Techdirt. Stories about "activision"

Did The Record Labels Kill The Golden Goose In Music Video Games?

Mike Masnick — Thu, 10 Feb 2011 07:33:29 PST

For the last decade or so, every year the major record labels seem to bet on some single "magic bullet" to fix all that ails them. They go through phases. There was their own crappy DRM'd and locked-down music stores. There were ringtones. And... there were music video games like Guitar Hero and Rockband. And, of course, as soon as those games actually started helping the recording industry, the industry decided to suck them dry. Edgar Bronfman kicked it off by declaring angrily that those games had to pay much more to license the music -- even though the music in those games tended to lead to much greater sales of albums for those artists.

And now it looks like the labels may have succeeded in bleeding those types of games dry. With Activision announcing that it was dumping Guitar Hero, one of the major reasons given is the high cost of licensing music. Yup, the labels priced things so high that they made it impractical to actually offer any more. Yet another case of the labels overvaluing their own content. Now, it's also true that these games haven't evolved that much, and people haven't seen the point of buying new versions, but part of that lack of evolving is because so much of the budget had to go towards overpaying for music, rather than innovating.

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The Companies Who Support Censoring The Internet

Mike Masnick — Tue, 18 Jan 2011 13:01:00 PST

A group of companies sent a letter to to Attorney General Eric Holder and ICE boss John Morton today (with cc's to VP Joe Biden, Homeland Security boss Janet Napolitano, IP Czar Victoria Espinel, Rep. Lamar Smith, Rep. John Conyers, Senator Patrick Leahy and Senator Charles Grassley), supporting the continued seizure of domain names they don't like, as well as the new COICA censorship bill, despite the serious Constitutional questions raised about how such seizures violate due process and free speech principles. While many reporting on this letter refused to actually post a copy of the full letter, kudos to Greg Sandoval over at News.com for doing so (full text also included after the jump on this post).

The companies try to present a united front that censoring the internet is a good thing. It includes the usual suspects of Viacom and NBC Universal on the content side and Louis Vuitton and Tiffany on the counterfeiting side, but there are a few other interesting names: such as Monster Cable (never met an IP law it didn't want to abuse, apparently), the NBA, MLB and NFL (sports leagues unite in censorship!) as well as Voltage Pictures, famous for suing thousands of fans for downloading Hurt Locker. Activison, which has become increasingly aggressive on IP issues lately is on the list as well, of course. Anyway, here's the full list of companies that support censoring the internet, because they're too lazy to compete in the marketplace or innovate when that market changes:

Nike - Beaverton, OR
Achushnet - Fairhaven, MA
Curb Music Publishing - Nashville, TN
NBC Universal - New York, NY
Viacom - New York, NY
Callaway - Carlsbad, CA
Cleveland Golf - Huntington Beach, CA
Rosetta Stone - Arlington, VA
Activision - Santa Monica, CA
Adidas Group - Portland, OR
Xerox - Norwalk, CT
Hastings Entertainment, Inc. - Amarillo, TX
Fortune Brands - Deerfield, IL
Coty Inc. - New York, NY
EDGE Entertainment Distribution - Streetsboro, OH
Oakley, Inc. - Foothill Ranch, CA
PING - Phoenix, AZ
Louis Vuitton - New York, NY
D'Addario and Company - Farmingdale, NY
Monster Cable Products, Inc. - Brisbane, CA
Tiffany and Co. - New York, NY
Farouk Systems, Inc. - Houston, TX
Beam Global - Deerfield, IL
Chanel USA - New York, NY
True Religion Apparel, Inc. - Vernon, CA
Concord Music Group - Beverly Hills, CA
Village Roadshow Pictures - Beverly Hills, CA
National Basketball Association - New York, NY
National Football League - New York, NY
The Collegiate Licensing Company/IMG College - Atlanta, GA
Anderson Merchandisers - Amarillo, TX
Trans World Entertainment Corporation - Albany, NY
Timberland - Stratham, NH
Major League Baseball - New York, NY
Lightening Entertainment/Mainline Releasing - Santa Monica, CA
Sierra Pictures - Beverly Hills, CA
Voltage Pictures LLC - Los Angeles, CA
Worldwide Film Entertainment LLC - Westchester, CA
Nu Image, Inc. - Los Angeles, CA
Burberry Limited - New York, NY
Big Machine Records - Nashville, TN
The Little Film Company - Studio City, CA
Columbia Sportswear Company - Portland, OR

These companies are clearly trying to protect their own business interests, but it seems reasonable to let them know that you don't appreciate them seeking to censor the internet. If you haven't been following this story, and want to understand the details, we've discussed why COICA is all about censoring websites without due process and in violation of the First Amendment. We've also discussed how the ongoing (pre-COICA) domain name seizures were riddled with serious errors that appear to violate the law as well, including seizing the domains of blogs regularly used and recognized within the music industry based on evidence involving songs sent by the record labels themselves.

