Sunday, October 28, 2007

Guitar Hero III: Problems with the Detatchable Neck

Other parts of the blog-o-sphere are reporting some issues with the bundling of Guitar Hero III with wired guitars. I'd like to address a different problem that I've had, along with a number of others according to forum posts.

I'd like to preface by saying I really do enjoy the Guitar Hero series (although I have to admit my wife is better at the games than I am), and I've bought 4 games with 4 guitars to date (2 on PS2 an 2 on 360). However, after the issues with the X-Plorer, I'm surprised there was not more quality control with the wireless Les Paul.

I picked up my copy (360 version with wireless guitar) at GameStop at midnight and went home to play. Now, I'm not terrible at the game, and I was having some real problems once I hit tiers 4 and 5 on medium. I assumed I was tired, and went to bed. The next morning, both my wife and I started playing, and once I was able to watch the game more closely, I found that the red and yellow buttons were not registering being pressed. After disassembling and re-assembling the guitar, the problem continued. I tried blowing on the contacts a la NES cartridges circa 1988. While the responsiveness improved, it was still only in the 70-80% range. I exchanged it for a new guitar, which seems to be working in a 95% or higher error range, which is far more acceptable (though still less than ideal on a game that requires such accuracy).

The issue almost certainly stems from the detachable neck's contact system, which is truly unfortunate since the removable neck was generally a good idea. I hope that Red Octane will resolve this issue sooner rather than later. The button problem seems to be appearing on many message boards, so I don't believe my problem is an isolated one.

On an unrelated note, it seems there's some sort of error in the track "One" on medium between the 85 and 90% mark. I at first thought it was the guitar, but having seen the same error with both myself and my wife with both the X-Plorer and Les Paul, I think there's something not working correctly in the track. And it's limited to the Medium difficulty. If anyone else notices this issue, please let me know, but I will acknowledge that I might be wrong on this track error.

Friday, October 26, 2007

A Jack Thompson Response

Bloggers in the video game realm know they've truly "made it" when Jack Thompson personally responds to a post. While I haven't been able to verify the identity 100%, the responses I received are generally consistent with Mr. Thompson's form, so I thought I would take this opportunity to respond to them, but without the name calling Mr. Thompson feels necessary to include.

jackthompson said...

Dennis McCauley got it wrong, of course and as usual. The FTC reg pertains to use of a credit card to verify a parent's identity, not a minor's age. Go read what he links to at the FTC on his site, and you'll find you're wrong.

It is a violation of bank card agreements to use credit cards as age verifiers, and obviously so since kids as young as 12 have credit cards and since junior can "borrow" dad's card. Pretty simple stuff, really, if your brain has not been fried by games.

The last time I sued Best Buy in this regard, they caved and settled and agreed not to sell M games to kids. They are in breach of the agreement, as well as violating Florida's anti-fraud statute. It's a shame you all don't know what you're talking about. Jack Thompson

October 25, 2007 5:35 PM

jackthompson said...

Actually, it is up to the government to decided these things, just as it is up to society to stop 7-11 from selling beer to 12 year olds. Duh. That's why we have a deceptive trade practice law in every state in the union. It's called democracy, gamer nerds. Deal with it. And grow up.

October 25, 2007 5:38 PM

It is so difficult to select a place to begin. I suppose I will start from the bottom, where you make the broad statement that it is up to the government to decide "these things." What you have stated is a philosophy on governance, not a fact. In your mind, the government should be free to control the hearts and the minds of the people as they so choose. In reality, our democratic republic has taken a small segment of the choices people can make and placed restrictions upon them. Alcohol, tobacco, and pornography are all among the things with restricted sales to minors. Movies, music, and video games are not. As I have pointed out repeatedly, there is no content beyond the level of the Saw movies in even the Manhunt games. If you had taken the time to experience them, you would know this to be the case. Therefore, if your basic supposition is that the government should add violent media to the category with alcohol, tobacco, and pornography, then so be it. But there is a logical fallacy in attacking content in only one medium when the same content exists in another medium which is equally accessible to the people you claim to be trying to protect.

