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Category — Decisions

Jack Thompson Sanctioned by Florida Court for Abuse of Process

Categories: DecisionsJack 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..

Sources: GamePolitics.com | Joystiq | Wired | Next Generation | ars technica | Escapist | Law.com

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

Categories: DecisionsGame BansGame 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.

Sources: BBC | Telegraph.co.uk | GameIndustry.biz 1| GameIndustry.biz 2 | MCV | BCS | Joystiq | Computer Active | Dose.ca | vnunet.com | Games Digest | EuroGamer 1 | EuroGamer 2

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Nova’s Pool-Cue Game Mechanics Not Protectable by U.K. Copyright

Categories: Copyright CasesDecisions

Text of Decision , HTML version, RTF Version (UK Court of Appeal – March 14, 2007)
Text of Decision , HTML version, RTF Version (England & Wales High Court – Chancery Division – January 20, 2006)

In what seems to be little more than another “look and feel” decision specific to the video game industry, the U.K. Court of Appeal upheld a prior Chancery Division decision ruling against Nova Productions in finding, yet again, that general ideas behind computer games, or in this case specific game mechanics, and other programs are not protectable under U.K. copyright:

“Merely making a program which will emulate another but which in no way involves copying the program code or any of the program’s graphics is legitimate,”

In this case, the court found no copyright in the “imagery” relating to either: (i) lines of dots indicating the direction of a pool shot; or (ii) an “in-time” mechanic that permits the player to alter the power of a simulated pool shot by timing the shot relative to a pulsing power level – see the images in the Annexes of the HTML version of the Chancery Division decision. Providing similar, but different, “imagery” to depict the same game mechanic idea is not infringing.


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2nd Circuit Court of Appeals Rules in Favor of Sega in “Publicity Rights” Case – Kirby v. Sega

Categories: DecisionsPersonality Rights Cases

  Text of Kirby v. Sega (Sept 25, 2006)
The 2nd Circuit Court of Appeal has held that Sega has a First Amendment exception defense to a right of publicity claim made against it in the context of a game character that shared similar traits to a real-world celebrity. 

Sega created the video game Space Channel 5 featuring a character named Ulala, a reporter who wears a short skirt and platform boots and has pink hair – all of which are physical similarities to the former lead singer of the 1990s funk band Deee-LiteKirby – Kieren Kirby. 

In this ruling the court held that Sega had passed the "transformative" test set out in the earlier Comedy III Productions v. Gary Saderup case by ‘adding something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Specifically:

If the “product containing he celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression” of what he or she is trying to create or portray, rather than the celebrity’s likeness, it is protected. 

In applying the test to the facts of the case, Justice Paul Boland concluded:

Ulala is more than a mere likeness or literal depiction of Kirby. Ulala contains sufficient expressive content to constitute a “transformative work” under the test articulated by the Supreme Court. First, Ulala is not a literal depiction of Kirby. As discussed above, the two share similarities. However, they also differ quite a bit: Ulala’s extremely tall,slender computer-generated physique is dissimilar from Kirby’s. Evidence also indicated Ulala was based, at least in part, on the Japanese style of “anime.” Ulala’s typicalhairstyle and primary costume differ from those worn by Kirby who varied her costumesand outfits, and wore her hair in several styles. Moreover, the setting for the game thatfeatures Ulala – as a space-age reporter in the 25th century – is unlike any public depiction of Kirby. Finally, we agree with the trial court that the dance moves performed by Ulala – typically short, quick movements of the arms, legs and head – are unlikeKirby’s movements in any of her music videos. Taken together, these differences demonstrate Ulala is “transformative,” and respondents added creative elements to createa new expression.

According to this FindLaw.com the Kirby case is at odds with a prior Missouri Supreme Court case setting up a possible Supreme Court challenge.

Sources: The Legal Reader | FindLaw.com | Fenwick & West | The Hollywood Reporter | MetNews | Davis & Co.

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Federal District Court Judge Makes Louisiana’s Violent Game Bill Injunction Permanent

Categories: DecisionsInjunctionsJack ThompsonViolent Game Law Cases

Text of Short Summary Judgment Ruling (November 29, 2006)
Text of Preliminary Injunction (August 25, 2006)
Text of Temporary Restraining Order
Text of ESA Complaint
Text of Violent Game Bill (HB 1381)

Hot on the heals of the 7th Circuit’s upholding the permanent injunction against Illinois’ Safe Games Illinois Act’, Federal District Court Judge James Brady issued a bench ruling permanently (followed by this short summary judgment ruling) enjoining the application of Louisiana’s, Jack Thompson-drafted, Violent Game Bill.

