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Game Industry RoundtableGame Industry Roundtable
Lessons from Video Game Litigation: Lessons from Video Game Litigation:
Enforcing Rights and Avoiding RisksEnforcing Rights and Avoiding Risks Susan Fahringer
Will Rava
AgendaAgenda
Your IP (what you have, what to do with it) Your content Your EULA Risks from customers and other third parties Working with (and dealing with) the Government
Your IPYour IP
User interface Game play Plot, characters Music Name Code Packaging A-V aspects of game And more . . .
Preserve (and Clarify) Preserve (and Clarify) What You OwnWhat You Own
Registration of federal TMs, copyrights Patent protection / your patent strategy Make reasonable efforts (at least) to protect your
trade secrets Adopt the right contract terms (with employees,
independent contractors, anyone exposed to company confidential information; licenses; etc.): Be explicit as to who owns what
Know What You're UsingKnow What You're Using
Audits of license agreements
Company policy/awareness not to use others' IP Employment agreements Independent contractor agreements Sales/marketing materials
Know What Others Are Doing Know What Others Are Doing With Your IPWith Your IP
Monitor Infringement Use your customers & distribution chain
Make it easy to report infringement Proactively look for infringement Educate customs officials to help stop
importation
Enforcing Your RightsEnforcing Your Rights
Identify the problem What's your goal? Align your strategy with your goals Mind your limitations
(and tell your counsel what they are) Choose your target Choose your approach
Your Content – Others' IPYour Content – Others' IP
Trademarks Products (trademarks, trade dress, design) Music/Audio People (name, image, likeness) Sports issues (leagues, coaches, venues, etc.)
Your Content – Others' IPYour Content – Others' IP
Where you use it: In game In marketing, advertising
Your Content – Others' IPYour Content – Others' IP
Practical Considerations: Exposure Type of use Likely cost Term Termination rights
Your Content – TortsYour Content – Torts
High school shooting cases Sanders v. Acclaim Entertainment, Inc. James v. Meow Media Wilson v. Midway Games, Inc.
Your EULAYour EULA
Conspicuousness Severability Fairness Dispute resolution Privacy and security Property rights
Risks from OthersRisks from Others
Indirect infringement
Contributory infringement
Inducing infringement
Vicarious infringement
Minimizing RisksMinimizing Risks
Make it easy to report violations Make it easy to resolve infringement accusations
(EULA) Don't turn a blind eye to infringement, especially
if it benefits you
Privacy & Security IssuesPrivacy & Security Issues
Customer terms of use (limits on liability, arbitration clause, etc.)
Reasonable privacy policy Plan ahead to deal with a breach (incident
response team) Most common allegation: negligence
Other IssuesOther Issues
Subpoenas (process to respond)
Access issues (breach of contract issues)
Property rights issues (follow EULA and make it terminable at will)
Government – Content RegulationGovernment – Content RegulationStricken Pending
Washington Federal (x3)
Missouri Delaware
Indiana Massachusetts
Michigan New York
California North Carolina
Illinois
Minnesota
Louisiana
Oklahoma
Government – CrimesGovernment – Crimes
Property crimes Child pornography Crimes against people/avatars Financial crimes
Government Can Be Your Friend Government Can Be Your Friend
Governmental actors can help you by: Protecting and enforcing your IP rights Prosecuting crimes Passing favorable legislation (and defeating bad
legislation)