Also, contrary to what you seem to believe, there are in fact people who do not agree with you on a philosophical level. In fact, there are even people who vote for the same candidates you do who do not agree with your basic ideology that the government should have unlimited control to censor content. Moreover, there are many people who believe the government is not some grand babysitter or pseudo-parent who should be making decisions for people. In fact, it has been argued that the usurption of personal responsibility by "progressive" government programs has been a key cause of the downward trend of society, tracing back to unnecessary government coddling in the New Deal.

That being said, your view is in such the substantial minority that it cannot be allowed to prevail. Tyranny of the minority cannot be tolerated (and if you're not familiar with the concept, I suggest you brush up on your Federalist Papers). In fact, your very position that violence is "obscenity" is fallacious under the Burger test for "obscenity":
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Emphasis added to the key element, the prurient interest. There is no sexual arousal associated with violence for the average person.

This brings us to the error in your "for the children" argument. If your goal were to simply keep these games out of the hands of minors unless their parents decided otherwise, I doubt seriously you would face much opposition. No one opposes movie theaters or Wal-Mart for policies of this sort. The difficult aspect is that your goals go well beyond "the children" to keep this content out of the hands of adults, whom are more than capable of making their own decisions, to the point that you eventually want to run many, if not all, game manufacturers out of business. (I'm still unclear if you would start to target less objectionable content, say Smash Bros. Melee, if you succeeded against the most extreme outlying targets.) Anyone who has monitored your commentary knows that you would just assume punish parents who buy T or M games for children under 13 and 17 respectively as you would prevent the kids from playing the games. Ultimately, that is the parent's decision, not yours, to make.

Speaking to your credit card reference, children under 18 cannot acquire credit cards on their own. I will grant you that Dennis's reference is not exactly on point, but the concept is essentially the same. Anyone under 18 with a credit card has been granted said card by someone of legal age, likely a parent or guardian. In that case, the person who has the card has given implied consent that the card be used, and thusly implied consent to purchase the M rated game. Ultimately, the account holder is still in control, and to dictate otherwise would mean that you are preventing people who are 18 from easily purchasing games from online retailers.

You also mention "junior can 'borrow' dad's card." If Junior has asked for permission, then the parent has granted permission to play the game. If Junior has not asked permission, then Junior has more to worry about than the content of the game as he's already committed fraud and identity theft.

Your comment about Best Buy "caving" really has little to do with the present situation. Large companies often choose to settle disputes to discontinue wasting time on what amount to nothing more than meritless nuisances. It it often cheaper and quicker than proceeding with legal action.

Finally, I do take some personal offense to the implication that games have "fried my brain." I've been gaming for nearly two decades, but I also have an undergraduate and two graduate degrees. If you continue to assume that you'll never encounter anyone on the opposite side of the debate with an an ounce of intelligence, you'll continue to have your simplistic responses outdone by intelligent gamers. Eventually, sensationalists in the media will tire of your particular issue, and you will be relegated to a historical footnote.

Wednesday, October 24, 2007

Jack Thompson: Online Game Sales = Deceptive Trade Practices!

I'm certain many of you, the readers, have seen the latest Jack Thompson coverage on Game Politics found here and here. Dennis was quick to point out the FTC provision about credit card ownership being adequate proof of age for online transactions, and the FoxNews contributor was quick to play the free speech card. However, there's an elephant in the room I'd like to address.

Everything Mr. Thompson has said about games applies to movies on DVD.

Anyone with a credit card can go to and pick up Saw I, II, or III (unrated, meaning the more violent cut than the theatrical one) just as easily as you can order Manhunt 2. The same applies to Best Buy, Circuit City, or whatever other entertainment online store you'd like to site. To the same ends, in-store id checks are equally lacking on these (and other) movie titles. While I haven't played Manhunt 2, I can only imagine the graphic content is probably on par with the Saw series, which is exceptionally brutal if you haven't seen the movies. Given that the research on the impact of media is mixed, and that movies have been found to affect young people like games by some studies, why ignore the movie industry?

