Gone For Finals

My apologies to readers, but my posting will be sporadic and infrequent as finals are upon me in the next two weeks. I will try to post some news w/in the week. Thanks for reading!

Revolution Liability Considerations

I just finished reading a very exciting article in the May 2006 Game Informer issue titled, "Armed for the Revolution: Red Steel." It detailed the plans that Ubi Soft Paris has to develop one of the launch titles for Nintendo's next generation console, The Nintendo Revolution. Much of the hype around Nintendo's contribution to the conole race is centered around their unique controller that combines elements of a remote controller, motion sensor and virtual reality control stick. It is this creative interface that Nintendo hopes will pull them out of the last place spot in the console war, providing players with a more active, immersive and interactive experience than ever before.

The new title by Ubi Soft will be a first-person shooter that capitalizes on this popular genre while infusing new elements of game play that change the way we look at this type of game. "'For us, it was very important to do a first-person game, because you are physically in the exact same situation as your character in the game ... the controller is exactly the same. It's a fantastic device to develop a first-person game for, because you see a hand with a device in it. If you make a good parallel between the controller and the device - be it a gun, a sword, or whatever, you have the feeling of really having it in your hand." (Damien Moret, Ubi Soft marketing game manager, GI May 2006, p. 47) With this idea in mind, the Nintendo and Ubi Soft team hope to discover all of the motions that a player could make to simulate on screen motions and exploit the capabilities of the controller. Some of these include, slashing, aiming, shoveling, turning a door knob, and even bowing.

While the gamer-land critics are all debating whether the Revolution controller will truly change the face of gaming or just be another flash in the pan gimmick, I am considering the legal implications of introducing such a device to the gaming public. With so much slashing, hacking, pointing and jerking it is foreseeable that people might experience impact related injuries such as sprains, strains, pulled muscles or other minor physical impairments. On the more serious side, however, are injurious that could result to the motor cortex or other areas of the brain from combining such movements with the flashing images of the game. I am curious to explore the duty to warn that Nintendo may have regarding use of this new device, and whether the game makers should entertain any additional legal protections given the novel application of this interface.


There are generally two sources of protection that game developers use to indemnify themselves from suit: product health warnings (addressing the duty to warn) and/or "as is" warranties on software (creating an assumption of risk scheme). Product health warnings typically address the phenomenon of photo-sensitive epileptic seizure that occures in some game players due to the various visual displays on screen. A typical health warning looks as follows:

Important Health Warning About Playing Video Games
A very small percentage of people may experience a seizure when exposed to certain visual images, including flashing lights or patterns that may appear in video games. Even people who have no history of seizures or epilepsy may have an undiagnosed condition that can cause these photosensitive epileptic seizures while watching video games. These seizures may have a variety of symptoms, including lightheadedness, altered vision, eye or face twitching, jerking or shaking of arms or legs, disorientation, confusion, or momentary loss or awareness. Seizures may also cause loss of consciousness or convulsions that can lead to injury from falling down or striking nearby objects.

Game makers were quick to add such health warnings to product packages after reports of serious injuries and/or deaths proximately or directly casued by video games prompted lawsuits. Serious injuries and/or deaths from video games have been reported in Korea, Japan and the U.S. ranging from such injuries as photosensitive epileptic seizures (leading to risk head injry) to pulmonary thrombo-embolism (seizure of the cortex leading to blood clot in the brain). On the lighter side of the injury scale, a condition called "Nintendo thumb" a type of athritis experienced by people who play video games too long w/o stretching their hands out, has been reported. While I have not run across any lawsuits regarding Nintendo thumb, it is interesting to note this condition given the expanded physical realm that the Revolution controller will introduce.

The other protective measure that game makers tend to use are End User License agreements (EUL). These are contractual conditions that make indemnification for harm from using the game a contractual condition of playing the game. It seems that PC software makes more popular use of such agreements, as the player must affirmatively scroll, click or check yes to the agreement to activate its terms (unlike the shrink wrap agreements that might not be as protective for tort claims). The effect of such an agreement puts the user on notice and creates an assumption of risk for using the product. They typically read as follows:

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" ... IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO) ... TORT (INCLUDING NEGLIGENCE OR OTHERWISE)..."


