Second Annual Desert Bus for Hope and Other News

Hi to all the visitors we’ve gotten from our shoutout on the Desert Bus for Hope (Thanks Tim and Jer!).

If you’re not familiar with Desert Bus, it’s an endurance game, where you drive a bus through a desert for hours and hours and hours, and you have to ensure that you don’t run off the road and crash, which ends the game. The DB team is doing their second annual marathon play-through of Desert Bus, which they broadcast live on camera (both driver cam and bus cam), with the length of time that they have to play determined by your donations, which then go to Childs Play.

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Shortcuts: Thanksgiving edition

Today’s shortcuts brought to you by the letter J and the website Patent Arcade.

• THQ v. Activision, which we never actually had time to tell you about since it only popped up a week ago, has settled, with THQ dismissing the case with prejudice.
• Nintendo. Patent infringement. AGAIN. This one is Motiva v. Nintendo, over US Patent No. 7,292,151. It appears to be involving the Wiimote, or the sensor bar based on the claims in the ‘151 patent. For those of you interested in following up on PACER, it’s at Motiva, LLC v. Nintendo Co. Ltd. et al., docket 6:08-cv-429, filed Nov. 10, 2008, in the Eastern District of Texas (Tyler Division).

And last week, the USPTO granted the first trademark ever for an avatar in a virtual world. Ross Dannenberg has more:

Registration number 3,531,683 is for Computer programming services, namely, content creation for virtual worlds and three dimensional platforms. The interesting part, however, is the mark itself (pictured at left), which is an actual avatar in the virtual world of Second Life. The mark was registered on the Principal Register, meaning that the mark inherently has secondary meaning as a source of origin of goods and/or services (i.e., the mark is not generic or descriptive).

This is kind of a big deal. Also, this is my last post before VGXPO, so those of you going, I’ll see you there!

Oh and in other news, my Comment first draft is done! After thinking it over, I’m probably not going to post it here until after it gets edited and published, so hopefully by January it’ll be online. However, if you’re interested in seeing an early copy, let me know through the contact form, and I’ll see what I can do.

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NFL Retirees Win Suit Against Players Union

In a surprising turn of events, the NFL Retirees have been awarded $28 million by a jury verdict in their suit against the NFL Players Union. The decision in Maddengate came on Monday, when a jury found that the NFL Players Union had failed in their duty to promote the interests of ALL players, past and present. This opened the floodgate to punitive damages in the amount of $21 million, which, added to the $7 million in compensation awarded by the jury, adds up to over 10% of the union’s net worth. Union is expected to appeal.

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A Few Short (And Somewhat Off-Topic) Updates

A few short updates:

• You’ll note there are a couple of new blogs on the blogroll. The newest one is Legal Geekery, a law student run blog, though general interest geekery (and not specifically games).
• VGXPO in Philly is coming up in a couple weeks. For those of you that are going, please get in touch with me through the contact form and I’ll try to meet up with you while I’m there.
• Congratulations those of you who recently took your MPREs!
• I am extremely disappointed in this season’s premiere of Top Chef New York. The characters are simply not as interesting as last season, except for team Euro Duo, who are awesome.
• For anyone interested in picking up Left4Dead on PC via Steam, please leave a note in comments, and we’ll get a game or two on. AFTER the deadline for this comment (less than a week to go!)
• The ECA just published a list on their forums of how to establish a new ECA chapter in your area. I highly recommend you consider starting or joining a chapter in your area, especially if you are an attorney, law student, or other member of the legal profession. We need gamers addressing the law. That was one of the fundamental reasons this site was created, and the ECA can help support that by working to make the law more favorable for gamers.
• I wrote an exclusive for Stratics (where I’m the Network Content Editor) as a preview of Lord of the Rings Online’s expansion The Mines of Moria. Check it out here.

And, that’s all for this shortcut.

