Opinion: games and the Byron Progress Review
In 2007, Tania Byron was asked by the UK government to conduct an "independent review looking at the risks to children from exposure to potentially harmful or inappropriate material on the internet and in video games". This became the Byron Review in 2008, which made a number of proposals to better protect children online. In particular, Professor Byron made recommendations regarding the UK games classification system, which went on to become a proposal for a single games classification system based on the PEGI standard. Professor Byron has now published a Progress Review, which gives a status update on her thoughts on children and games.
Below is a summary of Professor Byron's findings regarding games and our opinionated opinions on them...
Games classification
The new PEGI classification system is of course still waiting to be become law as part of the Digital Economy Bill. Professor Byron recommends that "once the use of PEGI becomes law in the UK, companies associated with the video games industry, the online games industry, retailers, and the Government invest in raising public awareness of the new ratings system including through the UKCCIS public awareness campaign and UKCCIS one stop shop".
The need to raise public awareness of the PEGI system makes sense of course, but Professor Byron doesn't give detail on how that should work, beyond saying that everyone who is involved in or with the games industry should spend money on raising public awareness. How exactly is that going to affect games devs/publishers and how would it affect their bottom line (if at all)? Isn't this primarily the responsibility of government? Clearly, this is going to need some further detail.
As for UKCCIS, this is the "multi-stakeholder body on child internet safety" that Byron recommended be established as part of her 2008 report. I understand her recommendation that UKCCIS coordinate the PEGI public awareness campaign, but it isn't clear is how this fits in with the Video Standards Council, which under the Digital Economy Bill will be in charge of the PEGI system itself. I suppose this could be easily answered if the VSC was part of/partners with UKCCIS, but I don't know is factually that's correct or not (can anyone enlighten me?). Or perhaps it is envisaged that the VSC will only be responsible for legal implementation/oversight of PEGI, not public awareness about it (the problem there though is that I'm not aware of any guidelines setting out exactly what the VSC will or won't do regarding games classification in the future).
She goes on to say: "since my 2008 review, the video games industry has grown and new high-profile familyfocused games have raised the profile of the sector further. To reflect this, video games representatives should be prioritised when filling vacancies on the UKCCIS executive board."
Fair enough, and I'm sure greater representation will be welcomed by the games industry.
Last point: Professor Byron notes that, since her 2008 Report, there has been "robust legislation which makes it possible for retailers to be prosecuted for the sale of age-restricted products to underage children". If the intention is to suggest that this has come into force since her 2008 Report, I think that's incorrect: the Video Recordings Act 1984 already criminalises the sale of age-restricted products to underage children (with the caveat admittedly that there was a bit of legal hoopla a while ago about that the enforceabilty of that Act, but that's not the point). Until the Digital Economy Bill comes into force, the VRA 1984 remains the law.
Online and social gaming
Professor Byron says:
"It is important that families have up-to-date advice about new ways to engage in gaming.. This advice should be built on to encompass publishers and hosts of casual online games (games which are free to users as they are hosted on sites funded through advertising) and to look at the issues of bullying and harassment via interactive gaming and casual online gaming...I recommend that the UKCCIS executive board commission the video games working group to examine and report back by September 2010 on whether a code of conduct supported by independent review for online and casual gaming is needed."
Now, this I do not understand. Is there evidence of a connection between "bullying and harassment" and "interactive gaming and casual online gaming" and, if so, where? In asking that question, I'm not at all implying that Professor Byron is scaremongering, since elsewhere she has taken a considered approach to contentious issues of games, children and 'violence'. But where is the evidence for this link? Perhaps there is more credible empirical evidence regarding online games, but social games? This is particularly important because Professor Byron has recommended that UKCCIS commences research into whether a code of conduct supported by independent review is required.
IF there is evidence of such a link, and IF UKCCIS/government/the games industry support a code of conduct for online and social games, it will be interesting to see how the following issues are resolved:
Recently the Home Office commissioned a report by Dr Linda Papadopoulos, entitled the "The Sexualisation of Young People Review", which recommended that videogame consoles should be sold with parental controls switched on to reduce exposure to the sexualisation of young people and violent content.
Make of that recommendation what you will, but Professor Byron is not a fan. She said:
"I stand by my 2008 conclusion that switching parental controls on by default could contribute towards parents not engaging in, or considering, their children’s safety whilst using their games console and being lulled into a false sense of security that the default setting meant that their child was ‘safe’. Children and young people can just switch the parental controls off without their parent’s knowledge or understanding and play on an unsecured device. Instead, I believe parents need support in understanding how to set up controls carefully (for example, not sharing the password with the child) and how to talk to their children about digital safety".
She recommends instead that:
"By September 2010, in relation to all internet-enabled devices, the UKCCIS executive board commission the video games and industry working groups to:
a) decide whether we need minimum standards for parental controls, for example clear, understandable set up procedures, password protection;
b) examine whether there should be an independent review process for parental control standards; and
c) work with the public awareness working group to ensure that awareness of video gaming parental controls is included in the UKCCIS public awareness campaign."
So now the government has two proposals on parental controls from two experts which it commissioned to look into the protection of children and games. Which will it prefer?
Other aspects of the Progress Review
I should also add that the Progress Review does deal with other aspects of child internet safety, e.g. mobile access. More on that in the Review itself.
Thoughts
As with her 2008 Review, it's great that Professor Byron continues to look at the issue of child protection in games without any of the headline-grabbing but wrongheaded proposals we've seen in the past (though I'm somewhat bemused at the ubiquity of kids' pictures and quotes from mums in the Progress Review!) But I can't help but feel that (perhaps understandably) this Progress Review sets up questions without giving detail, particularly regarding her recommendations regarding online/social games. More work is needed, hence the September 2010 report date she suggests.
Moreover, in practical terms control now appears to be moving towards UKCCIS and it's not yet clear how that will work or how the games industry will achieve full representation on it (as Prof Byron recommends). It's also unclear at this stage what additional burdens all of this will place on the games industry, which hitherto has focused on making the PEGI standard into law, only now apparently to be faced with a further series of enquiries.
Still, roll on September 2010...
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Below is a summary of Professor Byron's findings regarding games and our opinionated opinions on them...
Games classification
The new PEGI classification system is of course still waiting to be become law as part of the Digital Economy Bill. Professor Byron recommends that "once the use of PEGI becomes law in the UK, companies associated with the video games industry, the online games industry, retailers, and the Government invest in raising public awareness of the new ratings system including through the UKCCIS public awareness campaign and UKCCIS one stop shop".
The need to raise public awareness of the PEGI system makes sense of course, but Professor Byron doesn't give detail on how that should work, beyond saying that everyone who is involved in or with the games industry should spend money on raising public awareness. How exactly is that going to affect games devs/publishers and how would it affect their bottom line (if at all)? Isn't this primarily the responsibility of government? Clearly, this is going to need some further detail.
As for UKCCIS, this is the "multi-stakeholder body on child internet safety" that Byron recommended be established as part of her 2008 report. I understand her recommendation that UKCCIS coordinate the PEGI public awareness campaign, but it isn't clear is how this fits in with the Video Standards Council, which under the Digital Economy Bill will be in charge of the PEGI system itself. I suppose this could be easily answered if the VSC was part of/partners with UKCCIS, but I don't know is factually that's correct or not (can anyone enlighten me?). Or perhaps it is envisaged that the VSC will only be responsible for legal implementation/oversight of PEGI, not public awareness about it (the problem there though is that I'm not aware of any guidelines setting out exactly what the VSC will or won't do regarding games classification in the future).
