Nancy Chen is an IPilogue Writer and a 2L JD/MBA Candidate at the University of Toronto.

For all the gamers out there, do you still remember the classic, pixelated games of the 2000s? Gone are the days where fiction and reality were easily discernible, with the emergence of hyper-realistic video games such as , and depicting entire fantasy worlds at a crisp 1080p quality or better.

The video game industry has sky-rocketed in the last decade, especially due to historic amounts of people turning to digital forms of entertainment to wait out the pandemic. In this , game developers must be especially cautious of potential trademark infringements. Two recent U.S. court cases addressed the question of whether depictions of real vehicles in video games constitutes trademark infringement.

Battle of the tractors:

The star of this case is a K-700 tractor. Saber Interactive Inc.(“Saber”) had entered into a licensing agreement with the trademark owner for the exclusive intellectual property rights to depict the K-700 in its video game, Mudrunner. The agreement included the right to enforce the license in court. Subsequently, Oovee Ltd (“Oovee”) released its game Spintires, featuring the K-700 as a playable vehicle. Saber then sues Oovee for unfair competition caused by unauthorized use of the K-700 trademark and trade dress under the American Lanham Trademark Act.

Expressive works are granted expression rights by the First Amendment. Oovee’s use of the K-700 was hence protected as such, as the Court found video games to indeed be expressive works. Accordingly, then, Saber had to satisfy the two-prong Rogers test to bypass this defense by showing that Oovee’s use of the K-700, as follows:

1. Had no artistic relevance to its Spintires game; or
2. Explicitly misled consumers regarding the source of the K-700.

The Court found that Saber “did not explain why Oovee’s use of the K-700 is artistically irrelevant,” and did not satisfy the high bar of “explicitly misleading” in their submissions. Saber argued that because consumers expect that “actual vehicles featured in simulations are licensed,” there arises a likelihood of confusion amongst the public as to the involvement of Saber in Oovee’s game. The Court found that without an explicitly misleading statement, this likelihood of confusion is insufficient to satisfy the second prong. Accordingly, Oovee’s use of the K-700 did not infringe upon any marks and the motion was dismissed.

Humvee v. Call of Duty, aka

The Saber case ruling follows an earlier case concerning the appearance of Humvee vehicles in the Call of Duty franchise games. Call of Duty, created by Activision Blizzard, is a first-person shooter game simulating a modern warfare setting with Humvees depicted throughout the game. AMG sued Activision Blizzard for these depictions since Blizzard did not acquire authorization for such uses. Like the Saber case, First Amendment protection applied to the video game, and this protection was subjected to the Rogers test.

Ultimately, the Court found that the use of Humvees was artistically relevant to the game because they evoked “a sense of realism and lifelikeness” to the players. The second prong, however, was unmet because despite there being survey evidence of confusion, the confusion itself did not arise from Activision Blizzard’s actions. The case was dismissed in favour of Activision Blizzard.

Implications

As more of our world moves online, these such lawsuits help guide the direction of developers designing the digital space. To make video games more immersive and realistic, developers would have to bring in real-life characteristics and these precedents help to shield designers from tedious trademark litigation. However, as we have seen from the Orton case��, similar protection may not be granted to copyright infringements in games. Regardless, we expect further guidance as the courts continue to clarify how the nuances of IP law apply online.

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Booker Zhang is an IPilogue Writer and a 1L JD Candidate at the University of Manitoba.

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Bloodborne, an action role-playing game made by FromSoftware, has achieved tremendous success since being published in 2015. On September 17, 2021, IGN released a of a new game named Wuchang: Fallen Feathers. This trailer has resulted in a heated discussion online about the line between inspiration and plagiarism.

Leenzee Games, the developer of Wuchang, claimed that FromSoftware games served as an inspiration. However, some comments online point to similarities that go beyond mere inspiration. Those who have played FromSoftware’s games can immediately identify the similarities. The sound, the art style, and the combat system are reminiscent of Bloodborne, while the UI looks very similar to Sekiro (another FromSoftware’s game). Some comments have gone as far as to claim that Wuchang is a “” or a “.”

A is that copyright law protects the expression of ideas rather than ideas themselves. The same principle also applies to video games. For example, the idea to make a video game that mimics basketball is not extended copyright protection.

Rather, the way basketball is played in a game amounts to the expression of the idea and may be protected. Various elements constitute the expression of a game—such as the graphic design, voice acting, and character design. In Canada, these are given special copyright protection. The same principle also applied in a 2012 American case , in which the court ruled that a game’s look and feel could be copyright protected.

