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gameca m 12 crittenden 3
John W. Crittenden of Cooley Godward Kronish LLP Case Update p Recent Decisions in Video Game and Virtual World Cases John W. Crittenden Gamer Technology Law Conference, Conference Beverly Hills, Hills March 27, 27 2008 What We’ll Cover ! ! ! ! ! Game provider liability for user-generated content Game provider liability for direct infringement of IP Claims against sellers of game property and providers of auto-leveling “bots” IP claims in social-oriented virtual worlds (Second Life) NOT covering i challenges h ll to t anti-game ti l i l ti legislation, patent t t cases, crusades of Jack Thompson or his problems with the Florida Bar Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 1 John W. Crittenden of Cooley Godward Kronish LLP Speaker 10a: 2 Game Provider Liability for User Generated Content Marvel v. NCsoft (C.D. Cal. 2005) “Hulk 10” “Awsome [sic] Iron Man” Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA John W. Crittenden of Cooley Godward Kronish LLP Marvel v. NCsoft (C.D. Cal. 2005) – Trademark ! ! ! Users allegedly named their characters using Marvel trademarks (e.g. (e g “Hulk Hulk 10”) 10 ) Marvel charged NCsoft and Cryptic with contributory and vicarious trademark infringement On motion to dismiss court held: ! ! ! Marvel failed to state a claim Players had not used Marvel marks to identify goods or services No underlying infringement on which NCsoft or Cryptic could be secondarily liable Marvel v. NCsoft (C.D. Cal. 2005) – Copyright ! ! ! NCsoft and Cryptic counterclaimed for false DMCA notices Marvel moved to dismiss arguing they were not “service service providers” under DMCA section 512(f) Court held that NCsoft and Cryptic were “service providers” under the statute Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 3 John W. Crittenden of Cooley Godward Kronish LLP Marvel v. NCsoft (C.D. Cal. 2005) - Settlement ! ! Case settled while defendants’ summary judgment motion was pending Excerpts from joint statement: ! ! …no changes to City of Heroes or City of Villains character creation engine are part of the settlement… … all parties agreed that this case was never about monetary issues and that the fans of their respective products and characters are the winners in this settlement Marvel v. NCsoft – Substantial Non-Infringing Use Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 4 John W. Crittenden of Cooley Godward Kronish LLP Speaker 10a: 5 Ultimate Creations v. THQ (D. Az. 2008) WWE Smackdown: Here Come the CAWs How to create the Ultimate Warrior Warrior, Razor Ramon and more more. ign.com November 21, 2003 Ultimate Creations v. THQ (D. Az. 2008) “Symbol 25” Plaintiff’s Mark Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA John W. Crittenden of Cooley Godward Kronish LLP Ultimate Creations v. THQ (D. Az. 2008) ! ! “Ultimate Warrior” IP owner claimed that Smackdown “Create Create a Wrestler Wrestler” feature enabled trademark infringement Court denied THQ’s motion for summary judgment ! ! ! ! ! ! “Warrior” name and challenged logo were provided by game Game included “real world” characters as well as user-created Parties earlier discussed licensing plaintiff’s IP, but no deal IGN.com and other sites showed how to create plaintiff’s likeness Suggestion that “defendant intentionally provided the tools for consumers” to infringe Use of costume, face paint, etc. could create a likelihood of confusion Ultimate Creations v. THQ (D. Az. 2008) ! ! ! Use of costume, face paint, etc. could create a likelihood of confusion? Compare Marvel v. NCsoft: “Plaintiffs do not allege that game users in any way used these character names in commerce. Rather, ... game users used these y characters used names to identify in a recreational game. Thus, Plaintiffs have failed to allege a primary infringement of their trademarks.” Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 6 John W. Crittenden of Cooley Godward Kronish LLP Game Provider Liability for Direct Infringement of IP E.S.S. Ent. 2000 v. Rock Star (C.D. Cal. 2006) 1109 S. Santa Fe Ave., Los Angeles Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 7 John W. Crittenden of Cooley Godward Kronish LLP E.S.S. Ent. 2000 v. Rock Star (C.D. Cal. 2006) ! ! ! Grand Theft Auto – San Andreas set in fictional, parodic version of Los Angeles “Pig Pen” modeled on “Play Pen” strip club name and building features Court held that First Amendment precluded liability: ! ! ! Use had “artistic relevance to defendants’ twisted, irreverant image of urban Los Angeles” Use of trade dress and mark “does not explicitly mislead consumers as to the content