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that's a big, big problem. That these companies would support such censorship and leapfrogging over due process suggests that they're companies not worth doing business with.

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Axl Rose Sues Activision For $20M Because Guitar Hero Shows Former GNR Guitarist Slash

Mike Masnick — Mon, 29 Nov 2010 22:36:49 PST

How much does Guns 'N Roses singer Axl Rose hate former guitarist Slash? So much that he's suing Activision for $20 million because Activision included a virtual version of Slash in the latest version of Guitar Hero, despite claimed promises not to do so. While the likelihood of success may depend on contract specifics, it does seem rather silly to care about this. The claim that "This lawsuit is about protecting Guns N’ Roses," is obviously bogus. There is nothing about "protecting" involved here.

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Blizzard Sues Starcraft II Cheat Creators Under Dubious Copyright Theory

Mike Masnick — Tue, 19 Oct 2010 13:27:08 PDT

Video game company Blizzard often appears to be a study in contrasts. At times, it seems to recognize the changing nature of the technology landscape, embracing scarcities, giving people reasons to buy and even coming out against DRM. But, at the same time, it tried to retroactively ban anonymity in its forums, and has been notoriously litigious, even going after organizations who promote its games.

However, perhaps the most troubling (and highest profile) issue involving Blizzard is its lawsuit against a guy who made a bot for doing things within World of Warcraft. While we recognize that such things can be used to "cheat," the problem was Blizzard's attempt (successful so far) to drastically stretch the meaning and intent of copyright law, to suggest that making such a bot infringes on its copyright. Beyond the basic questions of how the decision in the case was at odds with the basic concepts of the First Sale doctrine, the real problem was that nothing the bot does actually violates copyright law. The judge had to seriously twist both the letter and spirit of copyright law to come to that conclusion (and if you don't want my analysis on it, try copyright expert William Patry's, who noted):

The critical point is that WoWGilder did not contributorily or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. In so finding, the court declined to follow the recent Vernor opinion in the Western District of Washington, believing it had to follow other Ninth Circuit precedent. I agree with the Vernor court that the other precedent (MAI, Triad, Wall Data) do not hold that over the counter software is licensed, not sold. (WoW may be purchased online too, but I don't think this changes the analysis.). Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.

While the appeal in that case is still ongoing, it appears that Blizzard is using that precedent to go after more folks who have made tools for "cheating." The company recently banned thousands of players from Starcraft II for allegedly using such cheat codes, but reader Jay was the first of a bunch of you to point out that it's also suing three creators of cheat codes using the same dubious claims of copyright infringement.

Now, let me make it quite clear: I completely understand why Blizzard and many players of Blizzard games hate cheat codes and find them unfair and damaging to the overall gameplay. However, even if you think such cheats and hacks are the most evil thing out there, you have to admit that it's no excuse to misuse copyright law to punish the makers of those cheats, knowing that the end result could be precedent that negatively impacts all sorts of other things online. So what is Blizzard claiming specifically? Well, to make this a "copyright" issue, they're claiming that:

When users of the Hacks download, install, and use the Hacks, they copy StarCraft II copyrighted content into their computer's RAM in excess of the scope of their limited license, as set forth in the EULA and ToU, and create derivative works of StarCraft II.

Pick apart that sentence carefully. In order to make this a copyright issue, Blizzard is claiming that (1) running a cheat code violates the EULA and the ToU (the fine print no one read) and (2) once you've violated the EULA and the terms of service, you no longer have a license for the game ("excess of the scope of their limited license") and, because of that (3) when you copy aspects of the game in a fleeting manner into the computer's RAM, it violates the copyright.

