Monday, December 29, 2008

Sunday, December 14, 2008

LGJ: Regulating Virtual Currency

This week's LGJ focuses on the potential problems associated with virtual currency, and what might drive the government to regulate it.

Read on!

Game::Business::Law Conference - January 14-15, 2009

In about a month, the SMU Deadman School of Law and the SMU Guildhall will be putting on a conference here in Dallas, TX, titled Game::Bueinsss::Law. As I've recently been added to the conference's planning committee, I wanted to take an opportunity to bring the event to the attention of my readers and invite you all to register and attend. While I will not personally be speaking at this event, I will be in attendance. A number of good speakers have been lined up for the event, including:
Gamestop's Cheif Marketing Officer, Mike Hogan;
Valve's Director of Business Development / Legal Affairs, Jason Holtman;
The ESA's General Counsel, Ken Doroshow;
Microsoft's General Manager, Platform Services, Microsoft Advertising, JJ Richards;
The Academy of Interactive Arts & Sciences President, Joseph Olin;
and Richard Garriott, who really needs no introduction.

The conference is a downright bargain compared to many events these days, at a mere $200 for registration for professionals and $75 for students. Provided this year's conference is a success, we already have plans for an exceptional second conference program.

I really hope many of you will take the opportunity to attend. For anyone who does choose to attend, make sure to come by and say hi. I always like hearing from Law of the Game's readers.

Friday, December 5, 2008

LGJ: Class Dismissed

This week's LGJ explains some of the basics of the 'class action,' and why it's become a popular vehicle in game related suits.

Read on!

Thursday, December 4, 2008

Dallas IGDA Board

A small announcement:

I've been elected onto the board of the Dallas Chapter of the International Game Developer's Association. I will be part of the "Working Board" with fellow members Pennington Ingley, Myke Sanders, John A. Purdy, Donald Bahlman, and Wes Parker.

If you are a Dallas-area IGDA member and have any particular things you would like to see the Dallas IGDA work towards or other comments, feel free to send me an e-mail. Thanks to any readers who may have voted for me in the election.

Monday, December 1, 2008

LGJ: The Name Game

On the most recent LGJ, I answer the ever popular question: What is it that keeps game makers from being able to use real cars in games without permission?

Read on!

Tuesday, November 18, 2008

Tuesday, November 4, 2008

Friday, October 31, 2008

Reminder: ALA TechSource Gaming, Learning, and Libraries Symposium

Reminder: I will be speaking at the ALA TechSource Gaming, Learning, and Libraries Symposium, which is November 2-4, 2008, in Oak Brook, IL. My session is titled "What Every Librarian Needs to Know about Video Games and the Law" and is presently set for Nov. 4 at 10 am in the Managing Gaming track.

If you happen to be an ALA member attending this event, be sure to come by and say hi.

Friday, October 17, 2008

LGJ: First sale, Re-sale, Everything's on SALE!

On this week's LGJ, some talk of the First Sale doctrine and a video game re-sale model that I'm surprised no one has picked up yet to compete with GameStop.

Read on!

Friday, October 10, 2008

LGJ: The PRO-IP Act and Gaming

This week's LGJ is on the PRO-IP Act, which is awaiting a Presidential signature. Be sure to check out the column as well as the followup here on Law of the Game.

Wednesday, October 8, 2008

The PRO-IP Act and Movies and Music

This week's Law of the Game on Joystiq (link) covers the new PRO-IP Act as it applies to video games. As a sidenote to that column, I wanted to discuss my thoughts on the PRO-IP Act as it applies to movies and music, where I also think the Act is as much a detriment to producers as it is to consumers. I would again like to reiterate that the Act has not been signed into law as yet, but has been passed by both the House and Senate at this time. The final text of the Act is here.

In short, the PRO-IP Act does the following three things:
  1. It increases the penalties for infringement by expanding what is considered a ‘work;’
  2. It broadens the ability of the government to permanently seize goods; and
  3. It creates an Intellectual Property Enforcement Coordinator, a new cabinet position whose sole job is to increase intellectual property enforcement.
This bill was passed based on the theory that intellectual property is under a drastic attack in the US by, seemingly, everyone. There is an element of truth to this, as CD sales have certainly been down, and it's clear the music industry is trying to find a new model, though I'm not sure it's truly broken, or at least waiting for digital sales to catch up. On the other end, the movie industry is certainly losing something to campus piracy, but there is still growth, even if it's short of the gaming industry as of late. In fact, the gaming industry, which is experiencing the most growth, also takes a much different stance on piracy, rarely going after the customers rather than professional pirates. It should also be noted that the biggest dent in piracy could likely be made if enforcement on piracy of physical copies were greater in certain countries outside the United States that I won't name, as tourists have been bringing back stacks of VHS tapes, audio cassettes, VCDs, DVDs, and CDs bought for next to nothing from street vendors for decades. You can even find these pretty easily in many major cities in the US.


The MPAA is newer to the anti-online piracy front than the RIAA, but online piracy is a convenient scapegoat for box office sales not living up to all expectations. Campus piracy was one of the convenient ones that was eventually brought back to reality from the absurd estimates of 40% of revenue loss (linked above). While there is still sales growth, I expect many executives are concerned about the sudden rise of game sales. I have often wondered if that is, in part, driven by the economics of entrainment hours per dollar spent, as so many games offer a much greater amount of entertainment per dollar spent than a movie ticket.

