We all know that many game companies are really upset about being locked out of the used games revenue stream. Warner happens to be one of those companies. With the release of Batman: Arkham City, Warner is giving a free code to new game buyers that lets the gamer play as Catwoman during the game. If you buy the game used, you will need to buy a new code to access Catwoman. That is if you buy it used anywhere other than GameStop.
According to a memo sent to Kotaku, Warner and GameStop have partnered up to give free codes to buyers of used copies of Batman. Granted, GameStop is most likely paying for these codes for the customer and is most likely getting them at a discounted rate. This happens to be a great deal for both companies and even some customers. Warner gets the satisfaction of capturing used game revenue with a reduced risk of customers deciding not to buy the redemption code. GameStop gets a leg up on the competition which don't have the same deal. Finally, customers of GameStop don't have to shell out the extra cash to play as Catwoman.
This is an interesting move on Warner's part. GameStop is the poster child for the evils of used games, according to many games industry veterans. However, even the toughest critic of GameStop's policies recognizes the power this one brand has over the game consumer, thus the deal. If GameStop is willing to make such a deal with Warner, would they be willing to do the same with other companies such as EA or Ubisoft?
Of course, there are additional ramifications to consider. How will this affect the relationship with other game stores, both in and outside the US, which don't have the same leveraging power? Will those smaller stores be coerced into deals that are not as sweet for them and their customers? Regardless of the ramifications, it is nice to see a company actually be proactive about capturing used games revenue rather than just complain and punish players. Why can't more companies act this way?
I can certainly see the concern here. While we have seen a number of dubious trademark lawsuits, most recently with Edge and Scrolls, this is an example of trademark law working as intended. On one hand, we have a business which has spent roughly 30 years building a brand that people recognize and trust and on the other, a business stepping in with a knock off logo used in a way meant to confuse buyers.
Electronic Arts has a very strong case for brand confusion and I really don't see any way out of this mess for Energy Armor other than to change its name or lose in court.
Just when you thought no one would be able to top the various levels of DRM insanity plied by Ubisoft in its quixotic quest to end piracy as we know it, something else comes along that's bigger and badder than the nuisances that preceded it.
Electronic Arts' new game service, Origin, has hidden some rather disturbing language inside its EULA. Rock, Paper, Shotgun notes that in order to play Battlefield 3, or any other game that requires Origin to run, you're going to have to let EA root around inside your computer. Here's the gory details, straight from Origin's EULA:
Now, as RPS notes, some of this wording is not that unusual. Many software companies collect system data and several will even tell you that they plan on distributing this to third parties. This includes Steam, whose EULA states that it will:
... store information on a user's hard drive that is used in conjunction with online play of Valve products. This includes a unique authorization key or CD-Key that is either entered by the user or downloaded automatically during product registration. This authorization key is used to identify a user as valid and allow access to Valve's products. Information regarding Steam billing, your Steam account, your Internet connection and the Valve software installed on your computer are uploaded to the server in connection with your use of Steam and Valve software.
But, as RPS points out, there's a big difference between Valve's policy and EA's policy:
Valve's policy is self-restricted to anything on your PC directly relating to its own products. EA's is so broad that it gives the publisher permission to scan your entire hard drive, and report back absolutely anything you may have installed, and indeed when you may use it, and then pass that information on the third parties.
Now, this data collection may be used in a neutral fashion, heading directly back to EA for dissection and analysis. But there are two aspects that are particularly troublesome: A.) the wording in the EULA is very unspecific and B.) you have to "AGREE" to the terms in order to install your purchased software. In other words, before you can even start playing, EA wants to start digging.
It gets better:
And then even more creepily, they say they intend to take such information, combine it with personal information about you, and use it to advertise directly to you. However, when selling on this free-for-all on your computer's contents, they'll at least remove personally identifying information. Gosh, thanks.
Perhaps you're thinking to yourself: screw this online delivery system and its unseemly urge to dig into my hard drive and operating system. I'll just buy one off the shelf, thank you very much. Not. So. Fast.
