Sorry for the delay in reporting this one.
Bungie, Inc., the developer of the popular Destiny video game, recently filed three trademark applications with the U.S. Patent and Trademark Office. The first trademark is for the name “Eververse” and was filed on May 19, 2015. In addition to the name, the application also pertains to interactive video game software, digital books, comic books and graphic novels, instruction guides and the like. The second mark is a word mark entitled, “Eververse Trading Co.” The final mark is for the below logo, also apparently in reference to Eververse.
It is interesting to note that the name Destiny is not mentioned in any of these trademark applications. However, there is speculation that these marks will be related to Destiny because there has been no mention of a new video game as of yet.
We will continue to provide updates as more information becomes available.
Today Google announced a new initiative to try and keep patents out of the hands of patent trolls, entities whose only business is amassing intellectual property and filing lawsuits. Google is calling this new effort the Patent Purchase Promotion. Google is basically asking patent owners to trust them. The company has pledged in the past to only use its patents defensively, suing only if someone sues it first. Of course, a company’s stance on patents can shift over time as it moves from young disrupters to entrenched incumbents. 2015 could also be the year Congress takes action. Or not, knowing Congress.
Like many things Google does, this project is a sort of open beta. “We view this as an experiment,” Google wrote in the program’s FAQ. “We are looking for ways to help improve the patent landscape, and we hope that by removing some of the friction that exists in the secondary market for patents, this program might yield better, more immediate results for patent owners versus partnering with non-practicing entities.”
An experiment indeed. More info over at The Verge. Needless to say, if you are a small entity that has one or two patents and you’re looking for some quick revenue, this may be a good way to go. This is especially true if you want to ensure that your patents don’t end up in the hands of
patent trolls non-practicing entities. However, only time will tell how Google uses the patents in the future.
Here is the Announcement.
Courtesy of :
Internet services that specifically target German consumer, e.g. by addressing them in German, have to adhere to German law when doing so. In a default judgment, the regional court Berlin recently held that Whatsapp Inc. was violating German law (judgment of 9 May 2014, case no. 15 O 44/13). Whatsapp is providing its service and website in German. However, the terms and conditions were available in English only. Additionally, the service operator identification, required by Art. 5 of the E-Commerce Directive (2000/31/EC), was not available at all. In order to comply with German law, Whatsapp will have to make its terms and conditions available in German and provide a service provider identification in German as well.
This judgment is part of a campaign by consumer watchdog Verbraucherzentrale Bundesverband e.V. (VZBV). The VZBV has obtained numerous decisions regarding the validity of terms and conditions of Internet services in light of binding German law in recent years. This also concerned terms and conditions which have been translated into German, but not adapted to German law.
Businesses should check legal requirements of consumer protection laws when targeting the German market. Most important are the following:
· Identification of the operator of the service;
· Translation of terms and conditions;
· Validity of terms and conditions under German law;
· Compliance with ecommerce (e.g. distance contracts) regulations;
· Privacy protection.
Not exactly a video game case, but important the world of Copyrights nonetheless. The decision everyone has been waiting for it out. Today the U.S. Supreme Court held that Aereo is equivalent to a cable company, and is performing copyrighted works to the public without paying a license, and therefore they infringe the rights of copyright holders.
The court states:
…we find [Aereo] highly similar to those of the CATV systems in [previous Supreme Court cases]. And those are activities that the 1976 amendments sought to bring within thes cope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act. For these reasons, we conclude that Aereo “perform[s]” petitioners’ copyrighted works “publicly,” as those terms are defined by the Transmit Clause. We therefore reverse the contrary judgment of the Court of Appeals, and weremand the case for further proceedings consistent with this opinion.
Unless there is a legislation change, that’s the end of the road for Aereo as we know it.
