Duder Law is an ongoing series of posts that looks at relevant areas where gaming and pop culture overlap with the law. The emphasis is on helping gamers understand the news behind the industry, as well as fun looks at odd times when games get dragged into the court room. Please understand that this is not legal advice, and should not be taken as such.

In the first post, we started to untangle the area of law that is "IP" or Intellectual Property. All we did there was stratch the surface. Here, let's get some important vocabulary out of the way.

First and foremost, let's address my biggest personal pet peeve: understanding the diferent types of IP. This is also, actually, a mistake that I frequently see tech writers make, so if you can get these straight, you will be ahead of the game.

1) Patents - Patents are designed to protect new inventions. They can protect new designs, process, or techologies. Importantly, patents only protect finished products, not ideas. Also, patents can only protect tangible things, they can not be used to protect abstract ideas, natural phenomena, and the like.

2) Trademarks - Trademarks are increasingly important in the gaming arena. A trademark is actually a "source identifier." For example, if you see a siilohette of an apple with a bite taken out, you know it is a legitimate Apple product. A trademark can be almost anything, including sounds, colors, and possibly even smells. What a trademark cannot be, however, is a process.

3) Copyright - Copyrights are used to protect works of authoriship. They show ownership, similar to patetnts, but instead of protecting inventions, they protect creative works. Copyright is useful for protecting things that otherwise would be very easy to steal, such as music, written works, and photographs. Copyright is generally accepted as the most confusing branch of IP. It also has the most trouble adapting to new technologies, and thus is frequently updated by the legislature.

4) Trade Secrets- Trade Secrets are the forgotten half-brother of IP, but are still an integral part. Also, trade secrets provide for some awesome philosophical quandries, but still are hard, black letter law. A trade secret can be anything, so long as 1) the holder takes steps to preserve it as a secret and 2) it derives most of its value from the fact that it is a secret. Obviosuly, trade secrets are never formally registered.

And there you have it. If you can keep these four types of IP straight, you will be well on your way. Now, when you here about a smart phone patent dispute, you will understand that it involves something to do with how the phones actually work. When someone says a game cannot be published under a certain name because it is trademarked, you will know that this is about the name only, not any of the underlying mechanics.

To keep this post from getting too long, I will sign off for now. But expect the next post to be a series of case studies to help us get a better handle on the different types of IP and how we use them. Also, feel free to ask questions in the comments section.

Duder Law is an ongoing series of posts that looks at relevant areas where gaming and pop culture overlap with the law. The emphasis is on helping gamers understand the news behind the industry, as well as fun looks at odd times when games get dragged into the court room. Please understand that this is not legal advice, and should not be taken as such. Also, find the full blog at DuderLaw.

The Basics of Ownership: Intellectual Property and Gaming

As an IP Lawyer, it is awesome to listen to things like the Bombcast and hear commentators regularly refer to "the IP." Cliff Bleszinski, quite possibly gaming's biggest dude-bro, even posts enthusiastic tweets about "launching his new IP."

While most have probably picked up enough of a definition from context, what does one really mean when they refer to Intellectual Property?Let's start with the basics: In law, Property is sometimes refered to a "bundle of rights" that comes with certain types of ownership. For example, if I own a certain piece of land, it comes with property rights. I can keep others from using it, I can keep the income from the land, I can dispose of the land as I see fit.

(Although I won't be addressing it in this post, keep in mind the right to exclude. It is going to play a major role later on.)

Next, we can divide property across a few categories: First, tangible and intangible; things you can, and cannot, touch. The second distinction is between Personal and Real property. In short, land is real property, other property is personal.

Intellectual Property is primarily intangible, personal property. Of course a book is something that you can touch, and on some level the words printed on the paper have weight, mass, etc., the important piece is that the value derived from them is intangible. They are worth more than the ink and paper, it is the way they are collected and presented.

Ok, good. But we still haven't answered our first question: When Cliffy B says "Bulletstorm is a great new IP!" what is he really referring to? Well, essentially he means his ownership rights over the protectable intangibles that he has created (assuming, as Mr. Bleszinski often does, that all geniusflows directly from himself. In reality, authoriship and ownership can be complex quesstions). He has registered a trademark in the name Bulletstorm, he can exclude others from naming their games the same name. He has written a story for the characters, his copyright also him to exclude others from reproducing it. He has developed a new software process for displaying graphics, his patent also him to exclude others from using it. He has developed a new secret business formula, tradee secret law let's him prevent others from appropriating it.

