David Jaffe can breathe a little easier today. According to the embattled developer, Bissoon Dath v. SCEA and David Jaffe, a copyright infringement lawsuit over various themes in the God of War series, was dismissed by a federal court judge last week.

Outside of the negotiators actually sitting at the table attempting to hammer out the accord, perhaps no one is following the Anti-Counterfeiting Trade Agreement (ACTA) more closely than University of Ottawa Law Professor Michael Geist.

Freelance author Richard Poynder recently corralled Geist for a wide ranging question and answer session on ACTA (PDF). A few choice exchanges from the interview are included below.

Geist provides his version of a quick overview of ACTA:

Actually in some ways ACTA is a bit of a misnomer, both with respect to calling it a trade agreement, and in suggesting that it deals with counterfeiting, or primarily with counterfeiting. There are undoubtedly counterfeiting provisions in it. But what has proved to be most controversial about ACTA, and arguably is the most important aspect of it, are the copyright-related provisions.

Geist’s main concerns with ACTA:

… you know one challenge that has arisen from an ACTA advocacy perspective is that its implications differ for pretty much every country. So yes, there are broadly uniform concerns that resonate everywhere around, say, the lack of transparency associated with the deal, some of the privacy implications and whether the three strikes issue should be mandatory or not. But then there are all sorts of other provisions in ACTA whose relevance depends on where you sit and what your domestic law currently looks like.

For instance, if you are in the United States there are fewer implications for you than if you were in any of the other countries taking part in the negotiations — because much of what is currently proposed in ACTA is based on a US model.

On the overall secrecy of the negotiations and the use of NDAs on those consulting the process:

The issue of national security is a separate matter. This came up when people asked to see the ACTA documents under the Freedom of Information or access to information statutes. These requests were denied in the US on the basis of national security. I mean, the notion that a copyright deal is somehow akin to nuclear secrets is just insane.

The secrecy associated with the deal appears to be an attempt to mute criticism. Ironically enough, however, it has had the opposite effect: we are seeing a steady stream of leaks, and this is stirring up far more resistance and public concern, and gaining far more attention, than might have been the case had they taken a more open and transparent approach.

Who wins if ACTA is eventually finalized?

… if they are able to conclude a treaty I think it is pretty obvious that it will be the US and the European Union — who are the major protagonists behind this — who will benefit.

Geist was asked if he thought that ACTA was being driven by “a few large businesses... primarily American”:

I think that is the prime driver behind this, but I don't think it is exclusively American companies — some of the large companies we see pushing for ACTA are based in Europe.

 

But as I said, it's not new: This linkage between the corporate perspective and US trade policy has been in place now since the mid 1990s, and if you take a look at the various trade agreements that the US has entered in since then you can track the whole process.

Current countries taking part in ACTA negotiations include the United States, the European Union, Canada, Australia, Japan, South Korea, Mexico, Morocco, New Zealand, Switzerland, Jordan, the United Arab Emirates and Singapore.

A group of King’s Quest enthusiasts who have been working on their own content for the 1990s-era adventure game have been forced to abandon their project due to action from Activision.

A variety of King’s Quest games were released under the Sierra label in the 1990s. Volunteers began work on their project, dubbed The Silver Lining, back in 2002 under the name of Phoenix Online Studios, reports Kotaku. While initially they ran into problems with Sierra’s parent company Vivendi Universal—receiving a cease-and-desist order in 2005—a public backlash over the cancellation of the game more or less forced Vivendi to grant a non-commercial “fan license” to the project.

Everything remained status quo until recently, when Activision, which merged with Vivendi in 2008, issued a cease-and-desist to Phoenix Online, indicating “that they are not interested in granting a non-commercial license to The Silver Lining.”

GP’s own legal guru Dan Rosenthal offered his take on the revocation of the non-commercial fan license:

It's always unfortunate when you have a lot of hard work on a fan project go to waste. Unfortunately the real problem here for Phoenix Online was the bad luck of Sierra changing hands from Cendant to Vivendi Universal to Activision Blizzard. Changes of ownership often bring with them changing priorities, and who knows what sort of future Activision sees for the IP. Like many independent studios, Phoenix Online simply wouldn't be able to afford the cost of ignoring the cease-and-desist letter and risking a potential copyright infringement lawsuit.

The real damage here, however, comes from the chilling effect that this sort of action places on fan studios operating under non-commercial licenses (or even worse, no license but a "wink and a nudge" from the IP holder). Now, every fan project going forward is going to be reminded of the Sword of Damocles over their heads from pouring their efforts into someone else's IP.

Following the latest round of Anti-Counterfeiting Trade Agreement (ACTA) talks in Mexico, internal documents leaked from the Dutch delegation have offered additional insight into the closed proceedings.

From the documents we’re given a look at what countries back the idea of making ACTA negotiations more transparent, a growing concern given growing criticism over the secret meetings. The document claims that Poland, the United Kingdom, Austria, The Netherlands, Finland, Ireland, Hungary, Estonia and Sweden are all in favor of transparency.

Germany has apparently not yet decided on its stance on transparency, and was joined by Belgium, Portugal and Denmark as being unconvinced “that complete transparency has to be achieved.” Denmark was further labeled as “not very flexible.”

