Gamer/Law’s ten 2012 predictions

You’ve guessed it: I thought I’d jump into the it’s-a-new-year-let’s-make-some-predictions business for 2012.  And, like all forward-looking predictions, I’ve mixed a few safe bets with some slightly more “punchy” predictions (which FYI is lawyer-speak for taking a massive bet on something!)  Here goes, in no particular order:

Should an employer own everything their developers do?

Over the weekend I inadvertantly sparked off an interesting debate on Twitter about the clauses in developer employment agreements which transfer ownership of the IP in their work to their employer (which was originally raised in this Ars Technica post). There’s different flavours of this kind of clause of course, from simple clauses that ensure the employer retains the IP in a game that the developer is building for the employer (e.g. ‘I’m Nintendo, I own all the IP in the Super Mario game you build for me’), to more onerous clauses that require the developer to give up the IP in effectively all his/her work – including work done in their spare time (e.g. using employer facilities/know-how/support).

Continue reading Should an employer own everything their developers do?

Insolvent Rebellion Derby faces employee issues

Update: looks like a bunch of other sites have picked up my comments on this issue, including (form a quick Google) 1UP, Nukezilla and GamePlanet.  That’s nice.

Original post: reports on reports of unpaid wages and withheld redundancy packages have from Rebellion Derby, the former Core Design studio responsible for the creation of Tomb Raider.  They talked to me about the legal implications – here’s their article:

Reports of unpaid wages and withheld redundancy packages have begun to emerge from Rebellion Derby, the former Core Design studio responsible for the creation of Tomb Raider.

Rebellion acquired the studio and its assets in 2006, but announced its closure in March of this year – at the same time as a number of junior positions were made redundant at the company’s main Oxford studio.

An email received by from the wife of a Rebellion Derby employee claimed that the company, “has failed to pay all the remaining Derby employees any wages owed for April, and any agreed redundancy payments for all those who left during April.”

“In addition to this there are still a small number of employees working in the Derby studio – effectively for free, asset stripping the building,” accused the email.

“Rebellion are claiming ‘financial difficulties’ as the reason for non-payment of wages and redundancy packages, but this has all been done verbally, over the phone, and are refusing to send anything out in writing,” continued the claim. “They seem to be claiming that as Rebellion Derby is registered as a separate legal entity, and it’s not currently making money, that they is no money to pay their remaining, and just left employees.

“The feeling amongst those who have been left is that it looks like they will be putting the studio into liquidation in order to get out of paying the packages that they have agreed.”

However, Jas Purewal, a lawyer at Olswang LLP and writer of GamerLaw, has confirmed to that as a subsidiary Rebellion Derby’s ability to pay is not dependent on its parent company’s situation.

“The mere fact that it has a solvent parent company is immaterial,” stated Purewal. “Since generally parent companies are not legally obliged to rescue their insolvent subsidiaries. A parent company is only liable to contribute funds to its insolvent subsidiary if there is some pre-existing debt which the parent already owes to the subsidiary. Generally if there is no debt, there is no obligation.”

Employees of an insolvent company are termed ‘preferential creditors’ and are therefore entitled to have their wages and redundancy payments paid to them in priority to most other creditors’ claims. However, this depends entirely on whether the insolvent employer company has the funds to actually pay them with,” he added.

“It’s worth bearing in mind though that if you are made redundant by a company in the UK and that company is unable to pay you, there is a statutory body called the Redundancy Payments Office. The office was set up expressly to help employees where their companies either cannot or will not pay them.”

Referring also to the ongoing legal disagreements between Infinity Ward employees and Activision, Purewal pointed out: “There is a theme here of an increasing awareness amongst games developers that receiving payment for their work is not necessarily set in stone – it can be affected by other developments.

“For all developers it’s worth paying close attention to your employment agreement and making sure it’s updated and that you and your employer are clear as to its terms to avoid any misunderstandings in the future”.

Representatives from Rebellion have so far failed to respond to requests for comment when contacted by

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Another developer executive sacked for "insubordination" 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.

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Games, Disability and Anti-Discrimination Laws

Sony succeeded last week in defeating a lawsuit by a disabled US gamer, who had claimed last year that Sony games like EverQuest violated the Americans With Disabilities Act by denying him “full and equal enjoyment” to the games. The gamer, Alexander Stern, who apparently has impaired vision, argued that Sony should provide him with “auxiliary aides and services” so that he could enjoy the games fully and compete with other gamers equally.  This has got me thinking about an interesting issue: should gamers be protected by anti-discrimination laws?

So what do anti-discrimination laws do?

The key purpose of anti-discrimination laws is to ensure that employers/providers of services in the public sphere cannot discriminate against a person on the basis of his/her personal characteristics (e.g. physical disability, belief, gender, nationality, ethnicity etc).  In the UK, the principal legislation which sets out these protections are the Equality Act 2006 and the Disability Discrimination Act 1995.