Whether or not such an EUL would work for the console industry remains to be seen as most console makers tend to use the health warnings instead. Also, it would be prudent to examine the warnings associated with other interactive, motion games such as Dance Dance Revolution (DDR). While most of the media touts the merits of this step-and-move-with-the-game interface, one 15-year old girl died of heart failure from playing it at a local arcade. DDR uses warning screens that flash before each game to let the player know of the risks, and cautions them to stop if feeling faint or otherwise unsound. Perhaps Nintendo should consider a similar warning for their new product.

Nintendo is a company that seems conscious of the need for adequate health warnings, and have a webpage set up to address such concerns. Products such as the Revolution and DDR present an exciting advance in the interactivity and the infusion of physical fitness to video games. As we move forward into the next generation of gaming, however, we must also anticipate the parade of horribles that could present itself and take adequate protections for both the video game industry and the consumer. I think that Nintendo should take all of the precautions necessary to continue revolutionizing the industry, including health warnings on packaging, EULs (triggered by clicking start) and to incorporate gradual physical training through their in-game tuitorials with a conscious concern for player health and safty (documented in development logs).

Molecular Biology, Genetic Engineering and the Connection to RPGs

Molecular biology breaks down DNA into basic genetic codes, revealing the building blocks of our very being. Identifying these fundamental materials permits science to make measured predictions regarding the manifestation of traits in an organism. Genetic engineering (defined as the heritable, directed alteration of an organism) works toward the manipulation of this coding at the outset of cellular development to achieve desired results.

It is a practice that is both contraversial and profitable. In an effort to recoup their costs, biotech companies, educational institutions and hospitals will race to patent discoveries that some argue should not be patentable. Obtaining a patent on an invention endows the patent holder with the right to exclude others from making, using, offering for sale, or selling such invention in the United States. It also grants them the right to prevent others from importing such invention into the United States.

Two categories of patent are applicable to genetic engineering: utility patents and plant patents. "Utility patents may issue to the person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." The three basic requirements to obtain a utility patent are nonobviousness, novelty and utility:

Nonobviousness - the average person in the field to which the patent relates, who is aware of all prior art (previous knowledge and inventions) must find that the invention provides new and unexpected results;

Novelty - the invention must contribute something that is outside the scope of existing knowledge in the particular field; and

Utility - there must be practical use for the invention; otherwise it is just a non-patentable, theoretical phenomenon or idea.

Plant patents may issue to an inventor who "has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state." (PTO website). For the topic of RPGs and Molecular Biology, this post will focus on utility patents.

The owner of a patent in a genetic invention enjoys their exclusive rights for twenty years. Third parties who want to use the technology must license or negotiate other arrangements with the patent owner. Dissenters of this scheme argue that "patent license disputes threaten to close off research and clinical applications of some of the biomedical discoveries that Americans have paid billions to enable." Fears that patients might start demanding financial rewards for participating in research," have been rendered somewhat moot by the Supreme Court of California's ruling that donors of genetic samples do not have a property interest in their genetic material [Moore v. Regents, 793 P.2d 479 (Cal. 1990), cert. denied 499 U.S. 936 (1991)].

Still those that make use of the genetic samples to create codes and processes do gain a property interest in their work through the patent process. Could we liken this property interest to the one that game developers receive in the game codes that they string together in order to create the desired output for their game? It is my belief that the RPG or Role Playing Game is the most analogous and suitable example from the ken of video games to make the comparison to genetic engineering. Could the scientific community benefit from examining the RPG?

The genere of video games dubbed "RPGs" allow players to begin their quest by choosing a character, usually from a variety of races with different traits and specialties. Some games permit full customization of this character down to the most minute physical details. Through the course of the game the player determines how to improve their character in terms of skills, attributes, equipment and special abilities. Often improvements are given as rewards for overcoming challenges and unlocking achievements in the game. Also each game may establish a unique system that determines the scope of freedom that players may enjoy in choosing what to improve - some automate the process while others are completely hands on. More recent developments in video game technologies allow for "smart RPGs" to consider the individual players actual playing style and then levels up the attributes the player uses most, (a good example of such a work is Elder Scrolls Oblivion).