Korea and Singapore flat out oppose the release of documents. The U.S. has remained silent regarding its stance on transparency, which apparently has unnerved other countries, such as France, who indicated “they were concerned about the position of the USA.”

Part of the movement for transparency seems to be to address “unwarranted criticism” from the public over fears that ACTA would contain measures for searching personal belongings or a feature a three-strikes type of anti-piracy law. The Dutch document expressed that those types of measures are not a part of ACTA.

Michael Geist notes that full transparency of the ACTA proceedings would require a unanimous agreements among all parties involved.

The document also reveals that the U.S. wrote the ACTA section on the enforcement of Intellectual Property pertaining to the Internet, to which Computerworld said, “This is something critics have feared for some time, since leaked versions indicate strong similarities between parts of the treaty and the U.S. law, the Digital Millennium Copyright Act.”

The 8th round of ACTA talks are scheduled for April 12-16 in New Zealand.

The release of an internal Microsoft document, which details how the software giant stores information and the ways in which law enforcement members can access it, has drawn the wrath of Redmond.

As detailed on GeekOSystem.com, the document, entitled Global Criminal Compliance Handbook, and dated March, 2008, was originally posted by the whistleblower website Cryptome. Microsoft reacted quickly, claiming that the document was copyright material under the Digital Millennium Copyright Act (DMCA), and the offending content, and indeed, the whole website, was taken down swiftly.

Fortunately, BusinessInsider decided to host the PDF on its website for anyone interested in viewing it. The document is a version for U.S. law enforcement officials, and pertains to Microsoft’s online services such as Windows Live, Windows Live ID Windows Live Messenger, Hotmail and Xbox Live.

Cryptome editor John Young detailed what he found most distasteful in the document:

Most repugnant in the MS guide was its improper use of copyright to conceal from its customer violations of trust toward its customers. Copyright law is not intended for confidentiality purposes, although firms try that to save legal fees. Copyright bluffs have become quite common, as the EFF initiative against such bluffs demonstrates.

Second most repugnant is the craven way the programs are described to ease law enforcement grab of data. This information would also be equally useful to customers to protect themselves when Microsoft cannot due to its legal obligations under CALEA.

For Xbox 360 users who have registered on Xbox Live with a credit card, Microsoft collects and stores your: date of birth, name, e-mail address, physical address, telephone number, credit card number, type of credit card, credit card expiration and Microsoft Passport.

Xbox Live users will have their registration and IP connection history recorded “for the life of the gamertag account.” Also collected, and stored, is the Xbox’s serial number (if it was registered online).

Law enforcement officials armed with a subpoena can grab “basic subscriber information,” such as name, address, screen names, IP address, IP logs, billing info and email content “more than 180 days old.”

A court order results in “disclosure of all of the basic subscriber information available under a subpoena plus the e-mail address book, Messenger contact lists, the rest of a customer’s profile not already listed above, internet usage logs and e-mail header information (to/from) excluding subject line.”

Search warrants allow law enforcement members to access emails in electronic storage 180 days or less.

The Cryptome site has since returned on a different domain and posted the full email trail from Microsoft and Network Solutions that led to the original site being shuttered.

A New Zealand anti-piracy measure that includes a “three-strikes” plan of attack against copyright infringers was introduced to Parliament yesterday.

The Copyright (Infringing File Sharing) Amendment Bill (PDF), detailed earlier here, proposes an amendment to the Copyright Act of 1994 by repealing section 92A, which would have allowed the termination of infringer’s ISP accounts with no court action.

The new legislation would require ISP’s to provide three warnings to infringers before copyright holders are able to bring the matter before a Copyright Tribunal, which would have the power fine an infringer up to $15,000. Copyright owners will also have the ability to request that a District Court terminate an infringer’s ISP account for up to six months.

The bill’s main backer, Commerce Minister Simon Power, said that the legislation “… puts in place a fair and balanced process to deal with online copyright infringements occurring via file sharing.” He added, “It's important that account holders are given a reasonable time to stop infringing before enforcement takes place.”

In a Q&A it was stated that, before suspension, “The Bill requires a court to consider factors like the account holder's reliance on access to the Internet.”

Power hopes that the bill can be passed into law sometime this year.

Jordan Carter of the non-profit group InternetNZ backed the measure, but expressed concern to PC World over the possible suspension of ISP accounts:

The only major flaw remaining in the legislation is its provision for the suspension of people’s internet accounts. Internet users would simply start a new account at another ISP. While suspension would require an order of the District Court, it is still unworkable and unnecessary. InternetNZ will argue strongly that suspension be deleted by the Select Committee.

In order to address copyright piracy, Attorney General Eric Holder (pictured) has launched a Department of Justice Task Force on Intellectual Property.

Reuters reports that the new initiative came about following a meeting last December of Vice President Joe Biden, Holder and a veritable “who’s who” of members from the entertainment media, including representatives from the Recording Industry Association of America (RIAA), Motion Picture Association of America (MPAA), Sony Pictures, Warner Bros., Time Warner, NBC Universal, Universal Music and Walt Disney Co.

A full list of those who attended the summit can be found here.