The movie really has three potential downsides to the PRO-IP Act. The first and most obvious being the negative publicity that the RIAA has enjoyed, which could lead to a further alienation of Hollywood and the general public. The second is what I discuss for game developers in the Joystiq piece, specifically the issues that arise under the new definition of a 'work' and how the overlap may play out and 'force their hand' on suits they don't wish to file. Finally, there's an issue that all media shares with respect to enforcement: many of the people who are sued don't have anywhere near the resources to pay these fines. The end result is you've successfully entered a judgment someone can't pay, had property seized that is at most tangential to the actual piracy, and received a large amount of negative press in the process. Not to mention, you've likely lost a customer, as I can imagine people who are sued by the MPAA aren't likely to head down to the movie theater on a regular basis anymore.


From what I understand from many reports, the music industry, more specifically the RIAA, was one of the key backers of this legislation, but in my opinion, it seems they are the least likely to see any benefit from it. In fact, the enforcement strategy utilized by the RIAA to date has probably done more to alienate their own customers than it has to reduce piracy.

What sets the music industry apart from movies and games is there's no way to experience a song at little to no cost without risk. I think most people would love the opportunity to listen to a song or album one time before deciding whether to purchase it or not. There's no way to rent an album, and those 20 second samples on iTunes or Amazon don't do the full piece justice. Some might say that's changing, as more subscription services become available, but there isn't yet one that offers a complete catalog across all labels. Then there's the simple fact that there are other, potentially larger sources of income for musicians than record sales. The video game industry has no equivalent to a concert; disk sales are more or less all there is to it other than cross-licensing. Movies have more in common, between the box office, DVD, showings on TV, etc., but music is even far more ubiquitous than movies are, as they're in the background of pretty much every other medium, as well as most all venues and events.

And that's why the RIAA's strategy of going after the average Joe who downloads an album once in a while to try to find something new to listen to doesn't make sense. That average Joe probably has spent quite a bit on music over the course of his life, be it buying CDs or merchandise or concert tickets. And I'm sure there are many artists who would rather have people download their album in order to determine if they want to be a fan of the work rather than have no exposure as a result of their label or the RIAA suing their customer.

Ultimately, the way this hurts the music industry isn't in practical enforcement. They backed this bill because it helps their enforcement. It's an issue of image, and as the bad publicity keeps falling on the RIAA, more and more consumers are taking their entertainment dollars elsewhere. It's insulting to the consumer that the RIAA would even suggest that ripping a CD you purchased so you can put it on your iPod is illegal, even though they haven't tried to enforce that idea at this time. Ultimately, this only hurts the artists, which only serves to hurt the development of music in the US, especially for artists who can't or don't get radio time or for listeners who don't listen to what's played on the radio.


I've long held the theory that attacking the supply is far more effective than attacking the demand in piracy situations, especially given that the demand are also often the customers you rely on to keep your business going. I'm not saying ignore every consumer. If a consumer is also sharing thousands of files that have been downloaded millions of times, then they're a distributor as much as anything else. But it seems obvious that the thresholds for enforcement need to be well above downloading one work once. The court has imposed reasonableness standards on many other areas of the law, and perhaps a reasonableness standard needs to be used here.

The goal of intellectual property rights was the balance the interests of producers and consumers so that the arts would grow and artists could prosper, and in many ways many people have lost sight of that goal. As we move further into the future, we all need to be prepared to change with the times, and acts like the PRO-IP Act attempt to bind us to business models and methodologies that don't make sense in the digital reality. By the same token, those decrying all intellectual property rights need to understand that without them, much of the media you enjoy today simply would not exist because those who produce it would have no means by which to profit from it. In a perfect world, we would have no need for intellectual property rights because there would be no piracy but there would also be unlimited exposure to new media. In our imperfect world, we need to keep sight of the balance between what both consumers and producers need to coexist in the most reasonable way. It's unfortunate that the PRO-IP Act takes a step backward rather than a step forward in achieving that balance.

Monday, October 6, 2008

LGJ: Mo' Madden Madness

This week on the now trendy and abbreviated 'LGJ,'* we talk about Madden and the right of publicity.

Read on!

*That's Law of the Game on Joystiq, for the more traditional readers.

Friday, September 26, 2008

Law of the Game on Joystiq: Activision's Stealth Enforcement

This week's Law of the Game on Joystiq takes a look at the quiet enforcement strategy Activision has been using, and what may be going on.

Read on!

Wednesday, August 27, 2008

Saturday, August 23, 2008

Law of the Game on Joystiq: Let the payment fit the damages

On this week's Law of the Game on Joystiq, a bit of a follow up to last week looking at civil liability for game makers as opposed to the previous criminal.

Read on!

Friday, August 15, 2008

Law of the Game on Joystiq: Let the punishment fit the crime

On this week's Law of the Game on Joystiq, I discuss criminal legal theory as it relates to the tragic Thai cabbie killing.

Read on!

Tuesday, August 12, 2008

ALA TechSource Gaming, Learning, and Libraries Symposium

I just wanted to let everyone know that I will be speaking at the ALA TechSource Gaming, Learning, and Libraries Symposium, which is November 2-4, 2008, in Oak Brook, IL. My session is titled "What Every Librarian Needs to Know about Video Games and the Law" and is presently set for Nov. 4 at 10 am in the Managing Gaming track.

If you happen to be an ALA member attending this event, be sure to come by and say hi.

Monday, August 4, 2008

Law of the Game on Joystiq: Trademark infringement? Not like-wii

So, heard about the weemote? Well, this week's Law of the Game on Joystiq discusses the dispute between the weemote and the wiimote. It's a trademark throwdown with a twist: the wiimote term was created by fans, not Nintendo.

Read on!

Poker, The Internet, and The Skill-Chance Continuum

A particular question has been bothering me for quite some time now, specifically whether the skill chance ratio changes for online poker versus real life poker. The issue seems fairly straightforward, but the more I've analyzed it, the answer is far more complex than I would have anticipated.

