So much for remaining neutral—a pair of Swiss resolutions dealing with violent videogames have been passed by the country’s National Council.

As detailed last month, the first resolution, proposed by Christian Democratic Party member and National Councillor Norbert Hochreutener, would make it illegal to sell PEGI 16 or 18-rated games to minors, while a second resolution, backed by Social Democrat Evi Allemann, called for a complete ban of violent and adult-themed videogames.

In what could be chalked up as another win for Nintendo Down Under, Australian Customs and Border Protection Service officials have seized an incoming shipment of R4 cartridges, which can be used with Nintendo’s DS to play pirated games.

The seizure is detailed in an IT Wire story from the future, which notes that a question of the legality over selling the R4 carts in Australia now exists following Nintendo’s victory last month over an Australian website that sold the devices.

As reported by Adelaide Now, the discussion over whether to add an R18+ ratings category for videogames in Australia has been scheduled for an undisclosed date in April.

The timing of the discussion means that it will take place after state elections in South Australia and Tasmania on March 20. South Australia is, of course, home base for anti-game Attorney General Michael Atkinson, often fingered as the lone holdout among his fellow AGs when it comes to backing an R18+ rating category.

In related R18+ news, the Australian website GoldCoast penned an editorial backing the addition of an adult videogame rating category, stating that it should be up to parents to decide what their children view.

The editorial offered:

…banning a game does not in any real terms restrict its availability -- long gone are the days of being able to keep something out of the public's hands simply by keeping it off the shelves.

Banned games can be downloaded over the internet and shared -- circumventing the classification system. What is concerning is that if children are downloading these games, parents may not be aware of the content.

An R18+ category would at least allow them to be aware of the content of a game and its rating, and make an informed decision on whether their children should be exposed to it or not.

We do, after all, give parents that responsibility when it comes to DVDs and books.

Lastly, Gamers4Croydon posted a recent image that shows off the unbelievably fortuitous placement of one of their ads on the cover of the Adelaide Independent Weekly.

Thanks HarmlessBunny!

Chalk up another win for Nintendo Down Under.

An Australian Federal Court has ordered RSJ IT Solutions, operators of the website GadgetGear, to stop selling R4 mod chips and to pay Nintendo $520,000 AU in damages reports Australia’s ITNews. The chips are meant to be used with Nintendo’s DS handheld and allow users to transfer files or games to the machine, bypassing protection built into the DS.

Two affiliated respondents, Patrick Li and James Li, were also charged in the original claim by Nintendo and were ordered to pay the Japanese game maker $100,000 AU. The pair was also ordered to file an affidavit in which they will name suppliers that they purchased R4 chips from.

This ruling follows Nintendo’s settlement with an Australian man earlier this month over a leaked copy of Super Mario Bros.Wii. As a result of the settlement, James Burt will reportedly pay Nintendo $1.5 million AU in addition to paying for Nintendo’s court fess in the case.


Thanks Ryan!

The topic of violent and adult-rated games has once again bubbled up in Switzerland.

MCVUK and TechEye both report on a resolution that passed unanimously in the Commission for Legal Affairs and would make it illegal to sell games rated PEGI 16 or 18 to under-age minors. Swiss parliament will now have a chance to vote on the measure, which was originally introduced by Christian Democratic Party member and National Councillor Norbert Hochreutener in 2007.

TechEye writes that Hochreutener believes the law is needed to “enforce ratings and make sure kids cannot play what are called 'killer games' in the German-speaking part of Europe.”

A second, and more troubling motion, would call for a complete ban of violent and adult-themed videogames within the country. This motion passed too, though with a closer vote of nine to three, and will also head off to parliament for vote. One of the backers of this proposal is Social Democrat Evi Allemann (pictured).

Allemann’s website offers some of her thoughts (translated) on the banning of such “killer” games:

Such games do not make each one a killer, but they increase the willingness of those who are already vulnerable. A blanket ban on such games therefore seems appropriate and proportionate, especially since they do not have any worth protecting cultural and social content and there are thousands of other exciting games that work without such extreme violence.