The task force will work with state, local and international law enforcement to battle IP theft. Holder, in a statement added, “The rise in intellectual property crime in the United States and abroad threatens not only our public safety but also our economic well-being.”

Biden added, "Theft of intellectual property does significant harm to our economy and endangers the health and safety of our citizens."

The Entertainment Software Association (ESA) came out in favor of the task force, with President and CEO Michael Gallagher, who attended the meeting, stating, “Intellectual property is the lifeblood and backbone of entertainment software. Consumers benefit with the lower cost, high-quality and more diverse title offerings that are made possible by strong measures protecting the creative works of our industry’s artists.”

TechDirt labeled the original meeting (which led to the task force being formed) a “one-sided, piracy summit,” and questioned the relationship between Biden and Hollywood.

Public Knowledge also took umbrage with the original meeting, saying, “It is unclear why three cabinet officers, several subcabinet officers, the directors of the Federal Bureau of Investigation and the U.S. Secret Service are needed to tend to the worries of the big media companies, particularly the motion picture industry which is completing a year in which it will set box-office records.”

As the seventh round of Anti-Counterfeiting Trade Agreement (ACTA) talks continue in Guadalajara, Mexico, watchdog Michael Geist assists in pointing out some new information related to the controversial accord.

The Wire Report writes that Canada will not comply with ACTA unless it is “fully satisfied that it [the agreement] reflects the best interests of Canadians. This statement is attributed to Canadian International Trade Minister Peter Van Loan, who also said, “The Government has been transparent in this process and will continue consulting stakeholders.”

The article also contains a quote from Barry Sookman, a registered lobbyist for “the major recording companies,” who said that a three-strikes anti-piracy provision is “not on any proposal that anybody has seen.” He added, “It’s an attempt to scare the public against some of the provisions of the treaty.”

Additionally, in response to a lack of transparency surrounding ACTA talks, 20 UK MPs have signed a motion arguing that, if a handful of companies are able to influence ACTA decision making, politicians too should be offered the same courtesy:

…this House is deeply concerned by the secrecy surrounding international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA); notes that any agreement reached could affect the measures to protect copyright online currently being debated in the Digital Economy Bill.

MP Don Foster authored the motion, which was signed by pro-gamer MP Tom Watson, among others.

This week’s round of ACTA talks, according to the New Zealand Ministry of Foreign Affairs & Trade, will focus on Civil Enforcement, Border Measures, Enforcement Procedures in the Digital Environment and Transparency.

Geist has also been busy updating his ACTA Guide all week. Part One covers the talks to-date, Part Two focuses on ACTA documents, both official and leaked, Part Three discusses transparency and secrecy and Part Four centers on what ACTA might mean for different countries around the world.

|Image, purportedly the ACTA meeting room in Mexico, via TwitPic|

While game modifications are generally looked at as derivative and infringing works, an academic paper argues that it would be fair to apply a licensing provision currently used in the music business to the mod community in order to advance the genre.

Cover Songs And Donkey Kong: The Rationale Behind Compulsory Licensing Of Musical Compositions Can Inform A Fairer Treatment Of User-Modified Videogame (PDF) was penned by John Baldrica, an attorney, and is published on the North Carolina Journal of Law & Technology website.

Baldrica believes that a compulsory “mechanical” license provision of the Copyright Act, which allows musicians to record cover songs as long as they pay a “statutorily determined royalty” to the original song’s copyright holder, would do wonders for the mod market. Such movement would “feed the professional talent pool” in addition to granting the “freedom to produce the kind of new and creative works that the copyright system was intended to promote.”

The author notes that under the U.S. Copyright Act currently, “the creator of an original copyrightable piece of expression is given the exclusive right to authorize any derivative works,” meaning that game developers can effectively kill a modification to their game anytime they want to.

The problems are; what exactly defines a derivative work and who owns the new modded material that has been created?

…such analysis has been inconsistent in key cases involving modification of videogames. As discussed, treating a mod as nothing more than an alteration of the underlying copyrighted videogame would cause mods to fall under the doctrine of derivative works. It would also strip modders of copyright protection and subject them to liability if the modifications were unauthorized by the original copyright holder.

The compulsory licensing scheme for music has been called “instrumental in the development of the recording industry.” The author goes on to draw a series of parallels between the early days of the music business and the current state of computer software, calling the similarities “striking,” and furthering his belief that “mods’ similarities to musical recordings should merit analogous treatment under a similar statutory licensing regime.”

Unfortunately, Baldrica does not see any changes being made in the near future to the current system for two reasons: “a lack of political will from those outside of the videogame industry and a vested business interest in the status quo from those within.”

Expanding on the first reason, Baldrica writes:

Yet, unlike its concern for the promotion of musical recordings in the first years of the twentieth century, Congress does not appear inclined to grant statutory protections to promote development of videogames in the first years of the twenty-first.

And more on the second reason:

…the game developers and game publishing industry are reluctant to abandon a scheme in which they already enjoy substantial benefits and negotiation power.

Attorney Mona Ibrahim has published an analysis of the legal implications involved in reverse-engineering games.