It strikes us as beyond acceptable. And so much more serious now that EA has made its intentions clear to make so many of their games exclusively delivered through Origin. Were there a choice about what you'd use to play Battlefield 3, Mass Effect 3, etc, then gamers could opt out of allowing Origin on their systems while such a policy is in place. But instead it's a case of agree to such remarkable terms, or don't play their games at all.
So, it comes down to this: EA wants what's in your hard drive and any other info it can pick up from your usage habits. Sure, EA has probably always wanted this information but now it's deciding that you, the customer, will only play its games if you give up your information. Apparently, $50+ for a game just isn't payment enough anymore.
Update: Looks like all this attention has gotten EA to back down a little. Not fully, mind you. They now say they can still collect the data. Just not give it to marketing partners.
Quick refresher: EA's Godfather games feature tommy guns named after famed tommy gun enthusiast, John Dillinger. Scalf took issue with its use of the famous last name, threatening litigation unless EA promptly deposited millions of dollars into his account at the nearest un-robbed bank. EA considered his "offer" briefly before filing a suit of its own requesting permission to use Dillinger's name in its games.
The court rejected the right of publicity claim, concluding that the Indiana post-mortem right of publicity statute isn’t retroactive and thus doesn’t cover Dillinger, and that (in light of the First Amendment) the “literary works” exception in the statute should be read broadly enough to cover video games.
The court rejected the trademark claim, finding that EA’s use of the name “Dillinger” was protected by the First Amendment, because it had some relevance to the plotline of the game and wasn’t “explicitly misleading” as to any possible endorsement by Dillinger, LLC.
It's a good start and maybe a sign that Scalf's coattail-riding days are coming to an end. The court's declaration that Indiana's unusual trademark law isn't retroactive should be enough to kick Scalf's litigious yearnings to the curb, and that seems to be really all he has going for him. Of course, we've seen the legal doors slam shut on a few other overactive players (Righthaven, the Winklevii), only to be pried back open moments later. I guess we'll just wait and see.
Maybe Scalf can secure his dubious legacy by turning this Dillinger quote into his "business" slogan:
My buddies wanted to be firemen, farmers or policemen, something like that. Not me, I just wanted to steal people's money!
Tom Landry was the first of a bunch of you to send in the news that EA has taken forum banning to a new level. Obviously forums ban people all the time for whatever reason, but it appears that EA went way beyond just a forum banning in this case. First, the guy was banned for saying in the comments: "Have you sold your souls to the EA devil?" Seems pretty tame compared to some of the stuff that goes on in plenty of forums. But, whatever. If EA wants to be thin-skinned like that, that's its own insecure decision. Where it goes overboard is that not only did the company ban him from the forums, but it also blocked him from activating a single-player game that he had purchased, Dragon Age II, from BioWare. In the thread where this is discussed, a company rep notes that this is EA's policy, and since BioWare is a part of EA, this was done at a higher level:
EA Community bans come down from a different department and are the result of someone hitting the REPORT POST button. These bans can affect access to your game and/or DLC
That seems ripe for a lawsuit. Selling someone a video game for 50 euros (what the guy says he paid for it), and then telling him he can't play it, even as a single player game on his own computer, because he said something mildly anti-EA in a forum? Honestly, all that really seems to say is that you should never "buy" (yeah, right, you didn't "buy" anything) from EA since they can vindictively make whatever you bought stop working if someone who works there doesn't like you. That seems like a much worse message than some forum person talking about "selling your soul." Update: And of course, once the publicity came out on the story, EA is now claiming it was a glitch and has been fixed. Doesn't change that this appears to be part of EA's official policy, though (also, corrected the name of the game).