One way to implement the motion lies in the operationalization of Article 135 of the Criminal Code. This prohibits the display, manufacture, importation, storage, promotion, etc. of sound and visual recordings of cruel violence.

Another country to keep an eye on in the future.

Edit: Fixed the link for the translated section of Alleman's website.

Australian Gamer has an interview up with an unnamed member of Australia’s Classification Board who provides some insight into both the rating and appeal processes.

The person queried would only identify himself as a Senior Classifier for the Board.

He/she was asked to provide a little more detail into how the Board actually reviews content:

I will clarify that we don't play through all games, I don't think we have the resources to do that. However the Act is set up in a way that allows the industry to provide an assessment under strict circumstances which is then provided to us. That involves a detailed report on the content of the game, in majority of cases we also receive gameplay footage and we always receive a copy of the game itself.

How does the Board measure or quantify violence?

It's a hard question to answer as it is a moving target. We operate in a method by which we call an impact test. This test is somewhat prescribed but on some level it comes back to the individual impact on the person playing that game. Putting that aside, I can give you the standard answer which is any violence that exceeds "Strong".

 

Overall in terms of the guidelines violence that exceeds a "Strong" rating is a scene that contains the use of greater detail that can include slow motion, close-ups, extenuation techniques (such as lighting, perspective and resolution), uses special effects in colour, tone, images and sound. A key factor in some of the controversial decisions you see is the use of prolonged violence.

On the appeal process and how appeals are not handled by the Board itself:

An appeal is actually an application of review to a different statutory body and they independently classify that game. The difference between us and them is that they effectively sit above us if you consider it a hierarchy. The appeal is to them and the things that they consider are the Classification Board's initial report as well as inviting submissions from interested parties. To my understanding it has usually been a representative of the applicants that comes in to argue the point of why the Classification Board's decision was wrong.

 

We are effectively different statutory bodies, we do not meet in any way and to be honest I have worked here 6 and half years and have never met a single member of the other statutory body.

Many more questions answered over at Australian Gamer.

Xbox Live chatter between a Canadian and a Texan turned serious when the latter gamer disclosed plans to shoot up his high school.

The Texas gamer began by detailing his troubles in school to a Port Alberni, British Columbia Xbox Live opponent, which was normal enough, but eventually the Texas gamer spilled details on plans for attacking his school, including rattling off the names of fellow students he was going to target.

The talk alarmed the B.C. gamer enough that he contacted local Royal Canadian Mounted Police personnel, who started a cyber investigation. The RCMP contacted Microsoft and were eventually directed to a teenage suspect in San Antonio, Texas, who was arrested and is facing untold charges.
 
Port Alberni RCMP Staff Sgt. Lee Omilusik commented on the case:

This incident demonstrates the power of the electronic world and how different enforcement agencies can quickly work together to protect the citizens they serve, regardless of obstacles such as international barriers

The arrested boy was 16-years old and a student at John Marshall High School. The school issued a short message (PDF) to parents indicating that the boy would be removed from school “indefinitely.”

Local ABC station KSAT indicated that the gamers were playing Call of Duty: Modern Warfare 2.

Thanks Andrew and whoever posted about it in the Shoutbox!

Following a prolonged battle and a series of false-starts, China’s General Administration of Press and Publication (GAPP) has finally given the official go-ahead for NetEase to operate the world of Warcraft expansion The Burning Crusade.

In granting the license needed to operate the game, GAPP said that NetEase had “taken necessary corrective measures." The decision came down on Friday wrote Digital East Asia. GAPP had previously suspended NetEase’s permit over what it termed “gross violations” of regulations.

In related news, China Tech News offers word of a new Chinese initiative spearheaded by game operators that will educate parents on how to best oversee their children’s online game activities.  Game operators Wanmei.com, Tencent, Shanda, Netease, Changyou and Giant Interactive are particpiants in the program, which will provide a variety of support materials for parents and also provide the means for parents to suspend or cancel their children’s accounts.

