The National Law Journal offers a profile of Seth Krauss, executive VP and general counsel for Grand Theft Auto series publisher Take-Two Interactive.

Krauss, who came on board when the Strauss Zelnick team seized control of T2 in early 2007, lists his duties as:

Intellectual property (IP) concerns, First Amendment cases and securities law issues... When he joined the company, the legal department comprised exactly two in-house attorneys, neither of whom was well versed in IP law. The staff now numbers 15, including three full-time IP lawyers and several others who concentrate on licensing and development.

So, what is Krauss's take on T2's seemingly endless controversies?

In the kinetic world of interactive entertainment, the company's business leaders continually generate new challenges for the legal department. The company "creates content that I am very proud of," Krauss said.

 

Nonetheless, Take-Two has had to defend itself against those who consider this form of entertainment scary and dangerous. Krauss works with his counterparts at other game companies and other allies to meet criticism by politicians and critics "who try to politicize the video game industry."...

 

Broad questions about whether to regulate the industry are on the agendas of various legislative bodies, as well. Take-Two has engaged in lobbying in the past, and this responsibility falls under the scope of Krauss' duties.

 

Nintendo, which recently lost a $21 million patent case to Anascape, is currently litigating another federal patent lawsuit filed by an Illinois man.

In his complaint, John R. Martin alleges that he patented touch screen and pointing device gaming technology in August, 2005. The original Nintendo DS launched in November, 2004 in the United States. Martin's patent application describes his creation as:

An electronic game device system [which] is switchable between an amusement mode and a gaming or gambling mode and is useful for vehicles such as airplanes or boats which move geographically from jurisdictions where gambling is legal to jurisdictions where it is not...

 

An improved method of operating a touch screen on a CRT or ICD computer screen uses finger release as input registering... Mounting arrangements for mounting computer screens or monitors are also disclosed...
 

The drawing at left, from Martin's patent application, illustrates how he envisioned a user interacting with his device. While Martin does not specifically refer to the DS, the form of input he decribes seems to fit the DS as opposed to the Wii's motion-sensitive input.

In its response, Nintendo has denied infringing upon Martin's patent, of which it says it was notified in November, 2007.

Martin has a similar suit in the works against Apple, presumably over the iPod's touch-sensitive scroll wheel.

GamePolitics has a lodged a request with both Nintendo and the plaintiff's attorneys for additional information.

An attempt to block Activision's merger with Vivendi has ended with a ruling issued by William B. Chandler III (left), chief judge of the Delaware Court of Chancery.

As reported by the Wall Street Journal Law Blog, the judge has apparently taken notice of what World of Warcraft - one of the leading assets in the merger - is all about.

In denying a municipal pension plan's request for a preliminary injunction which would have put the Activision-Vivendi marriage on hold, Judge Chandler wrote:

In some ways, perhaps, the world of Mergers and Acquisitions is a massively multiplayer role playing game as well. Like in World of Warcraft... the participants in the M&A field take on certain roles, interact in their own community, hone specialized skills, and even develop a unique, somewhat curious vernacular.

 

One particular quest in the world of M&A is disclosure litigation. In the instance of disclosure litigation presently pending before this Court, the world of M&A meets the World of Warcraft.

 

In the role-playing game that is this disclosure litigation, both sides have played their respective roles well. Like any game, this one has rules, and the most essential rule of disclosure is materiality. Because the plaintiff could not establish the materiality of its final three disclosure claims, the motion for a preliminary injunction is denied. . . .GAME OVER.

GP: Very cool, indeed, your honor. Read the full decision here (31-page pdf).

Four UK citizens were slapped with fines after the publisher of a PC pinball game charged that they uploaded the product to file-sharing networks.

MCVUK reports that the four were each required to pay £2750 (roughly US$5,500) to Topware Interactive, publisher of Dream Pinball 3D. The company's attorney said that additional cases would be lodged against file-sharers this week:

Copyright owners spend millions of pounds developing copyright works for sale to the public for their enjoyment and yet many think it is acceptable to obtain te work illegally and for free by procuring a copy on a peer-to-peer network.