In the video game industry copyrights are the most frequent form of intellectual property right (IPR) for game codes. They attract literary protection, and as a work of authorship fixed in a tangible medium, last about three times longer than patents. The scope of copyright protection, however, can be quite thin when compared to patent. For another designer or game programmer to secure their own copyright they would only have to change some details of the RPG to create an expression of mere originality. The basic play style of the RPG and how the character develops is enabled by the game engine. Codes the developer puts into a particular piece of software determine the output of the game engine.

Are these codes analogous to the DNA and patterns patented by the genetic engineering community? If so, could the video game industry benefit from using more patents in the code/game engine interface? "Patents are the least-known IPR to the game industry and usually held as the most expensive and frequently irrelevant IPR." (IGDA Whitepaper) While the patent lasts for a shorter time than the copyright, it's scope of coverage is much broader than that covered by copyright. The novelty requirement is a higher standard and harder to satisfy than the mere originality required in copyright. Therefore if a patent issues for a given process the inventor has a stronger protection in what they create than the author who creates a new expression. By employing copyright protection similar to that granted to codes iin video game industry, those seeking to protect developments in genetic sequencing might be able to protect their interests while alleviating the fears of halting the progress of science. I do not know if this would adequately protect the genetic codes, b/c it would depend whether they are considered more analogous to the copyrighted software codes or the patented processes that drive game engines. Regardless, I think that there is something that each industry can learn from one another.

Video Game Law Review - April 9th 2006

Welcome to the Video Game Law Review. This is a feature of Fragmintz of Video Game Law and Other IP Issues where we collect various headlines and captions via RSS feed for the interactive entertainment law industry.

Xbox Murder Trials Set to Start (April 8th 2006) - The jury selections have begun in Deland, Florida for the trial of four men accused in the slayings of August 2004. Dubbed, "the Xbox killings" b/c allegedly the dispute leading to the violence centered around one the accused's Xbox game console. Read more.

Girls in Mario Box Prank Won't Face Jail (April 8th 2006) - a group of teenaged girls facing criminal charges for an April Fool's days prank that freaked out an OH town will not face jail time. The girls were arrested for randomly putting up sculptured question boxes that replicated the popular Super Mario Brother's video game; some folk mistook them for bombs.

Networks Don't Like the Idea of Cable Company DVR Services (April 10th 2006) - Cablevision's plan to set up a network-based DVR service that would serve as a video-on-demand system did not find a warm reception from the networks. One network head gave the excuse that the lawyers had their hands on the idea to figure out a strategy. The IP implications, royalty payments and licensing nightmares are likely to create a lot of billable hours. Read more.

Gizmondo Chief Arrested After Ferrari Crash (April 9th 2006) - Ex-Gizmondo executive Stefan Eriksson destroyed his $1 million Ferrari Enzo sports car in February, while driving in Los Angeles. Police reports say that he is being held without bail "suspicion of grand theft" since being taken into custody Saturday at his home in Bel Aire. Rock Star Games is thinking about basing their newest installment in the Grand Theft Auto Series on Stefan's daring exploits... (I'm really just kidding). Read more.

Laptop Thieves Target the Latte Elite (April 9th 2006) - Reports from San Fransico about thieves ripping off laptops in coffee shops has sparked a host of Internet ramblings. It is reported that coffee shop "hot spots" are now offering security leashes. Read more.

Video Game Law Review for April 5th 2006

Welcome to the Video Game Law Review. This is a feature of Fragmintz of Video Game Law and Other IP Issues where we collect various headlines and captions via RSS feed for the interactive entertainment law industry.