ESA’s response to the ruling:

“What makes Judge Brady’s action unusual and remarkable is that he issued his ruling from the bench rather than through a written decision, a strong signal that he felt the State’s arguments were so without merit that they didn’t even require a detailed opinion beyond the Judge’s August decision imposing the preliminary injunction. In his August ruling, the Judge emphasized the State’s failure to take into consideration when passing this law the long line of previous cases holding that video games are protected speech. The ESA will immediately file to recover its legal fees from the State as it has successfully done elsewhere.”

“In nine out of nine cases, federal courts have struck down these grandstanding efforts by politicians to ban video game sales to minors. It doesn’t get clearer than that. One hopes that enough is enough. Video games are like rock and roll: they’re here to stay, and it’s about time for elected officials to focus their energies, and taxpayer dollars, on truly productive and useful programs to educate parents to use the tools industry has made available — from ESRB ratings to parental control technologies.”

Sources: GamePolitics.com | Gamespot |ars technica | GameDaily.biz | Gamasutra

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Seventh Circuit Court of Appeals Upholds Permanent Injunction Against ‘Safe Games Illinois Act’

Categories: DecisionsInjunctionsSexuality CasesViolent Game Law Cases

- 7th Circuit Court of Appeal Ruling ESA v. Illinois Decision (November 27, 2006)
- Lower Court Ruling in ESA v. Illinois Decision (December 2, 2005)
- Text of Rejected Act

The U.S. Court of Appeals for the Seventh Circuit has upheld the prior Illinois District Court permanent injunction against the implementation of Illinois’ “Safe Game Illinois Act” that provided for two new criminal laws, the Violent Video Games Law and the Sexually Explicit Video Games Law. Illinois had not appealed the Violent Video Games Law portion of the earlier decision. The Court of Appeal held that the Sexually Explicit Video Games Portion of the Law swept too broadly:

The game God of War… is illustrative of this point. Because the (Illinois law) potentially criminalizes the sale of any game that features exposed breasts, without concern for the game considered in its entirety or for the game’s social value for minors, distribution of God of War is potentially illegal, in spite of the fact that the game tracks the Homeric epics in content and theme. As we have suggested in the past, there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey.

Similarly, it seems unlikely that a statute is narrowly tailored to achieving the stated compelling interest when it potentially criminalizes distribution of works featuring only brief flashes of nudity.

The Court of Appeal also held that the portion of the law requiring a 4″ warning sticker in addition to the ESRB warning was not sufficiently narrowly tailored.

According to Next Generation (and other sources), the state has not yet paid the $150,000+ legal costs that the court awarded to ESA on August 12, 2006.

Sources: Gamasutra | GameSpot | GameDaily.biz | GamePolitics.com | ars technica | CNet| Chicago Tribune | First Amendment Center | Media Law Prof

GamePolitics Full Coverage of Illinois Game Law

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Preliminary Injunction Granted Against Oklahoma ‘Games as Porn’ Law

Categories: DecisionsInjunctionsViolent Game Law Cases

Text of Preliminary Injunction
Text of Law (HB 3004)
As expected, the Oklahoma law that would make it a felony for anyone to sell, rent or display games which contain “inappropriate violence”, has been enjoined. The law would require stores to keep such games hidden in a similar manner to pornographic magazines and videos. The law was set to go into effect on November 1, 2006.

Sources: Gamasutra | GameDaily.biz | ars technica | Law.com | GameSpot | Next Generation | GamePolitics.com

GamePolitics.com Full Coverage of Oklahoma ‘Games as Porn’ Law
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French Mod-chip Maker Divineo Ordered to Pay $9 Million in Fines for Violating DMCA

Categories: DecisionsDMCA-TPM CasesModding CasesPiracy Cases

On September 11, 2006, U.S. District Court Judge Claudia Wilken assessed more than $9 million in penalties against France-based mod-chip maker Divineo for trafficking in mod chips and the associated HDLoader software. HDLoader allows users to copy their games from CD/DVD disks to their hard drive. Despite legitimate use by legions of honest gamers, this mod-chip/software bundle works by circumventing copy protection measures contained on the game CD/DVD and thereby contravenes the controversial DMCA.

Dale’s Comment: Mod-chips and software like HDLoader is hated by game developers/publishers because they are commonly used to distribute pirated video games on PS2 consoles. For honest gamers, they are a terrific way to install all purchased games on a hard drive so that they can be quickly and conveniently served up like records in a jukebox. Without it gamers must manually flip game disks each time they want to change the current game.