 

The New York Times takes a look at the controversy surrounding legal fees sought by attorneys in the Hot Coffee class-action suit.

Seth Lesser, lead counsel for the plaintiffs, told the NYT he was disappointed that only 2,676 buyers of GTA San Andreas filed claims:

Am I disappointed? Sure. We can’t guess as to why now, several years later, people care or don’t care. The merits of the case were clear... The game was sold as something that it wasn’t.

As previously reported by GamePolitics (see: Did Lawyers Inflate Fees in Hot Coffee Class-action Suit?), Lesser and his legal colleagues are seeking $1.3 in fees. Meanwhile, defense attorneys for GTA publisher Take-Two say it only cost them $30,000 to defend the case.

University of Kentucky law prof Mary Davis told the Times:

It doesn’t typically go that way. [To have legal fees far exceed what plaintiffs receive] is sort of backwards.

Ted Frank, an attorney who also writes for the Overlawyered blog, commented:

There are two possibilities. Possibility one is they have a meritorious lawsuit and they’re selling out the class for attorneys’ fees. The other possibility is that, and frankly I think this is the more likely possibility, they brought a meritless lawsuit that had no business being brought to court at all.

The Times also ponders why GTA's non-stop violence is seemingly more acceptable than the Hot Coffee sex animations. Here the newspaper turns to Craig Anderson, an Iowa State prof whose research on game violence and aggression is accepted in some quarters, disputed in others:

For some reason sex is seen as more harmful to kids than violence. The irony is that in terms of the research literature on harmful effects of various forms of media, television, movies, video games, the research is very, very clear. There are significant short-term and long-term effects of violent content.

A hearing on the proposed settlement is scheduled in U.S. District Court in Manhattan today.

UPDATE: Overlawyered's Ted Frank posts his impressions of the June 25th hearing...

Wired's Threat Level blog dishes on a U.S. District Court judge's ruling that promotional music CD's are owned by the person they were given to not the record company that distributed them.

The case surfaced when UMG Recordings sued a California man for selling promo CDs on Ebay. However, Judge James Otero ruled against the company, writing:

UMG's distribution of promo CDs provides the recipient with many critical rights of ownership, including the right to perpetual possession and the freedom from obligations to UMG... [Distributing the promo CDs] is properly characterized as a gift or sale, not a license, and title to the CDs transferred [to the recipient].

Lawyer-gamer Mark Methenitis offers some legal insight on his Law of the Game blog:

The victor here is clearly the consumer. This means that if you get your hands on a promotional CD, DVD, or game, even one labeled not for resale, you can keep it or sell it on eBay without worry about repercussions from the game's publisher. More importantly, it prevents an expansion of the first sale doctrine, which could have limited your ability to resell games you've purchased at all. Game resellers, both those on eBay and the major retail chains, should be applauding this decision as it supports their livelihood.
 

Corinne McSherry of the Electronic Frontier Foundation told Wired that the ruling has many beneficiaries:

This is a very important ruling for consumers, and not just those who buy or sell used CDs. The right of first sale also protects libraries, used bookstores, and businesses that rent movies and videogames.

 

If you're a football fan, you've surely heard the voice of the late John Facenda.

Facenda, a beloved Philadelphia newscaster from 1948-1973, gained national recognition for his voice-over work with NFL Films in the latter part of his career.

However, a lawsuit filed by Facenda's son alleges that the NFL allowed Electronic Arts to use the announcer's voice to promote Madden 2006 in violation of a contract Facenda signed before his death..

The case, which has been working its way through the federal court system since GamePolitics originally reported on it in 2006, now appears headed for trial. As detailed by the Associated Press on Friday:

A federal appeals court heard arguments Friday and strongly hinted that a jury should decide whether the 22-minute film was a commercial or a documentary , or perhaps, as one judge suggested, "a documercial."