As we can see, most videogames derive their value from IP law. Without it, they have no value. Anyone can easily copy game code, so why pay for one from People Can Fly? Anyone can make a cheap knock off game and call it Bulletstorm, trademarks prevent this confusion (maybe Bulletstorm was a bad example...).

Recently, there has been a series of headlines proclaiming that Facebook is attempting to trademark the word “book” by placing it in the Statement of Rights and Responsibilities (pretty much the Terms of Service). The exact language reads as follows:

“You 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.”

As pointed out by Wired and the other sources covering this, there really is no way to use Facebook without accepting these terms. Therefore, the articles posit, Facebook must be gaining control over the word book! Wired even quotes a University of Minnesota Law Professor stating that trademark rights are about use, not registration.

While this is all true, the actual way this functions is much more complex. True, trademark rights are built around use. Facebook controls some of this, by using the same logos and phrases they become associated with the product, and thus trademarks. However, obviously letting a company gain trademark rights simply through use is self-serving. The other piece is that a trademark gains strength through secondary meaning, or when the public at large begins to associate the mark with the company.

Thus, as some of the articles hint at, by making users agree that “book” is a trademark of Facebook, it does strengthen Facebook’s rights. Trademark disputes almost always contain evidence of “fame” which literally means how famous or well known a mark is. This can be demonstrated through sales, advertising, and often simply market research consumer surveys. Theoretically, Facebook could argue in the future, everyone who uses our site (in other words almost everyone who has internet access) agrees that book is our trademark.

The problem, however, is that it is unlikely that a term buried in the agreement will make much of an impression on consumers. You could probably ask 100 consumers what Facebook protects in their Rights and Responsibilities, and it is likely that none of them will be very accurate. Simply placing this language in the Terms is not going to get Facebook a trademark.

The real strength is slightly more sinister. When news outlets, including Wired and NBC, ZDnet, and Entertainment Weekly cover it, more and more people become aware of it. In fact, even non-Facebook users are probably aware of this, simply from reading the headline. Worse still, it could be possible for many readers to see the headline “Facebook making trademark claim on word ‘book’” (direct quote from Entertainment Weekly). Now, if we go back to that hypothetical survey of the general public, when asked what Facebook’s trademark terms are, users may say “Oh, book!” thinking back on these articles. Evidence which Facebook could then assert against others, and which may have some weight.

And that, my friends, is the true genius behind this move. Facebook knows that people watch its legal terms for evidence of privacy abuses or other sliminess, and also that the traditional arguments for a trademark of the term “book” are incredibly difficult. Instead, Facebook has taken advantage of this, and used it to their advantage.

With Rovio's plans to open Angry Birds Theme Parks, I think we have seen the second sign of the apocalypse (the first being Farmville billboards by Baltimore metro highways). Nonetheless, Angry Birds Space is about a $1, and of course an Angry Birds game, so I picked it up.

Let's start with the good: The gameplay has advanced itself in a meaningful way without completely losing what made the original so fun. You still fling birds at structures made of glass, rock, and wood housing green pigs, but now in outer space there is varying gravity fields to play with. Planets have red rings around them indicating their gravitational pull, and some levels simply take place floating in zero g space. It is an excellent mechanic, allowing for interesting new strategies and level designs.

There are also some new birds (actually, all the birds have new graphical designs). You still get standard red, the blue bird that splits in three, and thankfully, the bomb bird. Fatty has been replaced with a giant green bird that functions in the same way (although the in-game achievements allude to it being able to "frighten" pigs), and the yellow dive bomber is now purple and targets WHERE you push (since the birds don't have an "arc" in space). This makes purple (yellow) MUCH easier to use, but somewhat less exciting. There is also an ice bird that freezes the blocks he touches, meaning a follow up shot will easily shatter them. Predictable and not really that cool, in my opinion.

