Addressing legal issues with the latest technological developments and social media trends.
Posted

by

MP900449113.JPG

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

10 Mind-Blowing Augmented Reality Campaigns

With the recent release of Google’s ‘Project Glass‘, the eyes of many consumers and marketers have drifted over to the idea of Augmented Reality. Augmented reality (AR) is a live, direct or indirect, view of a real-world environment that is digitally augmented by another device.

Attention, Frustrated Inventors: Wal-Mart Wants You on Aisle Two

Wal-Mart knew it was in unknown territory when it launched “Get on the Shelf,” an Internet popularity contest in which inventors compete for a coveted shot at selling their creations through the world’s largest retailer.

OBJE Explores Social Gaming’s Next Big Trend: Education

As smartphone and tablet usage becomes more and more widespread among children and adults alike, app-based social games present a powerful new opportunity to boost learning and development–and Obscene Interactive plans to capitalize.

Casino Game Makers Target Zynga, Social Gaming

Web companies like Zynga ushered in a new era of “social” games on PCs and mobile devices that people can play online with their Facebook friends, forcing traditional console-game makers like Electronic Arts to join the fray to avoid being left behind. Now,
as Zynga ponders a way to enter the Internet gambling world,
the makers of real-world casino games are poised to enter Zynga’s turf, newly emboldened by a Justice Department opinion that indicated that many forms of online gambling could become legal.

The pros and cons of social media classrooms

The debate surrounding social media as a learning tool is unlikely to abate any time soon. Is it just a distraction, or do the interactive educational tools available outweigh any disadvantages? Social media platforms, such as Facebook and Twitter, are becoming steadily more integrated within a variety of apps targeted at learning. Real-time news feeds and instant accessibility make them a tool that can be used quickly and efficiently — but due to its changeable nature, it can be difficult for school systems to keep up and compensate.

 

Posted

by

viacom.bmpIn one of the most closely followed cases involving the  digital millennium copyright act (DMCA), an appeals court punted one of the key issues back to the lower court. The key issue left open relates to what constitutes actual knowledge for purposes of the DMCA. In light of this decision there are some interim steps companies should take in the event that the lower court rules in favor of the copyright owner.  

On April 5th, 2012 the U.S. Court of Appeals for the Second Circuit issued an order in the ongoing case Viacom International Inc. et al. v. YouTube Inc. et al., vacating a lower court’s summary judgment in YouTube’s favor and remanding the matter back to the district court for consideration of whether YouTube had actual knowledge of the infringement alleged by Viacom.  The underlying ruling by the district court in June of 2010 had granted summary judgment and found that YouTube was not liable to Viacom for copyright infringement relating to various videos that were available on its site due to the safe harbor language in the Digital Millennium Copyright Act.

The current opinion by the Second Circuit based its decision in part on and referenced an internal YouTube report noting that clips of certain Viacom shows were available on the site, and that such content was “blatantly illegal”.  The Second Circuit’s opinion stated that “[o]n these facts, a reasonable juror could conclude that YouTube had actual knowledge of specific infringing activity, or was at least aware of facts or circumstances from which specific infringing activity was apparent”.

Moreover, while the Second Circuit agreed with underlying district court’s decision that only actual knowledge of specific and identifiable infringements bars a service provider from protection under the DMCA’s safe harbor, it felt that the lower court erred by not addressing whether YouTube had engaged in “willful blindness”.  The ruling directed the district court to consider if YouTube (1) made a “deliberate effort to avoid guilty knowledge,” (2) had the ability to control the infringing activity, and (3) received a financial benefit from the infringing activity.

Ultimately, the Second Circuit opined that “we hold that summary judgment to YouTube on all clips-in-suit, especially in the absence of any detailed examination of the extensive record on summary judgment, was premature.”  Given the online technology industry-wide reliance on the protections available under the DMCA, this case will continue to be one to watch.  Its impact could be far-reaching whichever way it is finally decided.   

Given the uncertainty regarding how this case will ultimately be decided, companies hosting user posted content should take reasonable steps to minimize any liability in the event the decision ultimately favors copyright owners. Contact us for more insights on how to do this.

Posted

by

MP900449113.JPG

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

 

 

Epic Games to make government training games

Of all the companies you’d expect to announce a big government partnership, a major video game studio is probably not at the top of your list. Nevertheless, Epic Games announced Tuesday that it has entered into a “long-term, multi-platform” deal with a division of Applied Research Associates to license the Unreal game engine for government use.

Royal Canadian Mint unveils MintChip virtual currency

Having revealed plans to ditch the Canadian penny last week, the Mint is continuing its assault on physical cash with MintChip, which it describes as the “evolution”
of currency. The system brings all the benefits of cash into the digital age,
claims a dedicated Web site, providing users with instant, private and secure access to their money.