The core issue here is whether Wuchang has infringed the copyright of Bloodborne on an “expression of ideas” level. One gamer has compared these two games and posted a to summarize the elements shown in the Wuchang trailer that are similar or nearly identical to Bloodborne, including gun sound, blood sound, and axe charge attack animation. Given that the idea is to make a role-playing action game, these elements constitute the expression of the idea. Under this consideration, it is reasonable to believe that Wuchang may have infringed the copyright of Bloodborne.��However, there is still much uncertainty in this case.

Soon after releasing the trailer, Leenzee Games announced that Wuchang was still in the early stages of the development, and only 15% complete. The final product might be completely different from the trailer, which makes it risky for FromSoftware to advance the lawsuit at this point. The fact that these two companies are from different countries also adds to the complexity. So far, FromSoftware has not announced any official statement, and Wuchang is still under development.

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Emily Xiang is an is an IPilogue Writer, President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD Candidate at Osgoode Hall Law School.

There is no question that the virtual gaming and e-sports industry has seen exponential growth in the last decade or so. In 2021, global e-sports revenue is said to have reached a whopping USD, and is projected to increase to $1.6 billion USD by 2024. Moreover, there are currently about who are said to be following e-sports worldwide, with that number expecting to climb to 577 million in the next few years.

Part of what makes the question of intellectual property in e-sports so unique is the myriad of overlapping rights that exist, being held by a including game designers, sound engineers, programmers, user interface developers, the players themselves, broadcasters, event/league organizers, advertisers, sponsors, and even spectator fans. But among these actors, whose rights can really be enforced? E-sport tournaments are an amalgamation of various intellectual contributions from a variety of actors. This is in stark contrast to traditional sporting events—after all, it cannot be said that !

It is accepted that the copyright (or the to the source code, maps, sound effects, and characters of a game is . As a result of the considerable power held by video game publishers in the e-sports industry, the associated IP regime is often considered as having a , in which a few actors own all the IP. Game publishers can decide what teams/players may compete, who may host tournaments, and how tournaments are advertised and broadcasted.

However, much of this power is effectuated through end-user license agreements or applicable terms of service with individuals and tournament organizers. Moreover, these rights can then be further assigned to others through contractual means. For instance, in 2015, a Twitch streaming channel named , another video game streaming service. SpectateFaker had broadcasted games played by popular e-sports player Lee Sang-hyeok. Azubu, having contractually obtained the exclusive streaming rights for Sang-hyeok’s games, filed a complaint against Twitch alleging copyright infringement. Interestingly, Riot Games—the publisher who owned the copyright to the game—was not involved in the dispute at the time. The matter never ended up being litigated.

Other disputes have arisen involving video game copyrights, though none such matters have yet to meaningfully challenge the status quo of the “top-heavy” e-sports regime in the courtroom. For instance, in the late 2000s, , including from Korea e-Sports Association (KeSPA). After years of failed negotiations, Blizzard decided to license the exclusive right to broadcast its game StarCraft to another South Korean organization and brought lawsuits against KeSPA.

The matter was ultimately settled outside of court, but it calls into question whether any other actors in the e-sports industry can assert some kind of right to their content. For example, can players enforce some kind of copyright or performer’s right in their gameplay? Many argue that mere gameplay or one’s “style of playing” is comprised of , that it , or that it is to be protected by copyright. That being said, it may also be argued that skilled gamers employ the use of considerably nuanced , which ultimately dictate how the game will go.

The gaps and barriers between IP and e-sports certainly will stop at copyright protection. As the industry continues to grow, we can expect to see more IP-related disputes, including ones involving for things like game titles, gamer tags, team brands and merchandise, or even popular characters, as well as protecting gaming consoles, software programs, and user interfaces. Several gaming patents have already been filed, such as U.S. Patent No. 8,882,576, or , which denotes an algorithm that evaluates the proportionate dependence of an outcome on skill versus chance. And while traditional sports and entertainment industries have long been regulated by established rules and best practices, Canada in particular has (as stated by Erika Carrasco, partner and chair of Field Law’s Emerging Technologies Group). Having a robust IP strategy in place for such a rapidly developing industry with enormous economic prospects makes the most sense.

