Virtual World Law Blog

Around the Virtual World

Fri, 18 May 2012 09:57:16 -0500

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

Magid National Study Finds Social Networking Gaming Growth is Slowing

The research, conducted as part of the Magid Media Futures 2012 study, found social network gaming user growth has slowed in the United States. About two in five (38%) social network users, up slightly from 36% in '11, say they regularly play games on social networks. Social network gaming has decreased among its primary demographic, females age 12-44, with less than 43% of users age 12-17 (down from 54% in 2011) and about 36% of users 25-44 (down from 40% in 2011) reporting playing on a weekly basis.

Internet Gaming On The Horizon For NJ, Lawmaker Says

Internet gaming could be a reality in New Jersey before the end of the year, eventually providing Atlantic City's casinos with a much-needed influx of revenue, a state senator sponsoring such legislation told a roomful of attorneys Wednesday.

Overexposed? Thanks to SceneTap, San Francisco bars are now profiling you

SceneTap is a maker of cameras that pick up on facial characteristics to determine a person's approximate age and gender. The company works with venues to install these cameras and track customers. It also makes web and mobile applications that allow random observers to find out, in real-time, the male-to-female ratio, crowd size, and average age of a bar's patrons. And no one goes unnoticed. "We represent EVERYONE in the venue," SceneTap proudly proclaims on its website.

Judge: An IP-Address Doesn't Identify a Person (or BitTorrent Pirate)

A landmark ruling in one of the many mass-BitTorrent lawsuits in the US has delivered a severe blow to a thus far lucrative business. Among other things, New York Judge Gary Brown explains in great detail why an IP-address is not sufficient evidence to identify copyright infringers. According to the Judge this lack of specific evidence means that many alleged BitTorrent pirates have been wrongfully accused by copyright holders.

For Start-Up, Virtual Casinos

Andrew Pascal was one of Steve Wynn's trusted lieutenants when the Las Vegas magnate was rebuilding his gambling empire a decade ago. Now the former president of the Wynn Las Vegas and Encore casinos is the chief executive of a Silicon Valley gaming start-up aimed at running virtual casinos.

Gamblification Gets Street Cred

Tue, 15 May 2012 08:29:05 -0500

In yet another example of Gamblification's growing popularity, GSN Digital, the interactive division of the Game Show Network, has collaborated with rapper-actor 50 Cent to create a virtual casino on Facebook where players can experience Blackjack in a whole new way. Friends can gather together at an online table and test their luck against a virtual dealer or even themselves.

But this isn't your typical game of Blackjack. Instead of real money changing hands, players can amass virtual currency which can be used to buy clothing and jewelry for their avatars. Players can also purchase tokens that provide in-game benefits, such as the ability to know whether or not taking the next card will 'bust' your hand or not. A public leaderboard also encourages players to jockey for position to be among the best players in the world. This extra layer of gaming mechanics puts an interesting twist on a classic casino game.

Since the application was made public in April, the virtual casino has averaged over 3,000 daily users. Developers say a mobile version of the game for Android and Apple devices will be released later this spring.

For more news and analysis on the Gamblification trend, please visit: Gamblification News

Around the Virtual World

Fri, 11 May 2012 15:39:09 -0500

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

FBI: We need wiretap-ready Web sites

CNET learns the FBI is quietly pushing its plan to force surveillance backdoors on social networks, VoIP, and Web e-mail providers, and that the bureau is asking Internet companies not to oppose a law making those backdoors mandatory.

NJ Online Gambling Bills Clear Assembly Hurdle

A pair of online betting measures cleared a New Jersey Assembly committee Thursday, moving the state a step closer to allowing horse wagers to be placed from hand-held devices at state tracks and permitting casino game betting from personal computers across the state, around the country and abroad.

Twitter: We're still the free-speech wing of the free-speech party

As various levels of government both in the U.S. and around the world have stepped up their attempts to track down dissidents through social networks, the pressure has intensified on companies like Twitter and Facebook to comply with these demands -- even at the expense of their users' privacy. Despite that pressure, Twitter at least seems determined to fight these incursions wherever possible. As a case in point, the company has filed a motion in New York state court to quash a court order compelling it to hand over information about a user involved in the Occupy Wall Street protests, arguing that the order violates that individual's rights.