Social Gaming Key for Advertisers in 2012

Did you know Internet marketers will spend upward of $271 million on social gaming ads in 2012? In-game advertising is the next big trend in the industry,
with analysts expecting ad spend on social games to reach $900 million annually in less than three years. The stakes are higher than ever for brands as they budget ad spend on laptops, mobile devices, and consoles.

Gamification Platform BigDoor Raises $5 Million From Foundry Group

White label gamification platform BigDoor has raised $5 million in new funding led by existing investor Foundry Group,
bringing BigDoor’s total funding to $13 million. BigDoor’s gamification platform essentially allows online publishers to add game mechanics to web interactions and engagements. BigDoor helps companies build game-like mechanics and loyalty programs into their sites or apps by enabling points, badges,
levels, leaderboards, virtual currency and virtual goods.

Facebook,
NRDC, Opower, & 16 Utilities Team Up to Create Social Gaming App

“With an initial reach of 20 million households, the effort is one of the most significant to date, enabling people to take action and become more energy efficient,” NRDC said in a statement today. “Leveraging the Facebook platform, the app allows people to quickly and easily start benchmarking their home’s energy usage against similar homes, compare energy use with friends, enter energy-saving competitions, and share tips on how to become more energy efficient.”

Google Glasses Face Serious Hurdles, Augmented-Reality Experts Say

When Google officially unveiled
Project Glass — the company’s bid to develop Terminator-style augmented-reality glasses — we saw a provocative glimpse of the future. The video Google released yesterday showed us the point of view of someone wearing the glasses, with icons, maps and other graphical overlays appearing over the user’s complete field of vision.

Posted

by

On March 30, 2012 the California federal judge hearing the lawsuit initiated by a putative class of retired NFL players against Electronic Arts Inc. denied EA’s motion to dismiss the suit and to strike the complaint.  The Court ruled that the retired players’ allegations that EA’s unauthorized use of their likenesses in the “Madden NFL” video game was not trumped by First Amendment protection because the video game does not pass the transformative use test.  Specifically, the court held that “[a]lthough EA appears to claim that its mere projection of plaintiffs’ likenesses into avatar figures, capable of manipulation by gamers, is sufficient to confer constitutional protection, another way to see this supposed transformation is as a relatively literal, if skilled, translation of plaintiffs’ conventional images into the medium of the video game”.

This begs the question of what is transformative use?  Generally, the courts have defined transformative use as a use that “adds new material that reflects critically on the original”.  Traditional categories of transformative use are for purposes of criticism, commentary, newsreporting and parody.  Therefore, EA’s argument relies on its ability to fall within one of these traditional categories or to convince to court to create a new category which is more reflective of the current world and the available technology.   

EA argued in its motion to dismiss the case that it’s “Madden NFL” video game should be granted the same First Amendment constitutional protection as any book or movie.  This argument is founded in the recent Supreme Court decision in Brown v. EMA which clearly granted First Amendment protection to video games.  However, the current Court took the position that the transformative use test focuses on the reproduction of the plaintiffs’ likenesses, not merely the inclusion of expressive elements in game as a whole.  The decision stated that “[i]f, as EA urges, any expressive elements within the larger work were somehow to ‘transform’ an otherwise conventional use of a celebrity’s likeness, the right of publicity would effectively be eviscerated”.

That said, this decision is merely one battle in an ongoing war.  It is not dispositive on whether EA or the putative class of retired NFL players will ultimately be successful in the suit.  Moreover, EA recently was successful in dismissing a similar lawsuit in another jurisdiction alleging the misuse of college players’ likenesses in its “NCAA Football” titles.  In this case the Court agreed with EA’s argument that its First Amendment protections overruled the publicity rights of players.  Therefore, with these conflicting decisions in the circuits it is uncertain in which way the current state of the law will head.  

If you would like to read more about right of publicity and video games, please see our recent Client Alert.

Posted

by

MP900439452.JPGFacebook has previously filed over 80 trademark applications on variations of its name and other terms such as “POKE”, “WALL” and “LIKE”.  Facebook now seems to be attempting to claim some level of ownership/protection over the word “book” as well.  In a recent revision to Facebook’s “Statement of Rights and Responsibilities,” which is the agreement all users must accept when accessing Facebook, language was inserted which states (emphasis added) “[y]ou will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Book and Wall), or any confusingly similar marks, except as expressly permitted by our Brand Usage Guidelines or with our prior written permission.”

