The ESA’s President had this to say: “Courts throughout the country have ruled consistently that content-based regulation of computer and video games is unconstitutional. Research shows that the public agrees, video games should be provided the same protections as books, movies and music.” (Reuters)

The law also defines what is a violent video game:

It goes on to describe what is meant by heinous, cruel, depraved, and torture:

It requires strict labeling if a game is violent by putting a conspicuous “18″ on the cover with a $1,000 penalty for violations.

Nintendo traced the illegal release back to Burt using “sophisticated technological forensics,” which most likely amounts to looking up his IP address and calling his Internet service provider.  After tracing the leak to Burt, Nintendo was granted a search order by Australia’s Federal Court requiring Burt to disclose the whereabouts of all his computers, disks, and electronic storage devices.  Additionally, he was required to grant access to all of his social networking sites, email accounts, and websites.

A few thoughts:  First, I am glad to see Nintendo going after uploaders.  While piracy in all forms is damaging, the prosecution of uploaders and release groups is far more productive than going after individual downloaders.  Second, I am shocked by the amount of information that the Australian Federal Court required Burt to divulge.  While I can understand the necessity of conducting a targeted search of his computer hardware for infringing material, the surrender of all his online passwords seems a bit extreme.  Email and social networking sites are not equipped for file sharing and any information acquired from these sites would be completely unnecessary considering the quality of raw data that can be acquired from torrent tracking sites and/or usenet groups.  Third, the settlement amount seems astronomical.  Unless Burt is independently wealthy, this settlement seems to be intended to scare away future pirates more than punish Burt.

UPDATE: Burt recently appeared on the Australian version of A Current Affair.

[Heavy Ink] and any other party associated with the Comic Book does not have Ms. Munn’s permission to use or exploit her image and/or name in any manner whatsoever.  On behalf of our client we demand that you immediately cease and desist all further production, advertising, distribution and other exploitation of the Comic Book, remove all advertisements, and destroy all copies of the Comic Book.

In response, Heavy Ink President Travis Corcoran sent the following, excerpted in part:

[I]t is clear that [Olivia Munn] is a public figure. As a public figure, the use of her likeness meets the tests for the parody copyright exception set forth in both Campbell v. Acuff-Rose Music, Inc. and the more recent Suntrust v. Houghton Mifflin.

As such, we have no intention of taking down our webpage, destroying any inventory, or refusing to offer the comic for sale.

The full response can be found here.

After briefly reading these materials, a few things seem screwy.  First, it is odd that Munn’s attorneys addressed their letter to Heavy Ink’s “DMCA Agent” when they are asserting her exclusive right of publicity, not making a copyright claim.  The DMCA, as far as I can recall, is solely concerned with copyright law and does not contain any provisions regarding the right of publicity.

Second, Heavy Ink’s response is misguided because the parody exception to copyright does not apply to the right of publicity.  There is a parody exception to the right of publicity, but the cases cited by Mr. Corcoran do not apply.  It is impossible to determine whether the parody exception would apply to an unreleased comic, but the product description may provide some guidance:

Olivia Munn conquers the world in this hilarious spoof! Hollywood’s hottest geek girl, Olivia Munn, hosts G4′s Attack of the Show, but while at comic con, she is attacked by a swarm of fans. Unable to escape, her gamma-irradiated cells explode and unleash the fury of The 50-Foot Womunn. It’s the showdown of the century! Geeks vs Munn! Let’s get ready to rumble!!

Based on this brief description, it doesn’t appear that the parody exception will apply, as the comic seems to merely grant Munn superpowers and place her in a ridiculous scenario.  The comic does not appear to offer any sort of commentary or criticism regarding Munn, which is a necessary component of parody.

While there are many issues to consider, including First Amendment arguments, Heavy Ink was right to direct Munn’s complaints to the publisher.  As a mere retailer, it seems odd that Heavy Ink is the one being targeted.

In my opinion, the various rationales seem silly. Games, particularly video games, have generated quite a bit of positive press for their ability to provide escapism for inmates. Some Oregon correctional facilities have even seen significant drops in gang-related behavior simply because inmates that are divorced from the realities of prison life are less likely to join gangs. As for the other two rationales, with enough research one could, sadly, link almost any hobby or storyline to the commission of a crime or suicide. While I can somewhat understand not wanting prisoners to play anything from the Grand Theft Auto series, a game of D&D or one of its various video game incarnations hardly seems like a threat to anyone’s safety.