There can only be a few answers:
1. Mr. Thompson is afraid of the people in the movie industry, as they would likely be viewed as "more powerful" than the game industry.
2. Mr. Thompson is giving undue weight to the unproven link between interactivity and a heightened impact.
3. Mr. Thompson has an unhealthy fixation on and unequivocal bias toward games, which cannot easily be explained.
4. Mr. Thompson's logic is flawed, for some other unexplained reason, so that he either ignores or actually favors violent movies. (Perhaps he is a Saw fan.)

The simple point being: If you would like to go on a crusade against the media, go on a crusade against the media, not one medium.

Ultimately, the decision should still be left to the parents, and the tools are in place for the parents to make those decisions. It is not up to the government, or Mr. Thompson, to make those decisions for society, parents who are failing to perform their duties as parents, or parents who are actively monitoring their child's media consumption. And if anyone is to be held responsible, it should be the inadequate parents, not the game manufacturers, game retailers, or game raters. I can only hope that the news media will tire of this issue soon, or that the American people will begin to realize that playing the "For the Children" card has reached a point where it should be accompanied by automatic scrutiny, as it is rarely actually being used to help the children anymore.

Even More Microsoft Machinima Rule Information: The Revised Rules

Microsoft has finally posted the long promised "Revised" Game Content Usage Rules. They are available here. Now that they are available, what has changed? The short answer is "Not much."

1. The "reverse engineering" rule was re-written to clarify "not normally permitted by the game." As such, things like the Halo 3 Forge or the Halo CE included editors seem to be acceptable.

2. One of the most notable changes is the specific reference to film festivals. You are allowed to enter film festivals, even those with prizes, with machinima. However, this seems like a fine line as there is also a specific note as to contests. Generally, the difference seems to be securing Microsoft's permission for the use.

3. The music/soundtrack/sound effect issue is more resolved, and for Halo fans, Halo 3 is specifically noted as having a usable soundtrack for machinima. This, as I noted in previous articles, falls about in the manner you would expect. The soundtracks are often licensed, and it's more noticeable in some games (i.e. PGR where the tracks are named) than in others. Microsoft seems committed to making notice of this on a game by game basis on the site/forums, which seems like a more reasonable course of action than an outright ban.

4. The phrase "You'll know it when you see it." appears a lot. On the plus side, this leaves a lot of room for interpretation. On the negative side, this leaves a lot of room for interpretation. I suppose we'll find out more as this is enforced, both as to the content and as to "Microsoft approval" on contests.

5. The backstory/lost chapters rule has changed significantly. You are now allowed to tell any story, but if your story contains elements from the game's story arc or surrounding content, then you're providing Microsoft a license to use that content. This is actually a fairly good solution to a real problem, even if it seems as though the machinimist is losing the rights to their "story." There have been many cases (mostly in the film and literary arenas) where someone writes a story, then without knowing, someone else writes a related story. Or, a writer sends a script in, the script is returned and the film company makes a similar movie. This often results in a lawsuit. What Microsoft is trying to avoid is the instance where they already have a story planned, and then one or more machinimists create something similar, Microsoft releases their content and the machinimist sues for infringement. If you want to work in Microsoft's universes, you have to accept that Microsoft may use a similar story, and you're giving up recourse if that happens. On the other hand, if you create something totally original, you've given up nothing.

6. You can let other people build on your work, but it's governed by the same rules as your work. Basically, it's a trickle down license.

7. They actually provide a contact email for people interested in getting a commercial license or for film fesitval sponsors who want approval. The address is gamevids*at*

All in all, while the changes are not unexpected or dramatic, they are all positive and address many of the concerns of the machinima community.

Related Stories:
Past Microsoft Machinima Rule Coverage
Blizzard Machinima Rule

Short Notice

I do apologize for the shortage of content as of late on Law of the Game. My time has been largely consumed by client projects and the development of a new website for The Vernon Law Group. I will certainly have a post directing you to the new site once it is public. In the mean time, though, it appears there will be another week or two of 1-2 posts per week instead of my more usual 3-5 posts per week. Thank you.