She goes on to say: "since my 2008 review, the video games industry has grown and new high-profile familyfocused games have raised the profile of the sector further. To reflect this, video games representatives should be prioritised when filling vacancies on the UKCCIS executive board."
Fair enough, and I'm sure greater representation will be welcomed by the games industry.
Last point: Professor Byron notes that, since her 2008 Report, there has been "robust legislation which makes it possible for retailers to be prosecuted for the sale of age-restricted products to underage children". If the intention is to suggest that this has come into force since her 2008 Report, I think that's incorrect: the Video Recordings Act 1984 already criminalises the sale of age-restricted products to underage children (with the caveat admittedly that there was a bit of legal hoopla a while ago about that the enforceabilty of that Act, but that's not the point). Until the Digital Economy Bill comes into force, the VRA 1984 remains the law.
Online and social gaming
Professor Byron says:
"It is important that families have up-to-date advice about new ways to engage in gaming.. This advice should be built on to encompass publishers and hosts of casual online games (games which are free to users as they are hosted on sites funded through advertising) and to look at the issues of bullying and harassment via interactive gaming and casual online gaming...I recommend that the UKCCIS executive board commission the video games working group to examine and report back by September 2010 on whether a code of conduct supported by independent review for online and casual gaming is needed."
Now, this I do not understand. Is there evidence of a connection between "bullying and harassment" and "interactive gaming and casual online gaming" and, if so, where? In asking that question, I'm not at all implying that Professor Byron is scaremongering, since elsewhere she has taken a considered approach to contentious issues of games, children and 'violence'. But where is the evidence for this link? Perhaps there is more credible empirical evidence regarding online games, but social games? This is particularly important because Professor Byron has recommended that UKCCIS commences research into whether a code of conduct supported by independent review is required.
IF there is evidence of such a link, and IF UKCCIS/government/the games industry support a code of conduct for online and social games, it will be interesting to see how the following issues are resolved:
- Will it be a legally-enforced or voluntary code of conduct?
- Will it apply just to UK games companies or (more likely) any games company which operates in the UK?
- If the latter, how will you enforce adoption of the code of conduct? How will you ensure that an online game based in the USA or China or India complies with the code?
- If a games company doesn't comply with the code, would there be any sanctions?
- What is the code going to say about "bullying and harassment"?
- Which games will it apply to?
- Crucially, what burden will all of this place on games companies? None of them actively encourage bullying or harassment and I would imagine most already have guidelines in place regarding them, but ultimately I would bet games companies would be loath to have actively to police their players to stop bullying or harassment.
- What is this "independent review" of the code of conduct to be? By whom?
Recently the Home Office commissioned a report by Dr Linda Papadopoulos, entitled the "The Sexualisation of Young People Review", which recommended that videogame consoles should be sold with parental controls switched on to reduce exposure to the sexualisation of young people and violent content.
Make of that recommendation what you will, but Professor Byron is not a fan. She said:
"I stand by my 2008 conclusion that switching parental controls on by default could contribute towards parents not engaging in, or considering, their children’s safety whilst using their games console and being lulled into a false sense of security that the default setting meant that their child was ‘safe’. Children and young people can just switch the parental controls off without their parent’s knowledge or understanding and play on an unsecured device. Instead, I believe parents need support in understanding how to set up controls carefully (for example, not sharing the password with the child) and how to talk to their children about digital safety".
She recommends instead that:
"By September 2010, in relation to all internet-enabled devices, the UKCCIS executive board commission the video games and industry working groups to:
a) decide whether we need minimum standards for parental controls, for example clear, understandable set up procedures, password protection;
b) examine whether there should be an independent review process for parental control standards; and
c) work with the public awareness working group to ensure that awareness of video gaming parental controls is included in the UKCCIS public awareness campaign."
So now the government has two proposals on parental controls from two experts which it commissioned to look into the protection of children and games. Which will it prefer?
Other aspects of the Progress Review
I should also add that the Progress Review does deal with other aspects of child internet safety, e.g. mobile access. More on that in the Review itself.
Thoughts
As with her 2008 Review, it's great that Professor Byron continues to look at the issue of child protection in games without any of the headline-grabbing but wrongheaded proposals we've seen in the past (though I'm somewhat bemused at the ubiquity of kids' pictures and quotes from mums in the Progress Review!) But I can't help but feel that (perhaps understandably) this Progress Review sets up questions without giving detail, particularly regarding her recommendations regarding online/social games. More work is needed, hence the September 2010 report date she suggests.
Moreover, in practical terms control now appears to be moving towards UKCCIS and it's not yet clear how that will work or how the games industry will achieve full representation on it (as Prof Byron recommends). It's also unclear at this stage what additional burdens all of this will place on the games industry, which hitherto has focused on making the PEGI standard into law, only now apparently to be faced with a further series of enquiries.
Still, roll on September 2010...
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Activision Blizzard restructures management and organisation
More details are at the LA Times, which reports that one division will focus on Call of Duty, a second will handle other Activision-owned titles including Guitar Hero and Tony Hawk, a third will handle licenced properties and the fourth division will effectively be Blizzard (which ofc Activision has said publicly several times it wants to be 'independent' under the Activision umbrella). There has also been a number of management reshuffles, the effect of which (according to the LA Times) is that the only executive now reporting directly to CEO Bobby Kotcik is Thomas Tippl (former chief financial officer and chief corporate officer, now chief operating officer).
GI.biz reports that it is believed the reshuffle will lead to some job losses, including the UK. This suggests that this restructuring process is not just about better corporate/legal organisation but also involves actual consolidation - which suggests this is at least partly a cost-cutting exercise. In which case, you can expect a redundancy/consultation process for the affected Activision UK employees in the near future.
Of course, it is likely this is also about control, since the reorganisation follows soon after the recent fall out between Activision and the former management of Infinity Ward, developer of Modern Warfare 2, which has of course led to a very public lawsuit and Activision announcing steps to reinforce its control over the Call of Duty franchise by setting up a dedicated unit for it.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Thoughts on ELSPA's Games Question Time
Attitudes to the games industry
All three panel members were pretty emphatic in their personal support for the games industry but also emphasised the change in Parliament's attitudes to games, which Tom Watson described as a "massive shift over the last twelve months", which he ascribed to the forthcoming change in games classification and the movement for a games tax break.
Ed Vaizey candidly admitted (as he has cheerfully done elsewhere) that he knew nothing about games three years and was not a gamer himself, but now the position has been reversed; he said "politicians are embarassed not to be gamers"! He said he was particularly impressed at the educational potential games and that culturally he thought they should occupy the same position as films.
Don Foster agreed with Tom and Ed - he said he was not himself a gamer, but believes the UK games industry is an important and successful driver for growth. He said “I think the industry has turned a corner – I don’t think we’ll go back to the days where videogames are seen as some weird fringe hobby".
Side-note: apparently this "massive shift" in Parliament has even touched legendary games opponent Keith Vaz MP, who Tom Watson remarked has "gone through a journey" in recent months regarding his views on games, both as a result of education from the industry itself as well as pressure from his fellow MPs in the HP canteen. Who'd have thought it?
For which party should a gamer vote?
Johnny Minkley asked a question which was certainly on my mind and probably on others, too - why should a gamer vote for your party?