Unfortunately for Wisconsin inmates, prison officials need only prove that their regulations are rationally related to a legitimate goal of prison administration. Here, the goal is clearly legitimate–reducing inmate gang activity–and, as we all know, “rational basis” more often than not reads “any reason at all.”

With this in mind, readers with friends and relatives in a Wisconsin correctional facility may want to rethink sending the latest Dungeon Master’s Guide or Elder Scrolls game. Why not try a more traditional cake-with-a-metal-file-baked-inside?

You can read the full opinion here and listen to the oral argument here.

The facts of the case are as follows:

In 2002, NFL Properties (“NFLP”), the business responsible for controlling all NFL licensing contracts, signed a ten-year exclusivity agreement granting Reebok the sole right to manufacture officially licensed NFL apparel.  American Needle, an apparel manufacturer that held a non-exclusive license to produce NFL apparel for nearly three decades, argued that the NFL’s exclusive agreement with Reebok is a violation of federal antitrust law, specifically Section 1 of the Sherman Antitrust Act.

While private companies are typically allowed to engage in exclusive licensing agreements without violating the Sherman Act, Section 1 of the Act forbids competitors to conspire in order to limit competition or harm consumers.  Because the NFL consists of 32 privately-owned, competitive teams and NFL Properties is equally owned by all 32 teams, American Needle argues that the Reebok exclusivity contract constitutes an agreement between the NFL teams to limit competition and harm consumers in violation of the Sherman Act.

American Needle argues that the Reebok/NFLP agreement limits competition by preventing apparel manufacturers from negotiating with individual NFL teams for the right to produce branded apparel and, as a result of exclusivity in apparel markets, allows Reebok to charge higher prices than it could with adequate competition.  Anyone who has ever paid $100+ for a polyester Bears jersey has surely felt the effects of exclusivity agreements.

Aside from merely harming consumers through increased prices, the Sherman Act is also designed to prevent competitors from conspiring to limit consumer choice, which American Needle argues is a major concern when there is only one apparel supplier.

In response, the NFL argues that it is, despite being composed of separate and competitive teams, a “single entity” for purposes of antitrust law.  As a single entity, the NFL cannot possibly conspire with itself nor can it limit competition because it is, quite literally, the only game in town.

Both the district court and Seventh Circuit Court of Appeals opined that the NFL is a single entity for purposes of antitrust law, but I would tend to disagree with their decision.  A 1984 Supreme Court opinion held that only parent companies and their wholly-owned subsidiaries qualify as single entities, which certainly doesn’t apply to the structure of the NFL or NFLP.  While there are a number of good reasons to maintain the NFL’s current licensing arrangements, it does not seem to me that the long history of competition between NFL teams–including ticket sales and media rights–supports the idea that the NFL should be considered a single entity.

While the effects of the Court’s decision will be far-reaching, the primary concern for gamers will be over existing licensing arrangements for sports games.  If the NFL loses the case, EA could lose its current position as the exclusive publisher of NFL-licensed games.  Furthermore, the ways in which future game licensing agreements are negotiated would be forever changed.  Rather than appealing to a single business or organization, such as the NFLP, publishers would be able to negotiate with individual teams.  While this could lead to more competition in the sports gaming markets, it could also lead to really wonky arrangements–imagine EA releasing an NFL game with 20 NFL teams and a dozen or so fantasy teams to round out the roster while 2K releases a game with the 12 NFL teams missing from EA’s game and a handful of its own fantasy teams.  However, it’s also very likely that publishers would have no trouble securing the rights to each individual team for their games.

In another interesting scenario, publishers could consider the cost to license individual marks and opt only to enter into agreements with the teams that seemed economically “worth it.”  After all, it is possible that a publisher does not derive as much value from including the Lions in their game as they do from including the Packers.  While the Madden franchise will certainly continue to include the full “NFL experience,” it’s likely that another publisher may want to take advantage of individual licensing agreements to create a scaled-back football experience that only includes top teams.

With the American Needle decision potentially affecting the NFL, NBA, and NHL (among others), gamers may soon be seeing some big changes in a significant portion of the industry.