Now, I actually hesitated in posting this image, seeing as it's what got Gawker sued (suggesting the sort of chilling effects of silly copyright lawsuits). Here's why the original lawsuit seems odd, and why Gawker seems likely to have a very strong fair use claim -- with an added point as to why I have an even stronger fair use claim in posting it here:
Kotaku didn't just post the random image. It was highlighting a point in a Kotaku live chat, where the producer of the EA game Dante's Inferno noted that it was this image that inspired him to create the video game:
"The real "ah ha" moment for me was seeing this really cool map that someone created of the 9 circles of hell. You see a lot of these maps, you know the "V" shaped cross section, but there was one in particular that had all the call-outs for the different sections, the "bosses" of each circle (Charon, Minos, Cerberus, etc.), and I just looked at that map and said, "that's a level-based game waiting to happen."
So it wasn't just a random use of the image -- it was a story about that specific image and included commentary beyond just the image.
I don't know if the post changed, but as it stands right now, the image is a small thumbnail and there are two separate links to McCulloch's full image. Update: People are saying that the original post was not a thumbnail, but had a much larger version of the image. I'm still not sure how that wouldn't get fair use protections, however...
There's a whole bucketload of derivative works issues here: McCulloch's image is derivative of the book. The video game is derivative of the book and the image. The blog post is derivative of all of that.
Us reporting on the lawsuit where this image is central to the lawsuit again highlights how this is likely fair use.
If we go through the traditional four factors test, it's difficult to see where McCulloch has any leg to stand on.
the purpose and character of the use
This clearly weights towards fair use. There is new expression around the image, describing how it was used to inspire the video game. On top of that, being used in reporting is quite a common form of fair use.
the nature of the copyrighted work
This factor tends not to get that much attention, but the key issue is usually whether the content has already been published. In this case, it has been and is available for everyone to see on the web anyway.
The amount and substantiality of the portion taken
While this is the whole image, it appears to be a thumbnail of the image and provides additional commentary. As we've seen in a variety of cases involving fair use questions concerning images, making use of the entire image, even in commercial use, can still be fair use if it makes sense in context. In this case, that certainly seems to be true.
The effect of the use upon the potential market
This is one of the "big" tests, and it again weighs entirely towards fair use here. Is anyone less likely to purchase or license the work because of Gawker's use? That seems highly unlikely. If anything, it brings additional attention to both the artist and the work.
What's a bit surprising is that THREsq notes that McColloch is apparently represented by Shourin Sen, who runs the excellent Exclusive Rights copyright law blog, which we've linked to in the past for its smart and reasonable analysis. I'm at a bit of a loss, unless the original blog post on Kotaku was substantially different than what it is now, as to how this could possibly be a case of copyright infringement, rather than fair use.
We've been talking a lot about publicity rights cases lately, and how this new form of "intellectual property" (based on various state laws) is already being widely abused in ways that appear to violate First Amendment rights. It looks like we may finally be getting some lawsuits to test the legality of such publicity rights claims. There's been an ongoing case filed against EA over whether or not it could use images of college football players without their consent. Many seem to think this case will bring the issue up to the level of Supreme Court review, and they're jumping in with amicus briefs. This is one time when I'm going to side with the likes of the MPAA and Viacom -- both of whom argued that EA is right and that the First Amendment should prevail over these rights. Of course, it's amusing that they seem to take a totally different stance when it comes to other forms of intellectual property. But those organizations aren't known for their logical consistency...
Someone, who prefers to remain anonymous, sent over the news that a company named Everglades Interactive has sued basically all of the big "social gaming" providers for patent infringement. Among those sued are EA, Playdom, Disney (which just bought Playdom), Zynga, Playfish, Rockyou and Crowdstar. The patent in question? It's patent 6,656,050, for an "odds accelerator for promotional type sweepstakes, games, and contests." If you read the details, it seems like the pretty standard process of taking various sweepstakes involving matching pieces (bottle caps, peel off stickers, etc.) to get certain prizes but moving it online. Of course, once you move such a physical process online, you can do slightly different things since you're not limited by geography and physical distribution. But all that seems like it should be obvious. Not to the patent examiners of course, who judged it patent worthy.
So how do all these social gaming sites infringe?
... by, among other things, making, using, importing, offering for sale, and/or selling products and services that provide game pieces that are applied to a game board at a game site, make information available about the pieces needed to complete a winning combination, allow the player to share or trade the game pieces, and enable the players to easily and securely store game pieces....
