Category Archives: Uncategorized

University of Pennsylvania Law School I.P. Symposium “Creation Nation: IP & The Rise of Prosumerism” Friday, March 29, 2013

Am honoured to be speaking on a panel with Greg Lastowka and Mark Methenitis on modding and video games. The entire program (which is excellent  and covers legal challenges in fan fiction and 3D printing as well) is here: 2013 Symposium » Penn Intellectual Property Group.

There will be a live stream of the event which should be up about ten minutes before it formally convenes at 2 PM EST. Accodingly you should be able to link to the stream beginning around 10:50 AM PST here:  https://www.law.upenn.edu/newsevents/live/webcast.php?vid=rooms/videogk100

jon

Guest Speakers from EA – March 28, 2013

We have the privilege of having a team of two guest speakers from Electronics Arts Inc. with us this week.

Electronics Arts Inc. was incorporated in 1982. EA was a pioneer in the development of home video games.  EA is an international company with numerous locations in Canada, including Vancouver. EA develops and publishes games under several labels including EA Sports titles, Madden NFL, FIFA Soccer, NHL, NCAA Football, SSX and NBA Jam.  In recent news, their website announced (March 20, 2013) the launch of “Yogify”, a new yoga app created by EA Sports.

Anoop Desai, Director of Business Affairs for Electronic Arts Inc.

After graduating from UBC with a B.Comm (Finance), Anoop obtained his law degree from the University of Calgary before returning to Vancouver to practice at AHB&L LLP in the areas of general corporate commercial, M&A, securities and intellectual properties law. As Director of Business Affairs, Anoop architects and negotiates a variety of development, digital distribution and publishing partnerships for current and emerging platforms.

FUN FACT:  Google search results of ‘Anoop Desai’ notwithstanding, Anoop was never on American Idol.  

Brian Dartnell, Senior Counsel at Electronics Arts Inc.

Brian graduated from Osgood Hall Law School in 1996.  He completed a Judicial Clerkship at the British Columbia Court of Appeal from 1996-1997.  He articled at Owen Bird and was called to the Bar in British Columbia 1998.  Brian then worked as associate at Owen Bird, practicing in general corporate commercial litigation from 1998-2000.  He as an Associate at Gowling Lafleur Henderson, where he practiced labour and employment law from 2000-2005.

Brian’s role as Senior Counsel at EA:

Brian is responsible for the oversight and delivery of legal services to the Canadian based EA development studios. Responsible for the management of the Canadian Legal team which includes lawyers, para-legals, immigration specialists and administrative assistants.

FUN FACT:  Brian has completed 5 Ironman races in the last 6 years.

 

For more information, take a look at the following:

2010 Canadian Lawyer Magazine article.  The link is: http://www.canadianlawyermag.com/Hes-in-the-game.html

Lawyers Weekly Article, “Gaming Paradise”.  The link is:  http://www.lawyersweekly-digital.com/lawyersweekly/ic2011fall?pg=30#pg30

The ToS Death Penalty

Today on the Consumerist, a reader writes to complain of the ToS Death Penalty – a draconian punishment for purported ToS violations that is becoming all too common. The ToS Death Penalty is the seemingly arbitrary execution of a user’s online account with a company, with no explanation of what actually happened and without right of appeal.

In this case, a user lost not only his primary email address and cloud storage, but also access to Windows Live games that he had paid for. From Microsoft’s response:

“I’m happy to assist you with your concern that you could not access your email account.

Please be informed that we have reviewed your account and determined that it was closed due to violation of our Terms of Use.

We are not able to discuss the specific details of your account closure. To read Microsoft Services Agreement and learn about the code of conduct, please visit:http://windows.microsoft.com/en-US/windows-live/code-of-conduct”

Microsoft isn’t the only bad guy here. Steam has been known to kill users’ accounts without recourse. Same for Amazon.

The ToS Death Penalty is becoming increasing problematic as more and more of our lives are being moved into the cloud. This is especially true when a single account spans multiple services, and violations of the terms of one service could result in the termination of all your account as a whole.

