Five Silliest MMO Lawsuits

Posted by Dan on September 1, 2009

Ignoring how terribly passé Top (x) lists are, I have to call this one out for being one of the worst of the bunch. MMORPG.com, which I’ve always considered to be an otherwise decent site, has released an abysmal list of the “Five Silliest MMO Lawsuits“, written by someone with a below-average understanding of the law in general. (Actually there aren’t just five, they include an “honorable mention).

(UPDATE: After receiving my criticism from this article, the author has changed the name from Five Silliest MMO Lawsuits to “Five Memorable MMO Lawsuits”. The factual inaccuracies remain the same, however.)

Here’s the rundown:

• Mythic v. Auran: This one wasn’t even a lawsuit; it was apparently a C&D over a clearcut case of trademark infringement. What’s silly about this, you may ask? The author of the article doesn’t understand what a trademark is. “Mythic coined a term and wanted to hang on to it. I just don’t necessarily understand why they would want to stop other companies from using it. It’s not like they have the idea behind RvR trademarked.” Well, duh. You don’t trademark an idea. The whole point of a trademark is to protect a mark associated with YOUR good from being used by other companies to associate with THEIR good, and thus lose its distinctiveness as being recognizable as yours. When you think of RvR, what do you immediately think of? Mythic games. You think Warhammer Online, or I guess Dark Age of Camelot if you’re old school. To top it off, the author doesn’t understand likelihood of confusion, by way of the line “Even sillier than the time Mythic sued “Mythica” over its name. Mythica was eventually cancelled by Microsoft in 2004.” Yes, god forbid Mythic protect it’s own brand name from another mark that is confusingly similar (to the point of only being 1 letter different).
• Esther Leong v. Square Enix: They don’t even manage to get the first line right on this one. “Looking only back to June of this year, we saw a lawsuit from a lone individual named Esther Leong against Square Enix…”. Except, it wasn’t from a lone individual. It was a class action on behalf of all FFXI players similarly situated. “This begs the question: How many accounts did this woman have?” Facepalm. They also go on to get the merits wrong while having them right in front of their face. “Please, oh please, tell me that this person didn’t file a suit claiming to have not known that there was a fee to play the game, and then not knowing that the company would apply rules to their game and reserve the right to stop letting you play if you didn’t pay your fee.” As a matter of fact, no. They filed suit because Square advertised one fee, then presented another with hidden charges, and made it nearly impossible to actually cancel your account, all while upping your fee if you payed late; as well as a complaint that they were not clearly informed that they did not actually purchase the game (and all ownership rights appurtenant thereto), but a license. “It can’t possibly be that ridiculous, could it? COULD IT?” No. No it wasn’t. 0 for 2 MMORPG.com.
• Kohnke Communications v. Perpetual Entertainment: They don’t even bother to justify this one as being silly: in fact, MMORPG.com straight up admits that it was a cut and dry breach of contract and that Kohnke (now TriplePoint PR) got screwed out of money they were owed. 0 for 3.
• Garriott v. NCsoft: “Jokes aside, the facts around the suit actually see Garriott suing his former company for 27 million dollars in money lost in stock options when, he claims, his firing was internally re-structured to look like a resignation.” Another one where they don’t attempt to justify how silly it is that someone got screwed out of their money. 0 for 4. Not good MMORPG.com. Not good.
• Blizzard v. MMO Glider: Before I go any further, WTF? This is a case that actually had some legitimate precedential value to determine what constitutes copying of data into RAM under the MAI standard. And once again, there’s no justification for what makes the lawsuit actually silly. Glider, under Blizzard’s argument, was costing Blizzard money and not to mention that the broader issue of “Do you own the MMORPG software you buy” was implicated (as it was in the Leong case above). Even the EFF got involved on this one. 0 for 5.
• Finally, Worlds.com v. NCsoft: In the very first sentence “Speaking of bone headedly stupid trademark based lawsuits…” …. this is a patent suit, not trademark. But keep going: “Now, as stated previously, I’m not a legal expert,” (ed. No, really?)  “but this describes the most simplistic and basic workings of an MMO.” Congratulations. You’ve discovered that patents require a description of how things work. Since Worlds.com claims to have been the first to invent the 3d MMO (though there is a dispute as to whether there is prior art), there is nothing unusual about that claim. MMORPG.com then goes on to get the date of the patent wrong, (it has priority dating to 1996, not 2000, though the confusion may have been justified as there are two patents in question here). 0 for 6. Incidentally, we’ll be discussing Worlds.com with Ross Dannenberg of Patent Arcade on our panel at PAX this year.