Hopefully, you can see how problematic this is. Thankfully, for now, other cases (in a different circuit, I believe, so non-binding on the Blizzard cases) have found that fleeting copies in RAM are not considered infringing, and hopefully the courts here agree, and toss out this kind of tortured logic that could lead to all sorts of other ridiculous rulings. If Blizzard is allowed to make these claims, then any software/content company that offers you a long license, where you don't obey each and every claim, can say you've infringed on their copyright and owe huge statutory damages.

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Did Activision Violate Arnold Schwarzenegger's Publicity Rights With Austrian Accented Thor?

Mike Masnick — Fri, 3 Sep 2010 18:38:34 PDT

Ah, the fun never stops with the still ambiguous world of publicity rights, a relatively recent, but growing field of "intellectual property" that has all sorts of problems. THREsq points us to a legal analysis of whether or not California Governor Arnold Schwarzenegger would have a publicity rights claim over the character "Thor," found in Starcraft II. It's hard to argue that the character isn't based on Ahhh-nold, as it has his accent and repeats (sometimes paraphrased) famous Arnold lines from various movies: In some ways, this is not all that different than the recent complaint from Michael Jackson's estate over the "zombie" Michael Jackson found in the game Plants vs. Zombies. Of course, to make this even more interesting, Schwarzenegger is still leading the legal fight against violent video games in California, so it seems even more amusing that his "voice" appears in a new video game.

That said, there's no indication that Schwarzenegger is actually upset by this -- and he apparently has not complained about other attempts to mimic his voice, such as with the Simpson's character McBane. So, at this point, the post above appears to be idle speculation on how a publicity rights claim might play out. However, it seems like a sad commentary on the state of publicity rights law that it's even worth considering whether such a creative choice by the gamemakers might break the law.

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Activision Comes To Its Senses; Allows King's Quest Fan Game To Live On (Again)

Mike Masnick — Tue, 29 Jun 2010 04:21:41 PDT

Nearly five years ago, we wrote about how some fans of the video game King's Quest, of which there hadn't been an official release in years, had decided to put together a fan-created version. Vivendi, who owned the rights to the game, initially sent in the lawyers with a cease-and-desist, but later backed down, and gave the go ahead, so long as the name of the game was The Silver Lining, rather than King's Quest IX. But, of course, you may recall that earlier this year, Activision, who had merged with Vivendi, suddenly decided that the old permission no longer applied, and demanded that all work on the game cease and go away.

Thankfully, Nick Coghlan alerts us that, after many months, this story actually is turning into a repeat of the 2005 story, as Activision has come to its senses and is letting the game live on. Apparently the negative publicity over Activision's previous position convinced the company that it was making a mistake, and it rescinded the cease-and-desist.

While this story appears to have a happy ending where common sense prevails over ridiculous legal threats, the whole situation once again highlights the problems of permission-culture. These fans were trying to build something that celebrated a game that hasn't been commercially released in ages. And yet, twice now, they've had to deal with threats to be shut down, with the second time coming after they'd already secured "permission." This is not how culture is supposed to work.

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Tons Of Companies Sued Over Broad Patent On Controlling Workstations In A Computer Network

Mike Masnick — Tue, 22 Jun 2010 23:48:51 PDT

As we keep waiting for a Supreme Court ruling in the Bilski case (any day now...), Glyn Moody points us to the news of a lawsuit that has been filed against 26 different software companies for violating an incredibly broad patent (5,832,511) on "Workgroup network manager for controlling the operation of workstations within the computer network" (say that 10 times fast). The list of companies sued is a who's who in software:

Apple, Activision, Adobe, Autodesk, Capcom, Citrix, Corel, Dassault, Delcam, Square Enix, Electronic Arts, Frontrange Solutions, IBM, Intuit, Konami, Digital Entertainment, Maximizer Software, Nuance, Parametric Technology, Sage Software, Sega, Skype, SPSS, Teradata, THQ and Legacy Interactive

I'm sure none of those companies could have possibly come up with a system for controlling the operation of workstations within a computer network without this patent. At some point, isn't the fact that such a vast number of companies appear to have come up with the same basic thing independently a perfect prima facie case of obviousness?