Social media offers sweet revenge for bad service

If you're tired of being treated poorly by retailers, airlines and other service-industry types, take revenge via social media. You will get heard, and get action.

Leaked Report: FBI is Terrified of Bitcoin Becoming a Currency for 'Cyber Criminals'

Published in late April but leaked yesterday, the unclassified document-of which Wired provided a PDF-outlines the federal government's fears surrounding the Bitcoin currency, primarily that in the near future, "cyber criminals will treat Bitcoin as another payment option alongside more traditional and established virtual currencies."

Virtual worlds can end the loneliness of the long distance learner

Students now have opportunities to learn by doing wherever they are in the world with the advent of Virtual World classrooms and 3D work enactment technology being introduced at UWE Bristol.

Gamblification! The Hottest Trend in Social Games

Wed, 09 May 2012 11:35:19 -0500

NOW AVAILABLE -- Pillsbury's Social Media, Entertainment & Technology Team recently finalized a white paper on legal issues with social games and gambling. For a copy, click here.

Gamblification! This is not yet a household word but we use it to describe the intersection of social media and gambling. It is a play on the concepts of gamification and gambling. While gamification relates to using game mechanics for non game purposes, we use gamblification to refer to the use of gambling mechanics for non gambling purposes (ideally!). Given the complexity of the legal issues around this concept, it is not always easy to ensure that one does not cross the line.

Many social media companies are leveraging gamblification to capitalize on individuals' gambler instincts. One example of this is the use of gambling-like activities in social games. Many social games are designed based on gambling-related activities, such as Zynga poker. In this example, the game itself is centered around playing poker for Zynga poker chips. It differs from real gambling in that you buy chips but can not redeem them. Other social games are leveraging gamblification by including minigames or features within non-gambling related social games and MMOs. For example, some social games include features that enable users to exchange virtual currency for a chance to win one of a number of virtual goods that can be used in game. The apparent randomness of which item a user will obtain (or whether they will obtain one) has an element of surprise that makes it fun for users. Other platforms, such as Virgin Gaming, enable console game players to wager against each other on the outcome of playing a video game.

Other non-game social media sites are using gamblification as well to drive user engagement with offers and promotions. For example, Cash Dazzle is a platform that drives users to engage with a variety of promotional offers in exchange for tokens that can be used to spin a wheel for a chance to win cash prizes.

Online casino games is a new battlefield, pitting social game companies against traditional, land-based casino operators and the Indian tribes. The battle is for control of new channels (social and mobile channels) for casino games and other online gambling related activities. This battle is already playing out in a big way. Traditional gambling equipment provider IGT spent $500 million to buy Double Down, a maker of casino games for Facebook. Shuffle Master, Inc., a leading global gaming supplier, has agreed to acquire Ongame Network Ltd., one of the world's largest poker providers to online gaming operators. Betfair, one of the largest players in the European Internet betting exchange, has invested in one of the fastest growing US social game companies.

Gamblification is also driving a need for new types of data that identify the "whales." See Kontangent's post on "Casino Games are the New Battlefield."

These games and other "gamblified" applications are tremendously popular and the use of gamblification is very likely to increase. There will be huge business opportunities around the gamblification movement that is afoot. However, businesses leveraging gamblification need to be certain that they don't leverage gambling mechanics in a way that crosses the line into illegal gambling.

A variety of factors are relevant to the legal analysis in the US. One is that gambling is largely regulated by state law. In some states there are gambling-specific laws and/or other laws relating to contests, sweepstakes and lotteries. Yet, there is great disparity among the various states regarding what is legal. Add to this historical problem the fact that there is a flurry of new online gambling legislation due to a recent change in position by the DOJ that has permitted states to legalize online gambling (except for sports betting).

Additionally, many activities that some online operators believe will avoid triggering gambling laws may not actually be in compliance. Some of the activities use virtual currency as the means by which users get a "seat at the table" or a "spin of the wheel." While many virtual currency based models may be legal, the use of virtual currency alone does not necessarily ensure that there is no risk of running afoul of legal issues. One of the key issues with that is whether the virtual currency has value. In the Zynga poker example, the argument is that because you can not cash out the chips they do not have value, within the meaning of the gambling laws.