The article follows a hypothetical game developer who is frustrated that her favorite game has poor server support, so she reverse-engineers the network protocols to create a private, lag-free server.  The concept isn't so far-fetched: guides on how to create a private World of Warcraft server abound and some reverse-engineered games, like SWGEmu have gained quite a bit of attention.

Ibrahim's article outlines the various laws and doctrines that come into play with reverse-engineering, from the Copyright Act to the Electronic Communications Privacy Act, and provides practical examples of where enterprising coders can go wrong.

For instance, regarding the DMCA, Ibrahim notes:

If Mallory's new server doesn't provide the same safeguards that control access to the original game servers (like a CD key or a version verification protocol), then her own server is circumventing access controls to the online component of the game. Therefore, by distributing the program, means (such as DIY instructions), or code to access servers that don't use the game's original access controls, she would be violating the anti-circumvention provision.

The article concludes that while reverse engineering itself is not illegal, it does run a gauntlet of legal issues and that "[t]his isn't the type of project you want to pursue if you're risk averse".


Dan Rosenthal is a legal analyst for the games industry.

TechDirt has a fascinating look into the Anti-Counterfeiting Trade Agreement (ACTA) courtesy of a panel discussion on the topic hosted by Google this week as a build up to World’s Fair Use Day, which is today.

The panel featured lawyer Steve Metalitz, who serves as counsel to the International Intellectual Property Alliance (IIPA), James Love of Knowledge Ecology International (KEI), lawyer Jonathan Band and Ryan Clough, a legislative staffer for Rep. Zoe Lofgren (D-CA).

TechDirt notes that, after beginning with some standard talking points, things “got really interesting” when Love and Band offered their interpretations (i.e. read between the lines) of ACTA. In an ironic twist, while some of the participants had seen glimpses of actual ACTA documents—which they had to sign an NDA to view (and thus could not comment on publically)—they had to base their comments on leaked ACTA documents.

A few choice selections follow.

On the name of the agreement itself:

Furthermore, Band and Love took on the fact that it's being called the Anti-Counterfeiting Trade Agreement, since almost none of that is true. It's got little to do with counterfeiting and little to do with trade. As Love explained, it's like calling something "The Patriot Act." No politician wants to vote against something like that, no matter what the details are.

On the secrecy surrounding ACTA:

Love noted that the only reason to keep it secret is because the industry is "ashamed" of what's in the document, and won't come out and discuss it, knowing that the public would go nuts.

Love on what ACTA really is:

Love also pointed out that in what's been leaked in ACTA, what you basically have is all the stuff from previous agreements (WIPO and TRIPS) that the copyright industry liked -- but without the consumer protections that were built into both agreements.

Much, much more is in the full article at TechDirt.

In related news, Rep. Mike Doyle (D-PA) is the latest politician to call for more transparency in the ACTA negotiations.

The next round of ACTA negotiations—the seventh so far— is due to kick off in Guadalajara, Mexico the week of January 25.

An independently produced, live-action film based on the Legend of Zelda has incurred the wrath of Nintendo.

The Hero of Time, a full-length film produced by MBM Finishes and based on the adventures of Link, first debuted in Atlanta in June of 2009 and was also screened in select additional U.S. theatres thereafter. On December 14 of last year the movie was hosted online in its entirety.

At some point during December though, Nintendo got wind of the movie and issued a cease and desist order. In a nod to the holidays however, Nintendo allowed the filmmakers to host the movie online through the end of the year.

Those behind the film empathized with Nintendo’s position:

We came to an agreement with Nintendo earlier this month to stop distributing the film.  In the spirit of the holiday season they were good enough to let us keep the movie up for you to watch and enjoy through the end of 2009, but not past 2009.  We understand Nintendo’s right to protect its characters and trademarks and understand how in order to keep their property unspoiled by fan’s interpretation of the franchise, Nintendo needs to protect itself — even from fan-works with good intentions.

The film was shot over a two-year period, mainly on weekends. An embedded version of the movie is still viewable on this webpage (for now anyway) for those that might not have seen it.

Thanks Andrew!

New Zealand will introduce new legislation to Parliament in 2010 seeking to address the illegal downloading and sharing of copyrighted material over the Internet.

Commerce Minister Simon Power indicated that his government favored a three-strike process for infringers, which is outlined in a Cabinet paper (PDF). The new proposal adds in full court hearings and possible fines, replacing a previously proposed measure, which drew criticism, that would have allowed suspected infringers to have their Internet connections terminated without any court oversight.

The new and reworked plan, which usurps the earlier proposed legislation, consists of first allowing rights holders to request that Internet Service Providers (ISPs) give alleged infringers notice to stop their illegal activity. A first notice would warn of infringement and could be followed by up to two more notices.

Following the third notice, the right holder could seek penalties of up to $15,000 at a Copyright Tribunal. If “serious and continued” infringement is continued, rights holders could request a court hearing that might include a six-month Internet account suspension. Those accused can issue counter notices and can also request a hearing.

Powers said that he was, “confident we now have a workable solution.” He added, “A great deal of work has gone into finding a fair, effective, and credible process for the enforcement of copyright against illegal peer-to-peer file-sharers.”