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Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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, a Canadian accessories company notorious for its tongue-in-cheek marketing, taunted Sony earlier this year after launching an unofficial Sony PlayStation 5 (“PS5”) product. Unsurprisingly, Sony sent DBrand , which the Canadian company published and used to generate marketing for a newer, allegedly “not illegal,” albeit similar, product.

In February of this year, DBrand released unlicensed PS5 Darkplates, which are essentially a different shell/casing for the console. The PS5, if you are lucky enough to find one, can only be found in white. Until Sony releases official options, consumers who want a different colour must resort to purchasing skins, painting their consoles, or buying a different casing altogether. In the past, other companies have tried to sell custom plates for the PS5. PlateStation5.com, for example, after Sony threatened legal action over a trademark dispute. DBrand is apparently aware of Sony’s efforts to suppress these custom products, as they marketed their Darkplates with the tagline ��

The DBrand Darkplates were available in multiple colours and allowed for They also featured a textured pattern that is reminiscent of Sony PlayStation logos: the circle, square, triangle, and X. DBrand itself stated the pattern was “a familiar-but-legally-distinct apocalyptic spin on the classic PlayStation button shapes.”

Photo by

Until Sony caught on, the Darkplates quickly sold out and were placed on back-order. The cease-and-desist letter can be found . The 7-page document expresses that DBrand is infringing Sony’s copyrights in numerous ways, notably by selling plates that replicate Sony’s protected design, featuring the Sony PlayStation family mark logo and shape symbols, and using the PlayStation name to promote their product.

Sony further stipulates that, under both Canadian and US Copyright law, they reserve the right to protect their goodwill and associated intellectual property. The letter refers to the tagline “Go ahead, sue us,” and requests a resolution from DBrand. In response, DBrand pulled the products in issue, published a rather , and later re-released a new similar product: , touted to circumvent any legal issues. The 2.0 model is a different shape, devoid of all Sony logos, and features brand new vents for increased air circulation. The marketing is riddled with references to legality and the conflict with Sony. Even on the header, a scrolling text reads “FUND OUR LEGAL DEFENSE – FREE SHIPPING TO THE USA…” The new model’s tagline? “Checkmate, lawyers.”

Checkmate or not, DBrand’s transparency on the matter and relentless taunts are a curious marketing twist. Whether DBrand has closed the loop on their legal trouble with the brand-new design remains to be seen. Personally, I love the slimming effect of the design. I hope that Sony launches an official option soon.

The post “Go Ahead, Sue Us”: Sony sends Cease-and-Desist after Taunts appeared first on IPOsgoode.

Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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Like its , the 2017 Nintendo Switch is not immune to hacking and piracy. The modification of video game consoles typically enables the unauthorized use of illegally obtained game cartridge data (stored in ROMS) or fan-made ‘’ content. Some modifications allow . Hacking and piracy in the video game industry has even sparked

Nintendo of America (“NOA”) has been consistently strict and litigious in regard to any modification of its intellectual property. They recently brought forward of Game & Watch hacking and sued Recently, NOA settled with modification chip vendor Uberchips for

On April 16, NOA filed a lawsuit against Canadian hacker Gary Bowser in a The video game company alleges that This is not the first time Bowser has butt heads with Nintendo. Nintendo has taken action against Gary Bowser’s alleged piracy of their products as far back as .����

Life imitates art as Bowser shares a name with . Adding to the confusion, . While ironic, the Bowsers bear no relation to one another.

Gary Bowser allegedly lead the hack creator group Team Xecuter. According to the United States Department of Justice (“DOJ”), Team Xecuter is . They were arrested in late 2020 and charged with 11 felony counts, with the possibility of extensive prison time. As reported by the DOJ, the Nintendo Switch, NES Classic, and the Nintendo 3DS are targets of console hacks. . The group allegedly created and sold unauthorized hardware that allowed individuals to modify gaming consoles and install unlicensed software. For example, the SX OS, a prominent circumvention device sold by the group, can hack a Nintendo Switch, bypass security functions including technological protection measures and run pirated games.

In Nintendo of America Inc v Bowser 2021, NOA alleges that the development and distribution of the . Team Xecuter’s products allegedly circumvented and compromised NOA’s deliberately implemented Technological Measures, including encrypted identifiers requiring verification upon powering on and other server confirmation processes. NOA claims that users utilizing SX OS may download pirated games free of charge and propagate illegal copies via user sharing or peer-to-peer (“P2P”) sharing. According to NOA, this unauthorized Nintendo Switch activity results in

The SX OS is the on the Switch, at one point being installed on 89 percent of all modified Switches on the market. Illegal distribution undoubtedly affects Nintendo’s business, but also causes “” between Nintendo and its external developers.