To illustrate the issue, the game of poker has to be examined from both a chance and skill angle. For the purpose of this discussion, imagine that the poker game in question is consistent between the online and real world application, because changes in the rules would make this analysis less accurate. From a chance perspective, the games are theoretically identical. There are the same number of cards dealt at random in the same manner. Seeing this identical chance element may make many people stop their analysis, and that is the trap I initially fell into.

However, examining the games from a skill angle, there is a difference. Now, bear in mind this analysis is examining online poker without the use of webcams or other direct feeds on the actual faces of the players. Running a poker that requires active webcam use and participation (i.e. every player's actual face and upper body must appear on camera at all times) may very well be no different than playing in person. But assuming a more traditional online poker venue where representation is by avatar and some sort of chat system, the online variant only has some of the skills that could be used in a real life game. Specifically, the online game does have the skill of reading your cards odds (although this may not be as great since online players can be referencing statistical information while playing) and reading your opponents' betting behavior. Real life poker adds the entire dimension of reading the body language and behavioral quirks of your opponents. Theoretically, someone who took full advantage of all potential skill play in real life poker would be playing a greater skill game than someone utilizing all skill in online poker.

Thus creates the difficulty. If skill/chance is a spectrum, as practically all legal scholars cite, then how can online and real life poker be reconciled? Both have identical chance elements, but one has greater skill elements than the other. This leads to one of only two conclusions: Either skill and chance must be viewed in terms of a relativistic percentage scale, meaning that games with identical chance elements can have variable chance percentages based on the total skill elements in the game or the skill/chance spectrum can be extended, and is therefore not a static spectrum as it is often discussed. To put this into numeric terms, if poker has a chance value of 40, then under the first theory, the maximum value is always 100, so online poker would be 40/60 while real life poker would be 30/70. Under the second theory, the respective ratios would be 40/60 and 40/93.333 for a possible total of 133.333. Clearly either one accounts for this particular issue, and neither one is universally optimal over the opposite approach. Of course, it's not as thought anyone is applying numerical analysis to the skill/chance ratio at this time.

However, where this may matter is for the discussion should the trend continue toward the legalization of skill games online versus the contined banning of chance games in the US, especially if a bill like the Skill Games Protection Act should pass. Really, this operates as an interesting thought exercise that may later prove more troublesome for figuring out there the skill game line will need to fall if this division is in fact going to determine online gambling legality in the US going forward.

Monday, July 21, 2008

Law of the Game on Joystiq: Non-Disclosure Agre3ments

In an E3 edition of Law of the Game on Joystiq, we cover the little document that makes all the big surprises possible: the non-disclosure agreement.

Read on!

Thursday, July 10, 2008

Law of the Game on Joystiq: Time for Trademark

There was a bit of a mix up last week, but Law of the Game on Joystiq is back in force this week with an extensive discussion of the trademark registration process and trademarkability.

Read on!

Wednesday, June 25, 2008

Law of the Game on Joystiq: No Freedom of Trash Talk

On this week's Law of the Game on Joystiq, we discuss the ever-popular 'freedom of speech' argument with respect to Xbox Live trash talking and forum posts.

Read on!

Tuesday, June 24, 2008

Blog of Note

Apparently, Law of the Game was the "Blog of Note" for June 19, 2008. Thank you for all of the kind words and well wishes from the visitors sent this way from Blogs of Note.

Thursday, June 19, 2008

Friday, June 13, 2008

How to Regulate Games: A Guide for Legislators - A Followup

I've noticed that a lot of people have commented on the various reproductions of my How to Regulate Games: A Guide for Legislators since its posting a few weeks ago. There are, however, a number of points I'd like to clarify about that post and with regard to some of the comments I've seen on the stories about that article.

1. I am not pro-video game legislation. In fact, I think it's largely unnecessary and that most of the proposed bills have been a wast of the taxpayer's money in terms of legislative and judicial effort.

2. The main point of the piece was to point out the flaws that bill after bill have had. I generally expect people to learn from the mistakes of others rather than continue to repeat them.

3. Based on the FTC statistics on game sales, the ESRB and retailers are basically accomplishing the end goal of any sort of reasonable legislation pretty well. Is it perfect? No, but even items which are regulated (alcohol, tobacco, p0rnography) still end up in the hands of minors.

4. The 'AO' rating, unless stores begin to sell the games, is akin to classifying a game as pornography. Hence, that is why I said it had to reach the level of sexual simulation.

5. There was significant concern over 'delegation of authority' by Congress to a non-governmental body. The system I proposed is a quasi-hybrid of the FCC TV content system and the regulations on, for example, franchising. While an independent body is rating the game, the government is merely limiting the sale of a designated product ('M' rated games). Right now, all content on TV (other than sports and news) must be rated, broadcast or cable. Of course, the hybridization comes in from that being regulated on the basis of spectrum and this being regulated on the basis of commerce. Given that an actual sales transaction is involved, I think this has a much better tie to commerce than, say, Lopez. It's my personal opinion that it would pass judicial muster, but only an actual test would tell. I have not run across a case that follows this closely enough to be able to tell. The only alternatives would be government game rating, which seems like an additional waste of taxpayer money, or a government absorption of the ESRB and MPAA, which seems unlikely. What hasn't been proposed, but may also pass muster, would be a statutory definition that is then applied to the rating, which could then be applied to each title, but this is fairly complex and convoluted and lacks a resolution if the statute and the game rating don't agree.

6. Some question was brought up as to appeals. The only place I would see an appeal is when a consumer feels the rating to be too low, thereby seeking a judicial remedy to have the game rated higher. Any squabbles between the ESRB and the game maker would be handled as they are now.

7. To those who cite the First Amendment, I think the argument can be made that restricting access to children is, at best, similar to other content restrictions with respect to children or, at worst, a time-place-manner restriction. Remember, no games are banned under those 9 points.