 

Facenda's son is challenging the use of 13 seconds of his father's baritone voice on an NFL Network program about the making of the 2006 Madden game... The NFL, hoping to have the suit thrown out before trial, is appealing a lower-court ruling that allowed the suit to go forward.

 

The program aired on the NFL Network nine times in the days leading up to the August 2006 release of the popular Madden game. The game was not directly offered for sale during the program.

 From the complaint:

In or around August 2005, the NFL caused to be broadcast on its NFL Network a program devoted to publicizing and promoting the Madden 2006 football game... The broadcast of “The Making of Madden 2006” was coordinated with the marketing of the Madden 2006 videogame. The program was a blatant commercial for the product; in fact, the broadcast was coordinated to coincide with the release of the game...

GP: We should note that EA is not a defendant in the suit.

A New Hampshire man sold his 4-year-old's video game equipment and games in order to make bail of drug charges, reports the Portsmouth Herald News.

Police allege that Bobby Hemingway, 27, sold $200 worth of crack to an undercover officer recently. Hemingway told the Court he is self-employed and owns a recording studio.

 

 

Lawyers who filed a class-action lawsuit against Take-Two Interactive over the 2005 Hot Coffee scandal have put in a claim for $1,000,000 in legal fees.

But, as Overlawyered reports, the total value of a settlement award to 2,676 claimants in the case tallies less than $27,000. Here's how those awards break down:

• Tier 1 (up to $35.00) (no [GTA San Andreas disc] exchange required): 416
• Tier 2 (up to $17.50) (exchange required): 22
• Tier 3 ($10.00) (exchange required): 131
• Tier 4 ($5.00) (no exchange required): 2,050
• Disc Exchange w/o cash: 57

Seven lead plaintiffs are seeking an additional total of $24,500.

Apparently, as part of the settlement, Take-Two may wind up donating $870,000 to the ESRB and the National PTA. Overlawyered's Ted Frank criticizes the claim for fees:

Of course, as we’ve discussed, none of these people had a legitimate cause of action or suffered any legally cognizable injury... Recognizing that this 3774% contingent fee looks fishy... the plaintiffs have sought to inflate the appearance of accomplishment through a $870,000 cy pres award to the National PTA and ESRB...

As GamePolitics previously reported, Frank has been critical of the Hot Coffee suit in the past. 

A hearing on the fee issue is scheduled for June 25th.

A UK man was arrested recently after officers from the Greater Manchester Police Department mistook a life-size Lara Croft figure for an armed man.

As reported by the Daily Mail, David Williams, 42, owns a computer shop and received the statue of the Tomb Raider heroine as a promotional item. Deciding to sell it on Ebay, he took Lara home.

Coincidentally, he called police around midnight to report some harassing phone calls. When officers arrived, Williams didn't answer the door. Peering in the window, the officers caught the silhouette of Lara holding a pistol. They cordoned off the street, burst through the back door of the home and held Williams at gunpoint. Of the incident, Williams said:

It would have been laughable if it hadn't been so terrifying. One of the police held a gun and yelled, 'Where's the weapon, where's the weapon?'

 

I didn't have a clue what was going on, I assumed they'd got the wrong house. I couldn't believe it when I realised they'd mistaken a Lara Croft dummy for someone with a gun.

For his part, Williams was arrested, held for 13 hours, and charged with a firearms offense. The newspaper account doesn't explain whether the charge stemmed from Lara's fake gun or something else the police may have found in the home. The Lara Croft figure was confiscated as evidence.

Williams is considering a lawsuit.

GP: Perhaps Manchester's high level of recent violence has made police edgy. GamePolitics readers will no doubt recall last year's controversy over the depiction of Manchester Cathedral as a level in PlayStation 3 first-person shooter Resistance: Fall of Man.