Cloud service provides, however, can breath a sigh of relief. The court interprets the term “the public” to apply to a group of individuals acting as ordinary members of the public who pay primarily to watch broadcast television programs. The court further states:
We have said that it does not extend to those who act as owners or possessors of the relevant product. And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content. See Brief for United States as Amicus Curiae 31 (distinguishing cloud based storage services because they “offer consumers more numerous and convenient means of playing back copies that the consumers have already lawfully acquired” (emphasis in original)). In addition, an entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle.
The court also states, in the Syllabus of the opinion, that in view of “the limited nature of the Court’s holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies”
So here’s my initial $.02 on this case.
Aereo will have an initial brief dampening effect on technological development, because of the psychological impact that will weigh on technologists as they are developing new technologies. In the back of their minds, they will be thinking “remember what happened to Aereo? They spent all that money and then were shut down. We don’t want that to happen to us.” However, the Court actually goes out of its way in an attempt to prevent the decision from stifling innovation by limiting its decision to the specific technology used by Aereo. The court clearly articulates that cloud service providers in general should remain unaffected by the decision, and the Court further states that in view of “the limited nature of the Court’s holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies.” So while there may be an initial delay as technologists do a sanity check on their innovations, technology should continue to advance as usual.
The Supreme Court took a common sense approach by telling technologists not to put form over substance. This is the second time the Supreme Court has held that you can’t manipulate technology to skirt copyright laws. They said it to Grokster, and now they’ve said it again to Aereo. If you’re sitting in a technology development meeting at your company, and someone asks “how can we deploy this technology to avoid paying a license fee?”, I’d think twice about that approach, and make sure that you have legal counsel weigh in on the risks associated with that technology. Despite this, the ruling is not a death knell for technology development, and in fact reinforces the viability of cloud computing solutions in general. However, just as the Supreme Court has done here, technologists must take a common sense approach when designing new products to determine whether those products will run afoul of copyright law.
the District of New Jersey by the Third Circuit Court of Appeals after the Court of
Appeals held that the grant of summary judgment was in error and that further
proceedings were necessary. The case
arises from Plaintiff Ryan Hart (individually and on behalf of all others
similarly situated) alleging that Electronics Arts (EA) NCAA Football series of games violated his right of publicity by
appropriating his likeness in NCAA
Football 2004, 2005, and 2006. Hart was a successful quarterback for Rutgers
University from 2002 through the 2005 season, taking his team to their first
Bowl game since 1978. The case was
originally dismissed after EA filed a motion for summary judgment; the district
court held that EA NCAA games were
protected under the First Amendment.
conducted a balancing test when coming to its decision to decide whether
First Amendment rights superseded the right of publicity. In conducting this analysis, the court looked
to three tests: the predominant use test, the Rogers test, and the transformative use test. The predominant use test maintains that,
“If a product is being sold that predominantly exploits the commercial
value of an individual’s identity, that product should be held to violate the
right of publicity and not be protected by the First Amendment.” The court did not, however, that if the
predominant purpose is to comment on or about a celebrity (such as parody) more
weight would be given to the expressive values.
The court ultimately declined this test stating that at best is was very
subjective, but at worst is was arbitrary forcing judges to not only be,
“impartial jurists” but also, “discerning art
critics.” The court then turned to
the Rogers Test from Rogers v. Grimaldi. This test relies on a theory of trademark
law, specifically false endorsement, and it holds that the use of celebrity
likeness is acceptable as long as it is not simply, “a disguised
commercial advertisement for the sale of goods and services”. The court also rejected this test stating
that it would be unwise to determine that Hart was unable to retain his right
of publicity because his likeness was being used in the very same arena from
which it was derived. The court reasoned
that it made sense that any use of Hart’s likeness would be in a football
setting since that is where his celebrity came from. After rejecting the predominant use and Rogers test, the court adopted the
transformative use test. This test
requires that an artist adopting the likeness of another must contribute
something more than a “merely trivial” variation to be protected
under the First Amendment. However, the
threshold to meet this test is rather low, a work is transformative if it adds
“new expression”. That alone
is sufficient to fall within the boundaries of the transformative use
test. Ultimately, the Court of Appeals
decided that NCAA Football was not
sufficiently transformative to attain First Amendment protection because it
adds nothing creative to Hart’s likeness.