of the game” “Pig Pen” did not appear in promotional material or on exterior packaging Frosty Treats v. SCEA (8th Cir. 2005) Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 8 John W. Crittenden of Cooley Godward Kronish LLP Frosty Treats v. SCEA (8th Cir. 2005) ! ! ! “Twisted Metal” game included a crazy ice cream truck, with a clown and the words “Frosty Frosty Treats” Treats Ice cream truck service claimed infringement of FROSTY TREATS mark, trade dress, and “Safety Clown” graphic Court affirmed summary judgment for SCEA, holding: ! ! Plaintiff failed to show that public recognizes “Frosty Treats” as a trademark SCEA’s use of term “Frosty Treats” and clowns was not likely to cause confusion with plaintiff’s mark or “Safety Clown” graphic The Romantics v. Activision (E.D. Mich. 2008) Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 9 John W. Crittenden of Cooley Godward Kronish LLP The Romantics v. Activision (E.D. Mich. 2008) ! ! ! ! ! ’80s band gained fame for “What I Like About You” Activision obtained a synch license and re re-recorded recorded song for use in Guitar Hero Encore: Rocks the ’80s Game described song “As Made Famous By The Romantics” Claims for right of publicity, trademark infringement Court denied preliminary injunction, holding ! ! ! ! No right of publicity for voice in Michigan First Amendment and Copyright Act would trump such a right if there was one Use of “The Romantics” was nominative and not infringement “Enormous” harm to Activision if game enjoined Riviera v. Jones (7th Cir. 2008) – Attorney’s Fees ! ! ! Maker of video poker software sued its competitor and litigated for a year before voluntarily dismissing District Court ordered dismissal with prejudice but denied defendant fees under Copyright Act section 505 because there was no court decision or finding of lack of merit Seventh Circuit reversed, holding ! ! ! Fee award to defendant under section 505 does not require “vexatiousness” or “frivolousness” – just that it prevail Fees especially appropriate in light of an agreement not to sue Note that dismissal without prejudice is typically conditioned on reimbursement of fees Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 10 John W. Crittenden of Cooley Godward Kronish LLP Dunn v. Eidos (L.A. Superior Court 2006) Dunn v. Eidos (L.A. Superior Court 2006) Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 11 John W. Crittenden of Cooley Godward Kronish LLP Claims Against Sellers of Game Property and Providers of Auto-leveling “bots” Blizzard v. In Game Dollar (C.D. Cal. 2008) ! ! ! ! In Game Dollar operated www.peons4hire.com Promoted its “power power-leveling leveling” services in World of Warcraft chat rooms and via “unauthorized versions of WoW client” Blizzard sued for Computer Fraud and Abuse Act, California Computer Data and Fraud Act, and other claims Consent judgment entered barring In Game Dollar from ! ! ! ! Spamming WoW players Using WoW chat rooms to promote its services Engaging in the sale of WoW virtual property or powerleveling services Damages “hammer” in case of violation of judgment Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 12 John W. Crittenden of Cooley Godward Kronish LLP MDY v. Blizzard (D. Az., pending) MDY v. Blizzard (D. Az., pending) ! ! ! ! MDY provides auto-leveling “bot” Glider for WoW users Blizzard told MDY and its principal to stop MDY filed declaratory relief suit Blizzard counterclaimed for ! ! ! Secondary copyright infringement DMCA circumvention violations Trademark infringement, unfair competition, other claims Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 13 John W. Crittenden of Cooley Godward Kronish LLP MDY v. Blizzard (D. Az., pending) ! ! Q. How does Glider work? A Glider works a lot like a regular player A. player. It looks at your health, mana, energy, etc. It moves the mouse around and pushes keys on the keyboard. You tell it about your character, where you want to kill things, and what to kill. Then it kills for you, automatically. You can do something else, like eat dinner or go to a movie, and when you return, you'll have a lot more experience and loot. MDY v. Blizzard (D. Az., pending) ! ! Q. Is using Glider cause for suspension/ban? A Yes, A. Yes Glider is against the Terms of Service as provided by Blizzard for World of Warcraft. If you are detected using Glider, your account will be suspended for 72 hours and very likely banned completely... Glider provides a number of features to help lower the risk of detection - for more information, see the next topic. Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 14 John W. Crittenden of Cooley Godward Kronish LLP MDY v. Blizzard (D. Az., pending) ! ! ! Blizzard’s motion for summary judgment (3/21/08) argued: Players’ use of Glider is copyright infringement (it copies Players WoW software into RAM in a way not authorized by EULA) MDY is contributorily liable because it: ! ! ! MDY is vicariously liable because it: ! ! ! Knows players are using it to infringe Materially contributed to the infringement (by providing “bot”) Maintains control over Glider software and Receives a direct financial benefit Seeks disgorgement of $2.8 MM revenues, $10.5 MM in lost subscription, enforcement costs, attorney’s fees MDY v. Blizzard (D. Az., pending) ! ! MDY’s cross-motion for summary judgment (3/21/08) argued: A separate violation of the EULA (using a “bot”) bot ) does not make permitted loading of WOW software copyright infringement ! ! ! Blizzard cannot prove that MDY violated the DMCA: ! ! ! Unauthorized use of a copyrighted work infringes only when it violates one of the Section 106 exclusive rights Using the Glider “bot” does not violate any of the exclusive rights Warden is not an “access control” measure under 17 U.S.C. § 1201(a)(2), ( )( ), but a “data reporting” p g p program g Scan.dll is not an “access control” measure as it cannot block loading the game software – it only prevents game play MDY did not interfere with Blizzard's contracts: ! ! ! Acts are not “improper” – not illegal or inequitable Not trying to harm Blizzard No intent to interfere, as Blizzard did not originally ban bots Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 15 John W. Crittenden of Cooley Godward Kronish LLP Hernandez v. IGE (S.D. Fla., pending) Hernandez v. IGE (S.D. Fla, pending) ! Class action by WoW players against IGE arising from its sale of WoW “gold” gold obtained by farming farming, which which, they say ! ! ! ! ! ! Violates WoW EULA Strips out scarce resources Makes it harder for rule-abiding players Devalues legitimately-obtained virtual currency Claims for violation of state deceptive and unfair practices law and Computer p Fraud and Abuse Act and interference with business relations IGE answered, denying it is subject to WoW EULA or that it engages in gold farming Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 16 John W. Crittenden of Cooley Godward Kronish LLP IP Claims in Social-oriented Virtual Worlds (Second Life) Virtual World Users Who Have Created Brands ! ! ! ! Second Life residents making real money Resident “Anshe Anshe Chung” Chung reportedly amounted virtual property and funds worth US $1MM ABCNews.com estimated 900 residents making over $1,000 per month as of July 2007 Steps taken by residents to protect their brands Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 17 John W. Crittenden of Cooley Godward Kronish LLP Speaker 10a: 18 Eros LLC SEX GEN virtual products S/N 77202601 For “Scripted animation system utilizing a defined menu to actuate avatars within a virtual world accessed through a 3-dimensional virtual platform.” PTO office action refusing registration due to problems with recitation of services and specimens of use Eros LLC et al. v. Simon (E.D.N.Y. 2007) ! ! ! ! Plaintiffs Eros LLC, RH Designs, Le Cadre Network, Nomine Pixel Dolls, Nomine, Dolls DE Designs Products: SEXGEN beds, DE clothing, RH home furnishings, LE CADRE shoes, NOMINE “skins,” PIXEL DOLLS clothing and “skins” Claims for false designation of origin, copyright infringement, and counterfeiting Result: consent jjudgment g against g p pro se defendant - $ $525 in restitution and permanent injunction against infringement Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA John W. Crittenden of Cooley Godward Kronish LLP Herman Miller in Second Life Herman Miller in Second Life ! ! ! ! ! “Residents” selling virtual knockoffs of AERON chair Opened its own in-world in world store Offered free exchange of knockoffs for authentic chairs Sent cease and desist demands to infringers Uses in-world store to promote “real world” campaign against infringers Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 19 John W. Crittenden of Cooley Godward Kronish LLP Coca-Cola in Second Life ! ! ! “Residents” creating clothing and items using Coca-Cola marks and trade dress Company responded by granting limited permission “Coca-Cola is more interested in establishing a dialog to help them understand” Are There Permissible Unauthorized Uses? ! ! ! User homages without offers for sale Criticism/parody Nominative use Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 20 John W. Crittenden of Cooley Godward Kronish LLP Questions? Law Seminars International | Gamer Technology Law | 03/27/08 in Beverly Hills, CA Speaker 10a: 21