Digital East Asia also shed light on a series of YouTube videos (pictured) that lampoon the World of Warcraft Chinese debacle and use the situation to provide commentary on the rigid state of Chinese censors. The Wall Street Journal said about the video, “…its subtext is a broad, biting allegory of the fight against government Internet controls, peppered with allusions to a list of real-world conflicts in China over the past year.”

Part 1, with English subtitles, can be found here.

Australian TV news show A Current Affair recently covered the story of the man slapped with a $1.5 million dollar AU fine for pirating Super Mario Bros.Wii.

A reticent James Burt (pictured) himself appears in the piece, saying that the fine will have a “devastating affect” on his life. The 24-year old added, “It’s so easy to get carried away and take part in things you may not agree with.”

Burt admitted that what he did was “very stupid,” and something he would have to “work through for the rest of his life.” Interestingly, a broken street date may have helped contribute to Burt’s eventually piracy, as he stated that he found the game in a retail store over a week before it was to be officially released. Recounting to online friends that he already possessed the game led them to demand proof, which in turn led Burt to make the fateful decision to upload the game to the Internet.

The reporter engages a bit of hyperbole in the report, saying that the decision to upload the game by Burt led to “billions of gamers around the globe” receiving the game free of charge. Immediately following the reporter’s use of “billions,” a Nintendo spokesperson appears and pegs the number of downloads at around 50,000, which still equals a significant loss of revenue for the publisher.

The report uses a $1.6 million dollar figure as what Burt owes, which combines the $1.5 million dollar fine and $100,000 in court costs he must reimburse to Nintendo.

Burt had a few words of wisdom for others in the gaming community, saying “Don’t do what I did.”


Thanks Michael!

An Australian man charged with pirating Nintendo’s Super Mario Bros.Wii has reached a settlement and will be fined $1.5 million AU (approximately $1.31 million U.S.).

GameSpot gives the accused pirate’s name as James Burt of Queensland. What had to be particularly galling to Nintendo about this case was that the game in question was released Down Under in advance of other territories, a departure from general release timing that usually sees later releases for new games in Australia.

Subsequently a Nintendo spokesperson indicated that Australia could see a delay in releases, saying, “Unfortunately, due to the actions of this individual, future release dates may be affected for Australia, which is disappointing for us.”

In an official statement on GoNintendo, Nintendo said that the game was first made available for illegal download on November 6, 2009, a week before it was released in Australia.

Nintendo was able to nab Burt by using “sophisticated technological forensics to identify the individual responsible for illegally copying the file and making it available for further distribution.” They received a court order to search Burt’s home on November 23, 2009, which led to “the seizure of property from those premises in order to gain further evidence against the individual.”

In viewing court documents from the case, GameSpot  additionally noticed that Nintendo was poking around for any information Burt may have had on the Wii hack website Yafaze.com, which now appears shuttered, offering a message that “the site and all of it’s (sic) content has been removed out of respect for Nintendo.” The message added, “Yafaze will never return.”


Thanks Andrew and iheartassassinmaids!

Early in December, word came out of Brazil that the country was considering legislation to make it a crime to create, import or distribute videogames “that affect the customs, traditions of the people, their worship, creeds, religions and symbols.”

The bill was sponsored by Brazilian Senator Valdir Raupp, who, as Brazilian website UOL reports (translated), is not in the habit of playing videogames himself and could not name any particular game that might fall under the proposed legislation.

Raupp did, however, diss Brazil’s rating system for games—the Department of Justice, Ratings, Titles and Qualification (DJCTQ)—saying he was “certain” that people were not following its guidelines. David Ulysses, Director of the Department of Justice, would not address Raupp’s comments directly, but believes that it is not necessary to censor games in Brazil, saying that the current system supports freedom of expression and consumer choice.

Marcos Khalil owns UZ Games, a retail videogame establishment in Brazil with 22 locations. He stated that such a ban could further impact what is already a “small domestic industry” and could lead to him closing stores and laying off employees, not to mention increasing illegal sales or piracy of games.