The increasing use of gamblification is going to continue to push the envelope of what is and what is not legal. Understanding the complexities surrounding these issues can be challenging for new entrants due to the lack of specific precedent that addresses many of the techniques that are proliferating in the social game and promotional arenas.

Additionally, even if certain "gambling-like" activities are legal, certain state laws may require that the operators go through a licensing process analogous to what land-based casinos currently do.

Convicted Gambler Cries "Fowl" On Definition of Gambling

Tue, 01 May 2012 13:18:42 -0500

A recent appellate decision (US v. Lawson) helps clarify what constitutes illegal gambling, as opposed to legitimate pay, to enter contests. While the case arose out of an illegal cockfighting operation, the decision should help provide some measure of clarity for the wave of companies leveraging the gamblification trend. Two of the key takeaways are as follows: 1. it doesn't matter whether someone knows their actions constitute illegal gambling and 2. payment of a monetary prize is considered a bet or wager if the amount to be awarded is dependent on and funded by fees paid by other contestants or entrants in the event. Note however, this case interpreted South Carolina law and that the law in other states may be different.

To further explain, the court rejected the defendants arguments that they didn't know that their actions constituted illegal gambling. The court held that the plain language of 18 U.S.C. § 1955 does not require that a defendant know that their conduct constitutes illegal gambling under state law, adding that Section 1955 is a general intent crime, which does not require the government to establish that the defendants knew that their conduct violated state law.

On the issue of what constitutes a bet or wager, the court held, for purposes of South Carolina law, a monetary amount awarded to the winner of a contest is not a bet or wager if it is a set amount funded by the sponsor of the event and not dependent on the number of entrants or amounts those entrants have paid to participate in the event. Conversely, payment of a monetary prize is considered a bet or wager if the amount to be awarded is dependent on and funded by fees paid by other contestants or entrants in the event.

The court considered the defendants arguments relating to their convictions for conspiracy to engage in an illegal gambling business, in violation of 18 U.S.C. § 371, and for operating an illegal gambling business, in violation of 18 U.S.C. § 1955 (collectively, the gambling convictions).

The court noted that the language of 18 U.S.C. § 1955 provides, in relevant part, that "[w]hoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined under this title or imprisoned not more than five years, or both." The statute defines an "illegal gambling business" in relevant part as a "gambling business which is a violation of the law of a State or political subdivision in which it is conducted." 18 U.S.C. § 1955(b)(1)(i).

The defendants argued that the district court erred in instructing the jury that the South Carolina gambling statute, S.C. Code § 16-19-130, is violated when a person pays an entry fee to enter a contest of skill and the winnings depend on the number of entries.

Section 16-19-130 of the South Carolina Code makes it illegal to record or register bets or wagers, with or without writing, upon the result of any trial or contest of skill, speed or power of endurance of man or beast, or aid, assist or abet in any manner in the aforesaid acts.

The defendant argued that the district court misconstrued the statute. She contended that it is a "distinction without a difference" to determine whether an activity constitutes gambling based on the source of the prize money, and whether that prize money is dependent on the number of entrants and the fee that they have paid. The court disagreed.

The court stated that it could not locate, nor did the parties direct it to, any South Carolina cases elaborating on the definitions of "bet" or "wager," as those terms are used in S.C. Code § 16-19-130. However, the government relied on a 2003 opinion letter issued by the Office of the South Carolina Attorney General. In that letter, the Attorney General stated that "mere participation in [a] game of skill where a contestant is required to pay an entrance fee, such fee does not specifically make up the purse or premium contested for, and the sponsor of such event is not a participant for a prize, does not constitute a violation of statutes similar to § 16-19-130." Letter from Robert D. Cook, Ass't Dep. Att'y Gen., to The Honorable Glenn F. McConnell, President Pro Tempore, South Carolina Senate (Aug. 29, 2003), available at 2003 WL 22050876, at *2. The letter opinion later stated that when "participants pay an entry fee" to enter an event, "but the entry fee does not determine or make up the prize, purse or premium," the event would likely be held by a court not to violate S.C. Code § 16-19-130. Id. at *4.