As part of the proposed plan, ISPs will be required to identify an IP address and match it to an account holder, retain subscriber Internet use data for 20 working days and retain data on infringements for a minimum of 12 months.

The Director of Knowledge Ecology International (KEI) fortuitously found himself on the same airplane with United States Trade Representative (USTR) Ron Kirk (pictured left) and used the opportunity to grill Kirk a bit about the lack of transparency surrounding the Anti-Counterfeiting Trade Agreement.

Kirk told James Love that the ACTA text would be made public “when it is finished," which Love indicated would be too late. Kirk said he was aware that the public was clamoring to see the text, but called the issue of transparency “about as complicated as it can get,” and added that he didn’t want people “walking away from the table,” which he indicated would happen if the text was released.

In response to Love’s insistence that it was untrue that previous intellectual property rights negotiations were normally kept secret, Kirk responded that ACTA was “different” and the topic being discussed were “more complex.”

A pair of U.S. Senators recently called for ACTA text to be made public. The Electronic Freedom Foundation (EFF) has echoed that sentiment as well.

Where does art inspired by videogames fall under the fair use doctrine? A U.S. Intellectual Property lawyer takes a look at just such a topic in an interesting entry on his blog.

Ben Manevitz centers his article on three pieces of art from Brock Davis, which show interpreted scenes from Dig Dug, Donkey Kong and Missile Command.

The four factors (for the U.S.) for determining fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted workas a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work.

Manevitz argues that the art in question meets the criteria of points 1 and 4:

The fair use analysis is actually fairly straightforward. You've got a transformative use that will have no impact on the market for the games, or even the potential derivative market for the games. That's factors one and four in favor of fair use.

The author claims that the works do not meet the second factor however:

Admittedly, the game screen is a creative work, which puts factor 2 in the not-fair-use column and it could be argued that the amount taken is substantial - it would depend on the determination of what, exactly, constituted the work; is it the game overall or individual screens.

Manevitz goes on to examine possible trademark implications:

… Atari might be able to argue that a consumer seeing the paintings might be confused as to the source or - in this case the stronger argument - sponsorship of the paintings.

He concludes that game makers might be able to make an “objectively reasonable trademark infringement case against the artist,” before noting that the “saving grace” for the artist might be “the practical factors militating against the manufacturer's bringing suit, to wit, the negative publicity, the paucity of available damages, the relative age (value) of the marks allegedly infringed, etc.”

Using Lawrence Lessig’s book Free Culture as quasi- guide, the blog Press Start to Drink takes a look at the current state of copyright law and enforcement within the game community.

Cease and Desist: Games Culture and Copyright Laws begins with Lessig’s assertion that current copyright laws are nothing more than “protectionism to protect certain forms of business.”  This, the author writes, is what has led to, in some cases, “an immense tension between IP holders in the games industry and the IP fans who consider some games part of their personal culture.”

The author details a pair of incidents where game development companies stopped fans from infringing on their copyright: a Gears of War fan that modified a toy to resemble a character from the game and the quashing—by Square Enix—of a community-made Chrono Trigger add-on.

On the other side of the fence, one company (at least) appears to be demonstrating Lessig’s “free culture” ideal: Valve Software. Valve exercised restraint when a group of community members undertook Black Mesa: Source, a project that uses Half Life 2’s source code to reconstruct the original Half Life game.

While Valve did not “openly encouraged the mods development, they have not taken any legal action to stop it.”

Also touched on in the article is the more radical example of when a developer lifts content from a fan-developed project. The author cites the book Play Between Worlds, by T.L. Taylor, who wrote, “several astute MUD developers noticed early on that EQ (EverQuest) appeared strikingly similar to a type of MUD called DIKU.”

The blogger notes that, “…ironically, in the Everquest case, the DIKU developers thought of the situation as a compliment, not a copyright infringement.”

Closing with a quote from Lessig, “The opportunity to create and transform becomes weakened in a world in which creation requires permission and creativity must check with a lawyer,” the blogger adds:

…the more developers and publishers that take up Valve’s position, the more creativity and innovation will emerge out of video game fan communities, already known for their intense fandom and desire to add to, alter, and reimagine their favorite gaming universes.

While his opponents may have wish he had fled, as previously reported, Edge Games CEO Tim Langdell is back in the news and stirring up more trademark trouble.

Develop notes Langdell’s return and the subsequent removal of Mobigame’s Edge by Mobigame iPhone game from the iTunes Store for the second time. Langdell and Edge Games were not impressed with Mobigame appending their name to the name of the game, telling Develop, “Clearly, if Sony tried to use the mark ‘iPod by Sony’ they would hardly expect Apple not to take action to protect their mark ‘iPod’. In trademark law adding ‘by (name)’ to another company's registered trademark does not mean a company can use that trademark without being guilty of willful infringement.”

An Edge Games statement claimed that Mobigames has had an offer since May to change the name of the game in question, with no money exchanging hands, an offer that was "repeatedly refused."

In September of this year, Electronic Arts turned the tables and targeted Langdell and Edge Games with a Consolidated Petition for Cancellation over a series of trademarks registered to Edge Games, including “The Edge,” Gamer’s Edge,” “Edge” and “Cutting Edge.”