Level-Up! Managing Director Julio Vietez, whose company serves up digital copies of games via the Internet, was concerned over the term “offensive” used in the bill, noting that what is offensive to one person or group might not necessarily offend a different person or group.

Glauco Bueno, Director of Marketing and Strategy of Latin America for distributor Synergex, also expressed dismay should the bill become law, “It would be a setback to the advancement of the entertainment media in Brazil, with serious effects on the chain…”

Thanks Maurício!

For those out there looking to create their own massively multiplayer online game, a Pillsbury Law Firm lawyer has some recommendations for you.

Pillsbury’s Jim Gatto, who specializes in intellectual property for the firm, passed along the pointers via a podcast and accompanying article on the Chroma Coders website. Pillsbury claims to represent “many leading companies in the space” [virtual worlds/online games], including Activision.

To begin, Gatto recommends having a “comprehensive IP strategy to protect what you’re doing.” He also recommends that developers keep abreast of evolving legislation, which some developers neglect until it’s too late. Of course for those that require assistance in this matter, Pillsbury can offer their expertise in order to minimize surprises.

Gatto on other surprises that might come up for fledgling developers:

…for example, terms of service, a lot of people, we’ve seen, will cut and paste from someone else’s site and say, if it’s good enough for them it’s good enough for us.

The problem with that is that each business model is different. Second life terms of service doesn’t work for some other companies, and even then the first time that Linden went to enforce their terms of service in a lawsuit with Mark Bragg, that you may be familiar, one of the provisions was struck down. Even they’re not infallible, right?

He continued:

One of the other things that extends to virtual goods involved in a game or virtual world, there’s a lot of issues there in connection with virtual currency and, for example, taxation. China imposed a 20 percent tax on games from virtual goods. The U. S. is looking at imposing something similar.
 

Dealing with the Child Online Protection Act (COPA) might be another aspect that new developers pay little or no heed to:

One of the things – in fact, there’s a company we work with called Privo. I don’t know if you’re familiar with them, but they’re actually one of the few COPA safe harbor things. They’ll come in and do some of the compliance policies, but the companies really care about this, making sure that you have an effective strategy and policy and that you’re actually following it is going to put you in a good position.

With the safe harbor provision under the FCC, even if you intend to comply you take steps. If you’ve got the safe harbor even if you’re not in compliance. Typically, you’re going to get an opportunity to fix it, and you’re not going to put yourself in a situation of being in the headline of the company who is next to not comply with COPA.

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.

A group of online game developers have penned a letter to The Federal Communications Commission (FCC) outlining some of the group’s areas of concern as related to Net Neutrality.

The letter (PDF) consists of notes taken from a meeting between four government officials and Dan Scherlis of Scherlis.com (formerly of Turbine), John Radoff of GamerDNA, Christopher Dyl of Turbine, Kent Quirk of Linden Labs, Matthew Bellows of Vivox and Darius Kazemi of the Independent Game Developers Association (IGDA).

Quirk and Dyl emphasized that a focus on latency, not bandwidth, was one of their main concerns, with Dyl also mentioning that interconnections between ISPs can still be a “huge problem” for game developers, though it was generally agreed that most developers have designed their games to operate adequately on the existing network.

Radoff worried that if the Internet was balkanized, or fragmented, developers would have to waste time negotiating separately with each ISP, which would eat away at development resources. Quirk agreed with this point, using mobile applications as an example:

Mr. Quirk asserted that this point is illustrated by the fact that it is relatively easy to develop a mobile application for one phone, like the iPhone, but extremely difficult to develop an application for all phones and mobile networks.

Arguing for more transparency from ISPs, Dyl noted that Turbine was routinely blocked by ISPs that detected high UDP traffic from the game developer. The ISPs “apparently decided to block the traffic and wait to see who complained. Mr. Scherlis noted that not all companies have the resources to identify blocks or to persuade ISPs to stop blocking.”

Dyl also reported on a problem with Chinese online games—the two major ISPs have poor interoperability, leading to problems when a gamer on one ISP tries to play on a server hosted on the other ISP.