The level designs are much improved! The use of gravity is well handled, in both predictable and creative ways. The visual cues are also helpful for measuring its effects. If you want a better idea of how the mechanic works, google the flash game "Gravitee Golf." The birds also have an aiming line now. While this will probably offend some purists, it is a good thing. First, it is necessary with some of the crazy gravity levels. You need some predictablility. Second, it isn't long enough to break the game. What it does is lessen the amount of guessing/estimating required on the throws, allowing you to focus more on the precision and puzzle elements of the levels. It moves the game from the casual "Wow, fling birds and watch things fall!" mindset of the original game, and takes it into the more advanced high score, puzzle solving chase that "Seasons" is aimed towards.

Other improvements include new high score strategies (some levels grant higher scores by using all the birds for complete destruction) and some increased clarity in how high scores and bonuses are handled.

Now, the negatives: First and foremost, the game has not made it perfectly into the new level format. With the original versions, you always knew about where you were aiming, and so flung the birds, the screen panned slightly, you watched the tower fall. Now, with larger levels, the aim device, and multiple gravity fields, I find myself zooming the screen all the way out on every single shot. This results in a loss of detail which is sorely missed. It is unfortunate, but I don't see boxes, birds, and pigs, I instead know the green dot is a pig, the silver shapes are stones (either on large one or a series touching, I can't tell from this far away), and etc.

The other major negatives all concern Rovio's business model. They are a full on "nickel and dime micro-transaction" powerhouse, the likes that should soon rival EA. Level packs are now $1 (all prices USD here), where they used to be free once you purchased the game. There are still iPhone and "HD" tablet versions, each at a separate price. The "Super Eagle" is still there, but now you earn free uses for completing levels, and can purchase PER USE for more, where you used to get unlimited uses for $1. The way it is structured is rough too, since there are unlocks and achievements for getting high Eagle scores on all the levels. The base game has 90 levels, so you would need to purchase the 280 use, $8 pack, since the $3 pack only contains 80 uses. It is really a shame to see them fall down this hole, especially since they must be rolling cash from the first games.

Nonetheless, the negatives don't stand in the way of an otherwise excellent addition to the Angry Birds series. The increased precision and thoughtfulness of the levels, along with the new mechanics, help move this game away from a casual luck fest into a more precise game with some puzzle elements thrown in. I still consider the $1 price tag to put this one squarely in the must have category.

(I write a blog about intellectual property and the internet called Internet Intangible. Occasionally, the topics overlap into something relevant to the WM community, in which case I try to share them. They are on my blog with pictures and formatting if you enjoy them.)

As our world continues to grow more connected and more of our services move online, a host of new problems have developed. One such problem is hacking, or compromising otherwise secure networks. Interestingly, hacking can take several forms. It may have a criminal elements, such as attempting to gain access to financial records, or hacking to disrupt essential computer systems. It may be designed to embarrass and humiliate, such as hacking social networks for private photos or to send inappropriate messages from a user's account. It may also be used as a form of guerrilla protest, or an attempt to vandalise.

Hacking now receives significant media coverage, as mainstream networks have covered the "lulzsec" and "anon" activities. Even the Sony PlayStation Network scandal was well publicized, even though it was contained within the PS3 network. The coverage drops, however, once the system has been restored, but what actually happens to the users who are hacked?

One possible remedy is an FTC case. According to the stipulated facts, on January 4, 2009, a brute force password guessing program was able to break into a Twitter users administrative account. Once accomplished, the hacker had access to every Twitter users profile, account settings, and both protected and public Tweets. This user, among other things, sent messages from Barack Obama's account offering free gasoline cards.

The FTC challenged Twitter on two counts, the first that Twitter represented that it had taken reasonable security steps to protect information when it had in fact not, and that it represented to users that it would honor the privacy of a users settings.On April 27, 2009, it happened again, when a hacker was able to break into a Twitter users personal email account (Twitter had a policy of not providing employees with work email accounts, and instead encouraged them to use a personal one). This time, the hacker went a reset the passwords of several users, and accessed private accounts.

The FTC entered into a consented order with Twitter to resolve the case (as expected). The settlement included several very specific steps Twitter must take to ensure compliance.

