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.

Joseph Anzalone, a DC Metro-rider, recently sent a letter to the editor of the Washington Post criticizing the judgment of WMATA officials for allowing advertisements for the post-apocolyptic game Fallout 3 to be posted in Metro Center:

Metrorail riders who have passed through Metro Center over the past several weeks may have noticed signs throughout the station advertising a video game called “Fallout 3.” A heavily armored enemy soldier appears in the foreground of the ads, and the background includes images of seemingly war-ravaged national landmarks.

* * *

The people of our city do not need a daily reminder that Washington is a prime target for an attack. We do not need a daily reminder of what our worst fears look like. Since any First Amendment objection would be irrelevant (the ads do not present a true viewpoint or political message and would therefore not be protected), there is no reason for these ads to be part of our daily panorama.

The ads should be removed, and the appropriate office at Washington Metropolitan Area Transit Authority should be directed to exercise better judgment regarding what can be displayed in our transportation system.

For those unfamiliar with the ads, BlindsideDork at Destructoid.com has a good collection of images and videos.

I have a few problems with Mr. Anzalone’s letter:

First, his First Amendment argument is fatally flawed. Nowhere in the Article I does it say that only “true viewpoints” and “political messages” are protected. Sure, the government must overcome an exceptionally high burden to ban this type of speech, but it’s not the only speech that is protected.

Second, I think the images are intentionally evocative — that’s just good advertising. Fallout 3 takes place in a post-apocolyptic Washington, DC; the images displayed in Metro Center center simply depict the game’s setting and are meant to be powerful enough to stir up interest in the product. The developer of Fallout 3, Bethesda Softworks, happens to be located just outside of DC in Bethesda, MD — I sincerely doubt they’re trying to cause a panic in the area. Besides, the notion to decorate Metro Center to look like one of the famed “vaults” in the game is just damned clever ad-wizardry.

To be honest, I pass through Metro Center at least 10 times a week and I don’t even notice the ads anymore. As a gamer, I was really interested to see them go up, but they quickly faded into the background of the chaos that overtakes the DC Metro around rush hour, which, if you ask me, is a much more telling portent of the chaos that would consume DC following any sort of terrorist attack.

[via GamePolitics]

Lawfirm Fenwick & West announced today that they won a motion to dismiss all copyright, trademark, and other intellectual property claims asserted by MKR Group, the rightsholders to George A. Romero’s Dawn of the Dead, against Capcom, maker of Dead Rising. MKR originally threatened Capcom with a lawsuit while Dead Rising was still under development, claiming that Dead Rising’s zombies-in-a-mall premise was dangerously similar to that of Dawn of the Dead.

Capcom and MKR originally entered settlement negotiations, but after nearly a year of talks, Capcom sought outside legal help. After a second threat of suit by MKR, Capcom, along with Microsoft and Best Buy, filed a complaint for declaratory relief in the Northern District of California in February of this year. According to Law Fuel, Capcom sought a declaration that:

Dead Rising does not infringe any copyright, trademark, or other intellectual property rights belonging to MKR because any similarities between Dead Rising and Dawn of the Dead are based on the wholly unprotectable idea of humans battling zombies in a shopping mall, and that its distribution, marketing and promotion of Dead Rising is not likely to confuse consumers as to the source or origin of the game or to dilute any alleged distinctiveness of any trademarks held by MKR, particularly in light of [an in-game] disclaimer.

In response, MKR filed a third party complaint and counterclaim against Capcom, which asserted copyright infringement, violation of the Lanham Act, unfair competition, misappropriation, and dilution. Unfortunately for MKR, the court granted a motion to dismiss all of MKR’s claims with prejudice on Monday, October 20.

LOP: It’s good to see Capcom come away the victor in this one. Even our guest writer, with no legal training, thought MKR’s claim was a bit dubious.

[via Law Fuel]

Today, Microsoft announced that October 21 is Global Anti-Piracy Day. And, in order to celebrate, Microsoft is launching intellectual property enforcement actions in 49 countries on six continents. Those boys in Redmond sure know how to have a good time!

In addition to the numerous enforcement actions, Microsoft is also launching a global initiative to educate consumers, governments, and law enforcement agencies about software piracy. A taste of this educational content is the video above. While the video does feature some big players in Microsoft’s global efforts to eliminate piracy, you would think a company like Microsoft could afford to spend a little money on a decent producer — the video easily looks like it was made in a pirated copy of Windows Movie Maker.

All joking aside, software piracy is a serious issue that affects both application and game producers. Numerous game industry vets have recently discussed abandoning PC development because piracy is so rampant on the platform. So, to all of you pirates, take off your eye patch, lose the funny accent, and try taking a shower — today is just not your day.

[press release]

It’s no secret that Microsoft has had it’s share of problems with the Xbox 360 console. At launch, the biggest problem was console availability. However, Microsoft has faced a number of hardware issues since launch, most notably the “Red Ring of Death“. Despite numerous other Xbox 360-related lawsuits, Microsoft — perhaps to its own surprise — has yet to face any litigation related to the Red Ring issue.

That has recently changed. A class action lawsuit was recently filed in Sacramento Superior Court on behalf of all Xbox 360 purchasers and owners that experienced hardware malfunction, often accompanied by the “Red Ring of Death”. The complaint alleges that Microsoft engaged in unfair business practices by selling inherently defective consoles that are “unreasonably prone to malfunction”. The complaint further alleges that Microsoft concealed knowledge of the defects and otherwise engaged in fraudulent business acts.

The complaint seeks, among other things, equitable and injunctive relief in the form of an order requiring Microsoft to publicly announce and implement a program to refund the price of malfunctioning Xbox 360 consoles; restitution, disgorgement, and/or a constructive trust on profits attributable to any unjust enrichment; and any interest and related costs.

