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

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

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.

In the words of Lord Justice Jacob, when handing down the Court of Appeal decision:

“A series of drawings is a series of graphic works, not a single graphic work in itself. No-one would say that the copyright in a single drawing of Felix the Cat is infringed by a drawing of Donald Duck. A series of cartoon frames showing Felix running over a cliff edge into space, looking down and only then falling would not be infringed by a similar set of frames depicting Donald doing the same thing. That is in effect what is alleged here.”

In the Chancery Division decision, Mr. Justice Kitchen concluded that while the competitive games were inspired by Nova’s Pocket Money, no substantial part of the work was reproduced and therefor, no copyright infringement occurred.

“The ideas that Mazooma have taken have nothing to do with the skill and effort expended by the programmer. They do not constitute the form of expression of the computer program for Jackpot Pool. They are generalised ideas at a high level of abstraction. The features taken collectively or separately do not amount to a substantial part of the program.”

Justice Jacob’s Court of Appeal conclusions provide a particularly apt summary of the limited scope of copyright protection as applied to the video game industry:

“….Both sides submitted that this case had significance for the computer games (and computer program writing) industry. Mr Howe submitted that if the decision below is upheld there is no effective protection for games against copying of the game where a party copies the rules of a game but not its graphics. Mr Carr submitted that that not all things are covered by copyright, that most if not every work is, to some extent, influenced or derived from other works. So it is very important that copyright is not allowed to intervene to stifle the creation of works that are actually very different, as the individual games are here.

I agree with Mr Carr. If protection for such general ideas as are relied on here were conferred by the law, copyright would become an instrument of oppression rather than the incentive for creation which it is intended to be. Protection would have moved to cover works merely inspired by others, to ideas themselves.”

Other High Court Decision Commentary: Out-Law.com | TwoBirds.com | Davis LLP | SportandTechnology.com | Mondaq | EDRI.org

Other Chancery Division Commentary: IPKat | Clintons | Out-Law.com | IPRights

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.

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

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

Text of Preliminary Injunction

Text of Law (HB 3004)

GamePolitics.com Full Coverage of Oklahoma ‘Games as Porn’ Law
Related Posts:

• Preliminary Injunction Granted Against Oklahoma ‘Games as Porn’ Law (October 12, 2006)
• ESA/EMA Sues Oklahoma over ‘Game as Porn’ Law (June 23, 2006)
• Oklahoma ‘Games as Porn’ Bill Signed into Law – ESA to Fight it (June 12, 2006)

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

Text of ESA v. Michigan Permanent Injunction

GamePolitics Full Coverage Of Michigan’s Violent Video Game Law

Related Posts:

• Michigan Game Law Permanently Blocked (April 3, 2006)
• Michigan Game Law Temporarily Blocked (November 9, 2006)
• Michigan Governor Signs Violent Games Bill, ESA Files Suit (September 14, 2005)

Sources: Findlaw | InternetCases.com | Davis & Co

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

Related Posts:

• Australia Copyright Reform to Explicitly Permit Region-Code Mod Chips (December 6, 2006)
• Region Coding for PS3 Unlikely (November 8, 2005)
• Australian High Court Rules Playstation Region Code Mod Chips Legal (October 6, 2005)
• Sony Plans New Legal Challenge to Mod Chips in Australia (March 16, 2005)
• Australian Court Rules Console Modding Legal (July 29, 2002)

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

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