The EA Origins EULA is a non-story

UPDATE 2/11/11: this issue really isn’t going away – there are now stories of gamer rage in Germany about alleged anti-privacy stance in EA Origins and Battlefield 3 (not quite sure how that works together – I imagine it means that the release of Battlefield 3 has raised the concerns about Origins again).

There has been a lot of debate over the last week about the terms of EA’s End User Licence Agreement (EULA) for its Origins download service.  This is a post to explain why that is a non-story and unfortunately says more about gamers’ misunderstanding of EULAs and data protection than it does about EA (though in fairness EA could have done a better job to explain itself).

The story broke originally via The Escapist forums and then other sites including RPS.  This is what the EA EULA actually said: Continue reading The EA Origins EULA is a non-story

Activision joins EA to Infinity Ward lawsuit

Activision has obtained court permission to join EA to its lawsuit against former Infinity Ward executives Jason West and Vince Zampella, according to Joystiq.  

You can read more about the recent steps in this increasingly bitter lawsuit here.  What this latest development  means is that, barring any other unforeseen developments, the trial will go ahead on May 23rd, with Activision squaring off against West, Zampella and now EA.  And it looks increasingly like sparks will really fly – especially with some interesting recent revelations about EA allegedly interfering in Modern Warfare 2’s map packs

For EA, those sparks are bad enough from a PR perspective, but what’s worse are the financial implications of losing.  Activision is claiming at least $400 million in damages from EA.  SPECULATION ALERT: IF Activision is successful (and that will depend entirely on the court’s decision in due course) and IF it wins that level of damages, it would cause a serious headache for EA – a company which in 2010 suffered net losses of $677m and whose net total assets were worth $2.729 billion. That would be a BIG dent in its bottom line.

Still, as I said that’s just speculation at the moment – EA could just as easily win.  All this is going to come down to what happens at trial, so roll on May 23rd…

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More on the Infinity Ward lawsuit: EA to join the party?

UPDATE: apparently, West and Zampella have filed a response to Activision’s application to enlarge its lawsuit against them, basically complaining that Activision is trying to bankrupt them in the litigation.  Ouch.  Ofc, hopefully they have more substantive grounds for opposing Activision, but since irritatingly no one has published the court documents, I can’t check :/

So, there have been further developments in the most (in)famous recent lawsuit in the games industry: Activision v Jason West and Vince Zampella, which I’ve written about previously here and here

The key development is that Activision is seeking both to join EA to the litigation and to claim damages of some $400m from it as well.  Ouch.  More generally, further evidence is building up that this case is the first big film lawsuit type case (big studio v creatives and other big studio) in the games industry so far…

The story so far
  • 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 of first person shooter (FPS) games.
  • Activision approached studio heads West and Zampella after the release of Call of Duty 4: Modern Warfare to develop what became Modern Warfare 2, and offered to extend their employment contracts.  West and Zampella reluctantly agreed.
  • However, Activision now argues that – essentially – West and Zampella then engaged in a pattern of improper behaviour on a range of fronts, including demanding more money, withholding bonuses from their Infinity Ward colleagues, and then misappropriating Activision confidential information.
  • Earlier this year there was a confrontation between Activision, West and Zampella – which led shortly to West and Zampella leaving on acrimonious terms and Activision commencing this lawsuit.  It has just got nastier since then.
  • West and Zampella then formed Respawn Entertainment, backed by EA.
The new developments