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Gibson 'Settles' Patent Lawsuit Over Guitar Hero

Mike Masnick — Wed, 9 Jun 2010 22:12:58 PDT

You may recall that famed guitar maker Gibson started claiming that its patent (5,990,405) on a "simulated musical concert" system was being infringed upon by various musical video games. Gibson went nuclear, suing everyone it could possibly think of, including companies who were just retailers of the game for patent infringement. Pretty quickly a court told Gibson that the lawsuit "bordered on the frivolous" which didn't bode well for Gibson. However, THREsq points us to the news that Gibson has "settled" the lawsuit and will be dropping the case. Given the way the courts reacted early on to the lawsuit, you have to imagine that "settlement" wasn't for very much money. My guess is that Viacom offered Gibson something less than it would have cost to continue defending these lawsuits to make the company go back to focusing on making guitars.

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Activision Kills Fan Game Project, Despite Fan License Granted By Previous Rightsholders

Mike Masnick — Mon, 1 Mar 2010 15:17:53 PST

Apparently some fans of the video game series King's Quest have been working for eight years on a fan-made sequel to the last such game. Back in 2005, Vivendi (then the rights holder) sent them a cease and desist, but eventually worked out a "non-commercial fan license" that allowed them to continue. Fast forward to today, and Activision now owns those rights and has decided that the fans' efforts should all go to waste. The company has told the fan group to shut it all down:

After talks and negotiations in the last few months between ourselves and Activision, they have reached the decision that they are not interested in granting a non-commercial license to The Silver Lining, and have asked that we cease production and take down all related materials on our website.

This is "promoting the progress"? You have to hand it to Activision, though. Not only has it pissed off a large group of fans, it's stomped out eight years of their hard work as well. I'm sure that will make those folks that much more excited about purchasing Activision games.

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Buyers Who Purchased Modern Warfare 2 Via Steam Discover DRM Puts Them 2 Days Behind Everyone Else

Mike Masnick — Tue, 10 Nov 2009 13:25:52 PST

When talking about video games, we sometimes hear that Valve's Steam is one of the few examples of "DRM that works," but that's hard to accept when you hear ridiculous stories like this one. Apparently people who downloaded Modern Warfare 2 via Steam, expecting to be able to play the game today (along with everyone else who bought it in a store today) have discovered that the DRM has been setup so you can't actually play the game until Thursday. Ouch. It's yet another example suggesting that Infinity Ward really does not care at all about PC gamers. The game will likely sell millions of copies anyway, but it's really amazing to see how badly the company treats its PC gamer fans.

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Publicity Rights Of Dead People: Courtney Love Threatens Activision Over Kurt Cobain In Guitar Hero

Mike Masnick — Fri, 11 Sep 2009 06:36:00 PDT

While we often talk about copyright, patents and trademarks as "intellectual property" (a misnomer, of course) there are some other related areas as well. One that has been growing in importance is the idea of "publicity rights" as a separate "right." The issue, of course, is usually about whether a company can use the likeness of someone for commercial purposes without their permission. But that issue is getting more and more complicated as technology gets better and better. In the last few decades, for example, there's been a growing trend to use famous dead people, such as John Wayne, Lucille Ball and Fred Astaire in commercials. But those mostly involved taking clips of those actors from existing films/TV and splicing them into a commercial (with permission from their estates). However, as some lawyers have been noting, with better and better digital technologies, this issue is becoming more important as it's now possible to digitally recreate someone for the purpose of film. Or, say, a video game. Apparently in Guitar Hero 5, singer Kurt Cobain has been... well... reanimated, and some find it rather distasteful (especially since he sings a bunch of songs you wouldn't expect him to sing).

Among those most upset? Cobain's widow, Courtney Love, who is threatening to sue Activision for breach of contract. Since she's claiming it's a breach of contract issue, there are (obviously) plenty of questions over what's in the actual contract. Still, like with patents and copyright, there is plenty of concern about how far publicity rights extend. In the Law.com article above, it notes that publicity rights didn't used to apply to the deceased, but that's changed. More troubling?

Initially, the right covered only a person's name and likeness. But courts expanded the protected "persona" to cover a variety of elements. Bette Midler and Tom Waits were allowed to pursue claims against advertisers featuring singers using similar vocal styles. Vanna White and George Wendt were allowed to sue companies using robots evoking their roles as the letter-turner and barfly in "Wheel of Fortune" and "Cheers" respectively. Lothar Motschenbacher was allowed to claim damages based on an advertiser's use of a distinctively ornamented racing car.