An Edge Games rep (or Langdell himself) told Develop that Edge has filed a petition to dismiss EA’s action, adding, “Despite rumors to the contrary, Edge Games has either won every dispute in the past 20 years over the mark Edge or has settled amicably with the other party ending the dispute with an agreement in Edge Games' favor.”

The Mobigames title in question reappeared in the iTunes store this morning (for the U.S. and U.K. territories), under the new moniker Edgy.

As the 6th round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations get underway in Seoul, Korea, a dispatch has been sent to President Obama expressing concern over the “lack of transparency and openness” surrounding the initiative.

The letter notes that “Unlike nearly all other multilateral and plurilateral discussions about intellectual property norms, the ACTA negotiations have been held in deep secrecy.”

While a curious mix of entities have been allowed to see ACTA documents, after signing a non-disclosure agreement, the letter states that “there were no opportunities for academic experts or the general public to review the documents,” adding that “very few” public interest or consumer groups were included as well.

Among the signees of the letter were The Entertainment Consumers Association (ECA), Electronic Frontier Foundation (EFF), Knowledge Ecology International (KEI), Students for Free Culture and the Egyptian Initiative for Personal Rights.

Countries negotiating the agreement include the U.S., Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, and Switzerland.

BoingBoing (thanks Torven) sums up a few leaked bullet points from ACTA, among them:

•    That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.

•    That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused -- again, without evidence or trial -- of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.

•    Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)

The EFF tears into the leaked material in a post on its website, saying that, “The leaks confirm everything that we feared about the secret ACTA negotiations.”

They continued:

The Internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet, including obligations on ISPs to adopt Three Strikes Internet disconnection policies, and a global expansion of DMCA-style TPM laws.

Disclosure: GamePolitics is a publication of The ECA

French President Nicolas Sarkozy, a backer of tough new piracy laws in that country, comes off as a bit of a hypocrite after being accused of a pair of copyright infringements.

Sarkozy’s “Hadopi” law was passed just last month and features a three-strike policy for illegal down loaders. Unfortunately it would appear that Sarkozy is already down to his last strike, as he has been accused of two misuses—making 400 unauthorized copies of a DVD and copyright infringement related to his use of an MGMT song at a political rally.

The MGMT song misuse cost Sarkozy 30,000 Euros (approximately $44,112 U.S.). More galling may be the fact that the publisher of the DVD allegedly copied by Sarkozy only created 50 copies itself.


Via Boing Boing

Aggressive trademark defender Tim Langdell has found his company on the receiving end of an Electronic Arts trademark battle.

Langdell, the CEO of Edge Games Inc., has been notorious for his attempts to stop the use of the word “edge” by other game developers in their titles. As a result of what some might term his overzealousness, a petition was started earlier this year to have Langdell removed from his spot on the International Game Developers Association (IGDA) board, a post he eventually resigned from in August.

DowJones reports that Electronic Arts Inc., and its subsidiary EA Digital Illusions CE AB, have filed a Consolidated Petition for Cancellation against a series of trademarks registered to Edge Games, including: “The Edge,” Gamer’s Edge,” “Edge” and “Cutting Edge.”

At the center of the fight is the EA-published and EA DICE-developed Mirror’s Edge game. EA claims that Edge Games has continuously threatened to sue EA over the game’s title, even though EA DICE owns U.S. common law trademark rights to the term Mirror’s Edge.

One of EA’s arguments is that Edge Games did not utilize “The Edge” trademark in commerce, a statement it attempted to backup with a graphic showing a Snoopy computer game (pictured left), complete with “The Edge” labeling. EA noted that the game was for the Commodore Amiga platform, a system that “on information and belief, was discontinued years before the filing of the application.” The application was filed "on or about" March 22, 1996.

For those interested, TIGSource has been keeping a running tally of information related to Tim Langdell and Edge Games.

The Copyright Alliance has penned a letter to President Obama and Vice President Biden asking the Administration to “pursue policies of the rights of artists.”

The dispatch has been posted to the group’s website and is presented as a call to action, allowing artists and creators to sign the letter. At the time of this post, over 7,700 copies of the letter had been personalized.

The letter notes the following about those who affixed their signatures:

We enrich our culture with a wide range of creative expression, including music, film, software, video games, writing, photography, graphics, and other visual arts.

An appeal at the end of the communication implores Obama and Biden to:

Please pursue policies supportive of the rights of artists and the encouragement of our creative efforts. Without the proper respect for our rights and works today, it will become even more difficult for us to create in the future.

The campaign was drafted in response to The President naming Victoria Espinel as Intellectual Property Enforcement Coordinator, a move the Alliance called “a strong sign,” and one they will be “watching with optimism.”  The Alliance intends to deliver the letter this fall.

As the Canadian government undertakes a public consultation on copyright issues, the head of game publishers lobbying group ESA Canada has penned an op-ed on the issue for Straight.com.

Not surprisingly, Danielle Parr argues for technological protection measures (TPM) and against mod chips (which are not currently illegal in Canada). Parr writes:

For the video-game industry, TPMs are not only used to prevent piracy and cheating (e.g. “modding” game code to give an unfair advantage over other players); they also enable access to a greater range of features and options that would otherwise be unavailable. Things like parental controls... “trial” or “demo” versions of games, and new digital distribution platforms like Valve’s Steam, Xbox Live Arcade, or the PlayStation Network, all provide greater choice and access for consumers...

