Dan Nabel

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I’ve always been a fan of spotlighting important legal issues that seem to fall between the cracks. So if net neutrality is “the most important public policy you’ve probably never heard of,” and if last year’s documentary filmmaking allowance was the most important DMCA exception nobody seemed to notice, then the Ninth Circuit’s February 17, 2011 decision in MDY Industries v. Blizzard Entertainment is the most important denial of a motion for rehearing that no one is talking about — especially if, like me, you love video games, justice, and legalese-laden 48-page opinions that read kind of like Conrad’s Heart of Darkness.

The Lawsuit

Admittedly, the premise of this case is pretty ridiculous. But beneath that ridiculous premise, and the pages upon pages of legal minutia, is a pretty important and interesting legal issue that has real influence on your everyday life.

MDY Industries centers on a “bot” (short for robot) program called “Glider.” Using the Glider software allows World of Warcraft gamers to put a WoW character on autopilot, thereby avoiding the laborious chore of “leveling” the character and acquiring weapons and gold. In other words, Glider allows WoW gamers to skip the nascent stages of character development and proceed straight to the joy of being powerful and wealthy — something many WoW gamers will never actually experience in real life. Conceptually, using Glider is similar to “gold farming” — i.e., paying someone in a developing country to acquire virtual money for you. (It would be fascinating to know what effect Glider has had on the hundreds of thousands of gold farmers in the developing world.)

The legal fight began more than four years ago, when MDY preemptively sued Blizzard for a declaration of its rights after Blizzard’s counsel visited MDY founder Michael Donnelly at home in October 2006, “threatening suit unless MDY immediately ceased selling Glider and remitted all profits to Blizzard.” Naturally, Blizzard had been very unhappy about Glider and (among other things) the effect Glider was having on WoW’s virtual economy.

From Donnelly’s perspective, his company made $3.5 million by selling a legitimate aftermarket product that made WoW more enjoyable for many gamers. From Blizzard’s perspective, it not only had to spend money dealing with “bot” complaints from its users, but it also lost substantial revenues from gamers who otherwise would have spent many more billable-months in their quests to obtain virtual fame and fortune (e.g., instead of subscribing to WoW for one year, a player might only subscribe to WoW for 6 months, since the player could achieve more in less time). Continue reading the full story . . . »

Ken Basin

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Time for a teen years confession.

For about two years, starting on August 25, 1997, my life had about four principal components: sleep, eat, school, GoldenEye. For the uninitiated, GoldenEye was a first-person shooter video game for the Nintendo 64, based on the James Bond film of the same name. And it. Was. Awesome. Widely regarded as one of the most successful, beloved, and influential video games of all time, GoldenEye helped prove that pale, unathletic teenagers and drunken frat boys had more in common than they ever previously dreamed — a shared joy in cartoonishly shooting their friends in the face.

Playing GoldenEye was its own reward, and I never expected any remuneration for those long, sleepless nights spent playing the game, devouring Oreos by the handful, and listening to Jay-Z’s Hard Knock Life album on repeat (also all true). But it seems I am, in fact, due a “thank you” card from a little-known company called Carl Walther GmbH Sportwaffen. That company — better known simply as Walther — manufactures the PPK pistol, best known as James Bond’s weapon of choice. And no doubt thanks in part to the efforts of obsessive gamers like myself, last month Walther received a rare product configuration trademark from the Trademark Trial and Appeal Board for the design of its iconic gun.

That’s right: the shape of this gun is now a registered trademark.

Traditionally, trademark protection is accorded to company and product names, logos, and slogans. Kodak — a company name. CyberShot — a product line. “The Best a Man Can Get” — a slogan. The distinctive green-rimmed Starbucks logo. In other words, all of the obvious signifiers of the source of a product or service. So the idea that a product can be its own trademark is definitely unintuitive. Luckily for Walther, though, the company hired lawyers. And as any lawyer will tell you, the law cares very little for your wounded intuition.

Continue reading the full story . . . »

Steve Smith

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I was in GameStop last week buying my daughter Hawx 2, a T-rated simulated aerial combat video game. As I was standing in line (with all the dads buying M-rated Call of Duty: Black Ops for their under-17 year old sons, while pretending to buy it for themselves), I was drawn to the display of the Microsoft Kinect, the new hands-free controller that is designed to allow the ultra-interactivity of the Nintendo Wii, but without any controller at all. You (and, apparently, one million of your likeminded early adopter friends) stand in front of a 3D camera system, which translates your movements in real life into the movement of your avatar on the screen. No longer is the pushing of a button or the swinging of a controller rendered as the action of your avatar; rather, your actual fingers, hands, arms, face and body are re-rendered as the action of your avatar exactly as you performed them. Ladies and gentlemen, at long last, the future is here (minus the flying cars, hoverboards, food hydrators, and everything else we were promised in Back to the Future, Part II).

I immediately thought of it as acting in a play. The real you is performing the movements from the gallery, while the virtual you is acting them out, in costume and on set, on the stage of your TV. It is like playing cops-and-robbers in the playground, except no one else need be present and no playground is required.

Of course, since I am a lawyer and never turn my lawyer brain off, I immediately recalled the most interesting question that was asked during November 2’s Supreme Court oral arguments in Schwarzenegger v. Entertainment Merchants Association, the decision in which is expected to come down sometime in Spring 2011. Continue reading the full story . . . »

Last week, Bloomberg’s Lee Pacchia interviewed Law Law Land’s Steve Smith about the Supreme Court case of Schwarzenegger v. Entertainment Merchants Association, which will decide whether a California law barring the sale of violent video games to minors violates the First Amendment. Steve’s views on the subject, of course, are no secret. But we think his podcast makes for one of the most cogent and interesting breakdowns of the issue yet. Check it out here (more Bloomberg Law podcasts here).

Dan Nabel

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As comedian Myq Kaplan says, “There’s a spectrum of dorkery from people who use words like dorkery and those who do not.” When Starcraft II was released on July 23, I was one of the millions of uberdorks around the world whose preorder instantly made it the fastest and best-selling computer game of 2010. As an additional testament to my dorkery, I soon thereafter identified a myriad of legal issues with the game.

Number one, the game destroys graphics cards (especially in laptops) because Activision-Blizzard forgot to include a framerate cap. This small oversight caused thousands of graphics cards like mine to overheat and die during game play. Huge potential for a class-action lawsuit? Possibly, but not very interesting, academically.

Number two, the game has a gigantic, mechanized soldier unit based on Arnold Schwarzenegger called the “Thor” (yielding the optimal blend of dorkery and machismo). But alas, as any Arnold aficionado can immediately tell, the Thor is voiced by a sound-alike and not the actual Governator. This made me wonder: did Arnold license his right of publicity for Starcraft II, or does the First Amendment give Activision-Blizzard the right to use Arnold’s likeness without his permission? Continue reading the full story . . . »

Ricardo Cestero

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The Madden NFL series of video games is the latest victim of the rash of lawsuits attacking video games for allegedly using celebrity likenesses without permission. Earlier this month, a retired Cincinnati Bengal and Tampa Bay Buccaneer named Michael, a.k.a “Tony,” Davisbrought a class action lawsuit on behalf of 6,000 retired NFL players, accusing publisher EA Sports of using likenesses of retired NFL players in its games without permission. Our regular readers know all about the ubiquity of these right of publicity cases, and in particular, how they’ve emerged in the video game context. And the script is usually familiar: video game portrays well-known celebrity’s image or likeness, celebrity gets mad, and it’s off to the courthouse. But this case is particularly interesting, because the plaintiffs’ claims don’t actually involve EA using their names or likeness. Continue reading the full story . . . »