8. Some of the citations to the First Amendment and delegation of authority points cited Engdahl v. City of Kenosha, 317 F.Supp. 1133 (E.D. Wis. 1970), which didn't allow the city to use MPAA ratings to bar kids from movies, but this case and statute were based on obscenity. There is no basis in obscenity in my 9 points.

I hope this clarifies some of my previous ambiguities.

Thursday, June 12, 2008

A Thompson - Methenitis Debate - The Rationale

A number of the comments to my 'Thompson - Methenitis Debate' post asked that I clarify my new position with respect to my previous skepticism. Hopefully, this post will resolve that issue.

1. Properly planned, the event may reach more people in the mainstream.
I think proper venue and ample notification of the event could make this reach more people outside of the gamer culture. Moreover, if we make the debate available online (transcript, video, etc.), it would be a resource those looking to defend games could point to on a regular basis.

2. We, as gamers, would be taking advantage Jack's seemingly endless publicity.
The fact is that no matter what happens, it seems that Jack will always have a spot on TV and radio. He is close to being a household name. Rather than viewing this as giving him more publicity, I really think it is an opportunity to take advantage of his publicity for our gain.
3. Jack's position may not be as hardline as many people think.
In speaking to Jack, I get the feeling that his position isn't nearly as anti-game as it's often made out to be. At a bare minimum, getting him to set out his actual stance in his own words would likely make the debate much clearer. More importantly, if his position is exactly what we think, is there really any loss to the gaming community by his stating it again?

4. It would be fun, wouldn't it?
Let's be honest; it would probably be a pretty entertaining event. Jack hasn't been open to many events like this, and it would be the first time he's debating another attorney on the issue. I'm sure a lot of people would minimally find it interesting. And is entertainment such a bad reason?

In short, that is the basis for the debate.

Law of the Game on Joystiq: May the Enforce Be With You

This week's Law of the Game on Joystiq talks about enforcement and intellectual property.

Read on!

Wednesday, June 11, 2008

UMG v. Augusto: Big Win for Consumer Rights.

Recently, I wrote a piece on Joystiq which referenced the then still pending UMG v. Augusto suit. The verdict is in on that case, and it's a big win for consumer rights. The motion for summary judgment is available here, but I will summarize it for you. Promo CDs are in fact governed by the first sale doctrine even though they are never sold to the consumer. This means that, by extension, promotional DVDs and games are also covered by the first sale doctrine in the same manner. So long as the producer transfers title in those items to someone else, then that satisfies first sale. Should the producer actively recover the products, then first sale would not apply, but since these items are distributed without any intention of being returned to the producer, then it is considered sold.

The victor here is clearly the consumer. This means that if you get your hands on a promotional CD, DVD, or game, even one labeled not for resale, you can keep it or sell it on eBay without worry about repercussions from the game's publisher. More importantly, it prevents an expansion of the first sale doctrine, which could have limited your ability to resell games you've purchased at all. Game resellers, both those on eBay and the major retail chains, should be applauding this decision as it supports their livelihood.

This was a big win for consumer rights, and a big win for all of us as consumers.

Thursday, June 5, 2008

Law of the Game on Joystiq: Much Ado About Game Night

This week's Law of the Game on Joystiq covers having a 'game night' at your local library, church, or other such public place. It also touches on whether shrink wrap contracts are enforceable.

Read on!

Friday, May 16, 2008

Law of the Game on Joystiq: All derivatives, no math

On this week's Law of the Game on Joystiq, a little chat about derivative works. Read on!

Coming soon to a Law of the Game on Joystiq near you: Fair Use and Machinima. Check back in coming weeks for those two exciting topics.

Monday, May 12, 2008

A Thompson - Methenitis Debate?

Last Friday, I received a call from the one and only Jack Thompson. Apparently, he had read my Open Letter to Glenn Beck, and had taken some offense to some of my statements in the letter. Of course, I intended no personal offense to Jack, and after a fairly lengthy phone call, he suggested that he and I have a public debate sometime in the near future. Having talked to Jack, I think this debate could be really productive as a means to get all sides of the issues out in the open to a larger audience, despite any previous skepticism I may have had.

At this point in time, no time, date, or location has been selected, but rest assured that as soon as details are worked out, they will be published here.

Thursday, May 8, 2008

How to Regulate Games: A Guide for Legislators

After reading about the latest Congressional attempt to go after the game industry, and given my legal background, I've decided to put together a list of the elements necessary to create a video game law that works. I'm sure you might be thinking, "Why, Mark, Why? Why would you do such a thing to your fellow gamers? You're just helping them." It's fairly simple: I'm not opposed to keeping things out of the hands of kids that their parents don't want them to have. On the other hand, I'm also not opposed to letting the parents make the choices. About the only thing I am opposed to is letting the government decide what I or my eventual kids can play. I am an adult, and I can make those decisions for myself and for my children when I become a parent.

The Nine Points for a Successful Video Game Regulation:

1. Forget the idea that you're only regulating games.
If you want a regulation to stick, targeting one media without credible proof of the difference between that media and all of the other things kids are exposed to isn't going to fly. So, if you want to regulate games, the bill needs to also regulate movies, maybe music, and potentially even books. It needs to be a universal approach to put parents in control. Don't forget the TV shows, which should probably also have their ratings appear on the DVD box sets. Whether the TV-MA is equal to an R rating would likely be the subject of some discussion. Based on the latest statistics from the Federal Trade Commission, M rated games are actually sold to minors less often than R rated movies, both as DVDs and movie tickets, and 'Parental Advisory' music. If anything, video games should be the least of your concerns if you are trying to protect the children.

