Monday, August 31, 2015

Gearbox Week: Can You Be A Sore Winner If It's Not Much Of A Win?

I said in a previous post that Duke Nukem was going to wind up being a recurring presence on this site, but he's not the only one. Gearbox Studios is also on my radar thanks to the developer's...unique approach to going to court. The two cases we in the masses know about are the class action suit about "Aliens: Colonial Marines" and the suit filed by Gearbox itself against 3D Realms over who has custody over the Duke Nukem intellectual property. Hopefully that's the last time "Duke Nukem" and "intellectual" ever have to share a sentence.

Those are two very different cases in terms of their subject matter and where Gearbox falls on the side of the all-important "vs," but they have one thing in common: Gearbox was chomping at the bit to tell the world about their supposed victories in each of them. The problem with that is, no matter how quickly you get a dismissal or reach a settlement with your opponent, the United States legal system is never going to actually vindicate you, which is what Gearbox seems to think happened.

There is no verdict of "innocent." Especially not in civil court where you really only have "liable" or "not liable." Defendants are dismissed from claims for a million and one reasons, actual innocence being only one reason. The vast majority of the time, parties get off the hook because someone filed the case at the wrong time, didn't include enough information in the complaint, or the escaping party has the legal right to make someone take the bullet for them.

That last one is what it looks like happened in the class action suit against Sega and Gearbox that was filed back in 2013. I have a lot of things to say about what went on between Sega and Gearbox there, and that's going to get its own article on Friday. What I will talk about at this point is that the tone Gearbox took when it discussed the case made it seem like they didn't realize there was no declaration of innocence being made in their favor. Having one defendant dismissed does not make the suit "frivolous." Losing class action status doesn't mean the suit was brought in bad faith. All it means is that, under the court's interpretation of the contract between Sega and Gearbox, Sega has to act like Gearbox's meat-shield and take all the litigation hits on the "Aliens: Colonial Marines."

It was actually the other big Gearbox civil suit that got my attention to the point where I felt like saying something on this site. The short version of the case is that Gearbox sued 3D Realms (original owners of Duke Nukem) and a development studio called Interceptor on the basis that 3D Realms was still shopping the Duke Nukem license around to people after Gearbox the exclusive rights to it. To take Gearbox's version of events, 3D Realms sold their sweet baby boy Duke to Gearbox in hopes that he'd have a better life, regretted their decision, and went on as if the sale had never happened to the point where they got poor little Interceptor involved in this mess by having them work on a new Duke Nukem game. I was never really able to pin down what 3D Realms' defense to this was. Best I can tell it amounted "Yeah okay maybe we sold it to you but (a) we didn't really want to sell it and (b) you didn't even pay us as much as you said you would." And then there's Interceptor, swept up by forces beyond its control, trying to figure out how to turn its now cancelled Duke Nukem game into something they're allowed to sell. They settled the case, with Gearbox looking like the clear victor, back in May of 2015.

Let it be known by all that Gearbox and Gearbox alone has the right to underwhelm people with a new Duke Nukem game! (source: The Duke Nukem Forever List)
On the face of it, it looks like Gearbox is totally in the right with this suit. Not just legally, but maybe even morally. It's not right to go back on promises, and it's not right to sell things you don't own.

But you know what's also not right? Dressing your defeated opponent in a silly outfit before stuffing him into a tiny cage and ordering him to dance for your amusement on a live international broadcast.

That's the kind of vibe I got off of this, which is from a section of Gearbox's official website:
From Mike Nielsen (3D Realms CEO): “When Interceptor acquired a license to develop ‘Duke Nukem Mass Destruction’ (‘Duke Nukem Survivor’) from 3D Realms, we did so in good faith and were not aware of any conflict. We never intended to cause any harm to Gearbox or Duke, which is why we immediately ceased development after Gearbox reached out. To secure the future of Duke, 3D Realms has agreed with Gearbox that a single home serves the IP best. And as big Duke fans, we’re excited to see what Gearbox has in store for the ‘King.’ As for our own games, we’re eager to complete development of the ‘Bombshell’ game and get it in the hands of our fans.”