That certainly reflects the expansion of copyright and patents -- beginning narrowly focused and then expanding over time. I can certainly understand the desire for a "publicity right," but I wonder if it's not better handled through other laws -- such as trademark, fraud and contract law, rather than creating separate boundaries for "publicity rights." I can understand why Love is upset about the use of Cobain's image, but at some point you have to wonder whether it really makes sense to limit such uses. As the technology gets better and better, the legal questions are only going to get more complicated -- and, once again, we're likely to see the reach of such rights extended, perhaps in ways that make little sense.

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No, Guitar Hero Doesn't Infringe On Gibson's Patent

Mike Masnick — Thu, 2 Apr 2009 13:41:00 PDT

Last year, we wrote about yet another highly questionable patent lawsuit, involving famed guitar-maker, Gibson, claiming that Activision and pretty much every retailer who sold Guitar Hero violated its patent on "generating and controlling a simulated musical concert." The whole thing seemed pretty ridiculous (the patent itself seemed to describe something entirely different from what happens in Guitar Hero.

It took almost a year, but Colin Ross points out that, earlier this year, a California court didn't just toss out the lawsuit against Activision, but told Gibson that the lawsuit "bordered on the frivolous." This was especially true of Gibson's claim (I kid you not) that "the '405 Patent covers any system where a user controls something 'musical' with any device." Yes, really. The court wasted little time smacking down that idea:

By arguing that any sound made by any controller can potentially be musical, Gibson would have everything in the world -- from the buttons of a DVD remote, to a pencil tapping a table -- be an 'actual musical instrument' within the '405 Patent....

No reasonable person of ordinary skill in the relevant arts would interpret the '405 Patent as covering interactive video games.

The lawsuits against the retailers and other companies associated with the game are still ongoing, but hopefully will be tossed out on similar grounds shortly.

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Activision Threatens EA For Agreeing To Publish Game Activision Dropped

Mike Masnick — Mon, 16 Feb 2009 12:44:00 PST

Reader Nick sends in the news of a story that reminds us of The Watchmen saga, whereby Fox got paid for doing nothing, while Warner Bros., who made the movie and took on all the risk, had to pay out. In this case, it involves a video game, Brutal Legend. The game was developed by a development studio named Double Fine, with an agreement by Vivendi Games to publish it. However, after Vivendi Games and Activision merged, the combined company decided to drop a bunch of projects, including Brutal Legend. So, Double Fine did what any development house would have done: went in search of another company to publish it. And it found one, in gaming giant EA.

Except, now, Activision has sent a nastygram to EA saying that it still owns the rights to publish Brutal Legend, and EA is infringing on those rights. Of course, Activision has still made it clear that it actually has no intention of releasing the game, which doesn't match with its current focus. Instead, this is a pretty clear money grab -- trying to get EA to pay up. EA seems to have a good response, though:

We doubt that Activision would try to sue. That would be like a husband abandoning his family and then suing after his wife meets a better looking guy.

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How Many More Ways Can Axl Rose Piss Off Fans?

Mike Masnick — Fri, 19 Dec 2008 10:41:05 PST

Axl Rose of Guns N' Roses has a funny way of trying to sell his album: his strategy seems to basically revolve around pissing off fans who want to interact with the music. There's been plenty of coverage over the arrest and subsequent guilty plea of a blogger who was actually doing a fantastic job of promoting the new album by leaking it online. Since then, Rose has apparently been unwilling to do much to actually promote the album, other than putting angry rants on various websites. The latest is that he's apparently threatening legal action against Activision for including some GNR songs in Guitar Hero. Apparently no one pointed out to Rose that having songs in Guitar Hero tends to help sell more albums. And, that would be useful for Rose right now, as reports are that his long-awaited album has been a tremendous flop. So, once again, it's worth pointing out that the last thing any musician wants to do these days is appear to be anti-fan.

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Music Games Drive Kids' Interest In Real Instruments

Carlo Longino — Mon, 8 Dec 2008 06:00:57 PST

A report from the UK says that 20 percent of the kids there that have played music video games like Guitar Hero and Rock Band have picked up real instruments because of the games. The author of the report says it shows that when music is presented to kids in new and compelling ways, it can get them interested in creating their own music. We'll note it's nice to see that kids getting excited by video games can have some positive effects and not only translate into violence, as one recent study said. It's also interesting to note that Gibson says it's getting a sales bump from the games, particularly for its iconic Les Paul guitar, after which one of the plastic axes in Guitar Hero is modeled. This is a little ironic, after Gibson wanted to extract some money from Activision by waving an unrelated patent in its face and trying to get the company to license it. This further illustrates to record companies how these games can add value to their content and serve to promote it, but sadly, you know that somehow that lesson will still be lost on the labels.