Activision starts off the latest court document stating that, following disclosure of documentation in the lawsuit, new information has come to light which they claim shows that EA was actively involved in poaching West and Zampella.  You can find some of the colour at Joystiq, but essentially Activision says that EA worked at the very highest levels in order to persuade West and Zampella to join EA in order to boost its (allegedly) flagging efforts in the FPS genre.  In fact, Activision goes so far as to label this as a “destabilize, disrupt and attempt to destroy Infinity Ward” and as “corporate espionage”.
Activision also takes the time to go into some detail on EA’s recent history.  None of it is complementary, to say the least.  Activision even goes so far as to refer to “the fall of EA and the rise of Activision” and to discuss EA’s “precipitous decline in stature with investors, and most importantly, in the eys of games players who demand innovation and excitement”.
Activision also makes further allegations against West and Zampella, calling them “small minded-executives almost obsessed by jealousy of other developers” and claiming that they deliberately worked to damage other studios’ work (apparently this refers to Treyarch, another CoD developer).  Further, Activision claims that West and Zampella appropriated up to a third of the Infinity Ward bonus pool for themselves and refused to allow Activision to pay out bonuses to other IW staff.  Lastly, Activision claims that West and Zampella have been engaged in poaching IW staff and that they have retained confidential Activision information.
Activision now seeks to claim (among other things):
  • Damages against West and Zampella as well as recovery of all previous sums paid to them 
  • An injunction stop West, Zampella and EA from soliciting further Activision employees and from using Activision confidential information
  • From EA, damages/compensation for: 
    • The profits Activision would have made but for EA’s interference (I think this is the $400m bit)
    • Activision’s costs in rebuilding IW following the departure of West and Zampella
    • The loss caused by delay to Activision’s new games being developed by IW (presumably this is Modern Warfare 3)
IMPORTANT CAVEAT: Activision is not actually claiming all of this in the litigation yet – effectively it needs the court’s permission to do so.  As a result, there is a court hearing scheduled for January to hear these matters further.  Therefore, at the moment at least, EA is not technically a defendant to this lawsuit.
Activision and EA aren’t friends any more
Wow.  Activision is not pulling any punches with this lawsuit.  Not only are they suing EA for $400m, but they make some really quite aggressive comments about EA as well.  Until now, while Activision and EA haven’t exactly always been friendly to each other, my impression was that they had been relatively civil to each other recently.  Well that’s disappeared and I think the genie is out of the bottle for well and good on that front, too.
So, no settlement then?
Widespread industry speculation when the original lawsuit started was ‘ah, it’ll just settle’.  My experience as a litigator is never to make bets about whether a legal fight will settle or not – you just don’t know all the variables.  It might still settle.  But the fact that Activision has just massively expanded this case by seeking to add in the no. 2 games giant in the world suggests that settlement is not on their mind…not yet anyway. 
$400m is a lot of money

Well, it IS a lot of money – and that’s just the quantified bit of Activision’s claim, they’re actually after more than that.  IF successful in due course, that would put a decent dent in EA’s finances.  Who knows what impact that could have?
This is just like Hollywood
Two creative types help to build a huge blockbuster hit for their studio and then allegedly conspire with a talent agency to jump ship to a rival studio, only to find out their original studio partner is not a happy bunny and sues everyone.  Sounds like Hollywood?  Well, now it has come to the games industry…and I suspect we will see more of in the future.
This will just get nastier
There is a court hearing in January 2011.  Trial is set for May 2011.  We have a volatile mix of companies and individuals involved.   They are already throwing about incendiary allegations about each other, which Activision says it can prove with documents.
From what I can see (though court documents alone are only part of the story), it seems to me that Activision do seem to have some legitimate grievances, IF it is correct that EA sought actively to poach West and Zampella while all of them were aware of their contractual obligations to Activision.  On the other hand, we have yet to see West and Zampella’s response, who will no doubt continue to argue that Activision made their life impossible.
Ultimately of course, all of the hyperbole will have to draw to a close and the court will have to decide the relatively simple issues of law in this litigation: what do the employment agreements and related documents say, did West and Zampella breach their obligations therein and did EA encourage or assist those breaches?
Here’s looking forward to 2011… 

UPDATE: Eurogamer asked my views on whether Activision could attempt to block Respawn’s next game.  Short answer: I said yes.  More here: ! 

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[Image credit: Gamerant/Activision]

Langdell v EA, Part 2

I wrote last week about the Tim Langdell/Edge Games’ lawsuit against EA over a range of “Edge”-related trademarks, in which Mr Langdell took a beating to put it lightly. 