It’s not unusual for a site to make factual errors in an article. We’ve been guilty of it before too. It IS, however, unusual for an entire article to be wrong both in premise and every single one of the 6 segments that constitute it. Shame on you MMORPG.com. For shame.

Updated: Italicized quotations for clarity, clarified that there are intentionally 6 items on the list.

Popularity: 34% [?]

GamesLaw Video Footage: Legal Issues in Contemporary Games

Posted by Dan on April 3, 2009

At long last, we’ve found video footage from my panel at PAX 08, entitled “Legal Issues in Contemporary Games”. Thanks to Youtube user pipedreamer for getting it uploaded!

The video is split into 4 parts, the first of which can be found here. Note that the 2nd part is mislabeled “part 1″ as well, but differs in that it has Tom Buscaglia in the first frame (the actual part 1 has myself and Ross Dannenberg in the first frame). Parts 3 and 4 are labeled as normal.

Link: Part 1

Popularity: unranked [?]

Blizzard v. MDY Decided

Posted by Joshua Auriemma on February 1, 2009

This past Wednesday, the federal court for the District of Arizona issued an opinion on MDY Industries, LLC v. Blizzard Entertainment, Inc. et al (the glider case).

The decision is very favorable for Blizzard, ruling that multiple violations of the DMCA occurred, and holding Michael Donnelly personally liable for tortious interference and vicarious and contributory infringement of the DMCA.

Most troubling is the court’s holding that avoiding the Warden client is a violation of the DMCA Section 1201(a)(2), which reads:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title

By designing WoWGlider to evade Blizzard’s bot detection code (”Warden”) the court held that Mr. Donnelly violated the DMCA.  The court also considered it relevant that Glider attempts to trick other players by acting less like a bot.  This holding is troubling for more than its ramifications to video games:  the modding of any technological object comes to mind.

While I am generally critical of  MDY’s defense (See my hopefully forthcoming Penn State Law Review article), their response to the 1201(a)(2) claim was perfect:  the non-literal elements (the overall “experience” of playing WoW, from the music to the weather) do not apply to the DMCA because they are not copyrightable.  In particular, you cannot fix the non-literal elements in a tangible medium.  The court’s response to this argument is sickeningly provincial:

Audio-visual displays of computer games are subject to copyright protection, and a player’s interaction with the software of those games does not defeat this protection even though the player’s actions in part determine what is displayed on the computer screen.  See Atari Games Corp.  v. Oman, 888 F.2d 878, 884-85 (D.C. Cir. 1989); Midway Mfg. Co. v. Arctic Int’l, Inc., 704 F.2d 1009, 1011-12 (7th Cir. 1983); Williams Elec., Inc. v. Arctic Int’l, Inc., 685 F.2d 870, 874 (3d Cir. 1982); Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855-56 (2d Cir. 1982).

Really?  You’re going to go with basic video game copyright cases from the 80’s?  You’ve got nothing else?  After all, they are easily distinguishable:  in Midway, a user could exactly recreate the same user experience simply by replaying the same sequence of button presses.  In WoW, it’s almost impossible to exactly recreate the same non-literal elements that this court is so excited about.  Every time I try to recreate the same scene, there will likely be new music playing, new people passing by, new weather effects, etc.  If you can address that, fine, but don’t pretend like we’re talking about Donkey Kong here.

Unfortunately, some of the best arguments re: unconscionably have probably been waived for appeals, so Mr. Donnelly is likely having a very bad week.  Our hearts go out to you (while our Death Knights play themselves).

Popularity: unranked [?]

MDY and Glider: finally over

Posted by Dan on October 4, 2008

Well, not completely over. Blizzard has won a $6 million damages award (less than they expected) against MDY Industries, makers of the WoWGlider/MMOGlider bot software.  But there are still some questions remaining open:  whether MDY broke the Digital Millennium Copyright Act and the creator of the Glider software will have to pay the damages from his own pocket. Scorecard: Blizzard — 3, MDY — 1 (they get a point for significantly lessening the awardable damages against them via timely admissions, and beating Blizzard on some key arguments).

Popularity: unranked [?]