By ensuring that consumers have a variety of digital offerings to choose from, legal protection for TPMs allows market forces to protect consumer interests, so if a consumer does not like the conditions of sale or terms of service for one digital product or service, they can simply take their business elsewhere. Failing to protect TPMs under the law effectively means that the government is dictating the business model, which is bad news for business and for consumers.

Those commenting on the Straight.com piece, however, don't seem to be buying Ms. Parr's arguments. As I post this, there are 15 comments, all of which are critical of the ESA Canada boss's op-ed.

GFOX: Danielle Parr, and the [ESA Canada] are completely out of touch on this issue. By failing to bend to an American lobby group such as the ESA I hardly think that the government of Canada can be seen as "dictating" any particular business model... The ESA's [penchant] for freely spewing unsubstantiated and exaggerated statistical data with the sole intention of striking fear into the hearts and minds of lawmakers is appalling...

NerdOfAllTrades: I agree that measures should be taken to prevent piracy, but punishing your loyal customers with TPM, which will only mildly inconvenience real pirates for the few hours it takes them to remove it... will only make people want to buy fewer PC games.
 
Sébastien Duquette: DRM is a failure... I really don't like Parr's fear-mongering tone. The industry of video game is flourishing, without DRM inforcement

Will: The video game industry has claimed to be on the brink of collapse due to piracy since the 1980s, and yet it somehow continues to grow bigger and more profitable... There will always be free riders who don't pay for their copy, but that isn't relevant. It's how many games you sell, not how many you don't sell that matters... This control-freak mentality... serves only to create hostility between the industry the customers...

AWJ: once you throw in an anti-circumvention law like the American DMCA, your platform monopoly becomes a state-enforced monopoly... Danielle is even arguing is that if the government doesn't give Microsoft and Nintendo and Sony the state-enforced monopolies they want, then it's "dictating the business model". If nothing else, I admire her chutzpah...

WayneB: Let me get this straight - [DRM] is an advantage to the consumer? What a bald faced lie.

Idle: This is a disgusting show of contempt for canadians brought to you by the ESA "of Canada".

GP: In the photo at left, Parr is seen at ESA Canada's Ottawa Day 2009 lobbying event.

The Associated Press reports that the Entertainment Software Association, which represents the interests of U.S. video game publishers, spent $1.2 million on government lobbying efforts during the period April-June, 2009.

Looking beneath the surface, GamePolitics has obtained an actual copy of the ESA's latest federal lobbying report. The document shows that Big Gaming has its fingers in a surprising number of legislative and governmental pies. The following are issues which the ESA reports that it lobbied on in Q2:

• Media regulation
• First Amendment protection
• Entertainment industry ratings
• Parental control technology
• Content/video game sale regulation
• Retailer enforcement of ratings
• Piracy
• Copyright Act (believed to be the DMCA)
• Anti-circumvention
• Patent modernization
• Intellectual property enforcement
• Customs reauthorization
• PRO-IP Act appropriations
• Dept. of Justice appropriations
• Dept. of State reauthorization
• Free Trade Agreements
• Special 301 Designated Countries
• Trade Policy Reform
• Domestic regulatory & administrative issues
• Trade enforcement
• Doha Round Proceedings (trade talks)
• Trade Promotion Authority
• Internet Governance
• Virtual worlds
• Online gaming
• Highly skilled workforce
• H1-B visas
• Green cards
• Immigration reform
• ISP management
• Copyright Enforcement
• Broadband deployment
• Broadband policy
• Consumer Product Safety Improvement Act implementation

Agencies lobbied by the ESA include some surprising entities. Here's the list:

• U.S. House of Representatives
• U.S. Senate
• Federal Communications Commission
• Federal Trade Commission
• National Telecommunications & Information Administration
• U.S. Copyright Office
• U.S. Customs & Border Protection
• U.S. Trade Representative
• Department of Commerce
• Department of Homeland Security
• Department of Justice
• Patent & Trademark Office
• FBI
• National Security Council

DOCUMENT DUMP: Grab your own copy of the ESA's lobbying report... (9-page PDF)

Anti-piracy marketing campaigns are sometimes creepy (such as this video which suggests that your mom will be manhandled by the police if you engage in file sharing).

But the Business Software Alliance, which primarily watches out for abuse of productivity-ware, has come up with an antipiracy ad that is actually fun to watch. The parody of Dateline's "To Catch a Predator" series features a would-be pirate humorously caught in a sting. BSA exec Peter Beruk commented on the video:

It uses comedy to convey what is a serious message. It’s experimental.

Via: Wired's Threat Level

A new plan being prepared by the British government would see drastic action implemented against individual file sharers, reports the Irish Independent.

Business Secretary Lord Mandelson (left) will call for a new law that would allow Internet access restrictions as well as fines of up to £50,000 for those found engaging in P2P.