Team Xecuter has historically rejected the piracy label and fought back against copyright claims. In a , the team claimed that Nintendo misrepresented Xecuter products, including the SX OS, and that they promote “” on modified consoles. Before this lawsuit, the group , calling for the right to repair and modify consumer electronics. Video game companies, including Nintendo, have . While Team Xecuter may explore and right to repair defenses, the team’s may hurt their arguments. As of May 2021, Team Xecuter has issued no publicized statements in response to NOA’s claims.

NOA seeks damages relating to the alleged injury to their IP and violations to the Anti-Circumvention and Anti-Trafficking provisions of . Under the ., NOA seeks $2,500 USD for each trafficked Switch and $150,000 USD for each copyright violation. Lastly, NOA seeks to shut down Bowser for good.

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This leads to the assumption that streaming is a safe legal activity. Instead, most streamers are in a [iii] through the public performance of a copyright protected work. While this can be rather surprising to the public who would expect that activities that are likely illegal would not develop into a growing mainstream business, the tolerance of infringing content by the game publishers is logical in this instance from a business standpoint as streaming is free advertising that could help grow the game.

A potential issue for the future of streaming, however, is the European Copyright Directive. A throughout the process of drafting was Article 13[v] which critics have held will lead to the censoring of the internet.

Article 13 has since been passed as and is concerned with the sharing of protected content online by service providers.[vi] Article 17 moves away from the framework provided by the DMCA and its safe harbour provisions. Instead, it changes the landscape for service providers or content hosts by explicitly choosing to hold them liable. Online services that distribute content must obtain a licence from a rights holder. Beyond this requirement, require online content providers to make best efforts to prevent copyright protected work to be uploaded, or reuploaded in the future.[viii]

So, the main question at issue here will be enforcement. If enforcement will be done on a discretionary basis requiring a complaint to be made than the streaming industry can persist barring future issues. to take down streams in Europe support the position that takedowns will occur on a complaints basis. [ix] Especially as some of the takedowns which are on done on a copyright basis have been filed for reasons outside of the purely economic sense of copyright law but out of disgust for certain streamers behaviours while playing games such as.[x] It is inevitable for some rights holder to take issue with some streamer or any of the individual streams in the future.

Even if complaints are made, it is possible for the state of affairs to continue as they are as the text of ) states that the rights holders have to have “provided the service providers with the relevant and necessary information” before content can be blocked as infringing.[xi] If no details are provided, it is possible that no requirement to block the stream or other content need take place.

If, however, the European Union or one of its member states take a more proactive approach to ensuring services operating within it are compliant, as they are staring to do with,[xii] streaming services such as Twitch could become more limited in scope and functionally become a live game streaming version of Netflix or be blocked in Europe altogether.

Written by Matthew Drinovac, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2019/2020 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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[i] Leo Sun, “Microsoft’s Mixer is Catching up to Amazon’s Twitch and Google’s YouTube” (6 October 2019), online: <https://www.fool.com/investing/2019/10/09/microsofts-mixer-is-catching-up-to-amazons-twitch.aspx>.

[ii] Chris Bumbaca, “16-year-old Kyle ‘Bugha’ Giersdorf takes home prize for Fortnight World Cup win” (28 July 2019), online: <https://www.usatoday.com/story/sports/gaming/2019/07/28/fortnite-kyle-bugha-giersdorf-wins-3-million-world-cup/1853058001/>.

[iii] Scott Alan Burroughs, “A Twitch In Time” (5 September 2018), online: <https://abovethelaw.com/2018/09/a-twitch-in-time-legal-issues-catch-up-with-popular-game-broadcasting-platform/>.

[iv] Julia Alexander, “YouTube CEO says EU regulation will be bad for creators” (22 October 2018), online: <https://www.theverge.com/2018/10/22/18008406/article-13-copyright-directive-youtube-susan-wojcicki-robert-kyncl>

[v] Cory Doctorow, The Final Version of the EU’s Copyright Directive is the Worst One Yet” (13 February 2019), online: <https://www.eff.org/deeplinks/2019/02/final-version-eus-copyright-directive-worst-one-yet>.

[vi] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.

