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  DLA Piper, Bethesda’s previous firm, has been withdrawn from further proceedings.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.

Answer: E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc.

In this recently decided case, The United States Court of Appeals for the Ninth Circuit considered “whether a producer of a video game in the ‘Grand Theft Auto’ series has a defense under the First Amendment against a claim of trademark infringement.”

In this case, E.S.S. Entertainment 2000 alleged that the virtual “Pig Pen” strip club in Grand Theft Auto: San Andreas infringed its trademark and trade dress associated with it’s Los Angeles-based “Play Pen” Gentlemen’s Club. However, the court sided with Take Two Interactive/Rockstar and found that the game’s content is protected by the First Amendment. The full opinion is certainly worth a read, as it is full of humorous quips:

Both San Andreas and the Play Pen offer a form of low-brow entertainment; besides this general similarity, they have nothing in common. The San Andreas Game is not complementary to the Play Pen; video games and strip clubs do not go together like a horse and carriage or, perish the thought, love and marriage.

Or perhaps the following:

Undeterred, ESS also argues that, because players are free to ignore the storyline and spend as much time as they want at the Pig Pen, the Pig Pen can be considered a significant part of the Game, leading to confusion. But fans can spend all nine innings of a baseball game at the hot dog stand; that hardly makes Dodger Stadium a butcher’s shop. In other words, the chance to attend a virtual strip club is unambiguously not the main selling point of the Game.

Overall, I’m satisfied with the court’s logic and hope to see more First Amendment protection for trademarks used in artistic expression.

This Wednesday, The United States Court of Appeals for the Ninth Circuit is scheduled to review a lower court holding that declared California’s violent video game law violates the First Amendment. The impending appeal has been on our radar for a long time, first discussed by LoP correspondent Matthew Razak. Legislators and game developers have been very vocal about the case, including the oft-discussed author of the legislation, Democrat Senator Leland Yee. Senator Yee offered to repeat his factually-dubious battle cry for reporters:

This is the same technology the armed forces use to help soldiers kill the enemy… All we’re saying is, “Don’t sell it to kids.”

The law would prevent minors from purchasing games that “appeal to a deviant or morbid interest of children and are patently offensive to prevailing community standards.” Retailers violating this law would be subject to a $1000 fine.

Curiously, the bill also calls for an “18″ label to be placed on excessively violent games, but this seems to be the exact function of the current ESRB ratings.

Laws similar to California’s have been repeatedly struck down by courts around the country. But, with the notoriously wacky Ninth Circuit involved, who knows what will happen? In all honesty, I doubt this case will be any different. The link between violent video games and real-life violence in so scientifically tenuous that we shouldn’t be attempting to abridge speech because of it.

[via Mercury News]

The 8th Circuit Court of Appeals recently upheld a 2006 decision that allowed fantasy baseball leagues to use Major League Baseball (“MLB”) player names and statistics without paying a licensing fee to the MLB or MLB Players Association. The court said that the information used by fantasy leagues, specifically player names and stats, are part of the public domain and any First Amendment rights trump the players’ right to control their publicity.

This decision will, of course, begin to effect other fantasy sports leagues that currently pay licensing fees to their respective associations and could drastically alter the $1.5 Billion fantasy sports gaming industry.

The decision, in its entirety, can be found here.

For more information read: USAToday

In a press release issued today California State Senator Leland Yee, one of the main architects of California’s unconstitutional gaming law, has given California Governor Arnold Schwarzenegger props for promising to appeal the ruling that the law is in fact unconstitutional. Yee said:

I am very pleased to see the Governor’s commitment to this issue. This is a common-sense law that empowers parents by giving them the ultimate authority over whether or not their children can play in a world of violence and murder.

On his own part the Governor had this to say:

We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions. These games are for adults, and the law I signed ensures that parents have the chance to determine which video games are appropriate for their children.

Hit the jump for more from Yee and some personnel ramblings.

Yee chimes back in with a little more rhetoric about the evils of the gaming industry:

The deliberations in this case took over a year, which shows that the ever-growing body of evidence that violent video games are harmful to children is getting harder and harder to ignore. The medical data clearly indicates that these ultra-violent video games have harmful effects on kids, and thus we have a state interest to protect them.

The $31 billion video game industry has fought any attempt at regulation every step of the way. They fought efforts to publicize their rating system because they thought it would impact sales, and now they’re again putting their profit margins over the rights of parents and the well-being of children.

The main question is why should it be the responsibility of the gaming industry to be in charge of the well-being of anyone? Parents should look at the games they’re children have purchased and see the clearly marked rating on the front. That being said a retailer would do well, and some already do, to enforce the selling of M-Rated games to minors. Both of these options are ways private citizens and companies can easily do away with any controversy over this. It gets fuzzy when you enforce the sale of violent games to people by law, which sounds like a restriction of free speech by the government to me. This is especially so with this law, where pretty much any game featuring death or killing would be illegal to sell to a minor, sounds like something that could be easily twisted by people who are anti-gaming.

If the government is going to regulate games, which it shouldn’t need to, it needs to create a law that does it fairly, not through some knee jerk reaction to popular opinion. As for the multitude of studies showing that games cause violence a quick search with Google shows a plethora of studies and news reports both against and for. Yee must have forgotten to read the former.