All three panel members immediately jumped up and down about the election being about more than just games issues (true, but predictable). Don Foster in particular said that games companies are like any other business in the UK, for whom the most important issue is the handling of the economy - and on which they should trust the Lib Dems and not Labour. He also said that his party would support the tax break under any government (he was alluding to the fact that, while the Labour government has proposed a UK games tax break, there is a general election forthcoming in the next few weeks and it is by no means clear which party will form the next government).
Tom Watson's main argument was the games tax break itself, which signals Labour's belief in the games industry. He said that, while all of the political parties have been on a steep learning curve over the last two years, his party understands the success and importance of the games industry for the future.
Ed Vaizey, by contrast, said that Labour had done nothing for the games industry over the last 13 years of office. He said that when the games industry first began to suffer due to tax breaks in France and Canada, the government's response was that this was a matter for the WTO. It was only when Vaizey himself specifically questioned this that the Labour government admitted it was not going to refer the matter to the WTO. He compared Labour offering a games tax break on the cusp of an election to an abusive husband standing in the doorway after 13 years saying "I can change (!)" He said that Labour wasn't serious about Digital Britain and rounded off by challenging anyone in the audience to name the current Minister for Video Games (which no-one could).
Johnny was then afforded an opportunity for response, and said he felt as though Vaizey's answer was more about attacking Labour than saying what the Conservative stand for.
Tax breaks
Tom Watson then took the opportunity to question Ed Vaizey about whether the Conservatives support the government's tax breaks (you might remember that, previously, Vaizey said his party supported the tax break in principle but couldn't promise anything for 2-3 years if they came into power). MCV wrote up the following (fast but good-humoured) exchange:
"Watson: Are you in favour of Alistair Darling’s proposals for game development tax breaks?
Vaizey: Well, they are proposals. Let’s see [how] they turn out, [Labour has] got to get them through the European Commission first.
Watson: Where do you stand on the issue?
Vaizey: We support tax breaks for the videogame industry.
Watson: Do you support Alistair Darling’s proposals?
Vaizey: We support tax breaks for the industry.
Watson: Oh right then. You haven’t answered the question.
Vaizey: Well what are Alistair Darling’s proposals? The European Commission signs it off? You may remember when the Government tried film tax credits, I spent a day in meetings trying to debate this, and then the European Commission rejected it. So when Darling comes back with something we can debate, we will debate it."
In fairness, after the event Ed Vaizey confirmed that the Conservatives will offer a tax break in their first budget if they are elected.
Games education
Ian Livingstone of Eidos then asked what the parties would do to ensure that students are equipped with the right skills to be able to work in the games industry. Admission: I can't tell you what the panel said, as I had to step out at this stage! More here.
IP protection and the Digital Economy Bill
David Yarnton, head of Nintendo UK, asked the panel where they stood on IP theft and copyright protection.
Don Foster said that these are important issues, which are meant to be addressed in the current Digital Economy Bill (we've written about the Digital Economy Bill and games here). He said these concerns fall into two areas: P2P downloading and web sites hosting illegal material. P2P downloading is being dealt with in the bill by the so-called '3 strikes' provisions, which Foster said "we've now got it about right" following input from all of the parties.
Regarding "illegal websites" as he put it, he said that his party had proposed a mechanism for shutting down or blocking access to these sites, but that as a result they had been "jumped on from a great height", which had since led them to back off from their proposal.
Tom Watson pulled no punches in his (personal) views on the Digital Economy Bill, which he thought was "technically futile, politically ignorant and electorally inept". He said it had had virtually no debate in the House of Commons, risked being blocked in the House of Lords and, if it was nonetheless passed, would constitute a "constitutional impropriety" in his view.
As to its copyright elements, he said he supported copyright, but the creative industries have to recognise that the internet exists and is essentially a giant copying machine - but the current Digital Economy Bill just does not address these issues fully. In Watson's view, what we really need is "wholesale copyright reform for the digital age".
However, he also said the reality was that the Digital Economy Bill will become law in the next few weeks because of a "back-room deal" betweeen all three of the parties. On that, his verdict to Foster and Vaizey was: "shame on you, shame on you and shame on [Labour's] front bench". He closed by stating that because the Digital Economy Bill simply did not deal with the issues properly, the next government would still have to deal with these issues and in the meantime, "consumers and voters are going to go ape".
Ed Vaizey was supportive of the Bill. He said he thought its measures were "quite measured and judicious" compared to what had originally been proposed. He agreed that the creative industries need to come to terms with the internet and noted that the games industry is adapting to that far more quickly than others.
As to actually passing the Bill, he said that his party was in an invidious position because the Labour government had not moved quickly enough to pass it into law before the election began to loom. As a result, he seemed tacitly to admit, the Bill now has to be rushed through. Vaizey said that the key risks of letting the Bill becoming bogged down are that it means its proposed reform of games ratings and radio deregulation won't be passed, which he said would be disastrous.
Thoughts
This was an interesting event, well-attended by some key figures in the UK games industry. All of the MPs worked hard to show their support for the games industry and that itself shows games are being taken more seriously by the political establishment...although you'd have thought by their words that there is no longer any disconnect between games and politics at all, which I'm not sure is right (not yet, anyway). It was also good to see that they plainly get along well with each other, even if they disagree on policy.
The week before this event, everyone thought the main issue would be political support for a games tax break. The goverment took that away partly by then announcing the break after all, but it was interesting to see both the audience and Tom Watson pressure Ed Vaizey about what the Conservatives would do in power.
Lastly, there were no surprises over the panel members' respective views on IP and the Digital Economy Bill (especially as I've heard Ed Vaizey and Tom Watson speak about it before), but still it was good to see again first hand that not all MPs are of one mind about the Bill and that clearly there is still vigorous debate to be had...but if only the government decides to give the Bill more time, of course.
All in all, definitely a worthy event and hopefully ELSPA will host another one in the future.
[image author: Andrew Dunn, obtained via Wikipedia]
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Mysterious developments at bankrupt Stargate developer Cheyenne
More news has been released about the slide of Stargate developer Cheyenne Mountain Entertainment into bankruptcy. In February 2010, Cheyenne entered Chapter 11 bankruptcy protection in rather abrupt circumstances (more background reading here).
Now, it emerges that a US court has appointed a receiver over Cheyenne, who has written a letter to Cheyenne shareholders that helpfully has been posted on the Cheyenne site. Here's the interesting stuff:
Cheyenne is now under the control of the receiver (a receiver is a court-appointed officer who takes over direct management and control of a company which has entered bankruptcy proceedings. If the company cannot be rescued, then in the last resort the receiver is likely to responsible for the break-up of the company to pay off creditors).
There are rather mysterious allegations regarding Gary Whiting, former President/CEO of Cheyenne and the target of a substantial lawsuit by Cheyenne shareholders who accuse him of defrauding the company. Specifically, the letter suggests that Whiting has tried to appoint a new President/CEO, a Mr Dale Grabois, who apparently has sent emails to shareholders "claiming he was President/CEO and that he would conduct regular reporting to shareholders" - in other words, doing the receiver's work for him. On what basis does Whiting have authority to do this? The receiver sidesteps that issue, saying "this is not an issue for the Receiver to decide and will be dealt with by the litigants in court", while also making the point that his present authority over Cheyenne is derived from the court and that he has made this clear to Mr Grabois. I suspect from this that there is a legal battle going on as to who actually is in control of the Cheyenne group, but answers on a postcard as to what on earth all this really means, please.
