Category — Legal Issues
- patents are too easy to get
- many are trivial and do not pass the non-obvious test;
- the length of patent protection, especially in the context of the Internet and fast changing industries like the video game industry, is too long;
- the cost of defending a patent infringement suit is too high with the result that marginal patents are frequently not tested;
- to determine whether a prospective idea is obvious, and therefor patentable, it should be submitted for peer review as part of the patent prosecution process rather than the current system of testing for obviousness through the costly judicial process after a patent is granted; and
- the length of patent protection should be different for different types of patents.
Love’m or hate’m, video game patents have played an important role in the evolution of the video game industry.
Ross Dannenberg and Steve Chang of Banner & Witcoff, Ltd have put together this terrific feature article: “The Ten Most Important Video Game Patents” for Gamasutra. In assessing the patents’ importance, they used four criteria:
- Relativity to Video Games
- Financial Value
- Technological Importance
- The IT-Factor
The winning patents honored/discussed in the piece are:
- Nintendo’s NES – Game Cartridge Lock Patent (U.S. Pat. No. 4,799,635)
- Alpex’s Patent Covering RAM-based Screen Mapping (U.S. Pat. No. 4,026,555)
- Immersion’s Force Feed-back Patents (U.S. Pat. Nos. 6,275,213 and 6,424,333)
- Freedom Wave’s Wireless Controller Patents (U.S. Patent Nos. 6,280,327 and 6,878,006)
- Sega’s ‘Crazy Taxi’ Direction Indicator Patent (U.S. Patent No. 6,200,138)
- Koei’s Grouped Character Battle Method Patent (U.S. Patent No. 6,729,954)
- Interlink’s Motion Sensing (a.k.a. WiiMote) Patent (U.S. Patent No. 6,850,221)
- The Pong Patent (U.S. Patent No. RE28,507)
Check it out, its a good read.
Also, FYI, I have discovered Ross’ Patent Arcade blog where, among other things, he tracks Video Game Lawsuits. For your future reference I have added it to my “Video Game Law Blogs” roll down the right side of my blog (after “Topics”).
Librarian of Congress Exempts ‘Abandonware’ DRM Circumvention for ‘Preservation” from DMCA Liability
In its recent triennial rule-making with respect to exemptions from the prohibition against circumvention of technological measures that control access to copyrighted works, the Librarian of Congress, James H. Billington, has ruled, again, that persons making non infringing uses of older abandonware video games, as described below, will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years. Specifically exempt from the prohibition are:
…video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
Dale's Comment: Firstly, despite many reports to the contrary, this is not a wholly new ruling. The 2003 triennial rule-making contained the following very similar exemption:
… video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.
Indeed, this rulemaking is more restrictive than the previous rulemaking because it now specifically limits such circumvention for preservation purposes as I discuss below.
Secondly, I have read many blog 'interpretations' of this exemption over the last few days (not linked to here for obvious reasons) and most bloggers don't seem to understand this exemption. Most are interpretting this exemption as a free-for-all right to decrypt, copy, distribute and use any abandonware on any system. My reading of this exemption is much more limited.
Clearly the circumvention exemption for "archival reproduction of published digital works by a library or archive" doesn't apply to the average gamer. However, the first portion of the exemption "for the purpose of preservation" would apply to the average gamer.
It appears the average gamer has the right to circumvent technological measures used to protect video games in obsolete formats that are already owned by the user for the purpose of preservation when the gaming console, for instance, is no longer manufactured or reasonably available in the commercial marketplace.
This DMCA exemption does not exempt other provisions of Title 17 (the U.S. Copyright law) that otherwise generally prohibit copying, distributing and otherwise infringing copyrighted works.
So, what exactly does this exemption allow you, the owner of a video game in an obsolete format, to do. It allows you to circumvent the copy-protection scheme used to protect obsolete format video games for the purpose of preserving them (backing them up and, presumably, using the backup if the original copy becomes defective). That's pretty much it. Indeed in the Librarian of Congress' commentary on the exemption he flatly says:
"…the sole basis for this exemption is preservation and archival use…"
An important point here is that Billington did NOT exempt non-obsolete formated video games from the DMCA. So, it is still illegal under the DMCA's (17 U.S.C. § 1201(a)(1)(A)) to circumvent DRM on modern video games for the purpose of backing them up – let alone for any other purpose.
This exemption expires after three years unless the rule proponent (in this chase the Internet Archive) proves their case again. Namely, that without the exemption:
current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.
The FBI has shut down an illegal game operation that allegedly provided subscribers with fraudulent service to, and code for, Lineage II. Apparently L2Extreme.com (now seized by the FYI) had some 50,000 active users. NCSoft says it lost millions in revenue from this. The operators of L2Extreme.com face a fine of $250,000 and up to five years in jail. NCSoft has said it has no plans to pursue the users.
This case is different from the Blizzard v. BNetD case because in the BNetD circumstance, they had reverse engineered the Blizzard server software and, presumably, wrote emulating software in a “clean room” without access to the original Blizzard server software – thus no direct copyright infringement. In the L2Extreme case, it is alleged that the L2Extreme.com server software was pirated (ie: copied) NCSoft server software.
The ‘professional’ online gaming clan/guild The Syndicate has registered a trade-mark. Davis & Co. has posted an interesting blog entry on this registration.
Dale’s Comment: As professinal gaming continues further into the mainstream and as more players are make viable careers out of professional gaming, we will no doubt see increasing numbers of such clan/guild professional trademark registrations in the same way that sports teams have used trademarks to protect their valued brands.
According to Davis and Co. Nintendo announced the new name for its forthcoming Revolution console without having registered the new name, Wii, as a trademark in Canada or the U.S. Presumably, Nintendo has filed in Japan and will file the new name in Canada and the U.S. within six months to have their trademarks backdated to the Japanese filing date.
Patent trolling is becoming a revenue stream for companies that come up with a vague idea, patent it, and “sue the hell” out of anyone that actually puts it into tangible practice. Next-Gen.Biz speaks with attorney Steve Rubin.
Game industry lawyer, Jim Charne discusses in-game music licensing and strategies. Music in games, as in motion pictures, consists of two components. These are licensed incidental soundtrack music, and underscore composed specifically for the project.
In this interesting article entitled “Its Just a Game Right?“, Ross Dannenberg, Esq. and Steve Chang, Esq. describe the top myths surrounding patent protection of video games, in the hopes of encouraging innovative game developers to take steps to protect their valuable video game innovations.
Source: IP Frontline