[vii] Digital Media Law Project, “Protecting Yourself Against Copyright Claims Based on User Content” (2014), online: <http://www.dmlp.org/legal-guide/protecting-yourself-against-copyright-claims-based-user-content>.

[viii] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.

[ix] Raj Shah, “Twitch Bans Several�� Accounts for Unauthorized CSGO Berlin Major Streaming” (27 August 2019), online: <https://www.talkesport.com/news/twitch-bans-several-accounts-for-unauthorized-csgo-berlin-major-streaming/>.

[x] Owen Good, “Firewatch creator vows DMCA retaliation against PewDiePie for racist slur used in stream” (10 September 2017), online: <https://www.polygon.com/2017/9/10/16285188/pewdie-pie-racist-slur-firewatch-retaliation-dmca>.

[xi] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.

[xii] Victoria Arnold, “What the latest GDPR fines reveal about authorities’ attitude” (30 September 2019), online: <https://www.lexology.com/library/detail.aspx?g=a4054dd5-3215-4f69-bf13-3f2858600ad1>.

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If you were born in the late 1980s or early 90s or have young children, you have probably encountered a red-cheeked mouse called Pikachu or any of the hundreds of other that exist in the �ʴǰ�é���Dz� media franchise. While the premise of catching colourful creatures is rather straightforward, its simplicity and charm belie its commercial value.

The �ʴǰ�é���Dz� franchise started as a pair of handheld video-games but currently spans 19 television seasons, 20 movies, 10 cinematic shorts, 2 television specials, a 20-year-old trading card game, 27 video games, a multimillion dollar smartphone application, and many other enterprises. So, when considering the substantial amount of success the franchise has had, why might the legitimacy of the �ʴǰ�é���Dz� name not be held in the same esteem as other brands? One possibility is that the youth-oriented nature of the brand casts doubt on its potential; however, with its revenue earnings standing at ��the name and associated characters are well worth protecting.

The Difference a Name Makes

The �ʴǰ�é���Dz� brand can have a substantial impact on the public’s perception and purchasing habits of goods. For example, compare and contrast the success of ��last two mobile gaming applications: ��and . Both games feature location-based, augmented reality gameplay with king of the hill style competition between players. However, there is a drastic difference in the success of the two games. Despite being released two and a half years earlier, ��with only a tenth of ��on the Google Play store. Given the similarities in the core mechanics of gameplay, the fact that both games were developed by the same company (Niantic), and that both use the same map databases on which their augmented reality features work, it seems likely that the main contributor to the difference in public reception of the titles is the �ʴǰ�é���Dz� branding. Thus, when considering the protection of intellectual property rights for even youth oriented products, it is important to consider the full scope of the effects a simple change in name and characters can have on otherwise similar products.

Fandom

The �ʴǰ�é���Dz� universe has experienced a significant amount of growth since its inception, which is partially attributable to the thriving fandom and associated subculture. Having mediums to discuss interests or share themed artwork is��good publicity that compounds the awareness and recognition of the name-brand. While this sense of camaraderie among consumers has helped substantially, sometimes the limits of what is lawful are crossed. ��sought an injunction over the inclusion of two �ʴǰ�é���Dz� characters, Pikachu and Snivy, in promotional material for a �ʴǰ�é���Dz� themed event. At first, it seems like a straightforward case: the defendant did not acquire permission to reproduce the two creatures and the plaintiff wanted their IP rights respected. The peculiarity of this case comes from its context within the tech, fantasy, sci-fi, gaming, art, and internet subculture.

The contested promotional material was for a sold-out, �ʴǰ�é���Dz� themed party at the , a large and well-established gaming convention founded��in 2004 by the authors of . The ��is partly attributable of these types of social events, where like-minded individuals can meet, discuss their interests, and foster recognition for their hobbies. So, when a �ʴǰ�é���Dz� themed party to celebrate the start of PAX is cancelled, there is some damage to the promotion of the subculture itself. That is to say, the people who are using the intellectual property of others unlawfully in a promotional context are often also the��individuals who have indirectly developed the franchise and contributed to its popularity.