In the meantime, the receiver says that Cheyenne has substantial financial liabilities, including lawsuits for an estimated $10m, unpaid wages of $1m and unpaid taxes of over $3m. The receiver also says Cheyenne has very few remaining assets, no employees and no continuing business, suggesting that unless its JV with Fresh Start (see below) is a success, or there is some other positive development, we could be looking at some unhappy creditors in the future.
As a result - and this is the interesting stuff - former members of Cheyenne have set up a new company, Fresh Start, which has entered into a joint venture agreement with Cheyenne under which it has acquired the IP and other assets of Cheyenne, including Stargate Resistance, in return for a fairly complicated finance arrangement (including Fresh Start paying MGM its Stargate royalty).
The receiver is quite candid in explaining that this JV is intended to keep Stargate Resistance going and is not an IP grab. He said: "[Fresh Start'] sole intent was to preserve the game and prevent it from going offline due to lack of funding, employees leaving because they had not been paid, etc". He also responds to shareholder concerns "about the FSS transaction and the perception that corporate assets had or were in the process of being stolen as a result" by making it clear that Cheyenne has a right of repurchase the Stargate IP from FSS, essentially in return for repayment of the money that FSS has advanced by Cheyenne plus an uplift.
There is however no word at all about the forthcoming Stargate MMO that Cheyenne was working on. With Cheyenne is in receivership and Fresh Start only having control over Stargate Resistance, what's happening with the MMO? My guess would be either that some unpublicised arrangement has been entered into, or Cheyenne's Stargate MMO rights are an asset to be sold to satisfy creditors, or (possibly) Cheyenne has lost those rights following its entry into bankrupcy. No doubt the full picture will emerge in due course.
The receiver also discusses briefly other difficulties which Cheyenne is encountering, such as who signed one of its leases and in what company shareholders actually hold shares. In other words: as often happens, the stuff which was poorly organised and never got fixed when the company was trading, comes round to bite it in the ass when bankruptcy comes along.
Here's hoping that Cheyenne is able to work through its difficulties and re-emerge as a going concern, with full control again over the Stargate games IP. Of course, at the moment it sounds like several issues are going to have to be resolved (and probably a significant amount of time will have to pass) before that can happen. Watch this space...
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Gamer/Law weekly newsletter, 22-26 March 2010
Here's our round-up of games news and games/law developments over the last week. Enjoy!
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Games censorship and classification in 2010, part 1
At the end of last year, I wrote a retrospective on games classification and censorship across in the world in 2009, which - perhaps unsuprisingly - showed a totally inconsistent worldwide approach with different countries adopting hostile or progressive approaches to the regulation of games, virtually all of which was justified by reference to the 'protection of children'. Now, with the first quarter of 2010 almost gone, here's an update on the state of play so far for games censorship and classification.
UK:
The Digital Economy Bill proposes a new games classification system based on PEGI. That Bill is currently bogged down with other controversies and so (despite previous suggestions the games classification bit could be split off into a separate piece of legislation) at the moment we are stuck with the existing fragmentary system.
Even if and when the new system comes in, will it really change anything? Unlikely. We'll still have Keith Vaz speaking his piece on games violence from time to time. On the other (rather more important) hand, at least the government doesn't try to step in actively to intefere with the classification of games in the UK.
USA:
Although broadly games classification is based on a self-regulation model in the USA, there are also some legislative safeguards. GamesPolitics reports that the FTC is consulting on whether amendment is needed to the Childrens' Online Privacy Protection Act (COPPA).
Says GamesPolitics: "COPPA focuses on how website operators or online services deal with the personal information of kids younger than 13. Currently, it requires that third-parties must notify and receive permission from parents before “collecting, using, or disclosing” such info. Additionally, it requires that the information be kept secure and limits operators from collecting “any more personal information than is reasonably necessary."
One of the areas on which the FTC is consulting is the applicability of COPPA to games and interactive entertainment. It will be interesting to see whether this consultation becomes a vehicle for any wider discussion of the protection of children regarding games (a pot which, as we know, politicians in the USA are just as fond at stirring as anyone else - take Hot Coffee as an example).
Venezuala:
Venezuala has recently passed a ban on "violent videogames and toys". We wrote more on that here. In a word, it seems a bit silly.
Australia:
Australia has been in the games news a lot recently over its lack of an 18+ games rating, which has been used to reject several high-profile games for classification in Australia (examples of such attempts here and here). Now, with a public consultation into introducing an 18+ rating, and Michael Atkinson - one of the most vocal critics of such a rating - having just announced he intends to step down from public office, there seems an increasingly good chance that Australia might get a 18+ rating after all. Then our Antipodean friends can enjoy L4D2 action legally, joy!
Switzerland:
Switzerland, not generally known to me as a hot-bed of games activity, has apparently passed a law banning violent video games. The government has yet to publish guidance as to how the law will work in practice (which rather begs the question of how it was approved in the first place), but MCV reports that "the likeliest outcome seems to be an outright ban on the production, distribution and sale of any games deemed to be unsuitable – most likely anything with either a PEGI 16+ or PEGI 18+ certificate".
IF that were true (and we don't know that yet), then effectively banning games for 16+ year olds would be an extremely draconian system completely out of sync with the rest of Western Europe. In fact, I wonder (without any legal work having been done on this) whether there might be grounds for an EU-level challenge over this? We'll have to wait and see what the law actually says first.
Thoughts:
Quite clearly, there is no consistency between the games classification laws in these jurisdictions, meaning that games companies continue to face difficulty in marketing their games - which one developer I spoke with this week cited as an increasingly important problem for his company. The answer lies partly in doing your research so you know the likely classification in the key markets you want to sell in, but ultimately that just gives you forewarning of potential future issues. It's not a cure. An ideal solution might be a more standardised worldwide system that countries could join (either on a legal basis or a self-regulation basis), but really that falls apart on the simplest of analyses, because it's been tried before (e.g. PEGI) and been shown that the difficulties don't lie in the classification systems themselves, but rather the fact that at the moment any such system is subject to political whims and the prejudices of a generally ill-informed population (hence the continuing, and in my view baseless, controversy linking games to violence).
Anyway, I'll stop before I start ranting. We'll write another update next quarter about the baffling world of games classification and censorship in 2010.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
UK:
The Digital Economy Bill proposes a new games classification system based on PEGI. That Bill is currently bogged down with other controversies and so (despite previous suggestions the games classification bit could be split off into a separate piece of legislation) at the moment we are stuck with the existing fragmentary system.
Even if and when the new system comes in, will it really change anything? Unlikely. We'll still have Keith Vaz speaking his piece on games violence from time to time. On the other (rather more important) hand, at least the government doesn't try to step in actively to intefere with the classification of games in the UK.
USA:
Although broadly games classification is based on a self-regulation model in the USA, there are also some legislative safeguards. GamesPolitics reports that the FTC is consulting on whether amendment is needed to the Childrens' Online Privacy Protection Act (COPPA).
Says GamesPolitics: "COPPA focuses on how website operators or online services deal with the personal information of kids younger than 13. Currently, it requires that third-parties must notify and receive permission from parents before “collecting, using, or disclosing” such info. Additionally, it requires that the information be kept secure and limits operators from collecting “any more personal information than is reasonably necessary."
