Video Game Law Blog

Indefinite Hiatus

December 8, 2008 at 3:47 pm - by Dale Dietrich

Categories: Notices

This Video Game Law blog is on an indefinite hiatus. I do expect to resume posting here in the future.

For the time being, I’m channelling my spare time into iPhone application development efforts and my wishhh.com service.

I will continue to blog regularly on The Daleisphere. Please join me there.

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Gibson Sues MTV, EA & Harmonix over Guitar Patent

March 21, 2008 at 9:23 am - by Dale Dietrich

Categories: Controller Cases • Patent Cases • Royalty Disputes

Text of MTV/EA/Harmonix Complaint (March 20, 2008)
Text Patent No. 5,990,405 (November 23, 1999)

After “good faith efforts to enter into a patent license agreement”, and subsequent yesterday’s filing of law suits against Activision’s Guitar Hero retailers, Gibson has filed another patent infringement suit against MTV, EA & Harmonix in the Federal District Court in Tennessee. Gibson owns patent no. 5,990,405.

Gibson claims Harmonix infringed its patent as the developer of Guitar Hero 1 and 2 (now published by Activision – previously published by RedOctane). After Harmonix parted ways with RedOctane, it was purchased by MTV. Harmonix subsequently developed the successful video game – Rock Band. EA distributes the game. Gibson claims that Rock Band infringes its patents and as such Harmonix, the game developer, MTV, the game publisher and EA, the game distributor, are all infringing its patents.

Harmonix has responded in an email to Wired Blog’s as follows:

“Gibson’s patent, filed nearly 10 years ago, required a 3D display, a real musical instrument and a recording of a concert. Rock Band and Guitar Hero are completely different: among other things they are games, require no headset and use a controller only shaped like a real instrument. It is unfortunate that Gibson unfairly desires to share in the tremendous success enjoyed by the developers of Rock Band and Guitar Hero,”

While Gibson previously threatened action against the current Guitar Hero publisher Activision, as far as I know, no law suit has been filed against Activision.

The 405 patent’s abstract reads:

A musician can simulate participation in a concert by playing a musical instrument and wearing a head-mounted 3D display that includes stereo speakers. Audio and video portions of a musical concert are pre-recorded, along with a separate sound track corresponding to the musical instrument played by the musician. Playback of the instrument sound track is controlled by signals generated in the musical instrument and transmitted to a system interface box connected to the audio-video play back device, an audio mixer, and the head-mounted display. An external bypass switch allows the musician to suppress the instrument sound track so that the sounds created by actual playing of the musical instrument are heard along with the pre-recorded audio and video portions.

Dale’s Comment: I have not yet found the text of the claim online. If/when I do, I will attach it to this post.

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Jack Thompson Sanctioned by Florida Court for Abuse of Process

March 20, 2008 at 1:17 pm - by Dale Dietrich

Categories: Decisions • Jack Thompson

Text of Sanction Order (March 20, 2008)
Text of Show Cause Order (February 19, 2008)

wo Florida bar disciplinary proceedings are pending against Jack Thompson. On April 12, 2007, the Supreme Court of Florida warned Jack Thompson that he could be sanctioned if he continued to submit inappropriate filings. Thompson filed over 50 subsequent filings. On February 19, the Court issued a ’show cause’ order:

It appears to the Court that you have abused the legal system by submitting numerous frivolous and inappropriate filings in this Court. Therefore, it is ordered that you shall show cause on or before March 5, 2008, why this Court should not find that you have abused the legal system process and impose upon you a sanction for abusing the legal system…

Apparently Mr. Thompson was unable to show such cause. The court decided Thompson’s “constant abusive filings” were repetitive, frivolous and insulting. As such the Court (per Curium – 7 concurring judges) has issued the following order sanctioning Mr. Thompson:

Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject for filing any future pleadings, petitions, motions, documents, or other filings submitted by John Bruce Thompson, unless signed by a member in good standing of The Florida Bar other than himself. Under the sanction herein imposed, Thompson is not being denied access to the courts; that access is simply being limited due to his abusiveness. Thompson may petition the Court, but may do so only through the assistance of counsel, whenever such counsel determines that the filing has merit and can be filed in good faith. However, Thompson’s frivolous and abusive filings must immediately come to an end. Further, if Thompson submits a filing in violation of this order, he may be subjected to contempt proceedings or other appropriate sanctions..