Sources: Gamasutra | Digital Trends | GameDaily.biz | Businesswire | ars technica | Next Generation | Engadget | ESA Press Release

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Rockstar’s use of ‘Pig Pen’ in San Andreas Does Not Infringe Play Pen’s Trademark

Categories: DecisionsTrademark Cases

In a decision that could be important for game developers, a District judge has ruled that Rockstar’s use of the trade dress and trademark ‘Pig Pen’ over a fictional strip club in GTA San Andreas does not infringe upon a similarly styled ‘Play Pen’ strip club trademark in Los Angeles. The court ruled that Rockstar’s use of “the Play Pen trade dress and mark presents little, if any, chance that consumers will be misled about the content of the game”.
Sources: Gamespot  |  Gamasutra  |  1Up.com  |  GameIndusry.biz  |  Eurogamer  |  Bit-tech.net  |  Spong  |  Kotaku  |  Playfuls  |  GamePolitics.com

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UK’s ASA Permits Controversial PSP Ads

Categories: AdvertisingAgency/Board ActionsDecisions

Text of ASA Decision
June 21, 2006
The UK Advertising Standards Authority (ASA) has opted not to uphold the 45 complaints filed against Sony for its PSP advertising campaign, which included a series of objectionable/racy posters that were primarily placed in outdoor locations, as well as on billboards and buses. The ASA agreed with Sony that the ads did not contain any explicit language or images likely to cause widespread offence or harm to children.

Sources: Gamasutra | GameIndustry.biz | vnunet.com | CNet | GameSpot | Brand Republic | joystiq | mad.co.uk

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Michigan Game Law Permanently Blocked

Categories: DecisionsInjunctionsViolent Game Law Cases

Text of ESA v. Michigan Permanent Injunction
Text of Michigan Violent Games Law
Following the Illinois District Court’s Dec. 2, 2005 ruling, Judge George Caram Steeh, U.S. District Court, Eastern District of Michigan granted the ESA’s motion for summary judgment and handed down a permanent injunction against the state’s Violent Games Law, which was signed into law by Michigan Gov. Jennifer Granholm, ruling it unconstitutional under the First and Fourteenth Amendment. Contrary to the state’s claims, the judge ruled that the state failed to effectively exhibit a link between games and violent behavior.

Sources: GameDaily.biz | ESA Press Release | Next Generation | GamePolitics.com | Gamasutra | XBox Advanced | Business Wire | CNet | Joystiq | Xbox Solution | GameIndustry.biz | GameSpot | ars technica | New York Law Journal | MSNBC | Joystiq | L.A. Times | Detroit Free Press | Inquirer

GamePolitics Full Coverage Of Michigan’s Violent Video Game Law

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Immersion Wins Latest Round Of Sony ‘Rumble’ Suit

Categories: Controller CasesDecisionsInjunctionsPatent Cases

Text of Immersion Patent
Sony’s attempt to overturn $90 million lawsuit by Immersion for copyright infringement was rejected. Sony still has an outstanding appeal with the US Court of Appeals for the stay of injunction. Should that case fail, Sony would be legally required to pay the entire $90.7 million and decide whether or not to pay Immersion licensing fees.

Sources: Gamasutra | Gamespot | Next Generation | GameDaily.biz | ars technica | Forbes | IGN | Inquirer | CNet | CVG | joystiq | Playfuls.com | GameIndustry.biz | Hexus | EuroGamer | The Register | PS3Fanboy.com

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ASA Upholds Complaint Against Konami Advert

Categories: AdvertisingAgency/Board ActionsDecisions

The UK’s Advertising Standards Authority has upheld a complaint against an advert for Konami title Crime Life: Gang Wars which claimed it exploited racial stereotypes and glorified violence.

Sources: GameIndustry.biz | Gamasutra | GamePolitics.com

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Activision Ordered not to Show “Misleading” Call of Duty Ads Again

Categories: AdvertisingAgency/Board ActionsDecisions

The UK’s Advertising Standards Authority (ASA) has upheld complaints from three television viewers that adverts depicting scenes from Activision title Call of Duty 2 and its current generation console counterpart CoD2: Big Red One were misleading, and declared that they must not be shown again in their present forms.

Sources: GameIndustry.biz | Gamasutra | Gamespot | GamePolitics.com | EuroGamer | 1Up.com | IGN | Boomtown

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GMX Refutes Tesseraction’s Court Victory Claim

Categories: DecisionsDistribution Agmt CasesRoyalty Disputes

The two-year legal battle between GMX Media and Tesseraction Games appears not to be settled contrary to Tesseration’s claim.

Source: GameIndustry.biz

Other Royalty Dispute Posts
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Tesseraction Games Claims Summary Judgement Victory Against GMX Media

Categories: DecisionsDistribution Agmt CasesRoyalty Disputes

Text of September 23, 2003 Complaint
The lawsuit alleged that GMX Media failed to produce timely and accurate sales and royalty accounts, failed to pay royalties from sales and interest on delayed royalties, distributed the title in countries outside of those defined in the agreement, and distributed the title in packaging that was not approved by Tesseraction, contained altered text and omitted vital game support information.