Scherlis indicated that a pay-for-priority setup with ISPs would be “acceptable,” but only if “all developers could purchase prioritization on equal terms.” Bellows worried that such a setup would “restrict competition for development of QoS [Quality of Service]-dependent applications to well-financed companies or those already dominant in the sector.”


|Via ArsTechnica|

|Image from Wikipedia|

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

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

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

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

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

On the NFL as a single entity:

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

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

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

Additionally:

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

A Florida man has been arrested because he didn't play fair in World of Warcraft.

According to an Associated Press report out of Clearwater, 23-year-old Christopher H. Bouffard was arrested on Monday after he collected $760 from at least two people in exchange for World of Warcraft characters that he never delivered. He was arrested on charges of scheming to defraud and two counts of grand theft.

The incidents occurred in 2008, when Bouffard allegedly solicited the money in exchange for the characters, but cut off all contact with the individuals once he received the money.

He was being held on $20,000 bail. No word on what Blizzard plans to do with his account, or whether he even had one to begin with.

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

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

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

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

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

ESA President Michael Gallagher was obviously pleased:

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

The class-action lawsuit by college quarterback Sam Keller against the NCAA and EA Sports was front and center over the weekend in an eight-minute segment on ESPN's Outside the Lines.

The suit is contesting the use of college athlete likenesses in the EA Sports' NCAA Football franchise without the permission of the athletes. Even though the game does not use the players' names, according to NCAA rules, the game does go to great lengths to match the look and actions of a particular player to the number they wear. However, the names can be downloaded and applied to the game using EA's Locker Room function.

The show chats with Keller and his attorneys, and talks to game journalist Aaron Boulding, who seems to have been added to represent the views of EA Sports and the NCAA. Both entities declined to be interviewed for the piece, but the show did delve into the court documents to present the legal stance of the parties.

The show also took a look at fan reaction, which blasted Keller and his mediocre stint as QB at Nebraska.

While the show didn't break any new ground on the lawsuit, it did a good job of rounding up the available facts to get anyone up to speed who hasn't been aware of it.

Should the implementation of legislation be handled similarly to the release of software or a website?

An article in the latest issue of Wired suggests that new laws be rolled out in beta form in order to limit the “cost of failure” while granting an ability for fine tuning before a final release.

Aza Raskin, the article’s author and the head of user experience at Mozilla Labs, explained the impetus behind his innovative idea:

The start-up world is ruled by the mantra "Release early, release often". We embrace the uncertainty of the unpredictable wants, whims, and whimsy of the people that ultimately determine the success of our products. No amount of market research or focus groups give you the insight gained by simply releasing your product.

He continued:

In both software and hardware, we allow time for iteration because we know we will get it wrong. We should give our government the leeway to do the same for laws and social policy.

Raskin then proclaims World of Warcraft creator Blizzard as the best practitioners of “highly-iterated, fully-tested public policy,” and added, perhaps tongue in cheek, that if they (Blizzard) ran for office, they would get his vote.

Brazilian Senator Valdir Raupp (pictured left) has authored a bill that would make it a crime to make, import or distribute “offensive” videogames in the South American country.

A story on the Brazilian website UOL (translation here) reports that the Education Commission of the Senate has approved the measure, which will now go to vote in the Committee on Constitution and Justice.

Raupp’s goal is to, “curb the manufacture, distribution, importation, distribution, trading and custody, storage, the video games that affect the customs, traditions of the people, their worship, creeds, religions and symbols.”

He continued, “Therefore, we seek to protect the principle of equality - for many the greatest of constitutional principles - with the characterization of such discriminatory conduct as a crime by making provision in the law.”

The bill seeks a penalty of one to three years imprisonment for those committing an offense.

The story notes that Brazil has banned games such as Carmageddon, Postal and Grand Theft Auto in the past.

Thanks Maurício

A Syracuse attorney is taking on the case of a four-year-old boy who had a seizure while watching his brother play a video game on his PS2.