The ‘public’ element is critical: anti-discrimination laws generally only cover things that happen in public.  So, for example, it is generally illegal to refuse someone else access to a restaurant based on their nationality, but you could refuse them access to your home for pretty much any (peaceful) reason.

It’s important to bear in mind that anti-discrimination laws do not generally apply between private individuals.  If person A makes racist comments to person B, that’s not a matter for anti-discrimination law (it might be a race-related offence in your jurisdiction, though).  In other words: discrimination laws only kick in where you need something from someone, but they won’t give it to you because of your personal characteristics.

Why should games be protected by anti-discrimination laws?

The Sony case itself shows that there is a need for games companies to take discrimination of disabled gamers seriously, even if the discrimination was inadvertent.  Similarly, consider the following hypothetical examples:

  • A MMO bans men from playing as women and vice versa
  • Another MMO bans gay people from playing it
  • A game is released in a multilingual country (e.g. India) in only one little-spoken language
  • A game is released on terms that it can only be sold to a particular ethnic group  

Seem far-fetched? One of them (the first) has already happened.  In each of these situations, there would be an argument that gamers are discriminated against.  Unless they have legal protection, the only real way they could respond would be to vote with their feet by leaving the game, which for many would be unacceptable.

That said, on the other hand games companies would no doubt be understandably concerned at the cost that all of this could involve (for example, the cost of making an AAA game fully accessible to both fully and partially sighted gamers).  So clearly there would have to be a balancing exercise, with protection for gamers but not at extortionate cost to games companies. A legal regime could help to resolve this situation – hence the argument that anti-discrimination laws should protect gamers.

Do anti-discrimination laws already cover games?

Following the Sony case, the answer for the USA seems to be: no.  Judge Percy Anderson ruled in this case that Alexander Stern’s claim failed because US case law had already established in 2000 that the anti-disability discrimination law on which he relied (the Americans with Disabilities Act) only applies to “places of public accommodation”, which the judge said means actual physical places and not games.

Therefore, the judge said the US anti-discrimination laws would cover Stern if he was unable physically to enter one of Sony’s games conventions, but would not cover Stern being unable to play Sony games themselves.  As a result, the judge did not go any further into how games could be protected by anti-discrimination law (and, in particular, whether game playing is ‘public’ or ‘private’ – more on that later on).

That decision seems effectively to exclude US gamers from the protection of anti-disability discrimination laws.  This is a pity, particularly since the learned judge seems to have taken a pretty unenlightened approach to online games, even if he was required to follow the established case law. 

But, other countries have not adopted that same legal analysis.  The UK analogy to the Americans with Disabilities Act (called the Disability Discrimination Act 1995), for example, does not have the same express US requirement that the discrimination must take place in relation to a physical place.  So, leaving aside the slightly odd idea that discrimination has to have occurred in relation to a physical place, I ask…

How should games be protected by anti-discrimination laws?

The basic framework is already there in the US and UK laws (i.e. the Americans with Disabilities Act and the Disability Discrimination Act 1995):

(i) Prove there was actually discrimination; and
(ii) Prove it took place in the public sphere.

Whether there was actually discrimination will always depend on the facts of the case, so not much more I can say about that.  The interesting question though is whether game playing takes place in the public or private spheres.

Is playing games a private or public activity?

I think there is a good argument that game playing is a public activity simply because games are open to absolutely everyone, assuming of course gamers have the minimum level of hardware and have paid for the game of course. The argument is strongest for multiplayer games, especially MMOs, where gamers are encouraged to make the game as public as possible (by that logic though, playing single player games is less likely to be a public activity).

Take a real world parallel: going to a theme park.  You have to pay to get in, but otherwise you are pretty much free to go on the rides and play the games as you wish, with whoever you wish.  To my mind, that is no different to playing a multiplayer game with your friends.  Therefore, if entry to theme parks is covered by anti-discrimination laws, why not playing games too?

Conclusion: there is a good argument that playing games does take place in the public sphere, and so we pass the first and main hurdle for anti-discrimination laws and games (the idea that games take place in the public sphere has a much wider application of course, but that’s a topic to discuss on another day…)Now, in relation to discrimination such as arbitrarily banning certain people from playing your game, the response would then be straight-forward: you are legally prohibited from doing it.  But disability discrimination and games could be harder to deal with, because at that point we get into a balancing exercise between protecting disabled gamers but not to the extent of bankrupting the games companies or ruining games for everyone else.   In particular, games companies would have a strong argument that the simple reality is that some games simply cannot feasibly be adapted for disabled gamers. Getting the balance right would be difficult, yes, but just because it is difficult doesn’t mean it should be ignored.

Of course, the Sony case seems to settle the position in the USA for the foreseeable future and, unless and until there is a court challenge in the UK or elsewhere, we don’t seem likely to see any movement towards a more explicit way of helping disabled gamers, or protecting gamers from discrimination more generally.  This is yet another growing legal issue in gaming about which we will have to watch, wait and see…News source: THR, via Virtual Policy Network

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