California Court Awards $16 Million in Damages for Fatal Wii Prank

Thanks to Kotaku for the heads up. The Sacramento County Superior Court just awarded $16 million in damages to the family of Jennifer Strange, who died from “water intoxication” (presumably complicated by hyponatremia). Strange died back in 2007 after a radio contest from KDND-FM in which she had to chug bottles of water in order to win a Nintendo Wii. The jury found that the radio station negligently ignored warnings, including during the contest, that there could be potentially fatal contests. From the radio station’s response, it sounds like they’re not going to appeal the verdict.

“Jennifer Strange’s death was a tragedy. Our hearts go out to all of her loved ones, including, in particular, her husband and children. While legal restrictions preclude us from commenting further on the verdict, we respect the jury’s decision and hope that it will assist the Strange family in coping with its loss.”

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Pending Supreme Court Case US v. Stevens Has Implications for the Game Industry

Most attempts by state legislatures to censor the game industry involve statutes which prohibit the distribution of ”violent video games” to minors. However, these statutes have invariably been stricken down by federal courts because they sought to restrict distribution of games, the contents of which fell into a category of speech (violence) that is protected under the First Amendment and the respective states could not show the requisite danger of imminent lawless action that the First Amendment requires in  order to restrict speech that is protected(1).  Very recently in VSDA v. Schwarzenegger, the Ninth Circuit struck down one such statute for that reason(2). Through this and other examples, we see that courts are loathe to create new categories of unprotected speech, or to expand the categories that are already unprotected(3). On October 6th, the Supreme Court heard oral argument in US v. Stevens, which challenges the Constitutional validity of a federal statute that prohibits the creation, sale, and possession of depictions animal cruelty. Due to the insight into the new Court roster’s attitudes on First Amendment issues that Stevens will offer, we are watching closely.  Hit the jump for an in-depth analysis. Read the rest of this entry »

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Geography of Job Loss

Somewhat related to the arguments that the game industry is “recession proof” or at least “recession resistant”, a very interesting interactive map outlining job creation/loss over the past 5 years is circulating around the internet. When viewing this map, keep in mind that the game development industry is highly centralized in Southern California, Seattle, Austin, and to a lesser extent Boston — keep track of these locations while you’re watching the progress, and that the map represents areas by MSA (so suburbs are included in the metropolis they are tied to, for instance Cambridge would be tied to Boston).

If you look in the beginning, you’ll notice SoCal booming, as well as in Austin, with no major losses anywhere until the mega-red explosion from Katrina hitting New Orleans, but even there are no major losses. Up through the beginning of 2008, California begins shrinking, with losses starting to appear for the first times in SoCal (although ironically, the reverse is occurring in the Bay Area), but Texas and Seattle remain booming with tens of thousands of new jobs.

Then by mid-2008, the meltdown is in full swing. Starting in South Florida, SoCal, and Detroit, it quickly spreads over the next year to the entire nation. Interestingly enough, while in August 2008 Los Angeles was posting a -97,800 lost job rate for the previous 12 months and -20,000 in San Francisco, Austin was up by 18,100 jobs and Seattle was up by 17,200.

By November, that had turned into nearly -160,000 lost jobs in LA alone, while even Seattle was starting to feel the heat with -11,000 or so. Boston was down by nearly -20,000, and only Austin (as an industry hub) remained in the green.

Perhaps the most fascinating slide is the end, which looks like red nuclear explosions going off; but lets pay attention to what you CAN’T see on that last slide: Austin down by only -1,400 jobs that year (keeping in mind this is across ALL industries) compared to -240,000 in LA.

The website itself states “The animated map makes clear that this recession has not treated all regions equally.” Does this mean that Austin is a safe place to work to wait out the recession? That might not be a stretch of the imagination. Texas isn’t faced with nearly the same budget meltdowns as California, and aside from Houston and Dallas, hasn’t been hit with the same critical job loss that California has (though the site also notes that Texas remained solid in part due to a run-up in oil prices through 2008, and that the receding job growth in 2009 came from the energy and construction sectors.)

The time will come where development studios are going to have to think harder about where they set up shop — not just in terms of access to employment talent or favorable taxes, but economic solidity and risk of rampant unemployment in other critical sectors like public safety or education. Perhaps this map will highlight that for some studios.

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Gamefly Action vs. US Postal Service

Back in April, Gamefly filed a complaint against the US Postal Service, claiming that Netflix and Blockbuster’s DVD-by-mail services are receiving preferential handling of discs in transit. Gamefly alleged that their discs are being stolen, and that Netflix and Blockbuster are getting manual processing to prevent breakage. According to Gamefly, the USPS breaks 1-2% of the nearly 600,000 games shipped each month, which accounts for up to $295,000 per month in loss. Note that as best we understand, this is not a formal lawsuit, but rather an administrative complaint with the Postal Regulatory Commission.

In their latest filing, Gamefly points out that Netflix in particular has benefited from unauthorized “Netflix only” slots in the post offices– slots that the USPS claims that they don’t know exist, but if they did would be against policy. Something tells me that this case is going to likely progress beyond the administrative stage, but we’ll of course keep you updated as new developments are announced.

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Call for Papers: Journal of Game Amusement Society

The Journal of Game Amusement Society (which I’m not familiar with, but appears to be an Asia-based game journal) is issuing a call for papers for their third volume. They don’t specifically include law as a topic, but do include “Psychology, History, Pedagogy, Business administration, Business style of game industry, Game industry as venture business, [and] Game as business” so it is a safe bet legal papers would be accepted.

 I haven’t really published CFP’s before here, but I’m thinking it would be a good idea in the future.  Manuscripts are due Dec. 25, and if you’re thinking of submitting along with a law journal, you’ll probably have to trim it down – full papers are limited to eight pages.

If anyone has other CFP’s they’d like us to republish, as long as they are law/financial/business related, I’m happy to cover them here.

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Playstation Network: Not a Company Town

Late last month, the Southern District of California held in Estavillo v. Sony that the Playstation Network does not qualify as a “company town”, and therefore not eligible for protection under the First Amendment. By extension, this strikes a blow to virtual worlds exceptionalists, who have long argued that virtual worlds ARE company towns; including notable theorists like Prof. Jack Balkin.  Already a heavily limited doctrine, the court held that it doesn’t apply to virtual worlds because “[i]n providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not “performing the full spectrum of municipal powers and [standing] in the shoes of the State.”

Now, to be fair, the hordes of fanbois on internet forums that rage about their First Amendment rights being violated when their posts are deleted (or they get banned) probably didn’t even know about the company town exception to the state action requirement of the First Amendment. Just the same though, this predictable decision puts a fairly solid nail in their coffin.

Eric Goldman has an interesting opinion on the decision:

Nevertheless, this case could have significant import for academic discourse about the virtual worlds. I believe this is the first ruling to squarely conclude that an online game/virtual world isn’t a company town. As a result, this opinion emphatically rejects a meme that has become pretty popular among virtual world exceptionalists. Some exceptionalists have favored the company town analogy because it enable virtual world customers to reduce an operator’s ability to run its business capriciously.

At the same time, as I explain in my 2005 article, importing constitutional doctrines into paying vendor-customer relationships could have untold detrimental effects on the entire online industry. This efficient ruling will hardly be the last word in that debate, but it should take a little wind out of the sails of the virtual-world-as-company-town meme that gets invoked so frequently in virtual world exceptionalist circles.

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