Wednesday, October 17, 2007

Mergers, Acquisitions, and Divestments for Game Developers Part 2: Mergers and Acquisitions

Continuing from Part 1, this article addresses the concept of mergers and acquisitions, which are undoubtedly important to the smaller developer. For those outside the industry, or who don't hav a business background, the overwhelming question is probably a simple "Why?" Part of it seems to be a trend in the industry, a trend which has happened in many other industries before. Large game companies (i.e. EA, Ubisoft, Microsoft, Nintendo, Sony) like to acquire up and compning developers for a number of reasons, such as adding fresh thought to the development process, adding new intellectual property to their roster both from the standpoint of the software and the brand that accompanies it, and a broader mass appeal, not to mention the added revenue. From the standpoint of a start up developer, a big studio taking over gives you many of the perks that come with being in a big company, and may remove many of the financial concerns and burdens that occur with a smaller business. Of course, if your small business is more like, say, id software, or if you happen to have a genius like, say, Miyamoto* break off to form a small development company, then you're probably not looking into being acquired.

So, what are mergers and acquisitions? Well, it's two different means to the same ends: two companies combine to form one. A merger is where two companies come in on more equal footing, and merge into one new entity. An example would be SquareSoft and Enix becoming SquareEnix. An acquisition, on the other hand, is typically used to describe a large company absorbing a smaller company, such as when Microsoft originally acquired Bungie. In both types of transactions, the mechanism is controlled by the contract, and often times they all work about the same, other than the respective sizes and bargaining powers of the entities. Hence, Mergers and Acquisitions (or M&A, as they're often called in the legal and business worlds) are typically discussed as a single concept.

This brings us to the basic workings of the concept. Generally, this starts either by one company deciding it wants to acquire another, or two companies mutually deciding they're be better off joining forces. From there, the deal is negotiated through, once again, the contract. There may be some additional regulatory issues if there's a cross-border transaction or if both companies are publicly held, or if the new company would result in some sort of a monopolistic anti-trust monster, but generally, there won't be too much government interference to worry about, unless a location happens to require particular permits. There is also always a tax element to pay attention to, but that applies on both a local and national level (as well as a state level in many places). Once all of the details are ironed out in negotiations, there is some sort of closing to sign the documents, and then the companies are re-assembled according to the terms of the agreement. As this is such a flexible process, given the flexibility of the agreements and the dramatic differences between potential parties, this is another occasion where tips are more appropriate than a guide.

1. Keep your position in perspective. Remember that no two transactions are alike, and your place respective to the other party in the deal may reflect directly on your bargaining power. If it's a merger, you probably can't force the other party into too many different directions. In an acquisition, I tend to believe the little guy often has more power than the big guy. Typically, in an acquisition, the big guy wants the little guy, and the little guy may be able to get a few extra perks because of that desire. Of course, individual situations do vary.
2. Each side needs independent counsel. Much like I stated in the previous part, everyone needs to have their interests represented independently. More than that, independence removes the appearance of impropriety in case the deal falls apart down the road.
3. Organization is the absolute key. Negotiations in these deals can, and do, drag on for months at a time. Without a pretty thorough organization, things will be overlooked. Your legal representation should handle organizing the documents and keeping you apprised of the word for word changes in redlined versions, but checklists help with the bigger picture.
4. Remember: Contracts are flexible. When it comes right down to it, most any outcome can be written into the contract. If you want to maintain separate offices, that can be done. If you want salaries locked in for 5 years, that can be done. If your big sticking point is making sure there's a frozen yogurt machine in the breakroom, that can be addressed too.
5. Build in a mechanism to resolve future issues. As much as every attorney wants to be sure the document accounts for every contingency and every alternative, inevitably something will come up. If a way to resolve issues is built into the contract, hopefully it will keep the deal from falling apart over unresolved problems, be they with healthcare or office attire or the number of action figures allowed in a cubicle.

In the grand scheme of things, M&As are pretty routine. They have been happening in business forever, and there are plenty of professionals who have significant background in these transactions. Now that the game industry is one of the biggest kids on the block, more traditional business issues will continue to arise in the industry and be well publicized, just as the recent events noted in Part 1 were.

*Note: There's no indication this would ever happen, but he's a recognizable example of the concept. This is not meant to create some grand rumor about a new studio in the works.