While there is no record of a current US trademark application on “BOOK”, Facebook does have a pending application in the European Union’s trademark database.  Moreover, Facebook has brought several suits against online sites incorporating the word “BOOK” in their domain name, with mixed results.  Several of these suits have settled while others are still pending.  Under US law a certain level of trademark protection can be gained merely by use of an unregistered mark.  Generally, such unregistered use is referred to as having “common law” trademark rights.  While these “common law” rights do not provide the same level of protection as a registered mark, they are still quite useful.  Moreover, including the above-referenced clause in its “Statement of Rights and Responsibilities” could provide Facebook with ammunition for future suits against any of its users who attempt to wrongfully use the “BOOK” mark.  Given that approximately 50% of all internet users have registered for Facebook, this provides Facebook with fairly wide-reaching (but not all-encompassing) protection.  
Historically, Facebook hasn’t shied away from protecting what is seems to consider its right in the term “BOOK”.  Only time will tell how Facebook plans to utilize any new rights it has gained from users by updating the “Statement of Rights and Responsibilities”.

Posted

by

On March 21, the Entertainment Software Association filed a petition seeking a waiver from the Federal Communications Commission’s recently adopted rules that would impose certain disabilities act requirements on providers of advanced communications services (ACS) — which could include video games that allow voice or text communications during game play. The petition notes that while communications may be integrated into video games, it is not the primary purpose of the games, and therefore should be eligible as a class for waiver.  The waiver request included the following three classes of video game industry products and services: Game consoles and their peripherals; game distribution and online game services; and, game software.   (See our recent client alert: Telecom Monitor). ESA asked the FCC to rule on the petition within 90 days.

ACS includes interconnected VoIP, non-interconnected VoIP, electronic messaging service and interoperable video conferencing services, which are defined as:

  • Non-interconnected VoIP: a service that (i) enables real-time voice communications that originate from or terminate to the user’s location using Internet protocol or any successor protocol; and (ii) requires Internet protocol compatible customer premises equipment” and “does not include any service that is an interconnected VoIP service.
  • Electronic Messaging Service: “means a service that provides real-time or nearreal-time non-voice messages in text form between individuals over communications networks. This service does not include interactions that include only one individual (human to machine or machine to human communications).
  • Interoperable Video Conferencing Services: services that provide real-time video communications, including audio, between two or more users. This service does not include video mail. The Commission has sought additional comment, pursuant to the Further Notice of Proposed Rulemaking, regarding the definition and application of “interoperable”.
Posted

by

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

The Virtual Military

While much of the international system remains mired in the economic doldrums, many global military powers continue to increase defense budgets focused upon the research and development of simulation technologies. As part of our week-long focus on the importance of games to international relations and security, today we consider how Russia,
China and the United States are using virtual simulators to train its armed forces.

Social game Idle Worship takes Facebook gaming to new level

Idle Games is launching a next-generation social game today dubbed Idle Worship. The title opens up a new genre on Facebook — the once popular “god game” — and it has an interesting and witty approach to social gameplay. Founded by former ad executive Jeffrey Hyman, San Francisco-based Idle Games is in a “holy war against games that suck or aren’t actually social.”

TrialPay and TubeMogul Introduce Real-Time Bidding for Virtual Currency and Social Video

TrialPay,
a leader in transactional advertising, and TubeMogul, a media buying platform for brand advertising, announced a partnership that brings real-time media buying to social video advertising for the first time today.

Illinois legislation to ban employers from asking for social network passwords hits snag

Legislation that would prohibit employers from seeking job applicants’ social network passwords is on hold in the Illinois House. Democratic Rep. La Shawn Ford’s measure would allow job-seekers to file lawsuits if asked for access to sites like Facebook. Bosses could still ask for usernames that would allow them to view public information on the sites.

 Smithsonian Art Of Video Games Exhibit Opens With Gaming Festival

The exhibit is curated by Chris Melissinos of Past Pixels, a group charged with the preservation of video game history. Over the past year, Melissinos — aided by a board of advisors that includes Double Fine’s Tim Schafer, text adventure veteran Steve Meretzky, and Penny Arcade team Jerry Holkins and Mike Krahulik — designed an exhibit that encourages visitors to make what Melissinos calls “a deeply personal decision” of whether video games are art. The exhibit offers five eras of video games with both playable demos and self-playing videos,
showcasing everything from the Atari 2600 to the PlayStation 3, from the traditional platforming of Super Mario Bros. to the more experimental play of Flower.

Navy Pursues a Better Attack Submarine Virtually

Technical advances in the field of virtual reality, also known as virtual worlds (VWs), are making it possible for the U.S Navy to tap into the collective expertise of its best submariners to design and build the next generation of attack submarines. At the Naval Undersea Warfare Center (NUWC) in Newport, Rhode Island, designers are able to create collaborative environments for submarine development using a fully immersive virtual reality application similar to the popular Second Life environment, which enables them to interact with one another both audibly and visually. Numerous participants at remote sites worldwide are linked to one another through the Defense Department’s secure computer network.