The full complaint can be downloaded from Laws of Play here.

[via DailyGamesNews.com]

Yahoo reports that Nintendo of America has recently been ordered to pay $21 million in damages to developer Anascape for patent infringement.

The award is the result of a federal jury verdict in a suit filed by Anascape in 2006. In that suit, Anascape asserted claims against Microsoft and Nintendo for infringement on twelve of the company’s patents, including patents on a “Game controller with analog pressure sensor” and an “Analog Sensor with Snap-Through Tactile Feedback[.]”

Microsoft earlier settled the dispute with Anascape; the details of that settlement remain confidential.

Nintendo spokesman Charlie Scibetta said that the gaming giant will seek an appeal and expects a significant reduction in the award. Fortunately for Nintendo, the ultra-popular Wii controller — both the remote and nunchuck — were not found to infringe upon Anascape’s patents. However, the designs for the Wii Classic, WaveBird, and Gamecube controllers were all found to infringe upon Anascape’s patents.

LOP: Thanks for the tip, Adam!

In August of 2007, a Georgia man filed suit in state court claiming that Microsoft broke Georgia law by allowing his son, a minor, to use his debit card to sign up for Xbox Live and further violated Georgia consumer regulations by renewing the service contract without written authorization.  In response, Microsoft recently filed a motion to have the case transferred to federal court.

As a result of Microsoft’s alleged “fraudulent induc[tion of] a contractual relationship for Xbox Live services,” the Georgia man, Francisco Garcia, was assessed a $35 overdraft penalty by his bank.  While Microsoft refunded the Xbox Live subscription fee, the overdraft fee was left to Garcia.

Garcia is seeking unspecified damages and has asked the court to incorporate a class of all Xbox Live customers in Georgia faced with similar problems.  In response, Microsoft has motioned to dismiss the case, citing that Garcia’s son misrepresented his age when registering for the Xbox Live service.

For more info, see: Information Week
Destructoid

Following the crushing defeat of his public nuisance claim against Rockstar Games and their title Bully, Jack Thompson is once again filing a public nuisance suit against a video game in Florida. Unhindered by the Bar complaint filed against him in his previous public nuisance suit, Thompson has set his sites on Best Buy, Microsoft, and the blockbuster Halo franchise.

Thompson claims that the Halo series is responsible for corrupting Florida’s public morals and that the games are responsible for training the DC Beltway Snipers back in 2002. Thompson further argues that Microsoft is intentionally advertising the Mature-rated game to teens by placing advertising in venues that are frequented by teens.

Thompson claims the authority for his suit comes from a number of Florida statutes. First, he turns to Florida Statute 823.01, which states:

All nuisances that tend to annoy the community, injure the health of the citizens in general, or corrupt the public morals are misdemeanors of the second degree…

(emphasis added). Thompson then looks to implicate Best Buy through Florida Statute 823.05, which states:

Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in s. 823.01 … shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures and contents are declared a nuisance. All such places or persons shall be abated or enjoined as provided in ss. 60.05((Florida Statute 60.05 provides the authority for Thompson to bring the suit in the name of Florida and outlines the court’s authority to enjoin various aspects of a public nuisance.)) and 60.06.

For the full text of the complain, click here.

According to the Seattle Post-Intelligencer, Microsoft has recently settled the dispute of Kevin Ray v. Microsoft Corp. The case, originally filed as a proposed class action, was settled as an individual action.

In the case, Ray alleged that the Fall 2006 Xbox 360 Update caused his Xbox 360 to malfunction, rendering it useless. Following Ray’s initial complaint, Microsoft motioned for summary judgment and argued that it has since extended the Xbox 360 warranty and replaced Ray’s Xbox 360 free of charge.

The terms of the settlement were kept private, but I can’t imagine Ray made off with much considering Microsoft’s free console replacement and numerous warranty extensions.

For the full report, and a copy of Microsoft’s summary judgment motion, see: Seattle P-I

Hot off Microsoft’s announcement that a 3-year warranty program would be put in place to alleviate consumer complaints about ”general defects” in the Xbox 360 console, a Florida man, Jorge Brouwer, has filed a class action lawsuit against Microsoft claiming that the Xbox 360 was “negligently designed and manufactured” and, as a result, causes “destructive scratches” to discs placed in the system.

The “destructive scratch[ing],” pictured above, occurs when an Xbox 360 console playing a disc is turned from the horizontal to vertical standing position.  Mr. Brouwer’s attorney, Jeffrey M. Ostrow, claimes that “[Microsoft doesn't] tell you not to move the tower.”  While this defect was discovered not long after the launch of the Xbox 360, this is the first lawsuit filed in regard to the defect.

Microsoft’s extended warranty program, estimated to cost the company over $1 billion, does not cover the defect described by Mr. Brouwer.

According to the Miami Herald, Microsoft officials released the following statement:

We’ve only just learned of this lawsuit, so we haven’t had time to evaluate it. However, out of the millions of Xbox consoles in use, Microsoft has not received any widespread reports of Xbox 360s scratching disks.

It seems to me that there are several flaws or, atleast, miscommunications on the side of each party.

For one, Mr. Ostrow’s claim that Microst doesn’t inform customers not to move the tower is false.  Shortly after the problem with scratched discs was first uncovered, Microsoft began affixing a label to the DVD drive of new Xbox 360 consoles that warns not to move the system while in use.

For two, Microsoft’s claim that they have not received any widespread reports of Xbox 360s scratching discs is clearly false.  Microsoft has had a program in place offering repairs on discs that are scratched by the Xbox 360 and even went so far as to offer free replacement games published by Microsoft Games Studio.

Have any readers had issues with scratched discs?

For more info, see: The Miami Herald