Knowing the context that this statement came from, how does this not read like one of those scripts that hostages are forced to read? And there's another one from Interceptor that, strangely (or not), has the same line about being "excited to see what Gearbox has in store for the 'King.'" Now obviously I can't prove anything, but that kind of thing makes me think the same person drafted both of the apology statements. And I'm still totally speculating, but if such a person were the source of those statements, perhaps the check they received for writing such a statement would have come from Gearbox rather than 3D Realms or Interceptor.

I think these sound like someone from Gearbox's legal department wrote those apologies and gave them to 3D Realms to sign. Did I make that clear? 

Another thing I'd like to make clear is how fundamentally weird it is that there are apology statements in the first place. I have had court victories against people who absolutely made my blood boil while simultaneously not having a leg to stand on in the legal sense, but never has it ever occurred to me or any of my clients to seek an official apology. Especially not in business cases where court battles like these really are just business. This was a dispute over licensing of an intellectual property. That's like the least personal thing I can think of. But Gearbox seems to have taken it personally enough that those little paragraphs of contrition are hanging like proud trophies on their mantelpiece. Maybe these kinds of apologies happen behind the scenes to smooth things over for possible future relationships, but posting them publicly like that just feels kind of gross to me.

I love me some Borderlands 2, but the way Gearbox handles their court cases makes my face scrunch up. You shouldn't be looking for pats on the back because you got someone else to take all the liability for something you were involved in. You shouldn't take that extra step to embarrass the people you settle with out of court. There's no sense that any talks went on behind the scenes about how they got into these situations to begin with and how they can avoid them in the future. This kind of behavior makes me think that Gearbox is going to be a frequent flier in the legal system, and given their track record of crowing to the press, we will all be hearing about those cases whether we are interested or not.

Friday, August 28, 2015

Pokemon Themed PAX Party Shut Down By Lawsuit

The Pokemon Company International (TPCi) filed a complaint earlier this week for the express purpose of shutting down a party in Seattle. This particular party promised Pokemon aplenty, plus propinquity to PAX....okay I've had my alliteration fun ("propinquity" means "closeness" or "relationship"). It was a party being planned by a couple of people operating as their company, "Ruckus Productions," as an unofficial kickoff to the annual Penny Arcade Expo (PAX). They had planned to hold a Pokemon themed event at a bar called 500 East and promoted it extensively in the run-up to the convention with posters featuring pictures of Pikachu and Snivy. There were some other social media posts that also used the mega-popular mascot Pikachu as a promotion for their party. From what I read, the entry fee for this event was minimal. Like $2. 

Also, people have been throwing Pokemon theme parties like this one for PAX since 2011. Why is TPCi getting all litigation-y about this one? 

To the complaint!

((This isn't lawyer magic. You can check it out too over at Scribd)

I got distracted, okay?

Anyway, TPCi did a lovely bit of advertising for the Pokemon Card Game, but what was the crux of the complaint? Those little pictures of Snivy and Pikachu on the poster and Facebook posts, that's what. So exactly what you probably thought. They were using TPCi's copyrighted images to promote their event. Doesn't matter if it was a Pokemon themed event or not. Doesn't matter if you wrote "Unofficial" on the poster or not. I don't even think it matters if they were charging money for people to go to the party or not. When they chose to use those little Snivy and Pikachu pictures, they called down the hammer. 

I'd say there might also be a problem with the Pokemon themed adult-beverages the party was going to serve, but without any specifics I can't be sure (like, if they just served a drink that was red on top and white on the bottom, that's probably okay; if they had a written menu offering "The Pokeball" as a shot, that's going to be a problem). 

The short answer from this seems to be "Don't market something using someone else's intellectual property."

In related news, water is wet, the sky is blue, and some more time is probably going to have to pass before we really know what's going on here. For what it's worth, the damages asked for in the complaint are pretty garden variety. Certainly not calling for Ruckus Productions' head on a stick. 

People congregating on the basis that they enjoy Pokemon is not copyright infringement. Using someone else's IP to advertise is.

I'll keep following this to see if anything happens. Now that the party's been cancelled, there's every chance the suit will just get dropped....or TPCi could go for blood. I don't think they want that kind of negative press, but it's totally possible. 

Wednesday, August 26, 2015

Paid Mods the Prequel: He's Hip, He's Cool, He's a 9th Circuit Justice

Every now and then I get the pleasure of finding an opinion that makes me truly believe someone out there, if nothing else, wants to understand this brave new technological world. 