Source: GameIndustry.biz

Other Royalty Dispute Posts
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Sony Wins $6 Million Award Against U.S. PlayStation Modder

Categories: DecisionsDMCA-TPM CasesModding CasesPiracy Cases

Text of Sony v. Filipiak Decision
On Dec 27, 2005, In this decision, Sony was awarded more than $6 million in statutory damages against an individual that sold Playstation mod chips in contravention of the anti-circumvention provisions of the DMCA. The statutory minimum and maximums are $200 and $2,500 per violation. Sony was awarded $800 per “wilful” circumvention/infringement for initial violations and the highest possible, $2,500, for violations that occurred after the defendant had signed a consent judgment agreeing to stop such violations – he didn’t! In this case a computer forensics expert was able to determine that the defendant had erased thousands of incriminating transaction files/records just prior to handing his hard drive over to Sony’s counsel as agreed in a consent judgment.

Sources: Findlaw | InternetCases.com | Davis & Co

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Australian High Court Rules PlayStation Region Code Mod Chips Legal

Categories: DecisionsDMCA-TPM CasesModding CasesRegion Coding Cases

Text of Stevens v. Sony Decision
In Stevens v. Sony, the Australian High Court ruled that modding Playstation consoles to circumvent region coding restrictions does not breach Australian copyright laws.

Sources: High Court Press Release | Freehills | GameIndustry.biz | Gamasutra | PS3Focus.com

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Injunction Against ‘Guy Game’ Sales Upheld in Invasion of Privacy Action

Categories: DecisionsInjunctionsPrivacy Cases

In this interlocutory appeal, the court determined that the trial court did not abuse its discretion in finding that the plaintiff may be entitled to relief for invasion of privacy by misappropriation, and that the injunction was necessary to prevent irreparable harm. It also ruled that the trial court’s decision to allow the plaintiff to proceed as “Jane Doe” was not appealable, and, in any event, would not prejudice the defendants.

Sources: Media Law Reporter | Davis & Co. LLP

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Marvel v. NCSoft: Judge Dismisses Trademark Case

Categories: Character License CasesDecisionsPolice ActionsTrademark Cases

U.S. District court Judge dismisses claims that NC Soft’s character creation tool infringes Marvel’s trademarks. Finds that allegedly infringing works submitted as evidence was “false and sham” as they were created by Marvel itself, not NCSoft users.

Sources: GameLaw.org | GameIndustry.biz | Prodigious Gaming

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Immersion Corp. Wins Suit Against Sony

Categories: Controller CasesDecisionsPatent CasesPolice Actions

Text of Immersion Patent
Immersion Corp has won an $82 million patent infringement suit against Sony over two contested patents that Sony inadvertently violated in its Dual Shock controllers for PlayStation and PlayStation 2.

Sources: Gamasutra | Gamespot | EuroGamer | Immersion | BBC | Forbes | Washington Post

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Vivendi Barred From Distributing Valve Games in Cyber Cafes

Categories: DecisionsDistribution Agmt CasesPolice ActionsPublisher/Developer Cases

Judge Zilly ruled that Sierra/Vivendi Universal Games are not authorized to distribute Valve games through cyber cafés to end users for pay-to-play activities pursuant to the parties’ current publishing agreement. Valve games such as Counter-Strike, Counter-Strike: Condition Zero and the recently released Half-Life 2 and Counter-Strike: Source are all popular in cyber cafés. Judge Zilly also ruled in favor of the Valve motion regarding the contractual limitation of liability, allowing Valve to recover copyright damages for any infringement without regard to the publishing agreement’s limitation of liability clause

Sources: Gamespy PC | Yahoo! Games | ign.com | ars technica | BBC

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Sony Wins Landmark U.K. Modding Case

Categories: DecisionsModding CasesPiracy CasesPolice ActionsRegion Coding Cases

The British High Court has ruled that using, possessing, selling or advertising modded PS2 consoles is illegal. Justice Laddie ruled that Ball had violated the European Union Copyright Directive, which came into UK law in 2003. The defendant had sold some 1,500 Messiah 2 chips allowing customers to defeat both the PS2′s region coding restrictions and the PS2′s built-in piracy protections.

Sources: ZDNet | GameIndustry.biz | The Register | BBC | GamePlanet | Outlaw-com

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Spanish Judge Rules X-Box Region-code Mods ‘legal’

Categories: DecisionsModding CasesPolice ActionsRegion Coding Cases

A Spanish judge has ruled that modifications to games consoles to allow them to play DVDs and games from other countries “are not illegal”.

Source: The Register

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Italian Court Rules Region-code Thwarting PS2 Mod Chips Legal

Categories: DecisionsModding CasesPolice ActionsRegion Coding Cases

A court in Italy has dealt a major blow to the efforts of console manufactures to crack down on mod chips, ruling that PS2 mod chip devices are designed to “avoid monopolistic positions.”

Sources: The Register | GameIndustry.biz | Silicon.com | Outlaw.com

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