EA argued that all player avatars could be customized, therefore
satisfying the transformation requirement.
However, the court held that the main appeal of Hart’s likeness was
maintaining it as is so that fans could play as him. Furthermore, any customization was not a
transformation of Hart’s likeness allowing the use, but was instead a new
creative product that caused the use to cease to exist.
Third Circuit’s opinion was filed on May 21, 2013. If, after further proceedings, the District Court
determines that Hart’s right to publicity was affected, it could have a
substantial effect on EA NCAA
series. Because NCAA athletes cannot
receive compensation that in any way relates to their athleticism, it is
unlikely that players would sign away their likenesses to EA as there is little
benefit to be gained. This would make
the game series a potentially huge liability for the company, putting them in a
position that would require they either risk litigation or lose the
distinctiveness of the athletes that fans of the series purchase the game for.
as they become available.
Yesterday there was an Op-Ed in the New York Times presenting the opinion that District Court Judges should use already existing portions of the law more often to shift fees in patent troll litigation. The writers point out that in 3000 cases analyzed, in only 20 of them were fees shifted to the plaintiff. Fee shifting refers to when the court requires the Plaintiff to pay all or some of the Defendant’s legal fees to defend the lawsuit in the first place. Its an interesting, and quick, read. But what makes it REALLY interesting is that it was penned by Judge Randall Rader, Chief Judge of the Federal Circuit Court of Appeals (which hears all patent lawsuit appeals), along with two others. If you are a defendant that appeals a patent case and part of your appeal is fee shifting, cross your fingers that Judge Rader is on your panel. I also wonder how many District Court judges will see the op-ed and give it any consideration in future fee shifting analyses.
It will be interesting to watch as Congress begins to hold hearings to reform copyright law. The Verge recently posted a couple informative articles on the topic. There will likely be much debate over a wide range of topics. If its anything like the negotiations that let to the Copyright Act of 1976, I look forward to seeing what the Copyright Act of 2023 looks like…
WIRED has an interesting article regarding Microsoft’s inclusion of badges as rewards for developers in Visual Studio. As developers write code, an Achievements extension grants badges in much the same way a video game does. Badges are associated with certain accomplishments — both good and bad — and many of the good badges also come with points. The hope is that these virtual rewards will spark competition, and that competition will improve the quality of the work. Read more at WIRED.com.
Microsoft has acquired Twisted Pixel Studios, according to a recent Microsoft press release:
As a step in continuing to deliver Microsoft Studios’ innovative game and entertainment offerings, Microsoft has announced the acquisition of Austin, Texas-based game developer Twisted Pixel, the creative minds behind Xbox LIVE Arcade titles such as “Splosion Man” and the recent Kinect for Xbox 360 title, “The Gunstringer.”
Ross A. Dannenberg publishes new book: “The American Bar Association’s Legal Guide to Video Game Production”
- Patents, Copyright and Trademarks
- Business and Finance Issues
- Risk and Insurance
- Intellectual Property Agreements
- The Children’s Online Privacy Protection Act
- Publishing Your Game
- Licensing and Open Source Material
Mr. Dannenberg is an adjunct professor of copyright law at George Mason University School of Law. Mr. Dannenberg is also the Editor-in-Chief of the Patent Arcade website, a legal blog discussing intellectual property protection of video games.
There’s an interesting article on Law360 today:
Virtual-World Conflicts Lead To Real-World Suits.
Here’s an excerpt from the article:
Law360, New York (June 08, 2010) — As the market for online games expands and the debate over who has the right to control the virtual content heats up, website operators, their users and third parties could find themselves locked in real-world legal battles.Disputes stemming from ownership of virtual property and operators’ terms of service agreements are starting to pop up more often, leading intellectual property experts to speculate that they may become the next hot-button issues to be played out in the courts.