In the absence of any South Carolina law to the contrary, the court found persuasive the South Carolina Attorney General's interpretation of this South Carolina law, noting that that interpretation is supported by the view of the highest court of Nevada, a state with a particular interest in, and familiarity with, gambling. The court noted that the Supreme Court of Nevada has held that an event involves a wager if the prize or premium is not a fixed amount but rather, as is the case here, depends upon the number of entrants. Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85, 86 (Nev. 1961) ("A prize or premium differs from a wager in that in the former, the person offering the same has no chance of gaining back the thing offered, but, if he abides by his offer, he must lose; whereas in the latter, each party interested therein has a chance of gain and takes a risk of loss."); cf. id. at 87 ("The fact that each contestant is required to pay an entrance where the entrance fee does not specifically make up the purse or premium contested for does not convert the contest into a wager."); see also Nevada v. GNLV Corp., 834 P.2d 411, 412-13 (Nev. 1992) (citing Las Vegas Hacienda for proposition that "[a] prize differs from a wager in that the person offering the prize must permanently relinquish the prize upon performance of a specified act[, but] [i]n a wager, each party has a chance of gain and takes a risk of loss")

Based on these distinctions, the court concluded that the district court did not err its instructions to the jury concerning the elements of S.C. Code § 16-19-130 and affirmed the defendants convictions for violating the illegal gambling statute, 18 U.S.C. § 1955.

As companies continue to leverage contests and other such activities in social games and other social media applications, it is critical to understand where the line is between illegal gambling and permissible contests. Unfortunately, as was the case with South Carolina, in many states there are little if any cases interpreting the statutory language. Additionally, the law may vary from state to state. Pillsbury's social media team has collected and reviewed the various state laws and is preparing a white paper on legal issues in this area.

Around the Virtual World

Fri, 20 Apr 2012 16:17:05 -0500

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

Bicycle card game owner to launch Zeniz mobile social casino games platform

Online casino games are hot. So much so that we're renaming our site Casino GamesBeat. Just kidding, but The United States Playing Card Company (owner of the Bicycle playing card brand) and Digi117 aren't. Those two companies are partnering to form Zeniz, a mobile social casino game platform.

The Enforceability Of Facebook's Terms Of Service

In the recent online contracting case of Fteja v. Facebook Inc., a New York federal court held that a forum selection clause contained in Facebook's statement of rights and responsibilities (the "terms") was enforceable because the plaintiff assented to the terms when registering to use Facebook.

Beyonce Can't Sidestep Suit Over Video Game Deal

Pop singer Beyonce's attorney failed to convince a New York state judge Wednesday to throw out allegations that she violated a contract when she abruptly pulled the plug on a multimillion dollar video game development deal.

Augmented Reality Toys for iPhone and iPad: A Work in Progress

Can traditional toy makers capitalize on the rise of smartphones and tablets? Wowwee Toys thinks it can. Next week, the company behind Paper Jamz and Lite Sprites is releasing its first toys in the AppGear line, which combine physical toys with companion smartphone and tablet apps.

Zynga Online Social Gambling

Zynga is known for its creation of a whole new breed of social games on cell phones and computers. They created social games that include gambling that is available for players to play on social networks, especially Facebook while being at home on their PC or outside through their cell phone. This creation has caused quite a stir in the world of gaming, as it made all of the console game companies such as EA forced to join this world so they don't stay way behind.

Kids Play Educational Games And Win Real Prizes From Their Favorite Teen Celebrities At Club TUKI

Club TUKI has patented a process where kids play educational games, earn a virtual currency called TUKI Moola, then bid or buy auction items in the TUKI auction. With the gaming platform now established, Club TUKI has launched Club TUKI News, a news site for kids that brings all of their favorite teen celebrities right to their fingertips.

Pinterest-ing!

