Parallel Universe Spawns Parallel Legal Woes

You knew it had to happen, but are still surprised when it does. In what may be a first-ever, a lawsuit has been filed against a defendant that doesn’t really exist, over a non-existent furniture line. Yes, you guessed it, a bed with special embedded animations that allow participants in Second Life, the virtual reality world established by Linden Labs, to essentially recreate an adult film with their virtual persona—avatars.

For the past few years, Second Life’s approach to IP protection has been to allow players to keep rights to programs, animations and objects they create—although many of the tools (programming scripts, etc.) are Linden’s and are provided to enable players to build things in this virtual world. Much like user-generated content in the world of multimedia audio-visual works, creativity and innovation is creating virtual content by the boatload and creating virtual objects and businesses is not simply a recreational pastime, but also a source of entrepreneurial glee and money for many. Clothing, real estate, automobiles, virtually (pardon the pun) anything, becomes the object of virtual purchases, sales and licensing.

Well, the law has caught up with reality. One player, whose avatar is selling virtual items under the brand “SexGen” bed, is suing another avatar for selling fakes for less—undermining the business. Since you have no obligation to disclose your true identity in Second Life, who do you sue? Well, first you try to get information from Linden, presumably because their computers house the underlying registration and information that would disclose who is behind the knock-offs. But, if the alleged infringer has not registered a real name, credit card or other “real world” items to enable identification, you might only get an IP address.

So we’ll keep you posted on developments, but who knows where this will go. Will a court entertain the case? Will they discover the identity of the alleged infringer? Will copyright infringement principles apply in a virtual world? Perhaps the plaintiff will try to enjoin Linden from allowing or enabling the fake products, or send them a virtual Digital Millennium Copyright Act (“DMCA”) “take-down” notice.

Interactive Gaming–To Boldly Go…

In a recent article in the Los Angeles Times, Michael Bay, renowned film director with cinematic blockbusters such as “The Rock,” “Armageddon” and “Pearl Harbor” to his credit, is quoted as saying, “I make world-class images. Why not put those images into a game?” Indeed! The new investor and co-chairman of Digital Domain, the effects studio evolving into a production studio, is making a bet on convergence—the application of digital technology to reduce costs and expand the horizons of entertainment and new media.

Remember watching those old cowboy movies and pretending you were the new sheriff in town? Did you secretly imagine you wielded an elegant light saber and might save the Galaxy with Luke Skywalker? How many times did you imagine yourself as Legolas, drawing an imaginary bow in the air to shoot an arrow and save Middle Earth?

But even in Middle Earth—where presumably there were no computers—there are digital effects. You trivia buffs will enjoy knowing that Orlando Bloom’s eyes are really brown. But as Legolas in Lord of the Rings, his eyes are blue, thanks to CGI technology. For example, watch Lord of the Rings: The Return of the King, and right outside the Black Gates, in a close-up, you can see his eyes are CGI blue. However, in a scene right after that, Gandalf is in the foreground and Legolas is in the near background—and Legolas’ eyes are clearly brown.

We love to be entertained, but we also love to play—play is the basis of leisure time, enjoyment, learning, and game and number theory. Play makes us active participants with interactive relationships and activities that are make-believe—in much the same way that motion pictures can move us with stunning visual sequences and transport us to places we might never see or even imagine in real life.

The computer game market represents a new—or rather a different—frontier. New motion pictures have spawned merchandising for decades—dolls, action figures, and stuffed animals, from Tarzan and Mickey Mouse to Spider-Man and G.I. Joe. In fact, product placements in motion pictures, which have gone mostly unregulated in the United States, have been used for years by advertisers to promote both reality in the movies and brand awareness to consumers. See the logo on an airplane taking off—someone paid for that. Picking up a soft drink can at the stadium with a familiar brand—someone paid for that. Watch Jack Bauer drive away or make a phone call—recognize that car or that mobile phone—someone paid for that. Do you really think Microsoft paid an estimated $6 billion for Internet advertising company aQuantive, because it does not understand the importance of convergence? Wonder why Apple Computer changed its name to “Apple”? Go to China or India or Brazil—which has more brand and name recognition, a MAC or the iPod? Which creates more buzz, the iPhone or a new operating system code named “Leopard”?

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Internet Gambling – Hit Me!