One of the areas on which the FTC is consulting is the applicability of COPPA to games and interactive entertainment. It will be interesting to see whether this consultation becomes a vehicle for any wider discussion of the protection of children regarding games (a pot which, as we know, politicians in the USA are just as fond at stirring as anyone else - take Hot Coffee as an example).
Venezuala:
Venezuala has recently passed a ban on "violent videogames and toys". We wrote more on that here. In a word, it seems a bit silly.
Australia:
Australia has been in the games news a lot recently over its lack of an 18+ games rating, which has been used to reject several high-profile games for classification in Australia (examples of such attempts here and here). Now, with a public consultation into introducing an 18+ rating, and Michael Atkinson - one of the most vocal critics of such a rating - having just announced he intends to step down from public office, there seems an increasingly good chance that Australia might get a 18+ rating after all. Then our Antipodean friends can enjoy L4D2 action legally, joy!
Switzerland:
Switzerland, not generally known to me as a hot-bed of games activity, has apparently passed a law banning violent video games. The government has yet to publish guidance as to how the law will work in practice (which rather begs the question of how it was approved in the first place), but MCV reports that "the likeliest outcome seems to be an outright ban on the production, distribution and sale of any games deemed to be unsuitable – most likely anything with either a PEGI 16+ or PEGI 18+ certificate".
IF that were true (and we don't know that yet), then effectively banning games for 16+ year olds would be an extremely draconian system completely out of sync with the rest of Western Europe. In fact, I wonder (without any legal work having been done on this) whether there might be grounds for an EU-level challenge over this? We'll have to wait and see what the law actually says first.
Thoughts:
Quite clearly, there is no consistency between the games classification laws in these jurisdictions, meaning that games companies continue to face difficulty in marketing their games - which one developer I spoke with this week cited as an increasingly important problem for his company. The answer lies partly in doing your research so you know the likely classification in the key markets you want to sell in, but ultimately that just gives you forewarning of potential future issues. It's not a cure. An ideal solution might be a more standardised worldwide system that countries could join (either on a legal basis or a self-regulation basis), but really that falls apart on the simplest of analyses, because it's been tried before (e.g. PEGI) and been shown that the difficulties don't lie in the classification systems themselves, but rather the fact that at the moment any such system is subject to political whims and the prejudices of a generally ill-informed population (hence the continuing, and in my view baseless, controversy linking games to violence).
Anyway, I'll stop before I start ranting. We'll write another update next quarter about the baffling world of games classification and censorship in 2010.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
UK games industry wins videogames tax break, faces challenges
The UK government has announced in today's pre-election budget plans to introduce a tax break for the UK games industry, but there will be real challenges to be overcome before the games industry can take advantage of the new tax relief.
The announcement
As we said yesterday, even up until the announcement itself there was still uncertainty as to whether the government would go for or against the tax break, or adopt a halfway position. The Chancellor, Alastair Darling, said when announcing the new measure:
"I will offer help to the computer games sector, similar to the steps which are helping restore the fortunes of the British film industry...This is a highly successful and growing industry, with half its sales coming from exports, and we need to keep British talent in this country."
UPDATE: MCV gives Rockstar Games as a good example, suggesting that if the estimated cost of GTA IV was $100m, and given the estimated typical saving for films qualifying for relief is at around 16 per cent of their total production budget, that could mean Rockstar could potentially save around £10.7m if the next game is set in the UK.
Sounds good, eh? But we're a long way from those kinds of considerations. At the moment, nothing really has been given away yet about what form the government thinks the tax break should take. It's clear though that there a lot of challenges to be overcome before games companies can take advantage of the games tax break:
Sounds good, eh? But we're a long way from those kinds of considerations. At the moment, nothing really has been given away yet about what form the government thinks the tax break should take. It's clear though that there a lot of challenges to be overcome before games companies can take advantage of the games tax break:
Challenge 1 - the election
Obviously, the tax break will need to survive the forthcoming election - whether by way of a Labour win or a new Conservative government also signing up to the tax break.
Challenge 2 - EU approval
The government will need to overcome EU legal issues regarding state aid. In a nutshell, EU Member States cannot take action to favour their domestic industries over other Member State industries unless they have EU clearance to do so. One of the bases on which this clearance can be obtained are 'cultural' grounds - which is how we saw the UK films tax credit being cleared (more on that below). It could potentially take months after the election for this EU approval to be obtained.
Challenge 3 - the structure of the games tax break
This raises a host of important questions, which will have to be dealt with through government consultation with the industry:
- What form will the games tax break take? The Chancellor has said it should be based on the films tax credit which after a lot of research on the matter, we think is the most efficient way to deliver the tax break. But how will this be tailored to the unique features of the games industry? Just as importantly, what lessons can be learned from the implementation of the films tax credit?
- Given the EU legal considerations (see above), the key test for obtaining the tax break will be whether it would promote "culturally significant video games that might not otherwise be made in the UK". The government will need to set out guidance as to what that means for games.
- That said, it does not just mean "GTA: Weston-Super-Mare"! A wider definition of 'culturally significant' has become widespread in the films industry and the same logic could be applied to games. For examples, games which reflect European culture (e.g. Empire: Total War) could qualify or games which are made in the UK and thereby could be said to reflect UK culture even if they don't specifically refer to the UK (e.g. the forthcoming MMO APB). In other words, the test could be whether the game is sufficiently linked to the UK and therefore to UK culture, not whether the games are about UK culture. This will boil down to the government trying to tread a fine line between complying with the law while still making the tax relief useful. With the films tax credit, the government has adopted a points-based system, which they could also do with games.
- Who will benefit from the tax break? There is a good case for arguing that both games developers and publishers based in the UK and overseas (provided the game is made in the UK) should be entitled to benefit so that the relief encourages both inward investment and the UK indigenous games industry to achieve its aims.
- How will games be defined for tax break purposes? Clearly, games must be defined broadly enough to encompass the myriad of games currently available (across an array of platforms) and those developed in the future. There's lots of talk in the blogosphere about how difficult this could be, and clearly a lot of thought will be needed, but it's by no means impossible. Governments and lawyers have to deal with far more difficult drafting exercises all the time.
- How much will the tax break be worth? It needs to be high enough to encourage continued game development in the UK by existing players and new companies to start making games here, but not so high the Treasury balks at it.
- Lastly, what types of development spend will qualify for tax relief? How will this interact with the research and development tax reliefs?
- Who will administer the tax break? Will the government set up a new body or use an existing body? There has been speculation that the Film Council could step in to adminster the games tax break, for example.
All of these matters can be resolved through sensible consultation between the government and the games industry. But the point is that it shows there will be a deal of work to be done in scoping out in detail how the games tax credit will work in practice.
What's next?
What's next?
The Labour government will need to announce some form of consultation with the industry to discuss these issues further. In reality, that won't happen until after the election. At the same time, the games industry will be looking for some firm commitment from the Conservatives to the tax break in case they win the election instead. In the meantime, we can expect to see industry figures and bodies making their own proposals as to how the tax break should work. Anyway you look at it, you'll be seeing more on the games tax break generally (and on this blog) in the coming weeks and months.
Interested in tax breaks?
In the meantime, if you'd like to discuss the tax break or how it could work for you, you can contact us here.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
UK games industry waits for games tax break announcement
The UK games industry is waiting to see whether tomorrow the Government will announce a games tax break in its last budget before the forthcoming 2010 general election.