Wed, 18 Apr 2012 09:02:00 -0500

In case you couldn't tell, we have a passion for all things social, which is why we've created our very own Pinterest page! We'll be utilizing this platform to pin about the conferences we attend, cutting-edge social technology we discover, and anything else we find interesting. So if you want to keep tabs on our team, learn about new technology, or leave comments/questions, then please check out our boards and follow us on Pinterest.

We also want to interact with the community and learn about what's going on in your neck of the woods too! So please get in touch with us and let us know about your boards as well.

Happy pinning.

Around the Virtual World

Fri, 13 Apr 2012 10:14:34 -0500

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

10 Mind-Blowing Augmented Reality Campaigns

With the recent release of Google's 'Project Glass', the eyes of many consumers and marketers have drifted over to the idea of Augmented Reality. Augmented reality (AR) is a live, direct or indirect, view of a real-world environment that is digitally augmented by another device.

Attention, Frustrated Inventors: Wal-Mart Wants You on Aisle Two

Wal-Mart knew it was in unknown territory when it launched "Get on the Shelf," an Internet popularity contest in which inventors compete for a coveted shot at selling their creations through the world's largest retailer.

OBJE Explores Social Gaming's Next Big Trend: Education

As smartphone and tablet usage becomes more and more widespread among children and adults alike, app-based social games present a powerful new opportunity to boost learning and development--and Obscene Interactive plans to capitalize.

Casino Game Makers Target Zynga, Social Gaming

Web companies like Zynga ushered in a new era of "social" games on PCs and mobile devices that people can play online with their Facebook friends, forcing traditional console-game makers like Electronic Arts to join the fray to avoid being left behind. Now, as Zynga ponders a way to enter the Internet gambling world, the makers of real-world casino games are poised to enter Zynga's turf, newly emboldened by a Justice Department opinion that indicated that many forms of online gambling could become legal.

The pros and cons of social media classrooms

The debate surrounding social media as a learning tool is unlikely to abate any time soon. Is it just a distraction, or do the interactive educational tools available outweigh any disadvantages? Social media platforms, such as Facebook and Twitter, are becoming steadily more integrated within a variety of apps targeted at learning. Real-time news feeds and instant accessibility make them a tool that can be used quickly and efficiently -- but due to its changeable nature, it can be difficult for school systems to keep up and compensate.

Viacom Gets a Second Bite at YouTube

Wed, 11 Apr 2012 10:14:42 -0500

In one of the most closely followed cases involving the digital millennium copyright act (DMCA), an appeals court punted one of the key issues back to the lower court. The key issue left open relates to what constitutes actual knowledge for purposes of the DMCA. In light of this decision there are some interim steps companies should take in the event that the lower court rules in favor of the copyright owner.

On April 5th, 2012 the U.S. Court of Appeals for the Second Circuit issued an order in the ongoing case Viacom International Inc. et al. v. YouTube Inc. et al., vacating a lower court's summary judgment in YouTube's favor and remanding the matter back to the district court for consideration of whether YouTube had actual knowledge of the infringement alleged by Viacom. The underlying ruling by the district court in June of 2010 had granted summary judgment and found that YouTube was not liable to Viacom for copyright infringement relating to various videos that were available on its site due to the safe harbor language in the Digital Millennium Copyright Act.

The current opinion by the Second Circuit based its decision in part on and referenced an internal YouTube report noting that clips of certain Viacom shows were available on the site, and that such content was "blatantly illegal". The Second Circuit's opinion stated that "[o]n these facts, a reasonable juror could conclude that YouTube had actual knowledge of specific infringing activity, or was at least aware of facts or circumstances from which specific infringing activity was apparent".

Moreover, while the Second Circuit agreed with underlying district court's decision that only actual knowledge of specific and identifiable infringements bars a service provider from protection under the DMCA's safe harbor, it felt that the lower court erred by not addressing whether YouTube had engaged in "willful blindness". The ruling directed the district court to consider if YouTube (1) made a "deliberate effort to avoid guilty knowledge," (2) had the ability to control the infringing activity, and (3) received a financial benefit from the infringing activity.

Ultimately, the Second Circuit opined that "we hold that summary judgment to YouTube on all clips-in-suit, especially in the absence of any detailed examination of the extensive record on summary judgment, was premature." Given the online technology industry-wide reliance on the protections available under the DMCA, this case will continue to be one to watch. Its impact could be far-reaching whichever way it is finally decided.

