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Developing a legal game plan to protect innovation

F. Far Hadian Jason Esq, Principal Century IP Group (www.centuryip.com) argues that intellectual property protection in the current market for video games is necessary establish a clear competitive advantage.

During my recent trip to Seoul, Korea, visited the largest underground entertainment and commercial center in Asia (the COEX Mall), where Microsoft and Sony have built large play areas, "to facilitate public access to hundreds of game stations and video games for free. Each year the center hosts international competitions where teams of players collectively compete with others online and face a large audience, to make several thousand dollar price [1].

Here are some interesting facts: total sales in industry video game was $ 7.3 last year, [ 2] sales of the same multiplayer online games industry should grow $ 763 million for 2007 [3], and large companies in the gaming industry comes from adults, where the average age of a game player is 30 [4] and video games have exceeded sales of cinema tickets in the United States 10-9. [5] Not bad for a company that began as an accidental branch of industry software.

The video game industry, but still depend on the progress made in the areas of software and hardware has shifted from its humble origins in games like Pong and Pacman, developed 50 years ago in the software engineering teams refrigerator companies shy. The modern video games with complex plots, vivid colors and a plethora of characters and landscapes. As such, many video games today are written, designed and choreographed by writers, producers, directors and artists with experience in the arts and film industry before a single line of code is written.

For the foregoing reasons, the legal issues relating to the protection and rights of video games have become more sophisticated and complex. Fortunately, however, several legal avenues are available to help protect the different aspects of a product of video games, including functional and operational aspects, which may be protected by a patent. Moreover, some functions can be maintained as trade secrets. Also, most characters, scenes, music, dialogues, stories and source code can be protected by copyright, provided that each one contains original works of authorship.

Despite the availability of legal above, is a somewhat surprising and inexplicable lack of intellectual property protection of property in the gaming industry. This imbalance in the game industry is to cultivate a new battlefield and relatively undeveloped in the resulting legal judgments against infringers and great opportunities for granting licenses to those who have regularly and their right to register patents and respective copyright.

1997 Case Corp. v. Computer Nintendo Co. ALPEX [6] is one of the first cases involving the violation of patents in this video from Thurs case, Nintendo has been ordered to pay 253 million ALPEX dollars for violating its patent for a computer configured to play multiple games, Arcade unlike systems that could play a single party. More recently, in March 2005, the U.S. Federal Court for the Northern District of California Sony guilty of patent violation and entered a ruling ordering Sony to pay $ 84,000,000 to Immersion Corp., which had a patent covering the vibration function built into the game Play Station [7].

Consequently, even simple operational features integrated into a game can be worthy of patent protection. These innovations, well protected, can provide an advantage to the game developer to exclude competitors from using the property of their products.

Within the scope of protection of copyright, but some non-graphic attributes or operational issues of a game can be protected by preventing others from changing or modifying these attributes. For example, alignment and morphing software are available, which allows a player to change the look and feel of a game, adding new levels and characters, or customization of the game based on player preference.

The judicial consensus, if such acts constitute a violation of Copyright remains uncertain. [8] for example, in Microstar, Inc. v. FormGen, Inc., [9], the Court of Appeals for the 9th Circuit has ruled Micorstar Law sell collection of additional game levels developed for the video game Duke Nukem 3D was a derivative "work" and violate the copyright of creators FormGen games. Microstar had to prohibit the sale of the product and pay $ 250,000 in damages. Before the decision Microstar, rights to derivative work has been recognized in the literary works such as novels and films.

More recently, in January 2005, Tecmo, Inc., maker of X-Box game (Dead or Alive Xtreme Beach Volleyball), sued the operators and users of online bulletin board service, "www.ninja hacker.net" for viewing lines of code that makes the characters appear nude. The complaint was dismissed in May 2005 because of an agreement between the parties. But he left open the question whether an owner of a game can legally change the game as the purchaser of a book can highlight the text in the book.

Due in part the ambiguity of copyright, some game makers have relied on the provisions of the Digital Millennium Copyright Act (DMCA) to target companies that distribute modding technology. In the past, Sony, Microsoft and other companies have gone after distributors modding chips for violating the provisions of the DMCA, which states it is illegal to distribute circumvention technologies such as software modding.

It should be noted, however, that, according to a recent decision Court of Appeals for the Federal Circuit, the DMCA can not create new copyright, but can be used to enforce existing rights. [10] It is unclear whether it will more to empower the DMCA video-game makers as it did prior to that decision.

Apart from the uncertainties, the note confirming the offspring cases that the courts recognize the value of intellectual property in video games and game developers to protect their rights to reward the adoption of legal measures correctly record and enforce these rights. In response to pressing need for legal representation and expertise in the gaming industry, some companies intellectual property rights, such as the Century Group and Morrison & Foerster IP are also developing resources to help its customers meet the legal ramifications of the evolution of IP property rights [11].

In today's competitive market video games, intellectual property protection is not a luxury but a necessity for success. An innovation successfully saved a competitive advantage and also protects the owner an attack by competitors. Therefore, it would be prudent to game developers and distributors of video games to consult with competent counsel on how protect their rights and ideas so that they can both offensively and defensively limit competing options.

F. Far Hadian Jason Atty. Centra his practice on client counseling, opinions, due diligence and the purchase of patents, copyrights and trademark rights in several technology areas, including electronics, software and hardware, telecommunications and wireless devices. Jfarhadian@ip-law.us can be contacted or visit www.ip-law.us. Jennifer Tiburcio has also contributed to the writing of this article.

[1] "take advantage of carnage cybernetic, James McNair, The Cincinnati Enquirer, September 13, 2005.

2] "set [of the Executive" Tamara Chuang, The Orange County Register October 21, 2005.

[3] "The online gaming sites to find their lucrative Among the ancients" This, Kim Peterson, The Seattle Times, December 1, 2003. See also www.gamebattles.com.

[4] Mark D. Rasch, intellectual property right and businesses July 28, 2005.

[5] "Out of Hollywood, Rising Fascination with video games," Laura M. Holson, New York Times, April 10, 2004.

[6] Computer Corporation v. ALPEX Nintendo Company Ltd., 102 F. 3d 1214 (Fed Cir 1997).

[7] Corp. v. immersion Sony Computer Entertainment America, Inc.., 2005 U.S. Dist LEXIS 4781.

[8] "The Mod Squad, Mark D. Rasch intellectual property and business July 28, 2005.

[9 Microstar c.] FormGen, Inc.. 154 F.3d 1107 (9th Cir. 1998).

[10] Chamberlain Group Inc. v. Skylink Technologies, Inc., 2004 LEXIS CAFC 1904-1118.

[11] "MOFO Get your game." Joel Landau IP law and business, August 2, 2004.

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