2. Use the industry's rating systems.
The respective industries each have their own rating system, and each system is pretty well adapted for that industry. Not to say these systems are perfect, but they do the job they are intended for. The only real catch is 'Unrated' movies, which may have to default to an 'R' rating. The only industry without a rating system is the print industry (books, graphic novels, etc.), and I'm not sure any legislator is as worried about them as games, movies, or TV. Requiring in-store information about each rating system is probably reasonable as the systems do differ between products.

3. Forget 'banning' anything.
There are plenty of people out there who seem to favor the ability for games to be banned, as they are in other countries. This is the United States of America, the land of the free and the home of the brave. We have a Constitutional right to free speech. You will never succeed in imposing a ban on the kind of content we see in M rated games, so it would be in your best interest to move on to something that is a realistic goal.

4. Forget basing this on obscenity or harm to children. Use commerce.
If this regulation is going to pass, the idea of 'obscenity' won't do it. In fact, trying to base this on anything other than regulating the instrumentalities and channels of commerce pursuant to the commerce clause will likely fail. In fact, I'm not entirely sure even this bill would succeed based on commerce, but a broad based attempt to just prevent the sale of something rated by the industry as for 'adults' to people under 17 seems more realistic than trying to base it on inconclusive studies or other such justifications.

5. Forget the 'AO' rating for games.
The argument is often made that some games should be rated 'AO.' Forget it. An 'AO' rating is basically banning the game from sale, or classifying it with the most hardcore pornography. Unless the game is some sort of sexual simulation, it shouldn't garner an 'AO' rating. In general, the sexual content in an 'M' game falls short of what is in many R rated movies or even what is on television. Arguing that a game like GTAIV should be AO is just an effort in futility.

6. Enforce it only on products that have to be sold to those over 17.
There's a simple reason that this can only be applied to games rated M or movies rated R: most people under 15 or 16 do not have any sort of ID. If you had to get ID from a 13 year old to buy a T game or PG-13 movie, nothing would ever sell because they don't have ID. What we're mostly concerned about is adults buying content that is suitable for adults, correct? Then that's the limitation that should be in place.

7. Enforce it only on sales to those who can't present ID or present fake ID.
This is pretty simple: The goal is to put parents in control. If a parent decides their 16 year old can have an M rated game and buys it for the teenager, it is not the government's place to tell them otherwise. This is a point of sale or retail resale control only. The government has no place invading the living rooms of every family in America in order to override the judgment of parents on what media their child is allowed to consume.

8. This should be a fine only offense, and only a fine against the store.
It is the requirement of the store to perform their due diligence on each sale. Keeping that in mind, this isn't injecting heroin into the veins of children. The idea that it should be a criminal offense is just silly, and the idea that individual cashiers should be punished is equally inane. If a store has a problematic cashier, then the store should be held accountable and be allowed to deal with the cashier as they see fit.

9. Once it's done, leave it alone.
This isn't a "get one foot in the door so we can ban things later" idea. This is the end all, be all solution. As a legislator, you're passing your 'protect the children' bill that will give you some good publicity. It's the Constitution that won't let you go farther based on an objective look at the facts.

In a nutshell, that is a blueprint for a video game regulation that could actually work. Why hasn't anyone tried this yet? Most of the anti-game zealots are too interested in draconian punishments, outright bans, or overly complex and involved systems to actually explore what could practically work and withstand a legal challenge. Granted, it is a compromise between those who are on either extreme, but it is likely a solution that would allow game retailers and developers to stay in business, allow gamers to keep gaming, and allow many in the anti-game crowd to feel like they've protected the children.

I would rather leave the system be, given that in a gaming context it's actually working pretty well. But as it seems that the issue will never go away, I see having to show ID a pretty small price to pay for leaving the bulk of the rest of the system in place.

[Edit: Corrected the point count, Typos.]

Wednesday, May 7, 2008

Law of the Game on Joystiq: Copyright? Copywrong

In this week's Law of the Game on Joystiq, I get back to that always complex copyright issue.

Interested in what a copyright protects in the game you just released? Read on.

Monday, May 5, 2008

An Open Letter to Glenn Beck re: 'Grand Theft Morality' Segment

The following letter has been e-mailed to Mr. Beck directly, and is being re-posted on Law of the Game for my readers to enjoy.


First, let me say I am a fan, and listen to your radio show every day during my commute. However, over the weekend I caught your show from Thursday with the magic of TiVo, and I have to say the ‘Grand Theft Morality’ segment was a real disservice to the public at large. First, your panel was exceedingly one sided and biased. It was the equivalent of discussing global warming with Al Gore and Ted Turner. Given that you have had the authors of ‘Grand Theft Childhood’ on the show, I would have expected a more balanced guest list. Second, it is irresponsible for anyone to bring Jack Thompson on the air anymore. He has been sanctioned in Alabama and Florida and is facing disbarment in Florida for his courtroom shenanigans against the video game industry, which includes attaching homosexual pornography to court filings (which are available to anyone at any age in the general public). Most importantly, with no one there to even speak to the other side of the issue, it was a complete disservice to your viewers. Mr. Thompson makes many allegations which have been disproven, and he presents them as though they are still fact. Most notably, the complete myth that the Virginia Tech shooter was an avid gamer was not only invented by Mr. Thompson, but repeatedly disproven.

Here are some undisputed facts:

1. There is NO LINK between factual statistics on ‘cop killing’ and the release of Grand Theft Auto games. (

2. There is no link between the violent crime rate and video game violence. (

3. There are many studies showing that games don’t have the impact on behavior that people like Mr. Thompson espouse as fact. ( and, among others)

4. In fact, studies show that it is a dysfunctional family that generally creates violence. (

I have actually played Grand Theft Auto IV, which I assume neither you nor your guests have. For the first nearly full hour of the game, you quite literally drive people around, go on a date to a bowling alley (no sex in the entire sequence), and then get into a schoolyard fist fight with some thugs who are beating up your cousin. In terms of the actual storyline, it’s no more violent or sexual than a Martin Scorsese movie. All of the worst things you cite as part of the ‘experience’ are completely optional. Those films garner an ‘R’ rating, and this game has similarly garnered an ‘M’ rating, the game equivalent to ‘R.’