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Gibson Sues U.S. Retailers Over Guitar Hero Patent Dispute

March 20, 2008 at 10:19 am - by Dale Dietrich

Categories: Controller Cases • Patent Cases

Text of Patent No. 5,990,405 (November 23, 1999)

As previously reported: (i) in January, Gibson pressed Activision to pay it royalty fees alleging the video game Guitar Hero infringes its patent; and (ii) on March 12, 2008 Activision filed a preemptive lawsuit in the District Court for Central California seeking, among other things, to invalidate Gibson’s patent claims.

In response to Activision’s lawsuit, Gibson has now filed suit against major U.S. retailers of Activision’s game, including GameStop, Wal-Mart, Target, Kmart, Amazon and Toys “R” US, seeking to enjoin further sails of “Guitar Hero”.

March 21, 2oo8 Upate: While Gibson has since separately sued Harmonix, MTV and EA over alleged infringements in both Guitar Hero and Guitar Hero, as far as I’m aware Gibson has not yet filed suit directly against Activision.

Dale’s Comment: I have not found the text of the claim online. If/when I do, I will attach it to this post.

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8th Circuit Upholds Permanent Injunction Against Minnesota’s Law Restricting Video Game Sales/Rentals to Minors

March 17, 2008 at 1:16 pm - by Dale Dietrich

Categories: Violent Game Law Cases

ESA v. Minnesota (March 17, 2008 – 8th Cir Court of Appeals)
Click to hear Oral Arguments on Appeal (Feb 12, 2007)
Text of Appeal (Aug 29, 2006)
Permanent Injunction (July 31, 2006 – District Court)
Text of Complaint (June 6, 2006)
Text of Enjoined Bill (May 22, 2006)

In another of a long line of such U.S. First Amendment video game cases, The United States 8th Circuit upheld the July 2006 permanent injunction enjoining Minnesota from enforcing a law that would have: (i) imposed $25 fines on children under 17 who bought or rented video games rated M (Mature) or AO (Adults only); and (ii) required retailers to post signs informing consumers of the law. The appellate court’s reasoning was as follows:

Video games are protected free speech (as per Interactive Digital Software Ass’n v St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003)).
As such, video game rental/purchase restrictions imposed by law must pass the ‘strict scrutiny‘ test, namely the law must: (i) be necessary to serve a compelling state interest; and (ii) be narrowly tailored to achieve that end.
The state argued that the compelling interest at stake was that of ’safeguarding the psychological well being and moral and ethical development of minors’.
While the interest may be compelling in the abstract, in order to prevail the state must provide real and empirical support for its belief that ‘violent’ video games cause such harm – not merely conjecture.
The court agreed that Minnesota offered substantial evidence in support of its contention that video games cause such harm, but nonetheless ruled that the evidence fell short of the statistical certainty of causation required by the Interactive decision.

CONTINUE READING →

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Major Video Game Piracy Raid in Mexico City

March 17, 2008 at 11:06 am - by Dale Dietrich

Categories: Piracy Cases • Police Actions

Five Hundred Mexican police officers raided four Mexican video game piracy operations in the Tepito area of Mexico City (the center of the local black market) netting some 28,000 pirated game copies, 290 DVD/CD burners and 900,000 game covers.

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UK’s Video Appeals Committee Rules in Favour of Manhunt 2 – Again

March 14, 2008 at 2:03 pm - by Dale Dietrich

Categories: Decisions • Game Bans • Game Ratings

In June 2007, the British Board of Film Classification refused to rate Rockstar’s highly violent and controversial video game Manhunt 2 – effectively banning it from distribution in the U.K. The BBFC called it “unremittingly bleak, callous and sadistic”. An edited version of the game was submitted to the BBFC in October 2007. It too was effectively banned. This was the first video game ban in Britain since 1997.

Rockstar appealed the ban to the Video Appeals Committee of the BBFC which ruled last December, 4 to 3, in Rockstar’s favour. The BBFC sought judicial review of the VAC’s decision from the British High Court. The court found that VAC’s decision was flawed by a clear error of law (see here, here and here). The High Court requested the VAC to reconsider its decision under new guidelines specified by the court.