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LittleBigPlanet Censo….I Mean Moderation, Won’t Stop

In a blow to creativity, Sony has decided to continue their controversial yankings of “inappropriate” LittleBigPlanet levels. As you may know, LittleBigPlanet is an almost entirely user-content-created game. Sony is relying on the players to develop new content and levels, and exercise their creative spark — and to a large extent, players have done so,  creating calculators, complex machines, even recreating themes from other games.

The latter is where Sony seems to be coming down the hardest. According to Kotaku, Sony has laid down the following rules to avoid your content being moderated:

*Ensure that the content you share with other users is suitable for all ages – everybody has access to your level if you publish it
*Please respect other people’s intellectual property rights. For example, don’t use images, brands or logos that you’re not entitled to use.
*If you come across any content that you feel the need to report, then please do it responsibly. Hoax reports will be considered inappropriate behaviour.

Ironically, the blog that they post it on is named “three speech”. Sony’s argument against using others intellectual property is not as straightforward as it seems. For instance, according to their rules, players can use any images, brands, or logos that they are “entitled to use”. An entitlement to use would include things like fair use. However, Sony does not appear to be considering fair use whatsoever, and rather is just nuking any content, whether fair use or not.

It’s actually logical that Sony would do this, which is essentially arguing that fair use works are still infringements, the same argument advanced by their music industry brother, Universal. In contrast, Microsoft has embraced the usage of their products for things like machinima. Makes sense, since Microsoft actively courts the open-source community, who are notoriously touchy about fair use.

But even taking into consideration the argument of how corporate parents of how Sony and Microsoft’s console game divisions interact with their competitors, I think the explanation is much simpler. Sony just simply doesn’t understand online gamers. There’s so much to say on that topic that one could write a book, but suffice to say, Sony has not tailored their online experience in a way that is attractive to gamers, like Microsoft has with Live. Microsoft is what, days away from publishing the “New Live Experience”, to what appear to be initially positive reactions in the media, while Sony is STILL slaving away to get Home into a functional beta.  Microsoft has tons of interactivity and mashability with their Live account and Gamercard system. Sony?

*Crickets*

I think the censorship of LittleBigPlanet levels, while deplorable, is speaking to a greater problem that Sony has, and that’s their inability to succeed online. Feel free to comment, gripe, and complain on the comments.

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MMORPG Jurisdiction Comment Nearing Completion

Just a heads up and status report. My comment on jurisdictional analysis in MMORPGs and virtual worlds is nearing completion. I’m expecting the first draft to be completed in about 10 days, and the final version by around December. I’m undecided as to whether to publish the draft online here, or wait until it is finished, but in any event I’ll let you know what happens. The paper addresses points made over the past 15 years or so by industry greats such as Raph Koster, Julian Dibbell, Greg Lastowka, Jack Balkin, and John Barlow. I’m pleased with it so far and I think you will be as well when it’s released.

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Analysis of MMORPG Billing Structures

Gene Hoffman, of billing and fraud management powerhouse Vindicia (used by several big-name MMORPG companies), has some commentary and analysis on MMORPG billing structures over at Gamasutra. (Thanks Kotaku for the tip).

It’s a very interesting read as to how the publishers decide to set their pricing structures, and what considerations guide them when choosing between competing offers.

So while the overall game experience plays a major role in player retention, specific payment issues also come into play, says Hoffman: “Our experience has shown that focused attention on minimizing payment failures can lead to a six percentage point increase in retention.”

Assuming 300,000 subscribers who each pay $15 per month for an average 16 months, simply taking additional measures to ensure customers can pay easily — and that they do — can drive an additional $4 million in revenue, according to Hoffman.

Hoffman also addresses multiple accounts.

Hoffman notes that subscriptions have a downside: When it looks like there’s a fixed monthly price until eternity, even a game’s most dedicated fans can eventually balk. Many publishers entice retention with discounts for longer commitments, but Hoffman also suggests that creating a demand for multiple subscriptions per user can prolong the average customer’s lifetime value.