I find it troubling that someone like you would be perfectly fine with Jack Thompson’s government-imposed controls on content while decrying government interference and the ‘nanny-state’ on so many other fronts. No other packaged media (books, DVDs, CDs, etc.) in America has any government-controlled content restriction for the level of content that exists in these games. They are not pornography, and stating otherwise is a gross misrepresentation of fact. The ‘AO’ rating referenced in the segment is generally reserved for games whose content falls into what would be a film rating of ‘XXX.’ Most importantly, a number of states have passed laws similar to the one written by Mr. Thompson, imposing government regulation on games, and all of those laws have been struck down by the courts, many on First Amendment grounds. As someone who has repeatedly denounced the ‘fairness doctrine’ based on its chilling effect on free speech, I would hope your view would extend to other media in addition to your own.

Glenn, we’re not talking about placing this game deliberately in the hands of kids. Many stores do actually require ID to purchase games and movies that are rated M and R respectively. Ultimately, though, it should be the responsibility of the parents to monitor their child’s media consumption. The rating systems on TV, movies, and games make it much easier for a parent to do so, and if the point of your piece was simply to make parents aware, then your method of doing so was exceptionally overbroad. Telling your viewers to be careful if their husbands are playing this game was just absurdity. I have been playing video games for decades. I haven’t murdered anyone yet, and I have no plans to murder anyone in the immediate future. When any new form of media has been released, the public has always been quick to blame all of society’s ills on it until, eventually, people realize that it is not the media causing the problem, rather some other aspect of society. Putting on segments that only serve to increase the fear and unfounded hate of not only the games but those who play them has no benefit to the public at large. I hope that future segments dealing with the issue of video games would at a minimum include more credible anti-gaming guests, if not guests on both sides of the issue.

Mark Methenitis

Thursday, May 1, 2008

Friday, April 25, 2008

Law of the Game on Joystiq: EA + Take-Two =/= Monopoly

In this week's Law of the Game on Joystiq, I take the surprisingly unpopular opinion that an EA merger with Take-Two isn't going to have any practical monopolistic effect in the market.

Read more here.

Thursday, April 17, 2008

Law of the Game on Joystiq: RIP Consumer Rights

There's a lawsuit in progress that all consumers of entertainment media need to know about, and it's covered in this week's Law of the Game on Joystiq.

Read on.

Wednesday, April 9, 2008

Happy Birthday, Law of the Game

While this is a few days late, Law of the Game has officially been online for a full year. Looking back, it's been really quite amazing how much has happened in the first 12 months, from the numerous major blogs linking articles to the ABA Top 100 Blawg award to the column on Joystiq.

I just wanted to take this opportunity to thank all of the readers out there for reading and supporting Law of the Game.

I also wanted to take this opportunity to note that I will be on Late Nite JengaJam this Thursday, April 10, with the opportunity for anyone to call in and chat for part of the show. The podcast should be available shortly after the show for anyone who wants to listen.

Wednesday, March 12, 2008

Law of the Game on Joystiq: Shareholder Deriva...what?

On this week's Law of the Game on Joystiq, I try to explain the basics of the corporation and shed a little light on the "derivative action" concept facing Take-Two.

Read on!

Friday, February 15, 2008

UIGEA Proposed Regulations - Sen. Sununu's Response Letter

I've recently learned of a letter, dated February 11, 2008, from Sen. Sununu on the topic of the proposed Treasury regulations for the UIGEA (the Unlawful Internet Gambling Enforcement Act). While I have not yet acquired a copy of the letter in question, my understanding is that the letter urges greater clarity in the proposed regulations.

The regulations (available here) essentially place all of the responsibility for the enforcement of the UIGEA on the banks and financial institutions. Why does this matter? It is another piece of evidence that the UIGEA is not the most ideal piece of legislation, and may in fact be short lived. As there are already at least three proposed alternative bills (including the Skill Game Protection Act), it may only be a matter of time before the UIGEA is pushed to the status of mere historical footnote.

However, I'm getting ahead of myself. The letter in question, as I understand it, notes this major difficulty in the regulations, specifically placing an undue burden on the financial institutions and wholly lacking clarity in what gaming is actually "banned." The law, as a global concept, is supposed to be a clear arbiter of an issue, and clarity is a feature that the UIGEA lacks.

The Treasury will release their revised regulations sometime in the not too distant future. Until then, we can only speculate as to what the end result will be, or what other bills may pass in the mean time.

Wednesday, February 13, 2008

Law of the Game on Joystiq: Bar Hero

It's Wednesday, which means a new installment of Law of the Game on Joystiq.

This week, Guitar Hero (and other gaming) in bars and the copyright issues that may or may not exist.

Read more.

[Edit: Fixed link.]

Gaming Law Minefield

For anyone who happens to be in attendance, I will be at the ABA's Gaming Law Minefield conference tomorrow and Friday. I'll have copies of my Gaming Law Review article available for anyone who tracks me down.

Friday, February 8, 2008

Call the cops, he stole my Cloudsong! - A Followup

After this week's Law of the Game on Joystiq, I noticed quite a few recurring and/or interesting comments. I thought I would take a few minutes to address them, just to clarify the column. If you haven't read the article or the comments, now would probably be a good time.

(Note most of these are broad rephrasings, not actual quotes.)
1. "Can something you don't own be stolen from you anyway? Do you even own MMO goods?"