Ladies and Gentlemen of the Internet, I present...Judge Alex Kozinski and the case of Micro Star v. FormGen, Inc.

The opinion, which is a formal legal document frequently cited by practicing attorneys and is given all due respect owed as the formalized order of a 9th Circuit Court of Appeals Justice, begins with:

"Duke Nukem routinely vanquishes Octabrain and the Protozoid Slimer. But what about the dreaded Micro Star?"

If you are not hyped after reading that, you and I lead very different lives.

Monday, August 24, 2015

Cheat and Win: The Game Genie Story

I was about 5 or 6 years old when my family got an NES, complete with the Super Mario Bros./Duck Hunt cartridge. The story goes that I spent 45 minutes repeatedly dying on the first Goomba when my father eventually sat down on the couch behind me behind me, probably just to see how long this would go on. At some point I asked him if he could help me get past that first guy. I could totally take it from there.

He took the controller, beat the entire game, and handed it back to me. Mom remembers hearing my squeaky little voice from the other room.

"I won!"

A lifetime of being gleefully terrible at video games followed, but in the years that followed there was a blessed piece of plastic that could help little scrubs like me get through the games their parents had so generously rented at Blockbuster. 

Behold the Game Genie.The OG Steam Workshop. You latched this thing onto your game cartridge, jammed it into the NES and suddenly Teenage Mutant Ninja Turtles wasn't an impossible nightmare factory! I'm totally comfortable saying that the Game Genie is responsible for a lot of my fond memories of early video gaming. Challenge is fun and all, but slamming your head into a brick wall is not. Besides, the Genie could only change a few things on each individual game, so it's not like all of the challenge was taken out. Some of the older kids in the neighborhood had even figured out how to program their own codes with the help of the big guidebook that came with the Genie.

As a plastic gizmo you put on the end of your cartridge, the Game Genie would physically sit between your game and the Nintendo system hardware. As the court noted, the Genie would block communication between the game and the system, so when a value would want to change because you did something - like, oh, I don't know walk directly into a bed of spikes because who could possibly guess that those would be instant death - that would want change the number of lives you had from 3 down to 2, the Game Genie would get in the way and tell the system that you still had 3 lives. From an historical perspective, this was kind of the beginning of readily available mods for home video games

The Game Genie was limited, though. First of all, it couldn't make any permanent changes to the programming of the game so any effect it had only lasted until you turned the system off. Second, it didn't really do anything on its own, so you needed to already have a Nintendo cartridge for the Genie to attach to for there to be any real substance to it. And lastly, the Game Genie only let you make these temporary changes to 3 data values in the game, so its effect on the program was limited even when it was being used.

Game Genie lets you change 3 things....Genies give you 3 wishes...Nilbog is Goblin spelled backwards! Ohhh myyy Gooooooooooood!!!
Fast forward a few decades to my law school days and all those fond memories rushing back to me when I see we have a case about the Game Genie assigned to us as homework. We were given the case of Lewis Galoob Toys, Inc. vs. Nintendo of America Inc. from 1992, and in it I found that not only was NOA once a devil trying to take away my joy, but also that at ton of the stuff the legal system actually figured out about video games is now barely relevant.

The 9th Circuit ran the facts through the analysis of a few core principles: "derivative works" and "fair use." You could write a 1,000 page textbook about each of them and still not totally pin down their meaning, but limiting our view to the Galoob case might help us get a grip on the basics of derivative works and why those basics might have outlived their usefulness.

Nintendo argued that the Game Genie infringed on their copyrighted games by altering their display and people play them in a way that the programmers hadn't intended. This matters because the Copyright Act of 1976 says that the party who holds a copyright is the only one who gets to create or allow others to create derivative works of that copyrighted property. It's just as blunt as you think it is. Under a law that was drafted the same year Jimmy Carter won the presidency and "Frampton Comes Alive" topped the charts, you supposedly need the authorization of the people who hold the copyright before you can make a derivative work. Of course, this gets modified by fair use doctrine, and we'll have another case to talk about that, but you're gonna be pissed when you find out what counts as a derivative work that supposedly can't exist without someone else giving their permission. It's a huge definition.