To the disappointment of many fans, the �ʴǰ�é���Dz� themed party was cancelled because of the lawsuit. The plaintiff, �ʴǰ�é���Dz� Company International Inc., put forth an initial settlement offer for damages and its attorney fees. In response, the self-representing defendant who organized the party��turned to the �ʴǰ�é���Dz� fandom through crowd-funding to cover the costs of the settlement and successfully raised enough money. However, the defendant, Ramar Larkin Jones, did not respond in time to the offer and published a ��from the �ʴǰ�é���Dz� Company detailing the settlement, which is generally an unwise decision in the normally confidential process of settlement discussions. What the this did achieve for the defendant was substantial community outcry over the lawsuit, with , , , and many other publishers within the subculture expressing dissatisfaction with the �ʴǰ�é���Dz� Company suing one of its own fans. In response to this backlash the �ʴǰ�é���Dz� Company lessened the settlement to a against the defendant’s unlawful reproduction of copyrighted material, who accepted the new resolution.

Moving a Franchise and��its Subculture Forward

Obviously, lawyers��cannot allow the free use of copyright-protected images, like our friend Pikachu, without any restraint. However, by being overly inflexible about the use of any character with a vague likeliness to a �ʴǰ�é���Dz� the brand itself may be damaged. Consider Maroon 5’s latest music video for their song , which features a star-studded cast of celebrities, including Ed Helms, Sarah Silverman, Vince Vaughn, and Shaquille O’Neal, being chased by throngs of people looking to “catch” them on their smart phones in a manner similar to �ʴǰ�é���Dz� Go’s mechanics. There is a strong resemblance in the video between certain costumes and �ʴǰ�é���Dz� characters, with front-man Adam Levine’s costume appearing to be based on the Squirtle �ʴǰ�é���Dz�. Yet the homage paid by Maroon 5 is likely to be of great benefit to the �ʴǰ�é���Dz� brand due to the association with a . This becomes��especially important when considering that the widely popular �ʴǰ�é���Dz� Go game has lost . Ultimately, the protection of IP rights for a franchise must be a careful balancing act that does not preclude the possibility of growth through fandom, since��the fans are the same people��who are responsible for the brand’s success.

Dominic Cerilli is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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British Telecommunications (BT) alleges that��on-line services offered by Valve infringe on four U.S. patents held by BT. The patents at trial are broadly worded and could implicate many popular video game, social networking, and video streaming services. If [BT v Valve]��were to succeed,��they would be granted legal authority allowing them police many of the services relied upon by the video game industry, as well as many other popular websites.

David versus Goliath

Valve, founded in 1996, owns and operates ��Steam, an industry-leading software distribution and social networking application for computer gaming.��Steam, released in 2003, commands a near-monopoly over the digital rights management (DRM) and computer game distribution. Despite massive support among developers and gamers alike, ���ٱ𲹳�—a�Ի� �ղ�������—h������ .

British Telecommunications (BT) group is the oldest telecommunications company on the planet, tracing its roots to the invention of the first telephone by Alexander Graham Bell. BT is a leading communications provider in the United Kingdom. According to court documents, BT “,”��in network telecommunications.

What the suit claims

BT argued that Valve continued to operate services at great cost to the patent holder, despite multiple communications asking Valve to stop. The following patents are alleged to have been infringed:

• Communications node for providing network based information service:��

• Method for automatic and periodic requests for messages to an e-mail server from the client:��

• Communications network and method having accessible directory of user profile data:��

• Multi-user display system:��

One can��see��how Valve's services are implicated in these patents. Steam��is a digital marketplace that distributes “”; provides chat services “”; stores “”��for its users; and allows these users to “.”

Valve is far from the only company implicated by the broad language of these patents (and certainly not the most financially successful). Messaging, video streaming, and web marketplaces are endemic to the internet and the tech world. As the patent holder, BT has a choice to enforce the patent against whomever they wish. Why go after Valve?

Possible reasons:

1. This is intended as the first of many similar suits

If the court were to rule in favour of BT in this case—however likely that may be—it would open the door for further enforcement of the strict language contained by the patents-in-suit. If the court accepted the language that “BT has been damaged and continues to be damaged by Valve’s infringement,” and applied retributive, pecuniary damages, this would set a precedent allowing BT to challenge industry leaders’ social media and networking IPs.

2. BT is looking to become involved in gaming, DRM, or streaming

Video games are a multibillion dollar industry. Leading publishers and distributors, like Valve, command the industry’s continually expanding value. Social and competitive gaming services, like Valve's��Steam are at the heart of a parallel, expanding market for “e-Sports”. Video game “sport” tournaments have exploded in popularity and now host regular tournaments each year. Cash prizes range in the tens of thousands of dollars. It is not improbable that major telecommunications companies would keep an eye on this growing market. If BT had any interest in permeating the market, the ability to enforce this patent against Valve could pay serious dividends.