This was the elephant in the room for the whole article, and the answer isn't so clear cut. In some games, like World of Warcraft, you technically don't own anything. In others, like Second Life, you do still own certain things. In either case, though, even something licensed to you can be stolen. If I have a copy of Windows XP and the license for that, and it's stolen, I didn't truly own the software. The license was still stolen from me. So long as the TOS for the game apply, everything you have in the game is licensed to you. The other issue mentioned was when the game ends, then what? Well, the game terminated according to the TOS, and therefore your license terminates.

2. "Why should your MMO inventory be treated differently from MP3s?"

This was an interesting question. In terms of theft, I don't think there is a difference. If you've stolen my iPod and its MP3s, or if you've stolen my character and his inventory, they're roughly the same. The reason they are treated differently now, on the other hand, is because there is a special interest group forcing the MP3 issue, and not one pushing the MMO issue. The other difficulty is that in an MMO context, the universe is finite (unless there's a glitch) and so I, as a player, can't duplicate the item (generally speaking, and ignoring skills like blacksmithing). With an MP3, duplication is as easy as "copy" and "paste." That duplication of the MP3 may prevent what would otherwise be a sale. SecondLife complicates this a bit, but the same still generally holds.

3. "Digital items aren't infinitely replicable without cost."

While it is true, nothing is completely without cost, to create an additional digital item has a negligible cost. If I wanted to make 100 copies of a word file, what is the cost of those 100 copies? At most, a few kilobytes of storage space, space which was already paid for in other cost (purchase of the computer, for example). If I wanted to make 100 hard copies of the same document, what is the cost of those 100 copies? Probably $0.10 a page at a copy place, or the cost of paper and ink at home. If it were a real sword the company had to reproduce, it would likely be hundreds or thousands of dollars, whereas putting a new digital sword in your inventory is basically free.

4. "Items in MMOs aren't stolen, they're generally scammed out of people."

Scams, broadly speaking, often fall to "larceny by trick" or "false pretenses." Those are defined/explained:

Larceny by trick was created to punish the taking of property with the owner's consent when that consent was obtained by Fraud or deceit. Before the courts created the offense of larceny by trick, defendants who had swindled their victims were able to argue that they had not committed larceny because the victims had willfully given them property.

Shortly after the courts created larceny by trick, they created the crime of obtaining property by False Pretenses. Before, a defendant who induced a person to part with the title to property could escape prosecution because the victim transferred not actual possession of the property but only title to the property. This commercial form of taking was made illegal under the law of false pretenses.

5. "Speaking of theft, nice Ebaums link."

I just took the first link off Google.

The MMO theft issue is clearly a murky one that likely will remain at least partially unresolved for quite some time. However, the issue of virtual taxation, if it takes off, may force the issue of virtual theft to be resolved more quickly, as may the issue of valuation of virtual goods.

Thursday, January 24, 2008

Epic vs. Skilcon Knights: The Saga Continues

When last we left our heroes, Silicon Knights ("SK") and Epic, the motion to dismiss had been denied and discovery was on the horizon. Shacknews is reporting that a number of Unreal 3 licensees have been subpoenaed with respect to their license agreements. This is an interesting move that could turn the tide of battle.

Since the facts are widely being reported, I thought I would attempt to offer a little insight on the possible strategy behind this move. Of course, I'm not privy to any actual inside information, so this is all speculative. SK's theory seems to be proving a systematic lack of support of the Unreal 3 licensee while Epic developed Gears of War, including specific failures with respect to promises in the agreement.

So, here we have SK requesting the license agreements used with other developers. SK, I assume, is hoping for one of a few possible positive outcomes for them:
1. The other contracts lack the promises that SK is claiming, which can be argued that Epic therefore never intended to keep with respect to SK.
2. The other contracts are identical, and the other developers received the same support that SK did, showing a pattern of failure.
3. The other contracts are identical, and other developers received more than SK did, showing that SK was in fact neglected in terms of support.
4. The other contracts contain the same promises on a different timeline, evidencing that SK's contract was perhaps entered into improperly.
5. The contracts and support were identical, and other developers are in the same position, showing a pattern that the level of support has held back development universally.

Generally speaking, no matter how the contracts are similar or different, SK's counsel should be able to make an argument to support their case based on the contracts. Of course, on the flip side, Epic has a few possible arguments of their own:
1. If the contracts and support were identical and other developers made more progress, then Epic can argue that SK lacked the resources or know-how to make use of the engine.
2. If the contracts show a changing timeline over time, it could be argued that certain delays gave Epic a better idea of a realistic delivery date as time went on (and, assuming that the other contracts had provisions for reasonable delays, this could show SK hasn't been patient enough).
3. If the contracts were the same and support for SK was greater than other developers, with other developers making similar or more progress on their projects than SK on Too Human, it could again be argued that the issue was on SK's end.

There are many permutations of these arguments, but that should provide a pretty good idea of the possible result of these other contracts entering the record. Of course, I would still like to see the contracts to be able to weigh in more thoroughly, but as other sources have pointed out, it is likely those records will be sealed before anyone outside the case gets to review the documents.

[Via Joystiq]

Wednesday, January 16, 2008

Big Announcement

A few weeks ago, I mentioned that a "big announcement" was coming, and the day is finally here.

Law of the Game now has a weekly column on Joystiq, and today is the first column.

Check out Law of the Game on Joystiq: Crossover Contracts.

Check back on Joystiq next Wednesday for the next Law of the Game on Joystiq.

Incidentally, I was also quoted in this recent story on Joystiq about the Goschy "I Invented the Wii" news story.