Given the uncertainty regarding how this case will ultimately be decided, companies hosting user posted content should take reasonable steps to minimize any liability in the event the decision ultimately favors copyright owners. Contact us for more insights on how to do this.

Around the Virtual World

Fri, 06 Apr 2012 08:50:15 -0500

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

Epic Games to make government training games

Of all the companies you'd expect to announce a big government partnership, a major video game studio is probably not at the top of your list. Nevertheless, Epic Games announced Tuesday that it has entered into a "long-term, multi-platform" deal with a division of Applied Research Associates to license the Unreal game engine for government use.

Royal Canadian Mint unveils MintChip virtual currency

Having revealed plans to ditch the Canadian penny last week, the Mint is continuing its assault on physical cash with MintChip, which it describes as the "evolution" of currency. The system brings all the benefits of cash into the digital age, claims a dedicated Web site, providing users with instant, private and secure access to their money.

Social Gaming Key for Advertisers in 2012

Did you know Internet marketers will spend upward of $271 million on social gaming ads in 2012? In-game advertising is the next big trend in the industry, with analysts expecting ad spend on social games to reach $900 million annually in less than three years. The stakes are higher than ever for brands as they budget ad spend on laptops, mobile devices, and consoles.

Gamification Platform BigDoor Raises $5 Million From Foundry Group

White label gamification platform BigDoor has raised $5 million in new funding led by existing investor Foundry Group, bringing BigDoor's total funding to $13 million. BigDoor's gamification platform essentially allows online publishers to add game mechanics to web interactions and engagements. BigDoor helps companies build game-like mechanics and loyalty programs into their sites or apps by enabling points, badges, levels, leaderboards, virtual currency and virtual goods.

Facebook, NRDC, Opower, & 16 Utilities Team Up to Create Social Gaming App

"With an initial reach of 20 million households, the effort is one of the most significant to date, enabling people to take action and become more energy efficient," NRDC said in a statement today. "Leveraging the Facebook platform, the app allows people to quickly and easily start benchmarking their home's energy usage against similar homes, compare energy use with friends, enter energy-saving competitions, and share tips on how to become more energy efficient."

Google Glasses Face Serious Hurdles, Augmented-Reality Experts Say

When Google officially unveiled Project Glass -- the company's bid to develop Terminator-style augmented-reality glasses -- we saw a provocative glimpse of the future. The video Google released yesterday showed us the point of view of someone wearing the glasses, with icons, maps and other graphical overlays appearing over the user's complete field of vision.

Retired NFL Players' Suit Against EA to Continue

Wed, 04 Apr 2012 11:12:42 -0500

On March 30, 2012 the California federal judge hearing the lawsuit initiated by a putative class of retired NFL players against Electronic Arts Inc. denied EA's motion to dismiss the suit and to strike the complaint. The Court ruled that the retired players' allegations that EA's unauthorized use of their likenesses in the "Madden NFL" video game was not trumped by First Amendment protection because the video game does not pass the transformative use test. Specifically, the court held that "[a]lthough EA appears to claim that its mere projection of plaintiffs' likenesses into avatar figures, capable of manipulation by gamers, is sufficient to confer constitutional protection, another way to see this supposed transformation is as a relatively literal, if skilled, translation of plaintiffs' conventional images into the medium of the video game".

This begs the question of what is transformative use? Generally, the courts have defined transformative use as a use that "adds new material that reflects critically on the original". Traditional categories of transformative use are for purposes of criticism, commentary, newsreporting and parody. Therefore, EA's argument relies on its ability to fall within one of these traditional categories or to convince to court to create a new category which is more reflective of the current world and the available technology.

EA argued in its motion to dismiss the case that it's "Madden NFL" video game should be granted the same First Amendment constitutional protection as any book or movie. This argument is founded in the recent Supreme Court decision in Brown v. EMA which clearly granted First Amendment protection to video games. However, the current Court took the position that the transformative use test focuses on the reproduction of the plaintiffs' likenesses, not merely the inclusion of expressive elements in game as a whole. The decision stated that "[i]f, as EA urges, any expressive elements within the larger work were somehow to 'transform' an otherwise conventional use of a celebrity's likeness, the right of publicity would effectively be eviscerated".