In January 2008, the VAC did reconsider under the new guidelines but voted once again, 4 to 3, in favour of giving the game a certificate 18 rating, meaning it can be sold in Britain but is suitable for adults only.

In view of the second ruling, the BBFC released a statement saying it will not challenge the ruling any further and will issue the ‘18′ rating. The edited version of the game (which is the same as the ‘reworked’ version of the game released in the U.S. under an “M’ rating) is expected to be on U.K. store shelves in June.

Click here for Wikipedia’s Timeline.

Dale’s Note: I have not yet found the text of the High Court decision or the ‘new guidelines’ it presented to the VAC. If I do, I will post them here.

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Activision Asks Court to Invalidate Gibson’s Guitar Hero Patent Claims

March 12, 2008 at 8:20 am - by Dale Dietrich

Categories: Controller Cases • Patent Cases • Royalty Disputes

Text of Activision Complaint Seeking Declaratory Relief (March 11, 2008)
Text of Patent No. 5,990,405 (November 23, 1999)

Activision has a long-standing license to use guitar-maker Gibson’s trademarks in its Guitar Hero video game franchise.

Gibson owns a hitherto unknown and unenforced patent ‘405 (A System and method for generating and controlling a simulated musical concert experience) and claimed in a letter sent to Activision in January, that the Guitar Hero franchise, expansion packs and controllers infringe this patent. In the letter Gibson sought royalty payments from Activision:

Gibson requests that Activision obtain a license under Gibson’s … patent or halt sales of any version of the Guitar Hero game software.

In response, Activision has filed a preemptive lawsuit in the District Court for Central California asking the court, among other things, to invalidate Gibson’s patent claims and to bar it from seeking damages.

The abstract of Gibson’s patent no. 5,990,405 reads as follows:

A musician can simulate participation in a concert by playing a musical instrument and wearing a head-mounted 3D display that includes stereo speakers. Audio and video portions of a musical concert are pre-recorded, along with a separate sound track corresponding to the musical instrument played by the musician. Playback of the instrument sound track is controlled by signals generated in the musical instrument and transmitted to a system interface box connected to the audio-video play back device, an audio mixer, and the head-mounted display. An external bypass switch allows the musician to suppress the instrument sound track so that the sounds created by actual playing of the musical instrument are heard along with the pre-recorded audio and video portions.

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Harmonix Brings $14.5M Royalty Suit Against Activision – Sort-of

March 10, 2008 at 8:40 am - by Dale Dietrich

Categories: Controller Cases • Royalty Disputes

Harmonix is the developer of the first two wildly successful Guitar Hero video games – originally published by RedOctane. In June 2006 Activision purchased the publishing rights to the franchise from RedOctane and Harmonix, which was subsequently purchased by MTV, went its own way and developed Guitar Hero. Activision-owned Neversoft has since taken-up the development of Guitar Hero sequels.

Harmonix claims that under its original agreement with RedOctane (subsequently assigned to Activision), it is entitled to a higher rate of royalties, amounting to $14.5 million, for the use of its intellectual property in Guitar Hero sequels. Harmonix claims that Activision has paid royalties based only on a prior lower rate.

Viacom (the parent of MTV and Harmonix) has reportedly withdrawn the suit for now. The companies have agreed to continue discussions outside of court.

Dale’s Comment: I could not find the text of the claim online. If I do, I will attach it to this post.

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Temporary Hiatus – Developing Wishhh.com

November 1, 2007 at 1:11 pm - by Dale Dietrich

Categories: Notices

My video game law blog is on a temporary hiatus. I have been developing a new, family-friendly, wishlist service called wishhh.com. It is in the final stages of beta testing with friends and family. I expect to launch publicly in early to mid December – with Facebook integration to follow. The service will be free for anyone to use. Here’s the site description from the splash screen:

establish private wishhh groups for the exclusive use of your family, friends, classmates, teammates, colleagues, worship group, whatever… • invite others to participate in your groups • post wishhhes and ‘don’t wants’ for group members to see • link wishhhes to details on other websites • tag another member’s wishhhes as ‘granted’ or ‘reserved’ pending purchase – without that person’s knowledge (… shhh!!!… it’s a secret) so other members won’t grant the same wishhh • protect your children by using wishhh.com’s oversight functions • receive only the gifts you really want