 

Posted

by

On Monday March 19, 2012 a
bill was submitted to the U.S.
House of Representatives by Reps. Joe Baca
(D-Calif.) and Frank Wolf (R-Va.) which, if
passed, will require most video games to include a warning label that
states: “WARNING: Exposure to violent video games has been linked to
aggressive behavior.”

H.R. 4204, entitled “The Violence in Video Games Labeling
Act”, is a reaction to what its sponsors say is increasing evidence that
playing violent games can have a serious, long-lasting impact on children, which
should require a health warning to consumers. 
However, whether violence in video games promotes real world consequences has been a
contentious issue for decades.  Advocates of regulation of violent video games
attribute aggressive behavior to exposure to video games. However, proponents
of less video game regulation point to the studies that have shown video games
can improve cognitive skills.

The
proposed bill would require the Consumer Product Safety Commission to
release rules, within 180
days, requiring that most
games display the warning label. Included amount this would be all video games
rated by the Entertainment Software Ratings Board
“E” for everyone, “E10+” for everyone 10 and older, “T” for teen, “M” for
mature or “A” for adult.  Only video games rated “EC,” or “early childhood”, would be exempt
from the labeling requirement.

It is possible that this requirement of near-universal
labeling is an attempt to avoid the recent Supreme Court decision in Brown v.
EMA holding that video games are subject to First Amendment Protection and
finding that a California “violent” video game labeling requirement was “widely
underinclusive” and merely disfavored a certain viewpoint rather than protecting
a valid state interest.

Posted

by

As a general rule, the name, image or likeness of a living person–not necessarily just a celebrity–cannot be used for commercial purpose without his/her written consent. Some jurisdictions have extended the coverage to provide additional protection to such elements as signature, voice, mannerisms or even expressions. Unauthorized use of an individual’s name, likeness or image may violate his/her right of publicity, which is currently recognized by statute, common law, or a combination of both in 31 states.1

However, as each state’s law evolved separately, there are often significant differences in the coverage provided. Specifically, New York and California, the key states for rights of publicity due to their many celebrity residents, protect different rights and are diametrically opposed on whether these rights extend beyond death.

In the past few years we have seen a paradigm shift in the
technology used to create video games. The current video game iterations allow for nearly photo-realistic imagery and, in some cases, use this
to allegedly depict real people in the games. However, not all of these
video games have entered into licensing arrangements with the parties
allegedly depicted. From this we have witnessed the commencement of a
new body of case law involving right of publicity claims against video
game makers. The video game companies have countered the claims by
alleging, among other things, that video games are creative works and
protected by the First Amendment.

To learn more about this emerging issue, please click HERE.

Posted

by

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

Gaming is a top priority for mobile-tech makers

“Gaming is now a ‘need to have’ category, not a ‘nice to have’ category for mobile devices, whether they be tablets or phones,” said PJ McNealy, videogame analyst at Digital World Research. “The days of a single-function mobile device are long gone.”

PixyKids raises $3M for a social media platform just for kids

PixyKids has raised $3 million to develop its social platform for kids ages six to 12. It is built on the idea that kids want to socialize, even though they’re too young for Facebook. Kids can join PixyKids under their parents’ supervision and can share experiences and pictures the way that adults do on Facebook. The company is betting that social networks, not virtual worlds or education sites, will resonate most with kids.

FanCake Debuts as First Live Social Gaming Experience for Sports Watching

Kwarter, a mobile application factory building apps that lie at the intersection of the social, mobile and TV spaces,
announced today the launch of its first app, FanCake. FanCake turns live televised sporting events into interactive and social games, connecting millions of sports fans, teams, broadcasters, brands and athletes to enhance the game watching experience.

LVFH Launches Real Vegas Casino on Facebook

Las Vegas From Home.com Entertainment Inc. is pleased to announce the launch of its social casino product, Real Vegas Casino,
on Facebook to the general public. It is expected LVFH will launch more games under the Real Vegas Casino brand shortly, coinciding with a specialized marketing campaign.

 French City Implements Virtual Currency to Avoid Financial Ruin

The French city of Nantes has plans to introduce its own virtual currency as a complement to the euro. By 2013,
participating local businesses will be able to pay, or be paid in virtual currency units called “Nanto.”

Olympic stars brought to life in world’s first ‘augmented reality hotel’

From today, guests at the Holiday Inn London Kensington Forum will be able to use their smartphones or tablets to see athletes in virtual action in the reception, corridors and bedrooms. When the devices are pointed at specific sites in the hotel, the athletes will appear on the screen. BMX World Champion Shanaze Reade can be seen performing tricks on her bike in the lobby, while Paralympic table tennis world number one Will Bayley hits table tennis balls behind reception.  Meanwhile, UK long-jump record holder Chris Tomlinson can be seen to jump in a corridor. And leading windsurfer Dempsey will – somewhat bizarrely – do his thing in the hotel’s bedrooms using a bed sheet.