In his December 2009 pre-budget report, the Chancellor Alastair Darling failed to make any formal announcement introducing a games tax break, despite significant industry support and lobbying for the measure. At the time, the Government said it felt there was insufficient evidence in support of the benefits of the tax break, particularly in the current recession. Then, early this year, Conservative MP Ed Vaizey suggested that a games tax break would not be a "top priority" if his party won the election. That seemed to be an end to the matter.
But, in fact, green shoots have been growing since then. In February 2010, Labour MP Tom Watson (well known to gamers and this blog as a champion of the games industry) filed a Parliamentary motion requesting the Government to pass a games tax break. Also in Febuary 2010, the Prime Minister Gordon Brown said that the UK games industry was "leading the way" in Europe as “by far the biggest producer of computer games”. He also added that “there will be new commitments of investment” off the back of this week’s Global Investment Conference in London.
Then, earlier this month, Stephen Timms (Minister for Digital Britain) said to Gamesindustry.biz that the Government would “be able to provide an update of where we've got to” regarding tax breaks for the industry on March 24th. According to the Telegraph, he also said that the government was looking to support businesses that could drive Britain out of recession and that there was “no doubt that the computer games sector is one part of the economy where we can see very good prospects for growth in the future”.
So, hopes are mounting that there may be something in this budget for the games industry. Really? Fundamentally, there doesn't appear to have been a sea change in the facts since the Govt last rejected a games tax break, but perhaps there has been enough movement in the right direction (and we are close enough to the election and the consequent need for good news) for the Government to feel able to announce a tax break, the details of which will have to be worked out later on. Or perhaps it will simply announce a formal consultation into setting up a games tax break, which is perhaps more consistent with Stephen Timm's quote about providing "an update of where we've got to" and reports that the Chancellor has no "giveaways" in this budget.
Well, we'll know one way or the other by tomorrow afternoon, so stay tuned. In the meantime, if you are interested more generally in the budget then tomorrow afternoon you might like to keep an eye on Olswang's budget blog here (admission: I work for Olswang!)
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
In his December 2009 pre-budget report, the Chancellor Alastair Darling failed to make any formal announcement introducing a games tax break, despite significant industry support and lobbying for the measure. At the time, the Government said it felt there was insufficient evidence in support of the benefits of the tax break, particularly in the current recession. Then, early this year, Conservative MP Ed Vaizey suggested that a games tax break would not be a "top priority" if his party won the election. That seemed to be an end to the matter.
But, in fact, green shoots have been growing since then. In February 2010, Labour MP Tom Watson (well known to gamers and this blog as a champion of the games industry) filed a Parliamentary motion requesting the Government to pass a games tax break. Also in Febuary 2010, the Prime Minister Gordon Brown said that the UK games industry was "leading the way" in Europe as “by far the biggest producer of computer games”. He also added that “there will be new commitments of investment” off the back of this week’s Global Investment Conference in London.
Then, earlier this month, Stephen Timms (Minister for Digital Britain) said to Gamesindustry.biz that the Government would “be able to provide an update of where we've got to” regarding tax breaks for the industry on March 24th. According to the Telegraph, he also said that the government was looking to support businesses that could drive Britain out of recession and that there was “no doubt that the computer games sector is one part of the economy where we can see very good prospects for growth in the future”.
So, hopes are mounting that there may be something in this budget for the games industry. Really? Fundamentally, there doesn't appear to have been a sea change in the facts since the Govt last rejected a games tax break, but perhaps there has been enough movement in the right direction (and we are close enough to the election and the consequent need for good news) for the Government to feel able to announce a tax break, the details of which will have to be worked out later on. Or perhaps it will simply announce a formal consultation into setting up a games tax break, which is perhaps more consistent with Stephen Timm's quote about providing "an update of where we've got to" and reports that the Chancellor has no "giveaways" in this budget.
Well, we'll know one way or the other by tomorrow afternoon, so stay tuned. In the meantime, if you are interested more generally in the budget then tomorrow afternoon you might like to keep an eye on Olswang's budget blog here (admission: I work for Olswang!)
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Another developer executive sacked for "insubordination"
Gamesindustry.biz reports that US developer Quest Online has sacked its president and co-founder Dave Allen for "insubordination" and replaced him with 3000AD president Derek Smart.
It seems that Quest Online was "struggling" following the release of its MMO Alganon in December 2009, leading to management changes in which Dave Allen was demoted to COO but was subsequently sacked after "failing to please the new president and the investors", with Smart replacing him.
Drastic management changes following poor business/management performance are nothing new, but this item seems news-worthy because Smart justified the sacking of Allen on the basis of "insubordination". This is of course the second time in the last few weeks that that word has come up, the first time being Activision's justification of its sacking of former Infinity Ward executives Jason West and Vince Zampella on the grounds of "breaches of contract and insubordination".
The difficulty with "insubordination" is that it sounds like a legal phrase but, as far as I know, it isn't (certainly under UK law anyway). If "insubordination" is taken simply to mean deliberately "disobeying a lawful order from someone in charge of them" then in principle that could be grounds for termination of employment, but of course it would depend entirely on the facts and circumstances of the case - in other words, it is not necessarily enough on its own. Moreover, senior departures from a company can be tricky at the best of times, what with potential issues of unfair/wrongful dismissal as well as financial consequences (e.g. share options and so forth).
So, the point is: just because we see "insubordination" being bandied around in the news, doesn't mean that it is a sufficient ground for terminating someone's employment without further ado.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
It seems that Quest Online was "struggling" following the release of its MMO Alganon in December 2009, leading to management changes in which Dave Allen was demoted to COO but was subsequently sacked after "failing to please the new president and the investors", with Smart replacing him.
Drastic management changes following poor business/management performance are nothing new, but this item seems news-worthy because Smart justified the sacking of Allen on the basis of "insubordination". This is of course the second time in the last few weeks that that word has come up, the first time being Activision's justification of its sacking of former Infinity Ward executives Jason West and Vince Zampella on the grounds of "breaches of contract and insubordination".
The difficulty with "insubordination" is that it sounds like a legal phrase but, as far as I know, it isn't (certainly under UK law anyway). If "insubordination" is taken simply to mean deliberately "disobeying a lawful order from someone in charge of them" then in principle that could be grounds for termination of employment, but of course it would depend entirely on the facts and circumstances of the case - in other words, it is not necessarily enough on its own. Moreover, senior departures from a company can be tricky at the best of times, what with potential issues of unfair/wrongful dismissal as well as financial consequences (e.g. share options and so forth).
So, the point is: just because we see "insubordination" being bandied around in the news, doesn't mean that it is a sufficient ground for terminating someone's employment without further ado.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
More thoughts on the Activision/Infinity Ward exec lawsuit
Rather belatedly, here are my thoughts on the latest developments in the Activision/Infinity Ward executives lawsuit.
Background: A couple of weeks ago, I blogged about former Infinity Ward executives Jason West and Vince Zampella launching a lawsuit against their former employer Activision for "substantial royalty payments" relating to Call of Duty: Modern Warfare 2. The lawsuit followed Activision's sacking of the duo on the grounds of "breach of contract and insubordination". My early thoughts here.
Now, West and Zampella's complaint (the US legal document which sets up their lawsuit) has been released and sets out further detail about their allegations. I've taken a look at it and here are my thoughts...