Straight from the statute, a derivative work is something that's based on a work that already exists, with examples being "a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the work may be recast, transformed, or adapted." And before we try and find a safe haven for commentary or criticism, be warned that "a work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work.'"

So all the stuff you like is a derivative work. It's not supposed to exist. The amazing Attack on Titan fanart you've been showing your friends? Derivative work. The adorable 10th Doctor plushie you got on Etsy? Derivative work. "A Very Potter Musical?" Derivative work. Rifftrax? Derivative work. That Speed Racer high school AU fanfic sitting on your hard drive in the folder marked "Shame?" Derivative work. 

This picture of Lynda Carter as Wonder Woman that I spent 2 minutes drawing yellow majesty lines on? DERIVATIVE WORK! 

This is especially weird coming from the courts considering our whole system of legal analysis is based on the idea that there is nothing new under the sun and you can't make an argument to a judge without citing old case law.The law's blind spot about itself notwithstanding, the US obviously doesn't enforce this extremely strict ban on people making derivative works without permission, so what do we actually need to remember from this case?

The thing to remember is that the Game Genie made it through the court system alive because of the following features: (1) it was a physical object that needed another physical object to function, (2) it doesn't keep any of the actual Nintendo programming content on the Genie itself, and (3) it wasn't replacing Nintendo games on the market because it couldn't do anything without the game. 

"...Who cares? We barely use physical objects anymore when it comes to software, so using this case to think about modded video games is pretty pointless. This is an outdated case and you just wanted an excuse to talk about the Game Genie because you're old!"

I'm not saying you're totally wrong (personally, I like to think of it as finally aging into my own personality), but here's the kick in the ass when it comes to the law: old stuff matters. You've heard of the Digital Millennium Copyright Act, and you'd be forgiven for thinking that it was the only Copyright law that mattered these days considering how much press time it gets. But you would be wrong. The DMCA was just an expansion on a series of copyright laws dating all the way back to 1790 that still have power over us. We still have to care about the restrictions people put on our creativity back when "Charlie's Angles" was brand new. 

So that's derivative works. It's possible to not get caught by the definition, but most of the stuff we've seen on how to not get caught is outdated and doesn't really help us. Thankfully, the fun Internet's lord and savior, The Fair Use Doctrine, is still out there, and someday soon we'll start scratching the surface of that topic. 

But before that, let's move a little closer to our present day and learn some more about the hazy law swirling around people modding their video games. Next time we'll be talking about level editors, chapter 1 of Duke Nukem's tortured relationship with the courts, and a judge that you will absolutely want to have a beer with after you learn about him.

Friday, August 21, 2015

Brief: The Ashley Madison Hack

I don't really know why everyone thinks somehow that the leak is going to lead to a bunch more divorce lawyers making huge amounts of money. Divorce law is basically just spreadsheets, and in the real world you don't see infidelity make that much of a swing in settlement payouts.

As a matter of fact, since you can't take contingency fees on divorces, lawyers can really only do flat fee or hourly billing if they think it's going to get complicated. Even with the hourly billing, the complications caused by Ashley Madison use probably aren't going to add a significant amount of time to the paperwork .

Oh and then there's the admissibility of the hacked information! Would you even be able to use it? It's an interesting question. Could you really consider something that came to public light through an illegal hack to be "authentic" according to the evidentiary rules? And what about that criminality element? That's probably something lawyers can spend weeks arguing about.

Oh! Oh I get the joke now! The fact that attorneys might spend thousands of client dollars on trying to introduce barely relevant evidence for which there is no precedent of admissibility means they're going to make a bunch of money! Haha! Jokes!

....that was it, right? I got it?

The Law Discovers The Internet: Tales from Legal Thunderdome

Hey, remember GamerGate?

By now you've either closed the tab and moved on with your life, or I've got your attention. If you're willing to stick around, I'm going to do my best to use one little aspect of the whole GamerGate dust-up to help make sense of a much bigger topic: How has the United States’ legal system learned how to handle problems that involve the internet, video games, and 21st century culture.
(Spoiler Alert: It hasn’t.)

If you're on the fence about keeping this tab open, here's a spoiler alert for you: The law has only the vaguest sense of what An Internet is.

Still here? Cool. Let's learn some stuff.