• Microsoft Sued by Lucent Over Xbox 360 Decoding (April 5th 2006) - An old fued between the two tech producers has been reignited. Lucent filed suit against Microsoft in U.S. District Court in San Diego. The complaint alleges breach of Patent No. 5,227,878, which referes to Adaptive Coding and Decoding of Frames and Fields of Video. Lucent maintains that Microsoft infringed on their IP by using this technology in the XBox 360 console. Read more.
• Capcom Fraud Investigation (April 4th 2006) - The maker of hits such as the Resident Evil Series and Street Fighter games is under criminal investigation by Osaka's tax Bureau. The company failed to report 5.12 billion yen ($44 million) over the past six years. Read more.
• Netflix Sues Blockbuster for Patent Infringement (April 5th 2006) - mail order service Netflix filed suit in U.S. District Court in San Francisco against retail-rental giant Blockbuster. It seeks an injunction to stop Blockbuster's use of online wish lists that prioritize DVD selections of the subscribers. In addition, Netflix argues that the online option of renting a DVD for an unlimited time without incurring late fees is also covered by the patent. Read more.
• Chart Data Falsification Finger Pointing Draws Lawsuit (April 4th 2006) - Mercury Games' Leo Zullo says that his current firm is being "persecuted" by two individuals who allege that they are owed money by Digital Jesters (Zullo's firm that went into liquidation last year). Zullo claims that the unnamed individuals involved are exploiting a mistake made on the website of his current company in reporting erroneous data regarding Ubisoft-published titles.
• Georgia Offers Tax Breaks to Developers (April 5th 2006) - In a move to spur digital pilgrimage to Georgia, legislators have provided economic incentives to the gaming world. "We see interactive entertainment as a vital element in the entertainment industry as a whole. Since Georgia has colleges and universities dedicated to cutting-edge technology sitting alongside mainstays in the broadcast industry, this tax incentive seems an ideal way to highlight the fact that Georgia can be an incubator for new and exciting entertainment technology. All the resources are here. Now, we help publishers afford it." Read more.
• Harvard Study Prompts Video Game Ratings Board Response (April 5th 2006) - a Harvard study published yesterday criticized the ESRB for inconsistent application of M-rated game content descriptors. ESRB quickly responded questioning the objectivity of the results. Read more.

MI Violent Game Bill Declared Unconstitutional by Federal Court

(Original image from: Grinning Planet)

A MI state video game bill recently signed into law by Gov. Jennifer Ganhold has been temporarily halted. The law, proposed for enactment on Dec. 1st of 2006 would, restrict sales of video games to minors. Judge George Caram Steeh in the United States District Court for the Eastern District of Michigan, issued a permanent injunction, which marks the sixth court in three years to rule restrictions of video game sales based on their content as being unconstitutional.

The state claimed that the interactive nature of video games should make them less entitled to First Amendment protection. It is likely they formed this rationale based on the fact that interactive entertainment can lead to more harm than passive entertainment, since the player (children in this case) not only watches the action, but dictates it. The judge disagreed with this conception and found that "interactive, or functional aspect(s), in video games can be said to enhance the expressive elements even more than other media by drawing the player closer to the characters and becoming more involved in the plot of the game than by simply watching a movie or television show." He went on to write that it "would be impossible to separate the functional aspects of a video game from the expressive, inasmuch as they are so closely intertwined and dependent on each other in creating the virtual experience."

Whether or not this rationale will hold up on appeal remains to seen. An appeals court may be able to overturn the judge's rationale (on this point) using the abstraction/filtration/comparison test from Computer Assoc. Int'l v. Altai, 982 F.2d 693 (2d Cir. 1992). In this software/copyright case the abstraction/filtration/comparison test was used to determine whether any copyrightable expression in the computer program had actually been copied. The test operates as such:

"In ascertaining substantial similarity under this approach, a court would first break down the allegedly infringed program into its constituent structural parts (Abstraction). Then, by examining each of these parts for such things as incorporated ideas, expression that is necessarily incidental to those ideas, and elements that are taken from the public domain, a court would then be able to sift out all non-protectable material (Filtration). Left with a kernel, or possibly kernels, of creative expression after following this process of elimination, the court’s last step would be to compare this material with the structure of an allegedly infringing program (Comparison). The result of this comparison will determine whether the protectable elements of the programs at issue are substantially similar so as to warrant a finding of infringement. It will be helpful to elaborate a bit further." (From Digital Law Online, Prof. Lee A. Hollaar, Legal Protection of Digital Information, Ch. 2).