Monday, October 8, 2007

Bragg v. Linden Settles, Still No Virtual Property Precedent

In an astonishingly anticlimactic ending to what could have been the landmark first case on virtual property, Bragg and Linden have entered into a confidential settlement agreement. And while I wouldn't hold my breath waiting for the agreement to be leaked online, even if it were, there would still be no precedent set on virtual property from this case. I imagine it's only a matter of time until some other case does just what many of us expected from Bragg v. Linden, but we will have to wait and see what case does just that.

Previous Law of the Game Coverage can be found here.

[Via Virtually Blind, Game Politics]

Friday, October 5, 2007

Mergers, Acquisitions, and Divestments for Game Developers Part 1: Divestment

Given the recent news in the corporate realm for developers Bizarre Creations and Bungie, I thought it would be a good time to discuss some basics of corporate transactions. Accordingly, this will be the first of two articles on Mergers, Acquisitions, and Divestments. Given that today is Bungie's "independence day," I thought it would be appropriate to start with divestments, even though the industry seems to have far more mergers and acquisitions.

The basic concept is a spin off. An element of a company, for one reason or another, is pushed into an independent entity, or to another acquiring company. In the event of the latter, the points on mergers and acquisitions are equally relevant.

It would be almost impossible to outline every element of a divestment, and no two divestments are identical just based on the differences between companies. Rather than try to explain the process in depth, this article will give a short outline and some points to keep in mind if your group is being divested.

Generally, a divestment starts with a decision from some level of the corporation that the group needs to be spun off. Once the decision is ratified by the necessary people, then a new entity is set up to move the group into. The assets of the group are then sold to the new entity, and someone is appointed to be the head of the entity. The staff is then re-hired to the new entity, but typically all of this happens in a very short period of time with essentially no lag between the old and the new. Often, the original parent takes an interest in the new entity in exchange for the things being given to the new entity. The alternative is generally a promissory note of some sort, whereby the new entity will pay off the things they're getting from the old company.

Some important points to consider if your group is being divested:
1. Don't panic. Don't take it personally. Ultimately, this is just a business decision, and it's hard for a lot of people to separate "business" and "personal." If you treat it as a business decision and stay calm, it will make the transition a lot easier.
2. Get independent counsel. Odds are that a company large enough to have a divestment usually has an in house counsel or a law firm they do most of their deals with whom you've met or been used to dealing with. No matter how much you trust them, you want your own, independent counsel from an unrelated firm who has experience with transactions. When it comes right down to it, you want to have someone who is in your corner and has no possibility of having a divided interest. There is really no scenario under which this is a bad idea.
3. Make sure you get the important stuff in writing. Promises that are not in writing are generally not going to be honored. That is the unfortunate truth. However, if you took point 2 to heart, you will likely have an attorney you hired saying the same thing. If they promise you can take your really popular game series with you, from engine to trademark, make sure it's in a signed writing.
4. The whole thing is governed by the contract. This relates back to point 3. Typically, the writing in question is going to be the contract itself or an exhibit to the contract. There are really two important things to remember here:
1. If it's not in the contract, it's not going to happen.
2. A contract is an infinitely flexible document, and pretty much anything you want can be drafted into it, given a little work and, in some cases, creative thinking.

5. Make sure to resolve everything. One thing counsel should be able to offer you is experience, and that experience means most every little detail and strange contingency should be addressed in the contract. Keep in mind there is more to deal with than just the IP you created in the company. Things like what happens to employee health benefits, office furniture, parking spaces, etc. are all important. Moreover, if you're keeping the same office space, there will likely be a number of lease issues to deal with, or if the company owns the building, a lease will need to be drawn up. Even issues like interim working capital may be in the agreement, if separate funding is not occurring. Because there are so many details and contingencies, point 2 is really relevant from the time the decision is made since even the location and/or structure of the new entity can have different effects on things like taxation.

All in all, transactions like this occur daily in the corporate world, and so the basic concepts apply to all industries.

Two comments to the Bungie deal specifically:
1. If you're expecting the Bungie IPO to follow shortly, it seems unlikely in the immediate future given the choice of an LLC as an entity. Not to say it couldn't happen, but the choice of an LLC seems to suggest that isn't an immediate goal.
2. This might give more viability to the Halo DS theories.