Since the beginning of its existence, BitTorrent has been a lightning rod for controversy. Comcast choosing to slow down or “throttle” the service’s traffic was one of the first shots fired in the ongoing battle over Net Neutrality.
This is not just a problem here in the States. Canadian provider Rogers ”throttles more than any other internet provider in North America”. This issue is not going away. It speaks to many fundamental questions on the future of the internet, and also the future of video games. BitTorrent has exciting, perfectly legal applications. You can use it to quickly and easily transfer a homemade game to a friend, or share your own machinima. The downside is that, thanks to its ample capacity and dispersed load, pirates have thrived, distributing illegal versions of games for free. That bites into already precarious profits and reduces the incentive developers have to make the new games we love.
This profound problem got a new wrinkle when TorrentFreak recently claimed they traced BitTorrent downloads to the Recording Industry Association of America and US Department of Homeland Security. Using YouHaveDownloaded.com, TorrentFreak alleges they found that six unique IPs within the RIAA and more than 900 at DHS downloaded illegal materials from BitTorrent. TorrentFreak is undeniably partisan. The blogger who provided these claims uses an alias (presumably due to fears of reprisal). But, it is not hard to believe that employees at large organizations get copyrighted materials for free. To be fair, we don’t know why these files were downloaded or what was done with them. It’s possible it was for personal use as most coverage of this has implied, while it’s also possible it was downloaded as part of an investigation, which may have even been at the request of the rights holder. All we know is the files were likely downloaded by someone at those IP addresses.
There is no consensus on how to deal with the issue. RIAA abandoned the idea of suing individual downloaders long ago. Not so in Europe, where CD Projekt served settlement offers on Germans accused of pirating a copy of The Witcher 2. Others have chosen to focus on communities like the Pirate Bay in order to make a bigger dent in the infringement. Pirate Bay has been cited by supporters of the Stop Online Privacy Act as proof of how necessary the legislation is. (Legislation which, incidentally, may also ”break the internet.”)
TorrentFreak’s claim they have found foxes in the henhouse is interesting, it does not answer any questions. Is it embarrassing for the RIAA? Yes. Regardless of what the real reason may be here, the publicity’s implications have been negative in a pretty much universal manner. But, it does not solve the unresolved problem of how to confront the clash between copyright owners and the easy sharing the internet allows. Law of the Game will keep you updated of new developments as they become available.
Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.
Tuesday, January 17, 2012
Tuesday, January 10, 2012
Things to Watch for in 2012: O’Bannon v. NCAA
Here at Law of the Game, both Mark and myself are big college sports fans, particularly of the burnt orange and white. (Hook ‘em!) For those of you out there with similar obsessions, you have probably played one of EA’s NCAA Sports games and enjoyed coaching your alma mater to (imaginary) glory. You might have used one of the classic teams and enjoyed the golden years of Michael Vick at Virginia Tech, or Julius Erving at the University of Massachusetts. But does the fact that these games do not use player names mean they have the right to make similar characters without paying royalties?
That is the fundamental question asked by UCLA basketball great Ed O’Bannon in his lawsuit against the NCAA. The original filing was back in 2009, and multiple plaintiffs have joined since. They argue the NCAA’s behavior amounts to unlicensed use of their image and likeness. Taylor Branch highlighted the dispute in October. The Atlantic published his exhaustive and powerful article The Shame of College Sports, and some quotes from O’Bannon get to the heart of the issue:
“Once you leave your university,” says O’Bannon, who won the John Wooden Award for player of the year in 1995 on UCLA’s national-championship basketball team, “one would think your likeness belongs to you.” The NCAA and UCLA continue to collect money from the sales of videos of him playing. But by NCAA rules, O’Bannon, who today works at a Toyota dealership near Las Vegas, alleges he is still not allowed to share the revenue the NCAA generates from his own image as a college athlete.
Branch also spent time with Michael D. Hausfield of Hausfield, LLP to get a better grasp of the plaintiffs’ argument. (Also from The Shame of College Sports):
“Let’s start with the basic question,” he said, noting that the NCAA claims that student-athletes have no property rights in their own athletic accomplishments. Yet, in order to be eligible to play, college athletes have to waive their rights to proceeds from any sales based on their athletic performance. “What right is it that they’re waiving?” Hausfeld asked. “You can’t waive something you don’t have. So they had a right that they gave up in consideration to the principle of amateurism, if there be such.”