Cheating in Medal of Honor should get you banned from the game for a few days. It shouldn’t cost you your email account and cloud documents. The ToS Death Penalty must be abolished.

News of the Week; March 20,2013

1. Nintendo found guilty of patent infringement over glasses-free 3DS technology: http://www.theverge.com/2013/3/13/4100924/nintendo-guilty-of-patent-infringement-3ds-technology

2. Major vulnerability in EA’s Origin platform lets hackers overtake PCs: http://www.theverge.com/2013/3/19/4124456/major-vulnerability-ea-origin-hackers-overtake-gamer-pcs

3. Defeating mobile game clones: Why copyright protection is not enough: http://venturebeat.com/2013/03/16/defeating-mobile-game-clones-why-copyright-protection-is-not-enough/

4. Research: Playing Shooters Improves Visual Search: http://gamepolitics.com/2013/03/15/research-playing-shooters-improves-visual-search#.UUTATKXR1Lw

5. Video Games and Societal Violence: Cause for Urgent Action or a Bridge Too Far?: http://www.huffingtonpost.com/michael-levine/video-games-and-societal-_b_2859598.html

6. Reading, Writing and Video Games: http://www.nytimes.com/2013/03/17/sunday-review/reading-writing-and-video-games.html?nl=technology&emc=edit_tu_20130318

7. Modder Shows How SimCity Can Be Played Offline: http://www.gamepolitics.com/2013/03/14/modder-shows-how-simcity-can-be-played-offline#.UUK0CKXR1Ly

8. (U.S.)   Supreme Court Rules That First Sale Doctrine Not Limited by Geographyhttp://www.gamepolitics.com/2013/03/19/supreme-court-rules-first-sale-doctrine-not-limited-geography#.UUj8zqXR1Lw

+ Issues in Kirtsaeng ‘Significant’: http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/56444-grimmelmann-issues-in-kirtsaeng-too-signifcant-to-end-with-supreme-court.html

+ Link to decision in Kirtsaeng v. John Wiley & Sons (SCOTUS): http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

9. Appeals court rejects record label’s effort to neuter DMCA safe harbor: http://arstechnica.com/tech-policy/2013/03/appeals-court-rejects-record-labels-effort-to-neuter-dmca-safe-harbor/

+ Link to Veoh (US 9th Circuit) decision: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/14/09-55902.pdf

10. (U.S.) Supreme Court Refuses To Hear Appeal in $222,000 File-Sharing Case: http://torrentfreak.com/supreme-court-refuses-to-hear-appeal-in-222000-file-sharing-case-130318/

11. Hacker Case Leads to Calls for Better Law: http://www.nytimes.com/2013/03/18/technology/outcry-over-computer-crime-indictment-of-matthew-keys.html?nl=technology&emc=edit_tu_20130318&_r=0

12. INTELLECTUAL PROPERTY REGIME IN CANADA – Report of the Standing Committee on Industry, Science and Technology (March 2013): http://www.parl.gc.ca/Content/HOC/Committee/411/INDU/Reports/RP6038442/411_INDU_Rpt03_PDF/411_INDU_Rpt03-e.pdf

13. The head of the Copyright Office says the law is broken — but can she fix it in time?: http://mobile.theverge.com/2013/3/20/4126936/copyright-register-today-will-embark-on-mission-to-overhaul-us

+ Register Of Copyright Suggests That Personal Downloading Should Not Be Seen As ‘Piracy’: http://www.techdirt.com/articles/20130320/13493222399/register-copyright-suggests-that-personal-downloading-should-not-be-seen-as-piracy.shtml?utm_source=dlvr.it&utm_medium=twitter

14. MIT And Aaron Swartz’s Lawyers Argue Over Releasing Evidence: http://www.techdirt.com/articles/20130320/00571422386/mit-aaron-swartzs-lawyers-argue-over-releasing-evidence.shtml?utm_source=dlvr.it&utm_medium=twitter