The initial section complaint is pretty colourful in its drafting: it is filled with pretty barbed anecdotes about how terrible Activision (and Bobby Kotick) is, made even more colourful with bold italic sections – which is the legal equivalent of yelling while jumping up and down on your desk. Example: paragraph 1 of the complaint –
"Modern Warfare 2 – a video game that has already been responsible for over $1 billion in sales and was recently hailed by Activision itself as the largest launch of any entertainment product ever".
The remainder of the complaint is drafted in rather more sedate legalese (with a few exceptions) and goes on to summarise the facts underpinning the lawsuit. Here's a summary of the summary:
- Activision bought up 100% of Infinity Ward in the early Noughties for $5m. Infinity Ward generated a lot of revenue and critical acclaim for Activision through the Call of Duty series.
- Activision approached studio heads West and Zampella after the release of Call of Duty 4: Modern Warfare to develop a sequel to the game, and offered to extend their employment contracts.
- West and Zampella were initially reluctant, and were concerned over Activision’s involvement in Infinity Ward. Activision apparently had "forced Infinity Ward’s employees to continue producing the games at break neck pace under aggressive schedules." West and Zampella were concerned about creative burnout and that they were being asked to develop sequels instead of new IP.
- However, "ultimately, Activision offered West and Zampella sufficient additional consideration to induce them to continue as co-heads of Infinity Ward and to work on Modern Warfare 2. The parties reached a March 31, 2008 Memorandum of Understanding that would keep Infinity Ward a part of Activision."
The complaint goes on to summarise the purpose of the MoU:
- "First, the MoU gives West and Zampella creative authority over the development of any games under the Modern Warfare brand (or any Call of Duty game set in the post-Vietnam era, the near future or the distant future) including complete control over the Infintiy Ward studio"
- "Second, the MoU gives West and Zampella the right to oeprate Infinity Ward independently and to choose to develop new intellectual property after they completed Modern Warfare 2"
- "Third…Activision agreed to pay Plaintiffs and the Infinity Ward studio additional compesnation, including a pool of Restricted Stock Units, stock options, a royalty for any Call of Duty game, a technology royalty, and a royalty for Modern Warfare 2 and future titles".
The complaint goes into some detail about the baselessness of the investigation, with outside legal counsel apparently interrogating West and Zampella for six hours in a "windowless conference room" while refusing "to tell either West or Zampella what specific acts or omissions Activision believes they had committed or what was prompting the investigation". West and Zampella were told only that Activision was "investigating potential "breaches of contract" and "violations" of Activision policies, and threatened that anything less than their full cooperation with the inquisition would constitute "insubordination", which itself would justify their termination".
The factual section of the complaint finishes with Activision's subsequent termination of West's and Zampella's employment, refusal to pay any royalties to them and its establishment of a new "dedicated business unit" to manage and control the Call of Duty franchise going forward.
The complaint concludes by stating West and Zampella's key legal claims are for:
- Damages for breach of contract, breached of an implied duty of good faith and wrongful termination, estimated value over $36m
- A declaration by the court essentially vindicating West's and Zampella's position and, in particular, agreeing that they have creative control over the Call of Duty series
- "A preliminary and permanent injunction against [Activision]…from violating Plaintiffs' rights with respect to the development, release and exploitation of any Modern Warfare game or Call of Duty game set in the post-Vietnam era, near future or distant future" (more on that below)
Legal thoughts:
As I said earlier, the complaint is rather colourfully drafted in places - I would guess with a view to public consumption. It is quite detailed factually, but comparatively lighter at this stage on the detail of the legal arguments. For example, it refers to an Employment Agreement and the MoU but does not cite any clauses from them in support of West and Zampella's argument (though this is no doubt due to commercial sensitivity). It refers to claims for breach of contract, wrongful termination and the request for a preliminary and permanent injunction against Activision but does not set out much detail on the bases for these claims.
So, why isn't this the complete picture? Three reasons:
(i) commercial sensitivity: West and Zampella don't want to disclose publicly too much about their arrangements with Activision;
(ii) strategy/the nature of the allegations: West's and Zampella's argument is that the whole investigation into them was a sham and there's only so much they can say about that, especially if they were kept in the dark by Activision at the time; and
(iii) the nature of the document: the complaint is only the first piece of the legal jigsaw, the next piece being Activision's reply and then (probably) a rejoinder from West and Zampella.
For these reasons, it's far too early to take a view as to where the merits of the lawsuit lie. On the one hand, if (and it's a very big if) West and Zampella's argument the investigation was trumped up are proved in court to be correct, then it will be interesting to see how Activision justifies its actions. On the other hand, once we have heard Activision's side of the story and reviewed the terms of the MoU, it may be clear that West and Zampella are in the wrong. Welcome to the Russian Roulette that is commercial litigation!
What happens next?
As I said (were you not reading me, fool?) Activision will need to prepare its reply (probably this will be made available in the internets in the next week or so), followed probably by a rejoinder from West and Zampella. This early stage of setting out the parties' cases in the court documents can go back and forth for a while.
The most interesting thing about the lawsuit currently is what West and Zampella will do about their claim for a preliminary injunction against Activision - which essentially means that they want a Court order banning Activision from taking any further steps with the Call of Duty or Modern Warfare franchises until the question of who has ultimate creative control over them is decided at trial (which is probably months away). Will they say the matter is urgent and try to push their injunction application into court as soon as possible? In fact, with Activision's plans to release further DLC for Modern Warfare 2, it's possible that this hearing is already on the stocks (though we've not heard anything to confirm that yet).
The reason they might want to push it into court as soon as possible is obvious: if they can control Activision's use of Call of Duty then it gives them great bargaining power. On the other hand, it's a high risk strategy: injunctions aren't just a legal walk in the park, there are specific tests that they would need to convince a judge that it should be granted. Moreover, the hearing would also be an early opportunity for the parties to state their legal cases in court and for the judge to give an early indication as to who he/she thinks has the better case, which could be an important legal and psychological factor in the lawsuit. Hopefully more info on this aspect of the lawsuit will be made public in the near future...
Leaving that to one side, more generally the litigation will go on to see mutual disclosure of relevant documents, witness evidence and quite possibly expert evidence – all of which are likely to be dissected in public and could quite possibly yield further details of the commercial arrangements in place between Activision and Infinity Ward. There will eventually be a round of court hearings on procedural matters (I see the front page of the complaint has a Case Management Conference – which is generally a procedural hearing – listed for 21 June 2010).
Going forward, unless either side can show urgency, it will probably be several months before the matter gets to trial – assuming of course that it doesn't settle before then. So far, the signs of settlement don't look promising, with Activision commenting the lawsuit is meritless and West/Zampella making some pretty barbed comments about Bobby Kotick in the complaint, but lawsuits seldom settle before they are properly bedded in, so there's plenty of time for negotiations to get underway if the parties were that way minded.
Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Judge dismisses God of War copyright lawsuit against Sony
The screenwriters, Jonathan Bissoon-Dath and Jennifer Dath, claimed they had written two treatments and two screenplays concerning a Spartan attack on Athens and other events in ancient Greece, which they claimed were copied by Sony in making the God of War game (source: THR).
God of War is of course an PS2 action game set in ancient Greece in which the hero Kratos, a Spartan, kicks various classical ass on the way to replacing Ares as the eponymous god of war.