3. A suit against Valve will allow BT to test public opinion

Most computer gamers must interact with Steam.��As a result,����news related to Steam and Valve receives a great deal of attention. The video game consumer base is very large. An accusation against Valve is sure to gain the attention of a large audience, including many people who would not otherwise follow tech news. This is a known tactic within the video game industry to��lobby public opinion.��Kotaku.com has gone so far as to develop a separate ��news page to cover all of the grievances--material and superficial--raised against Valve/Steam.��Targeting Valve is a��sure way to determine if public opinion will allow BT to go ofter other, higher-profile internet services with patent suits (e.g., Facebook, Amazon).

What does this mean?��

Perhaps this can be dismissed as a "patent troll" case. But, granting patent rights to BT in this case might lead to controversial effects. The Trans Pacific Partnership (TPP) (albeit, with rapidly diminishing support). The TPP would permit greater US-based regulation of the public internet. If this were ratified, a decision like that in BT v Valve would support and legitimize BT and the US government's policing of many of the most popular applications and resources on the internet.

Further news related to the suit will follow in the coming months.

Christopher McGoey is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

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In August, the (ACCC) started proceedings against software company for its refusal to provide refunds to customers purchasing video games through its Steam online store and distribution platform. The ACCC claims that by refusing to refund in all circumstances and stating that it was excluded from statutory consumer guarantees, Valve is making misleading representations: Australian consumer protection legislation����that cannot be restricted by contract.�� Similar immutable implied guarantees can be found in consumer legislation in many Commonwealth jurisdictions, .

This is not the first time that Valve has run afoul of consumer protection groups – German consumer protection group VZBW recently brought Valve to court over users’ right to resell games purchased through Steam. , but the case illustrates the ongoing struggle between consumers and distributors of digital entertainment over rights to online purchase.��Moreover, VZBW was not a government entity, whereas the ACCC is; a regulatory agency taking action against Valve could be indicative of an increased commitment to enforcing compliance with consumer protection law.

If the ACCC prevails in court, the consequences will be felt in Canada, as Canadian courts often find Commonwealth jurisprudence persuasive in forming their opinions. The applicability of any Australian decision is likely to be further enhanced by the close similarity between the relevant Australian and Canadian consumer protection statutes. While wording of the statutory guarantees differs slightly, with the Australia Consumer Law (ACL) section 54 using "acceptable quality" and the British Columbia Sale of Good Act (SOGA) section 18(b) using "merchantable quality", both statutes include guarantees that the goods be fit for disclosed purposes. The ACL's guarantees seem to be slightly broader than those provided in the BC SOGA: under the ACL, in addition to being fit for any purpose disclosed by the purchaser, section 55 states the goods must also be fit for any purpose for which "goods of that kind are commonly supplied". Moreover, in the BC SOGA section 18(b), if the consumer is allowed to examine the goods before purchase, there is no implied condition with regard to defects that the examination would have revealed. Conversely, the ACL's section 54(4)(b)��requires that any such defects be "drawn to the consumer's attention", placing the burden on the vendor rather than the purchaser.

However, though the ACL was enacted with the intention of protecting purchasers of goods, game buyers may be less than pleased if Valve raises its famously discounted prices or introduces region-specific retail practices as a measure against financial losses incurred through refunding purchases. In the end, even if an ACCC victory in court brings about increased vigilance over online consumer protection, Valve is likely not going to be subjected to a deluge of refund requests under consumer protection legislation. Such laws only guarantee "acceptable quality" or its equivalent, which have not been defined in the context of a computer game, but likely include guarantees that the game runs on the computer systems it is made for and is free of glitches that render it unplayable. Furthermore, the actual logistics of returning a digital copy of a game complicate matters. Steam can run in an "offline mode", allowing games to be played without an internet connection. If a customer were to purchase a game, install it, then return it, he or she could potentially use offline mode or an analogous feature on another platform to continue playing the game despite having received a refund.

In the end, whether Valve wins or loses in court, the ACCC's action is yet another wake-up call to software companies and consumer protection watchdogs. As entertainment media drifts ever further from its roots in physical artifacts like CDs and cassettes, consumer protection regimes ought to evolve as well to ensure that the public is protected regardless of whether the goods they purchase are tangible or not.��The application of laws governing physical, tangible goods to digital, virtual online products will continue to be a hot topic in courts worldwide, as previously discussed in the ,��and by the ACCC��showcasing the difficulties in applying a legal paradigm of property developed for an offline world to a globally connected Internet.