On Oct. 13, 2006, President Bush signed The Internet Gambling Prohibition and Enforcement Act into law. The Act was actually tacked onto a piece of legislation intended to tighten security for the United States’ sea ports. The Internet Gambling legislation, originally a standalone bill, was attached as an amendment to the security legislation at the last minute. Although titled “The Internet Gambling Prohibition and Enforcement Act,” it is actually not an outright ban on online gambling. It is, however, a federal ban on banking institutions knowingly transferring funds to businesses or individuals that operate, conduct or are engaged in activities that are considered illegal under U.S. law. Thus, transactions involving the movement or transference of funds to businesses that are conducting gambling operations in states and areas where gambling is prohibited is now illegal.

The law requires financial institutions to develop and implement some type of transaction security system within the next nine months, so that fund transfers to institutions on a blacklist will automatically and electronically be blocked; presumably on the list will be those online gambling operators identified by the Department of Justice. That said, the Act is not specifically limited to gaming companies—although it appears that those are its initial focus and intended target. In the wake of passage of the Act, online gambling operators—many from the U.K., Malta and jurisdictions outside the United States—have already announced their withdrawal from the U.S. marketplace. Stay tuned as enforcement efforts start to make news.

Virtual Worlds–Not Really Virtual, Not Virtually Real

I was having an interesting discussion with a lawyer friend whose views about promotions and marketing I respect greatly. We started out talking about virtual worlds and avatars and the new proliferation of non-reality based entertainment—virtual Laguna Beach, for example. Now, I seem to have enough trouble juggling the demands of life in the real word. I have had my fill of reality shows—which never seem to be quite real—and I was just beginning to get the hang of fantasy sports leagues and interactive game playing. Now along come virtual worlds, where fantasy, role-playing, game-playing and interactive social networking collide. I remember playing Kings Quest and Police Quest and Space Quest and chuckling, with my kids, about the funny lines and the clever clues as we searched kingdoms, busy streets and outer galaxies to solve the puzzle. My daughter just recently reminded me of Ecoquest—a game I can’t find anymore that taught us all a little bit about saving the environment. Then came MMOGs and MMPORGs (that’s “Massively Multiple Player Online Role-Playing Games”—for the uninitiated). In virtual worlds, I get to act out a combination of real and fantasy activities with virtual characters called “avatars” which are created within parameters defined by the computer code, but which are otherwise open to my unique interpretation of the characters and roles I choose to play. I read a report about a man in South Korea who died of heart failure last year. Apparently stopping only for bathroom breaks and short catnaps, he played an online simulated war game for 50 hours and, ostensibly because of exhaustion, his heart gave out. I recently read several reports that made me realize this was no longer just child’s play. The first was about a woman who was able to quit her job because, through buying, selling and creating properties and providing services in a virtual world, she was able to “earn” more than $150,000 per year. Although I don’t know exactly what she did, I know you can convert your digital earnings into real money at websites such as gamingopenmarket.com. These sites not only enable you to convert digital-virtual money into U.S. cash at exchange rates that are established much the same way monetary exchanges do around the world, but they also enable folks like you and me to dabble in arbitrage trading in virtual currency. Will I someday be able to take my virtual company public in an IPO or solicit venture capital investments from qualified avatars? Is the SEC far behind?

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Who Could Have Known?

Last month we teased you about legal issues that apply to interactive, web-based digital video games. How could we have known those sexually explicit scenes hidden in the game Grand Theft Auto: San Andreas would have been exposed just in time for our July Legal Bytes issue. Wow. Although the Advertising Review Council has an Entertainment Software Rating Board (“ESRB”)—a self-regulatory group that in May 2001 promulgated widely followed and accepted Principles and Guidelines for Responsible Advertising—the inability of the industry to effectively police itself, whether in connection with sexually explicit images, profanity, violence or otherwise, is coming under increasing fire as these incidents are uncovered. You all know what that means, right? Legislation, regulation and full employment for advertising attorneys who know their way around interactive, web-based digital gaming…and we have lots of those folks. You thought we were only concerned with product placement. Questions?

Ping Meets Pong

Whatzup with interactive, web-based digital video games? Plenty, if you believe what we read…coming up in the next issue, with struggling advertising revenues on TV and moviegoers’ increasing annoyance with the resurgence of advertising (which now seems to be replacing the 20 minutes of “coming attraction” trailers), advertisers are looking beyond product placement in reality TV shows and wondering if those captive eyeballs and fanatic game players can turn an interactive gaming industry into the next frontier of advertising. Not to mention those new chipsets and handhelds that are making video game graphics look almost like the real thing. Will virtual reality supplant reality and will promotional and advertising take us there? Stay tuned. [P.S.: This is called a “teaser.”]