The attorney, Michael P. Kenny, has taken Sony and Vivendi to court over the video game Spyro: Enter the Dragonfly because of certain "seizure triggers" in the game, which was released in 2002. The case was filed in 2007, but is just entering the discovery phase.

Kenny, who has set up a site with information about video game induced seizures, is also soliciting more people to come forward in the apparent hopes of setting up a class action suit.

According to the news release from Kenny:

"The video game companies know there is a problem, and they choose not to fix it. The video games seizures have a cause, and the manufacturers choose not to correct it." Kenny asserts that the video game manufacturers knowingly place their financial gain ahead of people's health. He added, "Without federal legislation to compel the video game companies to take action, we have no choice but to litigate on behalf of the victims."

The release also points out that using a Cambridge professor's device known as the Harding Flash and Pattern Analyzer could help prevent photosensitive epileptic seizures:

The Harding Flash and Pattern Analyzer has used by television broadcasters in the UK to identify seizure-inducing light movement, and Kenny uses the device to analyze video games. He noted that the federal government limits the number of flashes per second from the strobe warning lights in its facilities. "The government is willing to take basic steps to protect people in federal buildings," Kenny said, but "video game manufacturers have not taken the same steps to protect our children at play."

Legitimate concern or another lawyer captilizing on the ills of video games?

Joystiq’s latest Law of the Game column breaks down the theories of a research paper released last week by a Michigan State University College of Law Professor.

The paper’s author, Renee Newman Knake, argued that videogame legislation advocates could take cues from the environmental movement and employ “ecogenerism” in their bid to improve the chances of such legislation being passed in the future.

Mark Methenitis, the author of the Joystiq piece, begins by noting that Knake’s premise “starts from the basic flawed premise that we have ‘proven’ a ‘causal’ link between media violence, specifically video game violence, and real world violence.”

Methenitis then picks apart Knake’s focus on “ecogenerism,” or controlling “pollutants” (videogames in this case) in a child’s environment. He offers multiple responses to Knake, including the following analogy:

A multi-vitamin for children, in appropriate doses, has many positive and no negative side effects, except in rare cases. However, an overdoes of vitamins can be fatal. Parents who bring home vitamins don't put them out in a dish on the floor and let the kids go nuts with them; they keep them in a childproof container and give them one a day.

Methenitis concludes that the views of this research paper are “at best, a rose by any other name,” offering:

The courts have frequently said that the activity of the bedroom is beyond the scope of government control, and I, for one, think the activity of the living room should be as well.

A research article penned by a Michigan State University College of Law Professor examines video game related legislation and asks if prompts can be gleaned from the environmental law and ethics movement in order for such legislation to have a better chance of being passed in the future.

From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations was written by Renee Newman Knake.

The heart of the matter, writes Knake, is “the disconnect between law and social science,” or the reluctance of U.S. courts to recognize (what she terms) the consequences mass media has on children.

Knake writes:

Environmentalists successfully established a regulatory framework for evaluating empirical science in the face of uncertainty and arguments questions about the validity of research. The movement to protect children from media harm can do so as well.

Knake’s paper relies heavily on the research of Barbara Bennett Woodhouse, who coined the term “ecogenerism,” or someone who thinks about child welfare as well as a wide range of other problems confronting children and society.

Thus, Woodhouse concludes that research “clearly establish[ing] but fall[ing] short of conclusively proving a causal connection between harm to children and exposure to media violence” could be relied upon by legislators in adopting regulations so long as it is rooted in science, not popular opinion.

She concludes:

The law’s continued refusal to recognize mass media and marketing harm to children has left researchers and regulators in a strange position, waiting until science might sufficiently advance to satisfy a court’s causality requirements and in the meantime engaging in a seemingly fruitless exercise of tweaking statutory language in an effort to survive First Amendment strict scrutiny.

The full paper can be downloaded here.

An article on Law of the Level takes a look at whether using real brands on virtual goods in online worlds—by someone other than the trademark owner—could be interpreted as trademark infringement.