Monday, January 14, 2008

Best Buy Video Game Ratings Shenanigans

An interesting anecdote has appeared on the Consumerist blog. To summarize the story, a 21 year old went to a local Best Buy to purchase a copy of Assassin's Creed (Rated M) and a Xbox Live Gold card. The protagonist of our story had his 15 year old brother in tow, as he was taking him to dinner. Upon getting to the counter, the clerk made a series of loud statements to everyone in line that he was "illegally purchasing a video game for a minor." After a string of banter, the 15 year old left the store, the patron waited in line again only to have the store refuse him yet again, this time on the half-baked theory that the gift cards were "stolen." Needless to say, the customer left the store, went to a different Best Buy, and purchased the game without an issue.

I must say this is one of the worst cases of store clerk vigilante-ism I've run across, and is disturbing on a number of levels. First and foremost, the rating system is voluntary. No state has yet passed any regulation barring the sale of any game to anyone that has withheld scrutiny in a court of law. To have clerks declaring random acts "illegal" on their own authority is disturbing, and the fact that the manager saw no reason to rectify the situation (or, for that matter, also bought into this arbitrary declaration of legality) speaks very poorly of the management of the store. More importantly, it may suggest that Best Buy's corporate policy may need to be revisited and revamped to have a clear, uniform policy in stores nationwide. Second, this particular anecdote rises past the level of restriction I've seen some store clerks operate under with regard to alcohol and tobacco. Should a law ever be passed, it raises serious concern that minors won't even be allowed in the store, which would essentially end the sale of M rated games entirely. Third, it's further discrimination against the medium. Would this clerk have even blinked if it were an R rated movie rather than an M rated game? I somehow doubt it.

While I'm sure this anecdote will make a certain attorney happy, the rest of the gaming community should keep a vigilant eye out to prevent these kinds of problems from being widespread. Moreover, when issues such as these are made public, the corporate offices of the retain store should be made keenly aware that it will cost them sales if they allow their store clerks to harass paying customers.

Monday, January 7, 2008

The Xbox Live Class Action

As noted on GameSpot, a number of Texas residents have sued over the Xbox Live holiday outage, for which Microsoft previously apologized and will be offering a free game. The suit apparently asks some $5 million in damages, based on a breach of contract for the service. I have a few thoughts on the matter, which are entirely thoughts and not legal advice (in case anyone is inclined to take them in an improper context).

1. A subscription to Xbox Live, annually, is $50. For 3 months, the going rate is $20, and for a month it's $8. So, the actual value of a month of Xbox Live is somewhere between $8 and $4.17 or so. The service has been down, or at least been acting in a less than satisfactory manner for approximately one month or less.

2. Microsoft has noted, and will be offering, a free live arcade game of some sort to all paying Live members. Assuming the game isn't one everyone has already purchased, or there are multiple options or the like, then the approximate value of the replacement game should be about the same as the loss experienced by the Live users.

3. More importantly, as this is supposedly a breach of contract action, upon review of the Xbox Live Terms of Use, the basic contract that governs Xbox Live, there's not an action to be had on the terms of the agreement if Xbox Live goes down. To quote the agreement:

We provide the Service "as-is," "with all faults" and "as available." The Microsoft Parties give no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws that this contract cannot change. To the extent permitted by law, we exclude the implied warranties of merchantability, fitness for a particular purpose, workmanlike effort and non-infringement.

You can recover from the Microsoft Parties only direct damages up to an amount equal to your Service fee for one month. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages.
This limitation applies to:
-any matter related to the Service,
-any matter related to content (including code) on third party Internet sites, third party programs or third party conduct,
-any matter related to viruses or other disabling features that affect your access to or use of the Service,
-any matter related to incompatibility between the Service and other services, software and hardware,
-any matter related to delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with the Service in an accurate or timely manner, and
-claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.
It also applies even if:
-this remedy does not fully compensate you for any losses, or fails of its essential purpose; or
-Microsoft knew or should have known about the possibility of damages.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. They also may not apply to you because your province or country may not allow the exclusion or limitation of incidental, consequential or other damages.
In short, the service is provided "as-is," and any damages are limited to the value of one month of service. Whether a court will allow payment in the form of, say, additional time on Xbox Live or a free game is yet to be seen, but I would imagine that, given the low per user amount involved, Microsoft's remedy would likely be adequate, especially since the outage was not 100% over the time claimed and not too terribly extensive in the grand scheme of things.

This is by no means to say the suit is doomed or without merit. There are a number of possible interpretations under which the plaintiffs could succeed, but in general, this seems similar to so many of the other suits levied against the house that Gates built: mostly for profit or for principle.

[Via Joystiq]

Wednesday, January 2, 2008

Virtual "Seizure" Has Actual Value

Let's say you have a Thunderfury, Blessed Blade of the Windseeker. And let's say you bought this item for $100 US. If Blizzard repossess this item (i.e. takes it from your inventory), does this cause you an actual financial loss? Or, in the alternative, let's say you manage to somehow get an Ashbringer (despite theoretical impossibility, it happens), do you have a monetary loss if Blizzard takes it, merely because you could have sold it for $1,000 US?

According to a story from Pacific Epoch, it would seem that is the case in China. The jist of the story is that Shanda Interactive has been forced to apologize to a gamer and pay that gamer 5000 Yuan (just under $700 US) because they removed six virtual item from his account in the MMO The World of Legend. The items were removed pursuant to an investigation in stolen good sales in the game, and after police ordered Shanda to return the items post-investigation, Shanda failed to do so.

While I wouldn't go as far as to say this sets up a virtual "search and seizure" precedent, it does present a greater case for actual value of virtual goods. And while there's no such thing as "international precedent" that would bind courts in other countries to the decision, it does provide a perspective that US judges could look to when deciding their own virtual asset cases. It also seems to paint a further picture of inevitability to the idea of virtual assets being assigned value in the US officially by either the courts or the IRS, those being the two most likely to make the first statement in the arena.

[Via PlayNoEvil, Thanks Cameron]