These rights are lucrative. EA Sports paid $35 million last year to the NFL Players Union to compensate players who appear in their enormously popular Madden and NFL Street franchises. Former collegiate players haven’t seen any money to date. A ruling against the NCAA could mean big changes for the way these games are developed and financed going forward.
The plaintiffs in O’Bannon v. NCAA are seeking an injunction against further use, damages, and an accounting for profits made by the NCAA from the licenses they’ve already sold. The suit has had slow going so far. The latest update is that the case is in Dallas Federal Court over a discovery dispute with Conference-USA. The plaintiffs have managed to fend off attempts at dismissal by the NCAA so far, but we should expect both sides to fight this one as far as they possibly can. An accounting of profits, if a court found the NCAA liable, could be a deep, painful stab at their continued financial viability. It could also be a powerful precedent for current players to sue on similar grounds.
The NCAA’s position is not completely without merit. Their rules, flawed as they may be, have been applied consistently for decades. Among professional leagues, these rights are typically handled collectively (like the NCAA) to simplify licensing agreements. There are arguments for this simplicity, and it is difficult to say what percentage of the license fee paid to the NCAA is for current players versus the retired players. Historic rosters bring value, but to subdivide that by the value of a given year’s team and further separate it by player is difficult. Moreover, the percentage of historic inclusions at the college level is substantially lower than at the pro level since there are many more teams in the NCAA.
This is not the only dispute over player likenesses in the past few years. The Madden franchise has been the target of similar suits discussed previously by Law of the Game. That incident led to a $28 million verdict in 2009, requiring the players’ union to pay the retirees who went uncompensated. Yet another suit was filed in July 2010 over a similar issue, but targeting EA rather than the NFLPA.
We will continue to watch the progress of O’Bannon with a close eye. As gamers and sports fans, it could forever change the games we have enjoyed so much.
Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.
That is the fundamental question asked by UCLA basketball great Ed O’Bannon in his lawsuit against the NCAA. The original filing was back in 2009, and multiple plaintiffs have joined since. They argue the NCAA’s behavior amounts to unlicensed use of their image and likeness. Taylor Branch highlighted the dispute in October. The Atlantic published his exhaustive and powerful article The Shame of College Sports, and some quotes from O’Bannon get to the heart of the issue:
“Once you leave your university,” says O’Bannon, who won the John Wooden Award for player of the year in 1995 on UCLA’s national-championship basketball team, “one would think your likeness belongs to you.” The NCAA and UCLA continue to collect money from the sales of videos of him playing. But by NCAA rules, O’Bannon, who today works at a Toyota dealership near Las Vegas, alleges he is still not allowed to share the revenue the NCAA generates from his own image as a college athlete.
Branch also spent time with Michael D. Hausfield of Hausfield, LLP to get a better grasp of the plaintiffs’ argument. (Also from The Shame of College Sports):
“Let’s start with the basic question,” he said, noting that the NCAA claims that student-athletes have no property rights in their own athletic accomplishments. Yet, in order to be eligible to play, college athletes have to waive their rights to proceeds from any sales based on their athletic performance. “What right is it that they’re waiving?” Hausfeld asked. “You can’t waive something you don’t have. So they had a right that they gave up in consideration to the principle of amateurism, if there be such.”
These rights are lucrative. EA Sports paid $35 million last year to the NFL Players Union to compensate players who appear in their enormously popular Madden and NFL Street franchises. Former collegiate players haven’t seen any money to date. A ruling against the NCAA could mean big changes for the way these games are developed and financed going forward.
The plaintiffs in O’Bannon v. NCAA are seeking an injunction against further use, damages, and an accounting for profits made by the NCAA from the licenses they’ve already sold. The suit has had slow going so far. The latest update is that the case is in Dallas Federal Court over a discovery dispute with Conference-USA. The plaintiffs have managed to fend off attempts at dismissal by the NCAA so far, but we should expect both sides to fight this one as far as they possibly can. An accounting of profits, if a court found the NCAA liable, could be a deep, painful stab at their continued financial viability. It could also be a powerful precedent for current players to sue on similar grounds.