That said, this decision is merely one battle in an ongoing war. It is not dispositive on whether EA or the putative class of retired NFL players will ultimately be successful in the suit. Moreover, EA recently was successful in dismissing a similar lawsuit in another jurisdiction alleging the misuse of college players' likenesses in its "NCAA Football" titles. In this case the Court agreed with EA's argument that its First Amendment protections overruled the publicity rights of players. Therefore, with these conflicting decisions in the circuits it is uncertain in which way the current state of the law will head.

If you would like to read more about right of publicity and video games, please see our recent Client Alert.

Facebook Attempts to Control Use of "Book"

Mon, 02 Apr 2012 11:36:07 -0500

Facebook has previously filed over 80 trademark applications on variations of its name and other terms such as "POKE", "WALL" and "LIKE". Facebook now seems to be attempting to claim some level of ownership/protection over the word "book" as well. In a recent revision to Facebook's "Statement of Rights and Responsibilities," which is the agreement all users must accept when accessing Facebook, language was inserted which states (emphasis added) "[y]ou will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Book and Wall), or any confusingly similar marks, except as expressly permitted by our Brand Usage Guidelines or with our prior written permission."

While there is no record of a current US trademark application on "BOOK", Facebook does have a pending application in the European Union's trademark database. Moreover, Facebook has brought several suits against online sites incorporating the word "BOOK" in their domain name, with mixed results. Several of these suits have settled while others are still pending. Under US law a certain level of trademark protection can be gained merely by use of an unregistered mark. Generally, such unregistered use is referred to as having "common law" trademark rights. While these "common law" rights do not provide the same level of protection as a registered mark, they are still quite useful. Moreover, including the above-referenced clause in its "Statement of Rights and Responsibilities" could provide Facebook with ammunition for future suits against any of its users who attempt to wrongfully use the "BOOK" mark. Given that approximately 50% of all internet users have registered for Facebook, this provides Facebook with fairly wide-reaching (but not all-encompassing) protection.
Historically, Facebook hasn't shied away from protecting what is seems to consider its right in the term "BOOK". Only time will tell how Facebook plans to utilize any new rights it has gained from users by updating the "Statement of Rights and Responsibilities".

ESA Files Petition Seeking Waiver from new FCC Rules

Thu, 29 Mar 2012 10:54:10 -0500

On March 21, the Entertainment Software Association filed a petition seeking a waiver from the Federal Communications Commission's recently adopted rules that would impose certain disabilities act requirements on providers of advanced communications services (ACS) -- which could include video games that allow voice or text communications during game play. The petition notes that while communications may be integrated into video games, it is not the primary purpose of the games, and therefore should be eligible as a class for waiver. The waiver request included the following three classes of video game industry products and services: Game consoles and their peripherals; game distribution and online game services; and, game software. (See our recent client alert: Telecom Monitor). ESA asked the FCC to rule on the petition within 90 days.

ACS includes interconnected VoIP, non-interconnected VoIP, electronic messaging service and interoperable video conferencing services, which are defined as:

Non-interconnected VoIP: a service that (i) enables real-time voice communications that originate from or terminate to the user's location using Internet protocol or any successor protocol; and (ii) requires Internet protocol compatible customer premises equipment" and "does not include any service that is an interconnected VoIP service.
Electronic Messaging Service: "means a service that provides real-time or near\real-time non-voice messages in text form between individuals over communications networks. This service does not include interactions that include only one individual (human to machine or machine to human communications).
Interoperable Video Conferencing Services: services that provide real-time video communications, including audio, between two or more users. This service does not include video mail. The Commission has sought additional comment, pursuant to the Further Notice of Proposed Rulemaking, regarding the definition and application of "interoperable".

If you are interested in learning more about the disabilities act requirements or would like to participate in the FCC proceeding, please contact the Glenn Richards or Christine Reilly or any member of our Social Media, Entertainment & Technology Team.

