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.

Spy Games (Privacy)
Not long ago, games existed in a sphere of their own. Whether on a disc or in a cartridge, games were self-contained experiences that never ventured outside the television or computer screen. Today, it’s nearly impossible to find a game that doesn’t incorporate some form of user account. Whether it’s Xbox Live, Steam, OpenFeint, or games built on social networking platforms, today’s games are hopelessly intertwined with our social lives.

Unfortunately, the more tangled games become with social networks, the more opportunities arise for developers to obtain consumers’ personal data.  Often times the data collected is completely innocuous and can even improve the performance of future applications, such as aggregate data regarding the configuration of gaming PCs.  However, with modern games obtaining access to photo galleries, friends lists, and sometimes even financial data, the risks associated with improperly kept data drastically increase.  While it is unlikely that any of this data will be abused by game developers (save for potentially undesired targeted advertising), it is possible that some developers may not secure access to this data as carefully as they should.

There has not yet been a significant breach of consumer data stored by a gaming company, but the likelihood of an incident occurring continues to increase as DRM schemes and online games collect more data on gamers.  Information privacy is an area of law that is still testing its boundaries and I wouldn’t be surprised to see online gaming targeted by legislators and scholars in the near future.

Digital Gold Rush (Rights to Virtual Goods)
Modern games have not only increased access to consumer information, but have also increased their reliance on user-generated content.  From the emergent narratives of MMOs to entirely new games built on existing engines, developers are relying on user-generated content to extend the life of their products.  However, in many cases, it is still unclear who owns the intellectual property rights to this creative content.

The legal landscape in this area is exceptionally tricky.  While there has been some guidance regarding map packs, the complex legal issues surrounding machinima, emergent narratives, and game modifications are ready for some long-overdue clarity.  While some developers are modification-friendly, others strongly discourage the practice.  Perhaps most confusingly, some developers enforce their Terms of Use agreements to promote or discourage user-generated content in a seemingly arbitrary manner.

While many issues related to virtual goods can be handled with existing contract and copyright law, the industry is at a point now where both gamers and developers could greatly benefit from clear, standardized EULA and TOS provisions.

Balkanizing the Internet (Net Neutrality)
Net neutrality is a hot topic with just about everyone these days, but gamers have taken particular notice for good reason: An estimated 65 million online gamers could be drastically affected by future regulation.  Interestingly, there are gamers on both sides of the net neutrality argument.

Pro-neutrality gamers argue that without net neutrality, ISPs will be free to charge gamers additional fees to play games online or even block access to some games and online services altogether.  The most commonly cited example is Comcast’s prior practice of throttling bittorrent bandwidth, which prompted a cease and desist order from the FCC.  Additionally, some developers in favor of net neutrality argue that it is the only way to ensure that ISPs do not bargain for gaming exclusivity deals, which were common on mobile networks prior to the iPhone and are currently seen on game consoles.

Gamers against net neutrality argue that excessive government regulation of ISPs will decrease competition and innovation, which could be more harmful for online gamers in the long run.  Furthermore, these gamers argue that latency (and not bandwidth) is the major concern for online gamers and ISPs have little incentive to throttle online gaming services when services like bittorrent are a much larger burden on networks.  In fact, limiting bittorrent traffic could even increase the performance of online gaming.

Aside from gamers, some developers argue that ISPs will be better equipped to reduce or eliminate piracy with no or limited FCC interference.  By monitoring network traffic, ISPs would be able to stop the illegal transfer of games.  In theory, reducing losses due to theft would enable developers to charge a lower price for games–a benefit for both developers and gamers.

Ultimately, there are valid arguments for gamers on both sides of the debate and it will be interesting to see what the future holds.

The Digital Seven Seas (Piracy)
Piracy is a perennial issue that concerns nearly all digital media producers.  Although recent litigation has delivered serious blows to some of the worst offenders (The Pirate Bay), the illegal transfer of games still occurs regularly on bittorrent, peer to peer networks, and usenet.  As the cat-and-mouse game between developers and pirates continues, gamers will be forced to deal with increasingly complex DRM schemes, more tightly controlled gaming platforms, and potential deep packet inspection.

The online trade of grey market games is also increasing at a staggering rate.  While many of these transactions are carried out successfully, others have caused serious headaches for gamers and developers.  For a better understanding of the grey market game trade, read this prior Laws of Play post.

Ballet Hero (Choreographic Works)
It is no secret that both Sony and Microsoft are eager to introduce products that compete with the family-friendly Nintendo Wii. While Sony and Microsoft’s console offerings are targeted at the traditional gamer, Nintendo tapped into a much larger market by eliminating the largest barrier to entry for most would-be gamers: the controller.  Eager to keep up, Microsoft has announced Project Natal, an interactive body-tracking device for the Xbox 360, and Sony has announced some sort of odd motion-tracking-wand-thing.

In what may be the oddest prediction of this post, it is feasible that gamers and developers may have to begin considering copyrights in choreographic works.  Soon, game developers wanting to produce dancing or wrestling games–among others–may have to consider licensing choreographic works.  Could Ballet Hero be the next big hit?  How about a Macarena-inspired party game?  Perhaps a new dance craze will sweep the nation based on a series of moves found in Nintendo’s Wii Dance.

It’s too soon to tell whether games featuring choreographic works will gain traction, but developers may have an all new class of works to both license and protect.