However, former minister for digital engagement Tom Watson has criticized the plan:

Not only do the sanctions ultimately risk criminalising a large proportion of UK citizens, but they also attach an unbearable regulatory burden on an emerging technology that has the power to transform society, with no guarantees at the end that our artists and our culture will get any richer.

Working on the safe assumptions that (a) people like downloading music from the internet, and (b) most people would prefer not to break the law, we should aim to map a way forward for businesses to take financial advantage of the digital market.

The digital era has permanently altered the way media is controlled and distributed, resulting in a relationship between rights holders and the public that is often contentious. Against that backdrop, so-called Pirate Parties have sprung up recently on the European political scene.

Andrew Robinson, who heads the UK Pirate Party, spoke to PC Pro about his organization, its vision, and why the party's name is a problem:

There's approximately 7 million file sharers in this country - you're branding a huge percentage of this population criminals for doing something that doesn't have any proven implications. It's a ridiculous state of affairs... People who copy a movie are lumped in with people who steal cars.

 

Our copyright law is horribly outdated and its skewed one way because all the lobbying is on the side of big businesses...

Competing with the Conservatives while wearing an eye patch isn't going to do us any favours. We've had the [Pirate Party] name foisted on us by the Swedish party, but it's difficult. We need to point out that we're saying very sensible things, while the industry lobby is labelling us as pirates... We're trying to have a proper debate and when people actually listen to what we've got to say they'll realise we're being serious...

Recently, GamePolitics reported on the availability of Barack and Michelle Obama avatars for use in Second Life.

But it seems that those virtual depictions of the President and the First Lady are destined to have short careers.

New World Notes reports that, beginning next month, SL publisher Linden Lab will implement strict new rules on the sale of real-world products and brands - including depictions of actual celebrities. Barack Obama and Angelina Jolie avatars are specifically referenced as examples of prohibited content in the new Linden Lab guidelines.

Readers may recall that stun gun manufacturer TASER, Inc. brought a trademark lawsuit against Linden earlier this year over virtual copies of its weapon which were being sold by third-party content creators for use in Second Life. The suit was later dropped, but the new SL guidelines are almost certainly a response to such legal concerns.

As New World Notes mentions, enforcing the new policy may be problematic for Linden Lab:

While I'm not a lawyer, I would think avatar imitations of celebrities, especially political figures, would fall under the parody safe harbor of fair use. In the real world, you can still buy an unauthorized Barack Obama mask for Halloween. Not so in Second Life very soon...

 

The biggest challenge to this policy, in any case, is likely to be the SL content creation community itself, who often do reference the real world in their works, but are still proprietary about their products.

New anti-piracy regulations implemented by the Swedish government triggered a 30% drop in web traffic on the day they came into effect, reports AFP.

Some Swedish experts maintain that illegal downloading accounts for 50-75% of all web traffic and the slump indicates that would-be file-sharers were deterred by the tougher laws, which became effective on April 1st.

Under the new regulations, copyright holders may forces ISPs to give up user data on file-sharers. This information could then form the basis for legal action against individual Swedes.

Swedish Games Industry Association spokesman Per Stroemback praised the new law:

[It is] a historic example of effective legislation... No one could predict such a dramatic decrease in illegal traffic and not only that there's also been a huge increase in the legal [download] services.

However, Christian Engstroem (left), who serves as deputy leader of Sweden's Pirate Party as well as a member of the European Parliament, argued that Internet users will be unjustly punished by the new regulations:

This is a completely unequal law, where ordinary people will become scapegoats and will be asked for hundreds of thousands or millions of (Swedish) crowns by the industry. I don't think it will be efficient in the long run. I believe the traffic is going to climb up again after some months.

-Doug Buffone, ECA Intern

Given the recent history of consumer-unfriendly DRM fiascos surrounding Spore and other high-profile PC titles, it's refreshing to hear from a vendor of copy protection software who is actively seeking gamer input.

While we will confess to knowing very little about a DRM product called Byteshield, we note that CEO Jan Samzelius posted in the GamePolitics/ECA forums last night:

We pride ourselves on listening to gamers and try to configure our solution accordingly... We are trying to convince game publishers and developers to put gamers first and organize everything else around it. I want to hear from everybody about what you do not like and then see if you like what our solution does.

Byteshield appears to have received positive reviews from the anti-DRM crowd at The Prism.

GP: This is certainly not an endorsement of Byteshield as I haven't tested it myself. But as a game consumer, I'm always pleased when company execs keep gamers in mind.

In Canada, the government has decided to consult with its citizens on copyright issues. To that end, an official site has been launched.

University of Ottawa law proessor Michael Geist, however, sees both opportunity and threat to average Canadians in the new government initiative:

While Canadians can ensure that the government understands that copyright matters and that a balance is needed, some groups will undoubtedly use the consultation to push for a return of a Canadian DMCA like Bill C-61.

 

The recording industry has already said that bill did not go far enough. That means we could see pressure for a Canadian DMCA, a three-strikes and you're out process, and the extension of the term of copyright to eat into the public domain.

Geist has been an outspoken critic of efforts to push U.S.-style copyright restrictions into the Great White North. To help Canadians stay current on copyright issues, the law prof has launched Speak Out on Copyright and has a related Twitter feed.

Via: boingboing