Around the Virtual World

Fri, 23 Mar 2012 13:39:20 -0500

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

The Virtual Military

While much of the international system remains mired in the economic doldrums, many global military powers continue to increase defense budgets focused upon the research and development of simulation technologies. As part of our week-long focus on the importance of games to international relations and security, today we consider how Russia, China and the United States are using virtual simulators to train its armed forces.

Social game Idle Worship takes Facebook gaming to new level

Idle Games is launching a next-generation social game today dubbed Idle Worship. The title opens up a new genre on Facebook -- the once popular "god game" -- and it has an interesting and witty approach to social gameplay. Founded by former ad executive Jeffrey Hyman, San Francisco-based Idle Games is in a "holy war against games that suck or aren't actually social."

TrialPay and TubeMogul Introduce Real-Time Bidding for Virtual Currency and Social Video

TrialPay, a leader in transactional advertising, and TubeMogul, a media buying platform for brand advertising, announced a partnership that brings real-time media buying to social video advertising for the first time today.

Illinois legislation to ban employers from asking for social network passwords hits snag

Legislation that would prohibit employers from seeking job applicants' social network passwords is on hold in the Illinois House. Democratic Rep. La Shawn Ford's measure would allow job-seekers to file lawsuits if asked for access to sites like Facebook. Bosses could still ask for usernames that would allow them to view public information on the sites.

Smithsonian Art Of Video Games Exhibit Opens With Gaming Festival

The exhibit is curated by Chris Melissinos of Past Pixels, a group charged with the preservation of video game history. Over the past year, Melissinos -- aided by a board of advisors that includes Double Fine's Tim Schafer, text adventure veteran Steve Meretzky, and Penny Arcade team Jerry Holkins and Mike Krahulik -- designed an exhibit that encourages visitors to make what Melissinos calls "a deeply personal decision" of whether video games are art. The exhibit offers five eras of video games with both playable demos and self-playing videos, showcasing everything from the Atari 2600 to the PlayStation 3, from the traditional platforming of Super Mario Bros. to the more experimental play of Flower.

Navy Pursues a Better Attack Submarine Virtually

Technical advances in the field of virtual reality, also known as virtual worlds (VWs), are making it possible for the U.S Navy to tap into the collective expertise of its best submariners to design and build the next generation of attack submarines. At the Naval Undersea Warfare Center (NUWC) in Newport, Rhode Island, designers are able to create collaborative environments for submarine development using a fully immersive virtual reality application similar to the popular Second Life environment, which enables them to interact with one another both audibly and visually. Numerous participants at remote sites worldwide are linked to one another through the Defense Department's secure computer network.

Violence in Video Games Labeling Act Submitted to House of Representatives

Wed, 21 Mar 2012 08:46:36 -0500

On Monday March 19, 2012 a bill was submitted to the U.S. House of Representatives by Reps. Joe Baca (D-Calif.) and Frank Wolf (R-Va.) which, if passed, will require most video games to include a warning label that states: "WARNING: Exposure to violent video games has been linked to aggressive behavior."

H.R. 4204, entitled "The Violence in Video Games Labeling Act", is a reaction to what its sponsors say is increasing evidence that playing violent games can have a serious, long-lasting impact on children, which should require a health warning to consumers. However, whether violence in video games promotes real world consequences has been a contentious issue for decades. Advocates of regulation of violent video games attribute aggressive behavior to exposure to video games. However, proponents of less video game regulation point to the studies that have shown video games can improve cognitive skills.

The proposed bill would require the Consumer Product Safety Commission to release rules, within 180 days, requiring that most games display the warning label. Included amount this would be all video games rated by the Entertainment Software Ratings Board "E" for everyone, "E10+" for everyone 10 and older, "T" for teen, "M" for mature or "A" for adult. Only video games rated "EC," or "early childhood", would be exempt from the labeling requirement.

It is possible that this requirement of near-universal labeling is an attempt to avoid the recent Supreme Court decision in Brown v. EMA holding that video games are subject to First Amendment Protection and finding that a California "violent" video game labeling requirement was "widely underinclusive" and merely disfavored a certain viewpoint rather than protecting a valid state interest.