The complete article can be found here.
This patent claims “A squad-based shooter video game [that] allows players to dynamically join and leave the game, while that game is in progress, without the players having to save and restart the game. When a new player joins an in-progress game, a new squad member is allocated to the new player and the screen is split to present a viewing panel for the new player that depicts scenes from the perspective of the new squad member. When an existing player leaves the game, the screen is unsplit to remove the viewing panel for the exiting player and that player’s squad member becomes part of the squad being controlled by the remaining player(s).”
According to Co-Optimus, “[f]rom the patent description, timing and pictures, it appears to be for the 4 player co-op game Brute Force from the original Xbox… Other details in the patent include the ability to switch between squad members on the fly, AI controlled squad mates when not in player control, and hardware details of how it functions.”
It will be interesting to see if Microsoft licenses or asserts this patent against developers of other squad-based games using split-screen where players can join and drop out, or whether they decide to just keep this one in their portfolio.
Penny Arcade Expo (PAX) is a three-day game festival for tabletop, videogame, and PC gamers. They call it a festival because in addition to dedicated tournaments and freeplay areas They’ve got nerdcore concerts, panel discussions, the weekend-long Omegathon event, and an exhibitor hall filled with booths displaying the latest from top game publishers and developers.
I will be speaking on a panel with Seth Krauss (GC of Take Two Interactive), Greg Boyd (attorney), and Thomas Buscaglia (the self-proclaimed “Game Attorney”). It will be a lively discussion of hot legal issues, including events ripped from the headlines to intellectual property to anything else the audience wants to discuss.
Learn more about Penny Arcade Expo and Registration here: http://www.paxsite.com/registration.php.
An entertainment licensing company has begun legal combat with bankrupt video game producer Midway Games Inc. over the licenses for movies, television shows, live action productions and other properties based on the blockbuster game “Mortal Kombat.”Threshold Entertainment Inc. filed an adversary complaint Wednesday in the U.S. Bankruptcy Court for the District of Delaware challenging Midway’s proposed $33 million sale of substantially all of its assets, including all previously released titles and games based on the hit Mortal Kombat series, to Warner Bros. Entertainment Inc. That deal was announced in late May.Threshold claims that it holds perpetual exclusive rights to develop derivative works in film and television based on Mortal Kombat as well as rights to licenses on certain characters that appear in both the video games and the films and TV series based on them.
Its a peripheral issue, so I doubt we’ll track it closely, but will let you know if anything significant comes of it…
Here’s the complaint.
Today the United States Supreme Court granted certiorari in the case Bilski v. Doll. As many readers may know, the case In re Bilski is the case in which the Federal Circuit court of appeals held that business methods are not patentable unless: 1) they transform matter into a different state or thing, or 2) they are tied to particular machine. This will be the first time the U.S. Supreme Court has addressed statutory subject matter under 35 U.S.C. sec. 101 since the 1981 case of Diamond v. Diehr where the Court held that the execution of a physical process, controlled in part by the running a computer program, was patentable.
It will take some time for the case to go through the briefing stage, and then to schedule oral arguments, before the Court will render a decision. In view of the fact that the Court is about to recess for the summer, we probably won’t get a decision on this case until late 2009 or early 2010. We’ll keep you posted nonetheless, as this case could have a major impact on patents for video games and other interactive entertainment and media.
On this day in history, as reported by Wired.com, on May 26, 1981, the USPTO granted the first pure software patent, U.S. Patent No. 4,270,182, to Satya Pal Asija. Video games are computer software, so the ‘182 patent really was a groundbreaker for the industry. The software was a natural-language-interface program called Swift-Answer, an acronym for the contrived name Special Word-Indexed Full-Text Alpha-Numeric Storage With Easy Retrieval.
1) Square Enix reportedly kills Chrono Trigger fan project based on alleged copyright infringement.