The awkward relationship between modernity and the law really hit home for me when I read an article about how a congressional domestic violence task force held a hearing on GamerGate and how testimony from Zoe Quinn had been a pretty central part of the proceeding. The forum made sense to me, but over on a Reddit discussion thread there were people who were pretty confused. Why, they wondered, would a domestic violence task force be the ones looking into Internet harassment campaigns and their fallout? How was that the right place to be talking about anonymous threats of violence coming from thousands of people Quinn had probably never met in her life? What in the world did this have to do with domestic violence?

These critical thinkers were, sadly, using common sense to analyze this. An easy mistake to make. I, on the other hand, have had my sense of reality and logic warped beyond repair by practicing law for the past five years of my life and saw the connection right off the bat. The two topics are a perfect fit for one another—but you'd have to tilt your head, squint, and drown yourself in three years of law school debt to see it that way without some prodding.

I wouldn't wish this on anyone, dear reader, so I'm going to do my best to translate what's going on here from legal bullshit into normal human language.

The short version is that the DV panel had grounds to discuss this because Quinn's ex-boyfriend was involved. When your ex starts some shit, you deal with it through the domestic violence laws. In the eyes of the law, this was an ex starting shit. In your local courthouses, domestic violence hearings take place on a regular basis and hear about one partner trying to use social media to harass the other. Most of the time, it's limited to nasty posts on Facebook walls or Twitter wars, but the only difference in GamerGate's case is we had an angry ex who managed get thousands of people to magnify his attack. So you see, it's just a super-sized version of the kind of social media harassment DV courts have been dealing with for years! Easy as that!

"Bullshit!" you yell. "You can't equate someone being driven out of their home by a virtual army of anonymous harassers with those smaller scale incidents where the parties know each other! Your comparison is bad, and you should feel bad! I'm closing this tab now!"

And you would be right (except for the tab closing thing, please). It's a shitty comparison. Treating GamerGate like a fight between two people who had a little bit of help from outsiders completely misses the point and fails to address the long-term, systemic problems with social media culture that came to light.

But the law, as it stands right now, is absolutely incapable of doing better. The American court system really only knows how to deal with problems that it's seen before, so anything genuinely new has to be compared to an old problem that we already have solutions for if we want to get anywhere.

Think of it like a fussy toddler. The law is a two-year-old who only willingly eats mac ‘n' cheese and chicken nuggets. If you want to introduce new food to this kid, there had better be macaroni, cheese, or chicken in it. Same thing with the law. No judge in the world is going to swallow your argument about the anonymity of the Internet allowing for harassment and stalking campaigns that would have been impossible 15 years ago and how that is going to require new solutions. Judge doesn't want a call for new solutions. Judge wants macaroni, cheese, and chicken. He (or she) wants something they've seen before. That's why, if you introduce your internet mob harassment/stalking campaign under the banner of a domestic violence proceeding, you've got a much better chance that Judge will bite. This isn't scary new food! It's stuff Judge already knows! And once the choo-choo train of a case has entered the station, maybe Judge will be more open to all those other ingredients that looked scary before.

Maybe you guys were right about my comparisons being bad, but that's not the point! The point is that the judiciary of the United States is just not equipped for what this century is asking of them. Like I said, I'm a practicing lawyer. I've been to those DV hearings and watched a judge pull aside their 20-something clerk and ask "what is a Twitter" after taking testimony about nude photographs being tweeted out by an angry ex. I've heard judges describe Facebook as a group of private webpages. Simply put, I've watched the legal system struggle and fail to wrap its head around stuff that, to me, is as simple as breathing.

So we get our analogies. Legal analysis in this country has always been founded on the use of analogies to justify positions, but now they're getting stranger and stranger. It's all too new! But, if nothing else, the judicial branch is scrambling to try and make sense of it, sometimes with questionable results.

This is where I want to come in. The legal system is trying to deal with the Internet age by translating normalcy into legalese. I'd like to translate it back into something that normal people can understand. That's what I'm hoping to do with my writing here. If you're looking for legal advice or concrete answers, I have none to give—mainly because there aren't any answers yet. Everything is in a state of confused limbo, and things that seem settled can't even be counted on.

Internet Law is basically legal Thunderdome right now. It's frustrating, but learning the why of the sometimes crazy decisions we hear about can only help us get the justice system to make better ones down the road.