By the logic set out in Altai, a court could use this test to separate the expressive elements of a video game from the functional elements, thus overruling the judge's conclusion that the elements are so intertwined in an interactive experience.

It seems to me that the Judge Steeh's ruling represents a larger public policy decision by the courts to reject state claims for injunctions and court orders based on video game content and the "harmful effects of violent video games." In his opinion, Judge Steeh specifically criticized the state for not finding less restrictive ways to help parents make sound choices about their kids game play. The court's ruling also seems on par with the sentiments of researchers who found difficulty in associating video game violance and real world aggression at the recent subcommittee hearing entitled “What’s in a Game? State Regulation of Violent Video Games and the First Amendment.” The court said, "Dr. [Craig] Anderson's studies have not provided any evidence that the relationship between violent video games and aggressive behavior exists." The judge went on to say that new evidence alleging brain mapping studies that show a link btw violent video games and aggressive thought were also unpersuasive. "The research not only fails to provide concrete evidence that there is a connection between violent media and aggressive behavior, it also fails to distinguish between video games and other forms of media."

In response to the state's claims that the interactive nature of video games makes them more harmful than passive media such as TV, the court said that there is no evidence to support such a claim. The court opined that just as the state alleges a connection between violent video game content and manifestations of agression, it could be found that violent video games actually provide a non-physcial outlet of agression for children. Thus the court found that the Act signed into law by the governor did not materially advance the state's interest in curbing violence among youth, but rather appeared to "discriminate against a disfavored 'newcomer' in the world of entertainment media." Such prejudice against the video game industry does not advance the state's goals.

Video Game Law Review for April 4th 2006

Welcome to the Video Game Law Review. This is a feature of Fragmintz of Video Game Law and Other IP Issues where we collect various headlines and captions via RSS feed for the interactive entertainment law industry.

• MI Game Law Found Unconstitutional (04/04/2006) - a video game bill recently signed by the govenor of MI has been temporarily blocked. The bill would restrict the sales of video games to minors. There are similar bills like it in other courts. The judge based his ruling on the following: "It is unlikely that the State can demonstrate a compelling interest in preventing a perceived 'harm'... the Act will likely have a chilling effect on adults' expression, as well as expression that is fully protected as to minors. The response to the Act's threat of criminal penalties will likely be responded to by self-censoring by game creators, distributors and retailers, including ultimately pulling 'T' and 'M'-rated games off stores shelves altogether." Read more.
• 5 Teenagers May Face Criminal Charges for Real World Video Game Joke(04/02/2006) - Five teenage girls may face criminal charges for their April Fool's joke of making sculptural replicas of the question box cubes in Super Mario Brothers and erecting them around town. Hazmat and bomb squads responded. Read more.
• Leap Frog Patent Suit Dismissed (03/31/2006) - A DE court dismissed Leap Frog's patentlawsuit against Mattel over their Fisher-Price line of Power Touch talking books. The court found that the Mattel's technology did not infringe. Read more.
• Ubi-soft in Court Over Use of Starforce Copy Protection (03/31/2006) - A $5 million class action lawsuit has been filed against Ubi Soft for the use of DRM in their video games. The complaint stated: "the DRM can compromise Windows operating systems’ security. Any virtus or trojan can control a computer by and through the Stareforce DRM installeed on the computer, despite the security measures taken in newer versions of Windows." Read more.
• Star War's Kid Sues (04/04/2006) - The infamous light saber video depicting an overweight teenager re-enacting a double light saber routine from Star Wars made an internet buzz a few years ago. A Quebec judge is going to hear the $160K damages case on 04/10/2006. Read more.
• Console Wars (04/04/2006) - Online services and digital delivery of content will determine who wins the console war btw Sony, Microsoft and Nintendo. I blogged yesterday on a potential Microsoft strategy that could see them at the top of their game. Read more.