Of course, you would think that since pretty much every social gaming system does this, that it would be clear that this was an obvious thing to do if you're building a social gaming system. But, tragically (and ridiculously), that's not how our patent system works.
We've covered a few different stories about a guy named Tim Langdell who held a trademark on the term "edge" in video games, which he had used many years ago, and still sorta kinda maybe uses as part of his operation, "Edge Games." And yet, he seemed to think that trademark law means he owns the word, as it relates to video games, forever. So he's been threatening iPhone developers and sued EA, claiming the company's Mirrors Edge series violates his trademarks. EA has fought back strongly against the claims, and Brian alerts us to the news that a court has denied Langdell's injunction request and slammed Langdell in the process, suggesting underhanded practices which could result in criminal penalties.
The court has denied Edge Games' motion for injunction, citing that it believes that Langdell made fraudulent statements to the US Patent and Trademark Office and strongly believes that Langdell is "suspect" and has been "trolling" the game industry for licensing opportunities. His actions could possibly warrant "criminal penalties."
When a judge calls you a troll and threatens you with criminal penalties in a lawsuit you initiated... you've got problems. Reading through the actual ruling is incredible, in what it describes about what Langdell has done. I would argue that the above paragraph significantly downplays Langdell's actions, which the court notes, at one point, that the evidence suggests Langdell "willfully committed fraud." You can see the full ruling here:
After discussing the background of the case, it jumps right into the part where it accuses Langdell of faking evidence (the judge even italicizes: "It was faked." in the ruling). The judge was even kind enough to include an image comparing an apparently faked magazine cover that Langdell sent to the USPTO, which the USPTO relied on:
The ruling goes through a series of other situations that appear to be blatant misrepresentations by Langdell in order to secure the trademark in question. For example, there's a comic book cover, which Langdell scanned and used to show the USPTO that he was still using the mark in commerce. Only problem? The comic book was published by another company. Oh, and it was published over a decade earlier, meaning it wasn't a very good example of how Langdell was using it in commerce at all. And, then there were some other similar situations:
For example, Dr. Langdell's declaration asserted that Edge Games
has been selling the video game Mythora (supposedly bearing the "EDGE" mark) since 2004.
Curiously, while the exterior packaging submitted by Dr. Langdell to the USPTO for the Mythora
video game included a website address "www.mythora.com," this website wasn't even registered
by Edge Games until October 2008 -- nearly four years after the game's purported release.... The USPTO relied upon this questionable video-game packaging when it renewed
plaintiff's "EDGE" mark in 2009
The ruling goes on to note many more cases of images sent to the USPTO, where the images appear to be doctored, even mockingly saying after one such "real" and "submitted" comparison:
"Once again playing "spot the differences," the specimen submitted to the USPTO appears to have been doctored in three material ways."
This is a judge who is not happy.
The more you read, the more bizarre it gets. Since it's questionable as to whether or not Langdell had really been using these marks in commerce all along, EA's lawyers tried to see if he's really using them today. So it went and tried to buy some of the games he's claiming to sell... and they got error messages every time.
At this point, one would hope that Langdell realizes it's time to back off. He could, in theory, push for a full trial (this was just a move to get an injunction), but he must realize that his chances of winning this case are about as close to zero as you can imagine -- and the deeper he digs, the more trouble he may find himself in.
The story is yet another example of the dangers of trying to abuse the legal system sometimes. It can certainly come back to bite you.
You would think that UK Defense Secretary, Liam Fox, would have more important things to concern himself with than an upcoming video game release, but apparently he's calling for retailers not to sell the upcoming release in EA's Medal of Honor video game series. His complaint is that, in multiplayer mode, some players can play the role of Taliban soldiers. The game seeks to recreate the ongoing war in Afghanistan in a realistic manner. It's difficult to see how you could create a realistic game that doesn't include Taliban soldiers. It's not as if kids are going to play this game and suddenly think that it makes sense to join the Taliban...