15. Privacy is dead: http://www.technollama.co.uk/privacy-is-dead

16. Collateral Censorship and Freedom of the Press – Christina Mulligan: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2224058

17. Jonathan Zittrain on Google Glass (audio): http://stitcher.com/s/player.php?eid=22175195&refid=eml20130104

18. Elon Musk Refuses To File Patents At His High-Tech Private Space Company: http://www.businessinsider.com/why-some-companies-are-not-filing-patents-2013-3#ixzz2NjKy6h8W

19. SC5 pays salaries in Bitcoin: http://blog.sc5.fi/2013/03/sc5-pays-salaries-in-bitcoin/

 + US regulator: Bitcoin exchanges must comply with money-laundering laws: http://arstechnica.com/tech-policy/2013/03/us-regulator-bitcoin-exchanges-must-comply-with-money-laundering-laws/

And in the not really relevant category:

20. Applicants face significant hurdles in registering flavour and scent trademarks in the U.S.: http://www.canadiantechnologyiplaw.com/2013/03/articles/intellectual-property/trademarks/applicants-face-significant-hurdles-in-registering-flavour-and-scent-trademarks-in-the-us/

And in the sometimes all you have is sarcasm department:

21. BREAKING: Girls Play Video Games, Local News Discovers: http://m.kotaku.com/5991151/breaking-girls-play-video-games-local-news-discovers

 jon

Comments on March 20th

A couple of comments re our class today.

1. We talked about Netflix using personal information to create House of Cards and whether this was okay. For both practical and legal reasons, I think an important consideration is whether Netflix is using your information in a reasonable way. For me, I think it is reasonable for Netflix to use my information internally to develop and refine it’s products, particularly if it’s first anonymized, but that a practical (if not legal) line is crossed when Netflix starts to use my information in a way that disrupts the integrity of its service.

For example, if Netflix has used my information to determine with a certain algorithm what shows to recommend to me and has built up significant goodwill with me by doing so correctly, I do not think it is reasonable to then recommend House of Cards to me even if the algorithm says I will not like it.  If House of Cards is flagged as an advertisement, fine; but if it’s not and it’s presented like all the other recommendations I think there’s a problem.

2. Here is a related snippet from Netflix’s terms of use (emphasis mine; see https://signup.netflix.com/TermsOfUse):

Use of Information Submitted

Netflix is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (“Feedback”), including responses to questionnaires or through postings to the Netflix service, including the Netflix website and user interfaces, without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Netflix service. Furthermore, by posting any Feedback on our site, submitting Feedback to us, or in responding to questionnaires, you grant us a perpetual, worldwide, non-exclusive, royalty-free irrevocable license, including the right to sublicense such right, and right to display, use, reproduce or modify the Feedback submitted in any media, software or technology of any kind now existing or developed in the future.

Alan Bruggeman of Microsoft’s Interactive Entertainment division speaking this week…and some preparatory reading

Alan Bruggeman is a Senior Attorney in Microsoft’s Interactive Entertainment division. At Microsoft, Alan has provided legal counsel on a variety of entertainment devices and services, including the Xbox 360 console and accessories, the now-defunct (but still awesome) Zune media player, Microsoft Studios, and Xbox LIVE. Prior to his work at Microsoft, Alan worked as an associate at Seattle’s Preston Gates and Ellis (now K&L Gates). Alan received his J.D. from Columbia University.

We are very fortunate indeed to have Alan joining us in person this week. Alan will be driving up from Redmond, Washington Wednesday morning so we should appreciate him all the more. He will be covering a diverse range of topics including privacy, online safety and issues in and around the console universe.

In preparation for Alan’s talk please take a look through Sections 8, 10, 11(5) and any other anti-spyware provisions you identify, in CASL (“An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act” – S.C. 2010, c. 23): http://lois-laws.justice.gc.ca/eng/AnnualStatutes/2010_23/FullText.html

jon