In November 2006, Interplay, headed by Herve Caen, filed a Form 8-K filing to the United States Securities and Exchange Commission (SEC) regarding a potential Fallout massively multiplayer online game. In April 2007, Bethesda Softworks, the developer of Fallout 3, purchased full rights to the Fallout IP for $5.75 million USD. While Bethesda now owned the rights to the Fallout MMO IP as well, clauses in the purchase agreement state allowed Interplay to license the rights to the development of the MMO. Specific requirements were stated in the agreement that if not met, Interplay would immediately lose and forfeit its license rights for Fallout. Development must have begun within 24 months of the date of the agreement (April 4, 2007), and Interplay must have secured $30 million within that time frame or forfeit its rights to license. Interplay would furthermore need to launch the MMOG within 4 years of the beginning of development, and pay Bethesda 12 percent of sales and subscription fees for the use of the IP.

On April 2, 2009 Interplay announced a binding letter of intent with Masthead Studios, a Bulgarian-based developer, to fund the development of a post-apocalyptic MMO codenamed Project V13, which has been all but confirmed to be the aforementioned Fallout MMO. Masthead and Interplay teams will work together under the direction and control of Interplay to complete development of the project.

On April 15, 2009, it was announced that Bethesda Softworks moved to rescind the Fallout MMORPG license.

On September 8, 2009 Bethesda filed its original lawsuit against Interplay in the Maryland District Court in Baltimore. In October 2009, Interplay filed its own counter-lawsuit, arguing Bethesda is in breach of contract and the contract to sell the rights to the series to Bethesda is null and void and Interplay owns the franchise again.

On December 10, 2009, Bethesda’s motion for preliminary injunction was denied.

Since being denied its motion, Bethesda has employed Steptoe & Johnson and filed an appeal with the United States Court of Appeals for the Fourth Circuit.  DLA Piper, Bethesda’s previous firm, has been withdrawn from further proceedings.

Duck and Cover has a partial transcript of the preliminary injunction hearing and periodically updates information regarding the appeal.  After reading through the partial transcript, I have a feeling I know part of the reason Bethesda opted to change firms: their original attorney appeared to be confused as to what, exactly, a preliminary injunction is intended to do.

ESA President and CEO Mike Gallagher stated that the “ruling is a win for Chicago’s citizens, the video game industry and, above all, the First Amendment.”

Bus advertising is a persistent hot spot for first amendment litigation.  After viewing many of the banned game ads (one is pictured above), I think the court came to the proper conclusion.  The ads themselves are in no way obscene or inappropriate, so I find it difficult to believe that the CTA had any compelling interested in limiting this commercial speech in a public forum.

Read the full press release here.

The lock-out of third party memory units was first disclosed by Microsoft’s Major Nelson back in October and was met with overwhelming disappointment.  Microsoft’s official line regarding the lock-out was that third party memory devices have the “primary purpose” of facilitating cheating on the Xbox Live service, a problem that Microsoft seeks to eliminate.  However, Datel argues that “Microsoft’s purpose in disabling Datel’s memory cards is to prevent consumers from choosing a Datel product that offers far better value for the price.”  The firmware update also purportedly disables a wireless controller developed by Datel but not yet on the market.  Datel alleges that it is “Microsoft’s anticompetitive conduct, including tying and predatory design, such as the erection of technological barriers to third party accessories and the disabling of otherwise functional third party accessories, not consumer loyalty or esteem, that primarily drives Microsoft’s accessories attach rate.”

Microsoft has yet to comment on the impending litigation.

A full copy of the complaint filed in the U.S. District Court for the Northern District of California can be found here, courtesy of TechFlash.

LoP commentary and Microsoft’s official response still to come.

The new broadcast system is part of “Empire 2.0,” a New York State program aimed at making state government more “transparent, participatory, and collaborative” by taking advantage of both established and emerging technologies.

Personally, I think this is a good idea.  I have almost entirely abandoned regular broadcast TV and radio because Hulu, podcasts, and other online platforms allow me to conveniently access nearly any programming at my leisure.  As a result, typical emergency broadcast systems miss me entirely.  While I haven’t had the time to sit for prolonged periods and play games in some years, I welcome the addition of at least one more outlet to obtain real-time emergency updates.

Additionally, this new broadcast system is a great example of how governments can take advantage of new technology in order to increase both effectiveness and efficiency.  While I strongly support the streamlining of government through the use of technology, I am always nervous when governments delve quickly into newer technology.  This new broadcast system seems innocuous, but I am interested to see what other new programs are proposed by Empire 2.0.  It is certainly important that the government keep abreast of technological development, but the law is typically slow to address any related issues that may arise, particularly with regard to information privacy.  Until the time comes to worry, I’ll be happy knowing that New York gamers have at least one more tool to connect with the real world in times of crisis.

[Thanks to Joe for the tip via Joystiq!]