Here’s a few updates since then:

  • Rob Crossley at Develop reports that Edge Games is also involved in a legal dispute with Future Publishing, publisher of Edge Magazine – though I would expect that to be settled or discontinued reasonably quickly after the Edge/EA lawsuit.
  • Alec Meer at reports that EA’s lawyers submitted a draft court order requiring Langdell/Edge Games to relinquish their Edge trademarks and to communicate this to all the affected parties personally by October 15th 2010 (ouch).  It now looks from the court file like the judge has now endorsed that order – which means that Langdell and Edge Games don’t have much longer with those trademarks…
  • Apparently EA and Edge Games have agreed that they will each pay their own legal costs.  This surprised me, as I would have expected EA to demand that Langdell/Edge Games pay its legal costs, but I guess they felt they had had enough.  Or, potentially, they thought Langdell/Edge might not be able to pay anyway.  In any event, Langdell/Edge will have to pay their own lawyers’ costs, which are probably fairly chunky themselves.

All this leaves open one very interesting question: what happens to the Edge trademarks after Edge Games relinquish them?  It seems to me that the likely candidates are: (1) EA applies to register them; or (2) Future Publishing applies to register some of them; or (3) Future and EA agree not to do anything (maybe via a standstill agreement).  Watch this space…

p.s. Jim Rossignol at RPS has pointed to a Eurogamer feature on Langdell and Edge Games written back in 2009, if anyone is interested in the backstory…

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Medal of Honor, Games Classification and Free Speech

I’ve been meaning for some time to write about two things: (1) EA’s stunt over introducing the Taliban into Medal of Honor as a playable faction, and their subsequent u-turn; and (2) the pending US Supreme Court case over games classification in California.  In both cases, I am v interested in what these developments mean for the freedom of creative and political expression in games.

Now I don’t need to, because Ian Bogost has written a very thoughtful post on Gamasutra about these issues.  If you have 5 minutes, I’d encourage you to read it.

(via Jim Rossignol at RockPaperShotgun)

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Langdell v EA: what the lawsuit really means

It was revealed today that Tim Langdell, the man behind Edge Games, has comprehensively lost his lawsuit claiming that EA had infringed his “EDGE” trademarks when it released “Mirror’s Edge”.   The case is one of a number of recent attempts by Langdell to protect these alleged trademarks – all of which are thrown into serious question as a result of this case.

I spoke with Alec Meer over at about what the Langdell and EA lawsuit really means.  Also, I spoke with Rob Crossley at Develop about the potential legal consequences for Langdell and Edge Games themselves.  Busy day!

You can read the interviews for all the info, but there is one key practical message which I want to reinforce now:

  • This case is a timely reminder that games are essentially intellectual property and when it comes right down to it you need to go back to things like trademarks and copyright if you actually want to protect your game.
  • BUT, litigation is timely and expensive – so you need to have carefully considered your options and the legal merits before you start a lawsuit.  If in doubt, talk to a friendly games lawyer.  It could save you a lot of money, time and avoid the kind of negative PR that Mr Langdell is now going through.

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EA courts controversy with Medal of Honor ‘Taliban’ playability

News has emerged that the next Medal of Honor game, EA’s wannabe answer to Acti’s Modern Warfare, will permit gamers to play as the Taliban in multiplayer mode.

At which point, various people (including me) raise an eyebrow and conclude that this is quite deliberately intended as a media stunt (as was Modern Warfare 2’s infamous airport level).  So no doubt there will be a media firestorm, which apparently has already been kicked off by Fox News.

But – and this is the reason for me writing this post – it does make me wonder whether games companies are fully conscious of the fact that, by using these kinds of stunts, they are courting increased regulatory scrutiny of games in the future.  Yes, there may well be a valid explanation within the context of the game, and in any event you can always point to that old hoary old chestnut, the “it’s just a game” argument, but most non-games playing people won’t understand.

And generally it’s non games-playing people who write the laws and regulations by which games have to abide.  One of the most important of those are games classification laws, which govern how and when a game may be given an age rating and sold in a country.  More importantly, they are also the people who will apply those rules to actual games.  Now, in the West these days games classification rules are unlikely to ban games altogether, but they add a further level of necessary bureaucracy for devs/publishers.  And things can be quite different elsewhere in the world, where games classification rules are increasingly being used for political purposes.

In brief, as I’ve written about several times before (see here and here), there is a rising tide of hostility to games when it comes to classification regimes, and I don’t think this kind of behaviour helps.  Here’s hoping therefore that the furore over this latest stunt is muted.

Image credit: EA/Softpedia

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