The first was to designate an employee or employees to be responsible for Twitter's information security plan.

The second was to identify reasonably foreseeable risks, both internal and external, that could create risk of intrusion. These risks included the areas of employee training and management, information systems including network and software design, and prevention, detection, and response to attacks. Twitter was also required to design and implement a plan to address these risks.

There also was a separate sub paragraph directing Twitter to maintain the privacy of user information, not just from outside sources but also internally. The FTC gave an outline of possible sources of verification and testing of the security and correctness of these implementations.

This agreement gave Twitter 60 days to implement the agreement, which was slated to last for 20 years.

There are a few takeaways from this case. First, you clearly do not want to FTC to have reason to issue such a complaint against your company. As a part of this agreement, Twitter does have some strict and onerous requirements. However, the order also makes it clear that Twitter had incredibly lax security policies. The cracked password was a short, all lowercase, dictionary word that was guessed by a brute force program, that simply guessed basic words, submitted them, and then tried again. The FTC noted also that Twitter did not have a policy of expiring passwords, of assessing password strength, or even of locking out users from repeatedly guessing.

Secondly, it appears that Twitter opened itself up to some liability in the realm of privacy. The FTC noted that Twitter repeatedly asserted that direct messages and protected tweets were private, when in fact every single Twitter employee had access to them. Although not explicitly stated, it does appear that if Twitter had disclosed that employees could access private user content, there would have not been a case.

GB Community, I need your expertise and help.

First of all, what would you call the feature in games where there is no HUD or numerical health bar? 

Visualized health? Contectual health?  I searched around the database and found nothing.

Second, and this is more fun, what are some of the best and worst examples of the implementation?

For worst, I am thinking Jurassic Park with the cleavage tattoo, or MW2's jam sandwich screen indicator.  Nonetheless, I am sure some better examples are out there, and I know you guys and gals know them.

Also, are there any best examples?

The EA/Madden Class Action Suit

The GB news article is here.  This is a quick FAQ for concerned gamers.

Am I affected?

What happens in a Class Action Suit?

In a class action suit, a large group of civil litigants with the same claim are grouped into one suit.  The suit proceeds very similarly to any other suit, with a complaint and answer, followed by discovery, and eventually, a trial before a judge or jury, and eventually a verdict.

In this case, it is unlikely that there will be a trial.  More likely is that each side will engage in discovery (the process by which each party requests important information about the case from the other side).  Each side will research the relevant legal grounds, review their own case and the other sides, and engage in negotiations for a settlement.  In al likelihood, a settlement will be reached before the case goes to trial.

What will I get from this?

It is unlikely you will get anything.  In a suit with a class this large, any award would be split between thousands, possibly even millions, of fellow plaintiffs.  Additionally, the plaintiff’s lawyers will file requests for reasonable attorney’s fees.  These will be approved by the court, and will not exceed 25 percent of the total verdict.  However, class action litigation has additional expenses associated with the production, copying, and mailing of documents, as well as other necessary expenses, which will be reimbursed from the plaintiff’s award.

Also, Google’s recent class action relating to the privacy concerns over the “Buzz” service were settled with Google making a payment to an internet privacy group, and therefore the plaintiffs had no monetary recovery.

So, should I then “exclude” myself and hire my own attorney?

This is an option, if you do not believe your interests will be best represented by the class action counsel.  It would be possible to hire your own attorney (or represent yourself) and go up against EA.

Class actions, however, arose in part because of this issue.  EA has almost unlimited resources to litigate this case.  Unless you are a millionaire with an axe to grind, you will simply not be able to afford to fight a giant such as EA.  Class actions allow a group of individuals to pool their resources and take on a corporate giant.  Therefore, it is almost always better to remain as a part of the class.

Where can I find out more?

The website, EASportsLitigation, has all the information you need, in easy to read terms.   Also, keep checking this blog for more commentary.

(Note:  This information is for entertainment purposes only and does not constitute legal advice.  Reading this information, as well as any additional commentary posted here, does not constitute an attorney-client relationship.  The author is not licensed to practice law in this jurisdiction, and this commentary should not be viewed as an attempt to do so.)

This addition will be somewhat brief. 
 

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