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Activision CEO Suggests Record Labels Should Be Paying To Get In Video Games

Mike Masnick — Wed, 1 Oct 2008 14:07:00 PDT

Remember a couple months ago, when Warner Music's Edgar Bronfman complained that the makers of video games like Guitar Hero and Rock Band should be paying more for the music they used? He claimed, incorrectly, that the games were "entirely dependent" on the record labels' content. That was wrong, and totally downplayed the fact that the video games were actually adding value to the music. Now it appears that the maker of Guitar Hero, Activision, is hitting back. The company's CEO is pointing out how much being in those games has helped bands, suggesting that its really the record labels that are getting too good of a deal:

"When you look at the impact [the game] can have on an Aerosmith, Van Halen or Metallica, it's really significant -- so much so that you sort of question whether or not, in the case of those kinds of products, you should be paying any money at all and whether it should be the reverse. The bulk of our consumers will tell you they're not purchasing the products based on the songs that are included, they're purchasing based on how fun the songs are to play when they're playing them."

He's exactly right. The content industry always seem to over estimate how much "value" the content provides and almost totally ignore the value provided by anyone else in the value chain. It's going to be interesting to see what happens over the next few months, but I would bet that the video game companies have the stronger hand here, and despite Bronfman's statements, the record labels really understand that.

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Activision Begins Suing File Sharers [Updated]

Mike Masnick — Tue, 23 Sep 2008 08:33:00 PDT

While EA has faced a ton of backlash lately for its decision to use draconian DRM (though it's since backed down a bit), at least the company has made it clear that it doesn't think it makes sense to follow the RIAA and sue file sharers. Activision, on the other hand, seems to have gone in the opposite direction, recently filing a bunch of lawsuits against file sharers, even to the point of asking for $30,000 to $150,000 in damages per violation. While it's within Activision's legal right to do so, the company may want to be careful in pissing off hard core gamers. The backlash can hurt a lot more than any bit of file sharing ever would. Update: As a few people noted in the comments, Activision is claiming that the lawsuit in question was not about file sharing, but has not provided more details yet.

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Gibson Sues More Than Just Activision Over Virtual Music Concert Patent

Mike Masnick — Fri, 21 Mar 2008 17:12:12 PDT

Remember how Activision had preemptively sued Gibson for a declaratory judgment that it didn't infringe on a really questionable patent concerning a computerized guitar for a "virtual" concert? Well, Gibson has now struck back, and it's not just suing Activision, but almost all the retailers who sell it as well, including Wal-Mart, Target, Kmart, Amazon.com, Toys 'R' Us and GameStop. The idea, clearly, is to have those retailers put pressure on Activision. Update: Wired reports that the lawsuit also covers a bunch of other companies. Basically, Gibson is suing anyone even remotely connected to video games that involve fake guitars.

Of course, there are all sorts of questionable things about this lawsuit. As we pointed out when Activision first sued, Gibson's patent doesn't seem similar to "Guitar Hero" at all. It talks about playing a real concert, with a real guitar (with strings) attached to a head mounted display. Also, as Activision points out, Gibson didn't care about the patent as long as Activision and Gibson had a marketing agreement. They only started calling for patent infringement after the marketing agreement ended. Finally, suing retailers for selling the game is quite sketchy. In fact, the Supreme Court just heard a case looking at whether or not that was legit, and the Justices sounded quite skeptical. Gibson is clearly posturing to try to push for a settlement -- and in the process, showing yet another way to abuse the patent system.

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Activision Sues Gibson In Response To Claims That 'Guitar Hero' Violates Patent

Mike Masnick — Thu, 13 Mar 2008 00:26:58 PDT

And now bogus patent threats are finding their way into the video game world, as Activision has filed for a declaratory judgment that it doesn't infringe on a patent owned by Gibson, the well-known guitar company. It appears that Gibson owns a patent on "generating and controlling a simulated musical concert." Reading through the patent, it appears to be quite different than Activision's game. First off, the patent seems to clearly indicate that the instrument in question is a guitar, not the faux guitar used in "Guitar Hero." Also, the patent really does seem to be about participating in a virtual concert by adding the guitar part, rather than about pushing buttons in a game. Finally, the patent also includes the small detail that the participating in the virtual concert also involves a "head-mounted 3D display." I'm not aware of too many people playing "Guitar Hero" with one of those. Either way, Gibson approached Activision about licensing the patent, and rather than finding itself involved in a patent lawsuit in East Texas, Activision took charge and filed a suit against Gibson proactively, looking for a declaratory judgment that "Guitar Hero" does not violate the patent in question. In the meantime, if Gibson is really so concerned, why not do a deal with Activision to get them to offer replicas of Gibson's classic guitars as an upsell offering for the game's fans?