The NCAA’s position is not completely without merit. Their rules, flawed as they may be, have been applied consistently for decades. Among professional leagues, these rights are typically handled collectively (like the NCAA) to simplify licensing agreements. There are arguments for this simplicity, and it is difficult to say what percentage of the license fee paid to the NCAA is for current players versus the retired players. Historic rosters bring value, but to subdivide that by the value of a given year’s team and further separate it by player is difficult. Moreover, the percentage of historic inclusions at the college level is substantially lower than at the pro level since there are many more teams in the NCAA.
This is not the only dispute over player likenesses in the past few years. The Madden franchise has been the target of similar suits discussed previously by Law of the Game. That incident led to a $28 million verdict in 2009, requiring the players’ union to pay the retirees who went uncompensated. Yet another suit was filed in July 2010 over a similar issue, but targeting EA rather than the NFLPA.
We will continue to watch the progress of O’Bannon with a close eye. As gamers and sports fans, it could forever change the games we have enjoyed so much.
Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.
Thursday, December 29, 2011
Game::Business::Law 2012
I will be moderating a panel at the rapidly approaching Game::Business::Law 2012 in January. The preliminary program has been posted to the GBL site. My panel is titled "Paying and Playing," and will be in the afternoon of the first day. One of the most exciting additions this year is the funding forum on the afternoon of day 2, facilitated by the Texas Entrepreneur Network.
I encourage anyone interested to check out the GBL site. The event will be January 25-26, 2012, and held at the SMU Dedman School of Law again this year. SMU's Dedman School of Law and Guildhall, in conjunction with The Center for American and International Law, always put together a great program.
Hope to see many of you there in a few weeks!
I encourage anyone interested to check out the GBL site. The event will be January 25-26, 2012, and held at the SMU Dedman School of Law again this year. SMU's Dedman School of Law and Guildhall, in conjunction with The Center for American and International Law, always put together a great program.
Hope to see many of you there in a few weeks!
Wednesday, December 28, 2011
A short Joystiq post
Many of you likely saw that Christopher Grant is leaving Joystiq. Many of you also likely saw that Justin and Griffin are following suit. From the time I have spent both reading Joystiq and writing LGJ, I can say without reservation that Joystiq is losing three truly great people. Of those, I spent the most time interacting with Chris, who really is a great person to work with. There has already been some speculation about what the future holds for those three, but I'm sure they will do well in their future endeavor.
Which brings me back to Joystiq. While this is a major loss, the team now in place is a really strong one. I know Ludwig is more than capable of taking the reins, and the others who remain that I have worked with are all very capable. I have probably had the most interaction with Alexander and Ben, both of which are very good at what they do. In short, I wouldn't worry about the future of Joystiq.
From Law of the Game, best wishes to all of you in your various new roles.
Which brings me back to Joystiq. While this is a major loss, the team now in place is a really strong one. I know Ludwig is more than capable of taking the reins, and the others who remain that I have worked with are all very capable. I have probably had the most interaction with Alexander and Ben, both of which are very good at what they do. In short, I wouldn't worry about the future of Joystiq.
From Law of the Game, best wishes to all of you in your various new roles.
Friday, December 23, 2011
A Step Forward for Law of the Game
As I’m sure many of you have noticed, the amount of time I’ve been able to dedicate to Law of the Game over the past few months has diminished greatly. Between a new professional role and some other publication opportunities I’ve had presented, there simply hasn’t been time for Law of the Game content.
A long-time friend and reader contacted me about this very predicament, and I think we’ve come up with an exciting idea for 2012. He will be writing some content which will be posted on Law of the Game, starting in January.
I wanted to take this opportunity to introduce Zack Bastian, a third year law student at George Washington University Law School in Washington, D.C., and the first official outside contributor to Law of the Game.
Happy Holidays from Law of the Game
Happy Holidays to all of my readers from Law of the Game.
I know the second half of 2011 has been relatively quiet for a number of reasons, but I have some exciting things in store for 2012. Stay tuned!
Tuesday, July 5, 2011
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