The case
The writers commenced legal action against Sony and one of its developers, David Jaffe, in February 2008, but subsequent attempts to settle the lawsuit failed. Sony clearly felt that they had a strong case, because they then applied for summary judgment. In other words, they argued that the court should rule in their favour and dimiss the lawsuit because the writers had no legal case to stand on (in the words of the judge, there were "no genuine issues of material fact" and the applicant is "entitled to judgment as a matter of law").
The trial before Judge Marilyn Hall Patel focused on the writers' copyright infringement claim, for which the judge said that they had to show:
(1) that they had created and owned valid copyright works; and
(2) protected elements of those works had been copied by Sony.
The writers had to prove this by: (i) presenting direct evidence of copying by Sony, or (ii) by showing that Sony had access to their works and that there is a substantial similarity between the writers' works and God of War.
In order to establish these arguments, both parties took Judge Patel through their respective works, meaning presumably she had the opportunity to play God of War all the way if she so chose, though actually it seems that she just relied upon the lawyers' legal submissions rather than cracking through the game herself. Shame. (Actually, it seemed reasonably clear that Judge Patel was not familiar with games when she initially described God of War as a "multi-hour video game". A what?)
Having gone through the evidence, the judge found in favour of Sony. She said that:
"An examination of articulable similarities between the plot, themes, dialogue, mood, settings,
pace, characters and sequence of events of God of War and plaintiffs’ works reveals far less The writers had to prove this by: (i) presenting direct evidence of copying by Sony, or (ii) by showing that Sony had access to their works and that there is a substantial similarity between the writers' works and God of War.
In order to establish these arguments, both parties took Judge Patel through their respective works, meaning presumably she had the opportunity to play God of War all the way if she so chose, though actually it seems that she just relied upon the lawyers' legal submissions rather than cracking through the game herself. Shame. (Actually, it seemed reasonably clear that Judge Patel was not familiar with games when she initially described God of War as a "multi-hour video game". A what?)
Having gone through the evidence, the judge found in favour of Sony. She said that:
"An examination of articulable similarities between the plot, themes, dialogue, mood, settings,
similarity than would be required to overcome summary judgment, even if plaintiffs had proven access [to the scripts]".
She acknowledged that "there is some degree of similarity between the plots at an extremely generalized level" - the main similarity being that both were set in Ancient Greece and dealt with a battle between men and the Greek Gods. However, citing previous caselaw she said “No one can own the basic idea for a story. General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.” (This is of course an appliation of the basic principle that copyright law protects the expression of ideas, not the ideas themselves.)
As a result, she held that "No reasonable trier of fact could conclude that God of War is substantially similar to any of plaintiffs’ works" and therefore dismissed the lawsuit against Sony.
No doubt this will come as a great relief to Sony, which of course is about to release God of War III.
Legal thoughts
Reading the judgment, it seems that this was an ambitious claim by the writers from the outset. They had written film scripts about events taking place in Ancient Greece and sought to argue that Sony had copied those scripts when it developed God of War even though the judge went on to find that:
- There was no evidence of direct copying by Sony
- There was no evidence that Sony had even access to the scripts
- The writers sought to bring the claim based on "general plot ideas" and "stock elements that have been used in literary and artistic works for years, if not millennia", none of which are capable of being protected by copyright law
- In fact, there was little similarity in the "plot, themes, dialogue, mood, settings, pace, characters and sequence of events" in the scripts and God of War.
Lessons from the lawsuit
The lawsuit reinforces some important lessons about copyright law and how far it goes to protect any copryight work, including games:
The lawsuit reinforces some important lessons about copyright law and how far it goes to protect any copryight work, including games:
- Firstly, copyright law exists to protect the expression of an idea, which you have created through your own skill and labour. It does not give you any ownership of the idea itself. So, writing a script based on an ancient Greek story gives you copyright over that script but does not give you copyruight over the underlying ancient Greek story.
- Secondly, even if you do have a copyright work and you think it has been copied, you have to prove to a judge that there has been "substantial copying" of your copyright work.
- Thirdly, copyright lawsuits are exercises in detail and precision. The claim for copyright infringement needs to be established in very precise, concrete terms by reference to specific elements of your work. Just generic references to similarities (in this case, to plot, themes, dialogue, mood, settings, pace, characters and sequence of events) generally won't cut it.
- Fourthly, copyright lawsuits can be much more complex even than this case. For example, although this lawsuit didn't get that far, there are entirely separate issues regarding defences to copyright infringement and how to assess loss.
- If you think you have a lawsuit against someone, or might be defending one from someone else, then consider your options seriously and get legal advice early on.
- Your lawyers will then be able to advise you on your legal prospects of success and what steps you can take to protect your position. In this case, Sony's lawyers advised them to apply for summary judgement to get the case disposed, and it seems that was the right route to take.
The views expressed in this post are the author's own personal views and not his employer's!
Follow us at www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Gamer/Law Weekly Newsletter, 1-5 March 2010
Here's our round-up of games news and games/law developments over the last week. Enjoy!
Follow us at www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Follow us at www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Venezuala bans violent videogames and toys
According to the Prensa Latina site (via Slashdot and TorstenFo), the new law "imposes a fine and 2-5 years in prison on the import, production, distribution, sale, hiring and use of video games and toys inciting violent behaviour".
Further, "this legislation defines as aggressive every audiovisual material promoting and inciting violence, the use of weapons and toys imitating weapons or stimulating violence and hate."
Obviously there isn't nearly enough detail in this press release to have an informed view as to what this new law does or doesn't do. BUT, it is interesting that the release is phrased in a way that suggests Venezuala has banned "violent video and war games" per se. The approach in the US and Europe is rather different: games are age-classified but (other than the most extreme games) no games are banned just for being violent. So, for example, Modern Warfare 2 was PEGI rated as 18+, making it appropriate for 18 year olds and over, but it wasn't simply banned just for being "violent".
In the US, games classification is adminstered under the ESRB system and the majority of Europe now uses the PEGI system (the UK is due to adopt the PEGI system in the near future).
How would the Venezualan system work and under whose control? So far, the only information we have seen about that is the Slashdot source, which said: "Alberto Federico Ravell, former director of opposing news network Globovision, has already come on twitter denouncing the authorities for seizing imported Gameboy, Wii and PlayStation 3 consoles, due to considering them violent". Which, if true, speaks for itself really.
If anyone has any further info on the new Venezualan law, please get in touch. In the meantime, here again is our summary post on censorship and classification in 2009.
Follow us at www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
Digital Economy Bill may become law before election
A quick one: the Guardian reports that "senior media industry figures believe" that the Digital Economy Bill will become law before the forthcoming general election (expected in April/May 2010).Interesting to speculate who these unnamed sources are, or why they think the Bill will be pushed through soonish. To us, at the moment, there seems to be a healthy amount of opposition to the Bill in the House of Lords, and it hasn't even got to the House of Commons yet - all of which suggests it may take longer than expected for the Bill to get through. Still, the point is that the Bill genuinely could become law in the next few months. Our thoughts on the Digital Economy Bill and its implications for games are here. Since we wrote that post, matters have moved on somewhat, since the controversial clause 17 has been voted down. This has led to fresh controversy however over whether its replacement is even worse!
We'll report more on the Bill and games as and when there is a further, more 'final' version of the Bill (and once it becomes clearer if the Bill is actually like to become law before the next election).
Follow us at www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here
[image author: Andrew Dunn, obtained via Wikipedia]
Subscribe to:
Posts (Atom)