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Guitar Hero Gets To Rock On For Now

Mike Masnick — Fri, 21 Dec 2007 01:53:56 PST

Last month we wrote about how the 80s rock band the Romantics was suing Activision for a version of its video game Guitar Hero. That game used a cover of a Romantics hit, which was properly licensed. However, the Romantics claimed that the cover was too good and too close to the original and wanted to be paid for a full performance license, rather than just for the cover. Otherwise, they wanted to halt sales of the game. Luckily, a judge has turned down their request for a summary judgment, noting that an injunction right before the holidays would have a profound impact on Activision's sales of the game. The judge also noted that the band did not "show a substantial likelihood of prevailing on the merits of the case." Apparently, the judge was less-than-impressed by the fact that the band's own lawyer admitted that this was "all about the money."

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Does ActiBlizsion Make Sense? Can A Merged Activision And Blizzard Really Work?

Mike Masnick — Mon, 3 Dec 2007 04:28:00 PST

The big news in the tech world this weekend, of course, is the slightly complicated merger between video game firms Blizzard and Activision to form the not-particularly-creatively-named Activision Blizzard. You can read the link above to figure out the complicated parts, including Vivendi's role, as well as the various amounts of cash going into the deal from both sides. As for the rationale behind the deal, it's one of those deals that seems to make sense on paper. It makes the combined company somewhere around the size of EA, the major player in the space. It also aligns the complementary strong points of each firm. Activision is big in console games like Guitar Hero while Blizzard is big in multi-player online games like World of Warcraft. Blizzard also has a strong presence in Asia. So, on paper, it sounds like a great deal. The tricky part will be actually making it work. Even with such clear complementary successes, it's not always so easy to merge two large players like this with different approaches to the market. What almost always happens when two large companies merge is that one side ends up taking over and the other group fights for a while and then leaves -- taking much of the reason for the merger away. Even more complicated in this case is that both companies are pretty dependent on coming up with new "big hits" on a regular basis to keep bringing in the revenue. EA's success (whether on purpose or not) has largely been driven by the ability to release "franchise" games that people will buy the next version of every year -- particularly in the sports arena. If the merger makes the company take its eye off the ball, leading to a weak set of products, it could be quite damaging. Maybe the companies will pull it off. Maybe they can figure out a way to actually build on their separate strengths without fighting themselves -- but it's a big bet to take.

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The Romantics Suing Over Cover Version Used In Guitar Hero: Apparently, It's Too Good A Cover

Mike Masnick — Mon, 26 Nov 2007 00:43:48 PST

Jennifer was the first of a few folks to alert us to the latest ridiculous copyright lawsuit. It appears that the 80s band The Romantics is suing Activision for the cover version of its song, "What I Like About You," being used in the Guitar Hero Encore: Rocks the 80s game released this past summer. The lawsuit is not because the song wasn't properly licensed. Activision properly licensed the song so it could have a band cover the song and use the cover in the game. The problem is that the cover band was too good, according to The Romantics. Yes, the band is complaining that the cover is so accurate it sounds just like the original Romantics' version, and therefore, is infringing on the band's rights. This is so ridiculous that it's worth repeating the details once again: The band agreed to a license allowing Activision to use a cover version of its song -- and then sued because the cover version was too similar to the original. The band is now claiming that Activision should have paid different (more expensive) royalties to use the original master recording. As ridiculous as this sounds, the band may actually have some (equally ridiculous) precedents to back it up. Other musicians have sued when properly licensed covers were used in commercials, claiming that even though the songs used were covers, they sounded too similar and people might assume that the musician endorsed the product in the commercials. In this case, though, there really isn't any question of endorsement -- and, honestly, the Romantics should probably be thrilled that anyone still pays any attention to the band at all, rather than trying to ban the sale of the new game (which, yes, it's trying to do).

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