A Mod Supported XBox Live Marketplace Would Help Microsoft Beat Sony

Microsoft needs to bridge the gap between gamers of the PC and the XBox 360. It is my belief that the XBox 360 could impact the world of gaming and get a definitive stronghold on the console war if it supported uploading of player developed content and modification ("mods"). While at times contraversial, the ability to mod a game often creates a loyal fanbase and pumps life into leftover content long after the buzz dies down. This attracts new users to the particular game and resurges the interests of old ones.

The skeptics might say: the good people of Microsoft have already done this w/XBox Live Marketplace (additional content is available for pay-per-downloads)? And what about the money? Most modding is free, what are you, some kind of cyber-anarchist? To all of these concerns I would encourage executives and Xboxers alike to consider expanding the pie (via Rogers and Ury style). Try to see the win-win aspect of allowing a marketplace of not only downloadable pay-per-click content, but of robust consumer uploading, trading and creating. Take a look at the possibilities:

First of all, any player uploads would have to be created via a construction set downloaded for a fee from the Xbox Live Marketplace. Each game w/constructable content capabilities would have to be equipped with its own construction set. So if you want to create a new game-type (such as tag team, hang-gliding) or new boards for the less-than-spectacular Perfect Dark Zero, or a new suit of weapon-disintergating mithral armor for the incredible, open-world epic, Elder Scrolls: Oblivion, you would first need to purchase a construction set for that particular game via download for $9.95 (suggested retail price). Right out of the gate, Microsoft has already made an extra 20% per game. When the construction set is downloaded, Microsoft and the game developer can institute all types of legal and creative controls, such as forbidding explicit content (avoiding a repeat of the hot coffee incident), tagging the set with a digital signature so they can track who put what out there, and arranging for the appropriate terms of use to be agreed to.

Second, we would avoid the problem of waiting on Studios to spend their precious time and resources creating downloadable content. Often these add ons never come quick enough and are disappointing when they do. Case in point, the Splinter Cell series - while new content came out eventually for the various incarnations of this game, it was often underwhelming. The studios find it much more desireable to put out sequals, threequals and fourquals rather than develop new boards for the game they sold you a year ago. Hence the game dies when the new incarnation comes out, and for fan favorites the newer incarnation is not always as appealing as the latter (not every sequal can be a Halo 2 - and storywise the original was better). Allowing players to build off of a console construction set, saves the studios the headache of having to meet demands in this way (even if it is a small demand) and can rather have the option to put out "professional/commercial mods" for download in addition to the player created content. The result? A world of abundant, compatible and creative content that can stimulate revenue and keep things fresh.

Third, Xbox live marketplace is not really a marketplace; it is a shopping network. When I think of marketplace, I think of Ebay - a place where anyone can sell anything to anybody (just about). Why not turn Xbox Live Marketplace into a revenue machine like Ebay? Follow me: players can create their own content and then upload it into specific categories. These catagories would break down into a heirarchy such as: (1) game; (2) type of content, i.e. (a) character; (b) board; (c) item, weapon, apparel, ability; or (d) transportation. The uploading player is charged a fee for uploading (similar to the listing fee that Ebay charges). This puts the uploader in privity of contract with XBox Live Marketplace and provides protection/certainty for Microsoft, purchasers, and others (note that XBox live is fundamentally different and more intimate than Ebay b/c of the membership requirements). Potential customers can enter terms in a search field or browse categories. They then purchase the content they want for the price set by the uploader (price of content could also be regualted by Microsoft who could dictate ceilings depending on type of content). Microsoft charges a % for the transaction fee and the exchange is made.

The result: (1) Microsoft surges revenues from XBox Live; (2) Uploaders can make extra cash and have an arena to create; (3) gamers get new content constantly; (4) publishers are free to make all of the sequals or additional content they want and have a hungry market waiting for them; and (5) the console gaming community sees a true freedom that it has never experienced before akin to that found on the PC. I think that in the console war, such a move would give Microsoft the leg up in the next (now) generation of gaming and help them to beat Sony, who is due to launch their new console in November 2006.