of Play

In a recent column for GameDaily, Hal Halpin, president of the Entertainment Consumers Association (ECA) fretted about End User License Agreements (EULAs), that mysterious legalese to which game software users are required to agree before enjoying the product for which they've just plunked down $39.99 or more.

Attorney and Law of the Game blogger Mark Methenitis picks up the EULA theme in his latest column for Joystiq:

Copyright law and its application to new media has lagged well behind the curve of practicality... technology has now pushed the envelope to the point that it is generally impractical, if not nearly impossible to impose the centuries old concept of 'copyright' that originated with the printing press...

That's not to say the powers that be haven't tried to adapt copyright to new media. The Digital Millenium Copyright Act (DMCA) was the last train wreck of an attempt to do just that... the problem with a lot of legislation is that the law is primarily drafted by legislators who, to be quite honest, know next to nothing about what they're trying to legislate, while being prodded by highly paid lobbyists who, generally, represent the side with the most money...

With regard to games, Hal [Halpin] has the right first step in mind: there needs to be some sort of large scale discussion about the issue amongst the industry people...

This is an opportunity for the game industry to be proactive and take the lead in dealing with the EULA. Clearly, the license cannot go away altogether, but it can certainly receive a facelift that would be beneficial to both the producer and the consumer.

Full Disclosure Dept: The Entertainment Consumers Association is the parent company of GamePolitics.