A publication of the law firm Sheppard Mullin, the blog was written by Thayer Preece, a lawyer in the firm’s Video Game Industry Group. She begins to answer the question by noting that several real world brands have taken exception to counterfeit virtual goods sold online, especially when the money from these sales line someone else’s pocket.

One way to deal with infringements is to sue. Taser International, Inc. filed a lawsuit against Second Life creator Linden Labs (along with others) earlier this year, which alleged that fake Taser-branded products were being sold in Second Life and infringing on the company’s sales. Taser sought $75,000 in damages but eventually dropped the suit.

Another way to fight the knock-offs is to join the virtual world and pump out your own branded goods. Law of the Level writes that this is the tact Herman Miller took. In response to a number of fake Herman Miller goods offered on Second Life, the designer launched its own official presence in the world and even replaced “fake” Herman Miller products with “real” ones.

What would happen if a virtual world trademark infringement lawsuit made it to court? Breece writes:

At present, there is no legal precedent on this subject. But as the popularity of virtual worlds continues to grow, it seems likely that it will only be a matter of time before the courts make a decision on the issue. In the meantime, it will be up to each brand holder individually to decide how to respond to the emergence of this growing marketplace and its potential opportunities and pitfalls.

Videogame legal watchdogs were anxiously refreshing the Supreme Court website this morning for the latest word on the Entertainment Merchants Association (EMA) v. Schwarzenegger appeal.

Unfortunately, however, the case was not listed at all in the 91-page issued Orders (link to PDF). As noted previously, SCOTUS could have denied the appeal without comment last week and then officially noted the result in today’s dispatch., but it appears that the petition for certiorari has neither been granted or denied as of yet.
 

Using his Edge-Online blog, Alex Walker has penned an open letter to South Australian Attorney General Michael Atkinson about the lack of an R18+ rating classification in that country.

Walker notes that “the Classification Board has refused classification to twice as many games as the British Board of Film Classification has in the 23 years since it first rated a video game.” He calls out Atkinson on some of his recent statements and uses comments from David Cook, Director of the British Board of Film Classification to aid his case.

Walker finishes with a challenge:

I’m not sure how, given the weight of evidence, you can stand by the inconsistencies in the Australian approach to classifying film and video games. I call on you to stand aside, and allow for a debate on the classification system, a debate which you have so far stifled.

Walker adds that he did email a copy of the letter to Atkinson, but he does not expect a response.

Electronic Arts continues to find itself a lighting rod for lawsuits, with at least three additional actions against the game maker documented by GameSpot.

Former University of North Carolina basketball player Byron Bishop has filed a suit, one seeking class-action status, against the NCAA, its licensing division and EA, charging that the defendants “conspired to violate the NCAA's own by-laws prohibiting the for-profit use of amateur athletes by including likenesses--but not names--of current athletes in its NCAA-branded games.” Similar lawsuits have been piling up against EA.

NFL superfan John Big Dawg Thompson, a member of the Cleveland Browns Dawg Pound, charges EA with the “unauthorized and unlicensed use of the images, likenesses, characters and persona of plaintiff’s Big Dawg character” in Madden NFL 2009. Thompson, who has appeared as Big Dawg “for nearly 25 years,” seeks a “reasonable sum” in excess of $25,000.

Fight Night Round 4 is at the center of the next lawsuit, with Fighters Incorporated, LLC suing EA for the “unlawful” use of three of Fighters Inc.’s boxers’ images in that title. Fighters Inc. further claims that EA induced several fighters to breach their contracts with Fighters Inc., then “dared Fighters Inc. to sue EA, suggesting EA was too big and powerful to challenge in court.” Fighters Inc. seeks damages of around $25.0 million, plus court costs.

Downloads:
Complaint for John Big Dawg Thompson vs Electronic Arts Inc. (PDF)
Complaint for Fighters Incorporated vs Electronic Arts Inc. (PDF)

Notorious bank robber John Dillinger was gunned down by FBI agents in 1934, but his fame lives on. And that is causing some problems for game publisher Electronic Arts.