A wrongful death suit which sought $600 million from PS2 manufacturer Sony and Grand Theft Auto: Vice City publisher Take-Two Interactive has been thrown out by a New Mexico appeals court.

The 2006 suit, announced with some fanfare by Jack Thompson during a televised news conference, sought to blame a grisly 2004 triple murder on 14-year-old Cody Posey's play of GTA Vice City.

In December, however, a judge ruled that the New Mexico courts had no jurisdiction in the case, since neither Sony nor Take-Two had offices there. The ruling also held that New Mexico law did not support the wrongful death claim.

Following the initial dismissal of the case, the plaintiffs had 30 days to appeal - a deadline which was apparently missed. Today's Las Cruces News-Sun reports that:

A state district court judge... had dismissed the wrongful death lawsuit for failure to provide a valid legal basis for the damage claim. The Appeals Court tossed out an appeal of that decision, saying the notice of appeal in the case had not been filed on time.

A request last evening for Thompson's comment on the appeals court ruling went unanswered. However, in April he told GamePolitics:

[The local attorney is] in charge of filings in New Mexico.  I have nothing to do with the appeal. 

We tried to reach that attorney, Steven Sanders, last month but he did not return our call.

GP: While the appeal was dismissed on what amounts to a technicality, the entire premise of the lawsuit was a disgrace. As I outlined in a column for Joystiq, the killer, Cody Posey, was the victim of severe physical, sexual and emotional abuse at the hands of two of the victims, his father and stepmother.

In fact, the mitigating evidence was so compelling that the New Mexico juvenile court ordered him held only until he turns 21. Moreover, Posey's own attorney, Gary Mitchell, didn't want anything to do with the "video games made me do it" defense, saying:

I didn't see as it as a meritorious defense. I was far more concerned about the abuse Cody suffered over the years than any connection to playing a game on the computer.
 

 

The attorney for a 22-year-old man convicted this week of a vicious double murder says that anti-game activist Jack Thompson is off base in his claim that a "video game defense" spared James Stitt from the death penalty.

As GamePolitics reported on Wednesday, Dr. Moira Artigues, a defense psychiatrist, told the jury that Stitt claimed to have played Grand Theft Auto from midnight to 4 a.m. before killing two housemates in their bed. However, Artigues did not suggest a connection between the game and the killings. She also indicated she was not sure that Stitt was even being truthful, since his GTA claim conflicted with earlier statements.

Following the publication of the GamePolitics story, Thompson, who is involved in a pair of wrongful death suits against GTA publisher Take Two Interactive, issued a press release which read, in part:

Part of Stitt’s defense was his obsessive play of the Grand Theft Auto video games... It was put before the jury in a very clever fashion, and it worked... Thompson was right [in previous claims that GTA caused violence] and the sentence in North Carolina proves it.  Increasingly, the criminal defense bar will be using the “video game defense” because of the video game industry’s aggressive and illicit marketing of adult games to minors.

This morning's Fayetteville Observer, however, reports that Stitt's defense attorney has disavowed any such video game defense strategy. Indeed, it was never even raised in closing argument to the jury:

“There was no ‘video game defense,’” defense lawyer Jim Parish said in an interview after Thompson issued the news release. Their effort to save Stitt from the death sentence focused on the upheaval and trauma that shaped Stitt’s life from childhood, he said. He wouldn’t comment further about Thompson.

GP: We've requested a comment from Thompson, but have not received one so far...

The censorship of Grand Theft Auto IV will likely force the Australian government to add an R18 rating by year's end, according to The Australian.

GamePolitics readers will recall that some of GTA IV's sex scenes had to be cut in order to qualify for the current highest rating, MA15+. Without the edits, the game would have been banned by Australia's Office of Film and Literature Classification.

Greg Bondar, who heads the Game Developers Association of Australia told The Australian:

I think the release of GTAIV is a defining moment; it goes to show how far the games industry has come. The ratings system has not kept up.