This last sentence is a key point. Many games, especially older ones with dedicated followings, can benefit greatly from simply allowing multiple subscriptions per user, and creating incentives to do so. For instance, an older MUD that I still play, Dragonrealms, I have three separate accounts, in order for me to be able to heal and resurrect my main characters. I have an incentive to do so (though, certainly one that most modern MMORPGs can replicate due to technical reasons of running multiple game clients). With games like EVE that support a certain level of automation for utility accounts (harvesters and miners, etc.) , there is an incentive to have a second account running on a second computer. I don’t have any problem with paying a second monthly subscription fee for these benefits. Hopefully, more publishers will see the light and begin providing these incentives.

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Guitar Hero World Tour Creation Mode v. Copyright Law

Some snags this week for users of Guitar Hero World Tour’s Creation mode.

User-created versions of existing, copyrighted songs are disappearing. This comes as no surprise, as Blactivizzion warned that content would be monitored for infringement. That being said, I think there is a significant legal argument to be made that what people are creating in World Tour is not copyright infringement per se.

A little law first, from the U.S. Copyright Office:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1.) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2.) the nature of the copyrighted work;

3.) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4.) the effect of the use upon the potential market for or value of the copyrighted work.

Making your own version of the Green Hills Zone available for free download in GHWT is not “commercial”, at least for users. You don’t expect to realize a dime on it. Blactivizzion, however, may.

Kotaku is reporting that the company is considering a fee-for-service model for user-created content. That sounds like foul play, as users were not warned about this possibility before buying the game. Why should we create content for the company to sell and not realize a dividend? And what, then, is the effect of the use of these tunes on the potential market for the copyrighted work? I would think it would encourage people to enjoy the original, whether that be playing Sonic or picking up a song on iTunes. These three “instrument” versions of songs are NOT the original. The nature is substantially different. No one is going to mistake your lyrics-free version of Bohemian Rhapsody with Queen’s magnum opus. And no one who wants to sing along with Freddie is going to miss their chance to do so with the actual song.

The implications for your own creations of original material are different, and possibly worse. If Blactivizzion does what they are proposing, you will be creating new music and handling them the licensing fees. Moreover, it is unclear how this structure would affect your own copyrights in the future. All in all, this seems bad bad bad bad and bad. Fun, fairly used tunes are being taken out of play and it seems that they are to be replaced by play-for-play wholesale acquisition of your music. It’s enough to make me want to stick to Rock Band.

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EA Sued Again…And Again

GamePolitics reports that two new class action lawsuits against EA have been filed in the US District Court for the Northern District of California. Though both suits involve the same invasive DRM programs being litigated over in September’s Thomas v. Electronic Arts, these two latest class actions concern DRM in The Sims 2: Bon Voyage and Spore Creature Creator: Free Trial Edition. Read the rest of this entry »

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Blizzard Sued For “Mind Theft”

At least one man is not content to yell, “this boss is going to make me lose my mind” and be done with it while playing MMORPG World of Warcraft.  Jonathan Lee Riches, an inmate “doing business as” the fictional Gordon Gekko, joined by VIncent Dragonetti, Steven Iaria, Mario Cassarino and Moy Industries LLC have filed suit against WoW makers Blizzard in the United States District Court for the District of Arizona.  

The full text of the Complaint is available here, courtesy of virtuallyblind.com.
Riches, et. al. assert that “World of Warcraft caused Riches [sic] mind to live in a virtual universe, where Riches explored the landscape committing Identity theft and fighting rival cybermonster hacker gangs.” Plaintiffs in their pleading “move for amicus curae” and have asked for a hearing en banc.  

Unfortunately for Plaintiffs their pleading in its current form appears to have been rejected by the Clerk of Courts for not being in proper form according to federal and/or local rules.  I also wonder why Riches chose the District of Arizona as his venue, as he is an inmate in South Carolina and the WoW EULA has a choice of law provision favoring California, Blizzard’s primary nexus of operations.  Either way, he’s got some refiling to do if he wants his “matter” heard.  Oh, and I hope he isn’t up for appeal on those identity theft charges.

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