EA has filed suit in federal court in San Francisco, requesting that a U.S. District Court judge grant them the okay to use the name "Dillinger" in association with a pair of virtual machine guns depicted in its Godfather games. The "Dillinger Tommy Gun" appears in the original Godfather game, while the "Modern Dillinger" is featured in The Godfather II.

The publisher has taken the unusual step because the owner of Indiana-based Dillinger LLC, reportedly the grandson of the famous gangster's half-sister, lays claim to all things Dillinger, including his name and likeness.

The lawsuit, filed by attorneys for the publisher last week, claims that Dillinger LLC tried to commit a bit of strongarm robbery on EA recently:

On July 22, 2009 Dillinger LLC, through its litigation counsel, contacted EA to accuse it of violating Dillinger's right of publicity and infringing upon its trademarks. Dillinger threatened EA with litigation unless it agreed to pay Dillinger millions of dollars for the game elements...

 

Following Dillinger's recent conduct, EA is faced with the choice of either abandoning its rights to develop, publish and sell the works at issue or risk liability for damages.

The EA case is not the first time Dillinger LLC has gotten legalistic over the use of the Dillinger monicker. The Arizona Star reports that in 2007 Dillinger LLC claimed its permission was needed for local hotel to run a "Dillinger Days" event. As the newspaper explains, an Indiana law has apparently emboldened Dillinger LLC:

The hotel is being sued under an Indiana law that protects a person's personality for 100 years after his or her death. It works like a trademark, because a person who wants to profit from the use of the personality must obtain written permission. Arizona has no such law, and it's not clear whether the Indiana law applies here.

DOCUMENT DUMP: Grab a copy of EA's lawsuit here...

Gamers who purchased a copy of Madden from August, 2005 onward may be eligible to join a class action suit against publisher Electronic Arts.

Pecover vs. EA (all GP coverage here) is currently proceeding in the U.S. District Court for the Northern District of California. The suit alleges that EA's exclusive licensing deal with the NFL and NFL Players Association created a monopoly situation which EA exploited by substantially raising the retail price for a copy of Madden.

In a story broken recently by GamePolitics, an expert witness hired by the plaintiffs theorized that EA's exclusive NFL/NFLPA license may have cost consumers nearly a billion dollars. Lawyers for EA have disputed that claim in court documents.

In a press release issued on Friday, Hagens Berman Sobol Shapiro, the law firm representing consumers in the case, provides a link where Madden buyers can learn more about the suit and potentially join as additional plaintiffs.

Lead attorney Steve Berman, quoted in the press release, pulled no punches in his assessment of EA's position regarding Madden:

There is nothing wrong with good, strong competition in a free market, but we believe EA rigged the game to take advantage of consumers.

EA knows that the demand for these games is based on how realistically the players and teams are portrayed. When EA signed into exclusive agreements it knowingly killed the only competing game of comparable quality, [Take-Two's] NFL 2K5.

Recently, GamePolitics reported on the availability of Barack and Michelle Obama avatars for use in Second Life.

But it seems that those virtual depictions of the President and the First Lady are destined to have short careers.

New World Notes reports that, beginning next month, SL publisher Linden Lab will implement strict new rules on the sale of real-world products and brands - including depictions of actual celebrities. Barack Obama and Angelina Jolie avatars are specifically referenced as examples of prohibited content in the new Linden Lab guidelines.

Readers may recall that stun gun manufacturer TASER, Inc. brought a trademark lawsuit against Linden earlier this year over virtual copies of its weapon which were being sold by third-party content creators for use in Second Life. The suit was later dropped, but the new SL guidelines are almost certainly a response to such legal concerns.

As New World Notes mentions, enforcing the new policy may be problematic for Linden Lab:

While I'm not a lawyer, I would think avatar imitations of celebrities, especially political figures, would fall under the parody safe harbor of fair use. In the real world, you can still buy an unauthorized Barack Obama mask for Halloween. Not so in Second Life very soon...

 

The biggest challenge to this policy, in any case, is likely to be the SL content creation community itself, who often do reference the real world in their works, but are still proprietary about their products.