The Interactive Entertainment Association of Australia also supports adding a R18. IEA chief executive Ron Curry said:

Anecdotally, there was always a lot of hostility towards the classifications, but that is softening now as people are becoming more comfortable with games as just another form of media.

 

A 22-year-old convicted killer claims that he played Grand Theft Auto just before murdering two housemates in 2005.

As reported by the Fayetteville Observer, James Christopher Stitt is waiting to learn whether he will be executed or face life in prison for the gruesome double slaying. Stitt told a psychiatrist that he played GTA until 4 a.m. and then committed the killings. The psychiatrist, Dr. Moira Artigues, testified:

He went in and killed George and Jenna in a state where he was like an automaton, not in control of his actions at the time.

The newspaper report notes:

[Dr.] Artigues... did not suggest that there was a connection between the video game and the murders.... Artigues said Stitt seems at times to live in a fantasy world and she wasn’t even sure that the version of the murders he described to her was the truth. He told a different story — in which Grand Theft Auto wasn’t mentioned — to his girlfriend, according to earlier testimony.

Courtroom testimony also revealed that the convicted murderer had an extremely troubled childhood.

A Conservative Member of Parliament has pointed to mature-themed video games as contributing to a surge in juvenile crime in the UK, particularly among girls.

As reported by the Daily Mail, MP David Ruffley (left) said:

Selling 18+ rated violent computer games such as Grand Theft Auto IV to underage children is more likely when many retailers have no fear of being caught, as my figures demonstrate.

This poor enforcement of the law is damaging to children. But I'm not surprised when officers are overwhelmed by a colossal amount of red tape.

The figures Ruffley referred to indicated that, nationwide, only eight fines had been imposed for selling mature-themed games to minors in 2006, the last year for which data is available.

Via: Next Generation

As expected, Georgia Gov. Sonny Perdue signed into a law a bill providing financial incentives to movies, TV shows, commercials, music videos and game developers.

As reported by the Duluth Weekly, Bill Thompson, deputy commissioner of the Film, Music and Digital Entertainment Office, said:

The 2008 Entertainment Industry Investment Act... will return Georgia to its rightful place of prominence in all major entertainment industry segments.

We expect a significant increase in film and television projects, and Georgia will be the most competitive state in the country for video game productions. Georgia is one of the few states whose entertainment incentives support the video game industry.

GP: Cool GTA parody graphic, no? We found this several years ago accompanying a political commentary slamming Gov. Perdue, who is depicted on the right side of the box. Since we can't take any credit for creating this neat-o graphic in the first place, we won't be taking the heat for misspelling "Georgia" either....

As GamePolitics  has previously reported, Take Two Interactive sued the Chicago Transit Authority in U.S. District Court over the CTA's recent decision to pull advertisements for Grand Theft Auto IV from its vehicles and facilities.

GP has obtained a copy of the lawsuit and you can grab it here (43-page pdf). From the complaint:

Take-Two's GTA IV advertisments promote an entirely lawful, mainstream entertainment product enjoyed by millions of Americans...

Defendants [CTA and ad company Titan Outdoor] are state actors. The advertising space that CTA maintains on Chicago's mass transit system is a public forum. CTA and its agents... for years have displayed a wide variety of political and issue-oriented... messages...

The removal of the [GTA IV] advertisments... followed a report by the local Fox News affiliate questioning why CTA allowed advertising for an "M" rated video game in light of a recent wave of violent crimes in Chicago... The Governor of Illinois has previously criticized other games in the Grand Theft Auto series... Neither the recent crimes nor the Governor's personal views on video games permitted CTA or Titan to violate Take-Two's constitutional and contractual rights...

An exclusive GamePolitics interview with Rep. Lee Terry (R) demonstrates that the Nebraska Congressman, co-sponsor of a new video game ratings enforcement bill, has a grasp on some video game rating issues, yet a flawed understanding of others. 

As reported earlier this week by GamePolitics, Terry and Rep. Jim Matheson (D-UT) introduced the Video Games Rating Enforcement Act. If approved, the bill would mandate that game retailers check IDs of mature-rated game buyers. The measure would also require that information detailing the rating system be posted in view of customers. Terry spoke to GP about the proposal:

This is a rather simple bill in that it focuses on making sure that retailers ID young folks when they try to buy an M or A[O] rated game. And this is kind of my approach instead of trying to micromanage by legislation the standards or content...

What we'd rather do is just make sure that parents are empowered with information, what the standards really mean and then what's specifically in that game and then to make sure that retailers don't subvert the parent's decision... If they don't want their child to have an M-rated game, the retailers don't sell it to them...

Based on the timing of the new legislation, we asked Terry whether it was planned to coincide with the intense publicity surrounding the April 29th release of Grand Theft Auto IV. Terry, however, maintained that the timing was purely coincidental:

As a matter of fact, I almost thought about waiting another week or two. I will have to take some responsibility. Mr. Matheson brought this to me several months ago and... it kind of got pushed to the back burner. So it was more coincidental... but [the GTA IV hype] probably did heighten the scrutiny of the bill within the press, which is a positive thing. But we did not wait until Grand Theft Auto IV came out to drop the bill. That was coincidental.

Oddly enough, the Terry-Matheson bill, which addresses video game rating enforcement, was introduced on Wednesday, less than 24 hours before the Federal Trade Commission's latest report gave glowing marks to the video game industry for its retail ratings enforcement. Terry, however, was clearly not acquainted with the results of the FTC report, citing 69% as the rate at which FTC secret shoppers were able to purchase M-rated games. That figure, however, is from the FTC's 2003 survey. In 2006 the number dropped to 42%. Yesterday's figure was an impressive 20%. We asked Terry about the FTC report:

As GamePolitics reported last month, Minnesota Attorney General Lori Swanson (left) appealed a decision by the US 8th Circuit Court which held that a lower court was correct in ruling the state's 2006 "fine the buyer" video game law unconstitutional.

In her appeal, Swanson was seeking what is known as an en banc review of the case, in which all of the 8th Circuit's judges would review the decision made by a three-judge panel in March.

GamePolitics has now learned that the 8th Circuit has declined to hold the en banc review. This means that the only legal recourse available to Minnesota is an appeal to the US Supreme Court.

If that happens, it will be the first time that the Supreme Court has considered a case involving video game legislation. Making this possibility especially intriguing are comments made by Justice Antonin Scalia to Law of Play's Anthony Prestia in February of this year:

Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not – he instantly drew the parallel to regulation of pornography sales…

Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment…

We've got a call in to A.G. Swanson's office to see whether an appeal to the Supreme Court is planned. In the meantime, you can view the 8th Circuit's denial of Minnesota's en banc request.

Politicians just can't seem to get it right, so attorney and avid gamer Mark Methenitis, who pens the excellent Law of the Game blog, has written a guide for elected officials with a yen to legislate games.

Why? Methenitis explains:

I'm not opposed to keeping things out of the hands of kids that their parents don't want them to have. On the other hand, I'm also not opposed to letting the parents make the choices. About the only thing I am opposed to is letting the government decide what I or my eventual kids can play. I am an adult, and I can make those decisions for myself and for my children when I become a parent.

Methenitis pens a nine-point plan. Hit the Law of the Game for the details, we'll just summarize:

1. Forget the idea that you're only regulating games.
2. Use the industry's rating systems.
3. Forget 'banning' anything.
4. Forget basing this on obscenity or harm to children. Use commerce.
5. Forget the 'AO' rating for games.
6. Enforce it only on products that have to be sold to those over 17.
7. Enforce it only on sales to those who can't present ID or present fake ID.
8. This should be a fine only offense, and only a fine against the store.
9. Once it's done, leave it alone.

GP: While we don't agree with everything Methenitis has to say here, it's definitely a worthwhile read.

Thanks to: GP correspondent Andrew Eisen for the heads-up!