Adam Chan is an IPilogue Editor and a graduate of the University of British Columbia Faculty of Law.

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The Retaliation of Gaming Companies��

Legislation in��Canada and the U.S. does not spell good news for UGC creators. Canada’s����addresses UGC specifically, stating that the UGC creators escape infringement only when their work: (1) is based on��existing material that itself does not infringe copyright, (2) is used for non-commercial purposes, ��(3) gives credit to existing work, and (4) does not have a substantial adverse effect on existing work.��The “substantial adverse effect” clause can be used to support two main arguments made by gaming companies against UGC creators. ,��companies can argue that UGC such as walkthroughs and guides deprive them of the profit they would have earned by selling their own versions��[2]. ,��video game creators may state that UGC misrepresents a game in such a way that the companies' reputation is affected; this situation could infringe the companies' morality rights��[3].��American Copyright Law is arguably more lenient, as it does not address UGC. This omission means that legal battles over contentious works primarily involve discerning whether the UGC constitutes an unauthorized "derivative work" based on a video game company's protectable expression.��Under��,��UGC does not infringe copyright if the preexisting material was used with permission. As well, UGC��creators can obtain copyright for parts of the work that��do not contain video game companies' preexisting content.

Gaming companies often side-step doctrines that protect players who might create UGC, such as fair use or fair dealing, by turning consumers into licensees through standardized end user licensing agreements. The terms in those contracts are usually dictated by one side, and players are asked to “take it or leave it”: either adhere to the agreement's terms, or do not engage with the gaming content at all.��[4] Most contracts are similar to the one in , where the terms enable gaming companies to use any UGC made by players, but keeps the players in legal uncertainty when they use copyrighted content from games to create UGC.

Some Case Law Guidance

Of course, the central purpose of protecting gaming companies’ economic and morality rights against unauthorized UGC should be upheld. However, I do not recommend adopting an “all UGC is evil” mentality when analyzing such disputes. Fortunately, the U.S. Courts have recognized this, offering some guidance as to how to separate more innocent UGC from ones that are truly harmful.

In , a game developer wanted to encourage user creativity in his game, FormGen, creating a “Build Editor” in his game that allowed players to build their own levels by using the tools provided. Players were very enthusiastic, and many participated and posted their creations online. Micro Star, the defendant, downloaded 300 levels created by users, burned them on a CD, and sold them commercially. The Court ruled against Micro Star, stating that it created a derivative work without authorization.��The CD made by Micro Star fulfilled the elements required of a derivative work: it existed in a concrete and permanent form and contained substantial amount of copyrighted material. Further, the defendant’s use did not fall under “fair dealing”, because it was used commercially and had an adverse effect on the original work, as FormGen retained exclusive right to perform sequels (Micro Star’s work was considered to be a sequel).

In contrast, in , the Court ruled in favor of UGC creators. Bleem created a software emulator that allowed users to play Sony’s console games on PC computers. In advertising its products, Bleem used copyrighted screen shots from Sony Console games in order to show the difference between those games played on console and those games played on computers. The Court ruled that Bleem's use fell under the fair dealing doctrine because it provided comparative advertising that ultimately benefitted consumers through the provision of important purchasing information and encouraged competition and innovation in the market. Moreover, the Court ruled that Bleem did not use any copyrighted materials in its work, but rather only in its advertising;��thus, the UGC��was considered fair dealing. The Court also stressed that in order to rule against derivative work in a fair dealing case, the adverse effect the UGC causes to the preexisting work must be substantial. In this case, it was permissible for Sony to suffer some financial loss as a result of comparative marketing.

Trying to Find Middle Ground: Limited Licenses?

While much existing UGC would not fall under fair dealing exceptions, the reality is that��giving players more control and recognition over their UGC fosters creativity and often leads to enhanced gaming experiences. Consequently, gaming companies' attempts at stricter control��have usually been met with serious player backlash, leading some developers��to realize that it might be better to work with, rather than against, players. In response, video game creators��such as����(maker of Xbox games)��and����have started offering��limited licenses that grant players some protection over their UGC and��the ability��in certain cases for players to infringe copyrighted materials when making UGC.��However, these licenses are still somewhat problematic. Firstly, each company offers players a specific set of rights that are often incompatible with those offered by other companies; this makes it difficult for players to use multiple games to create UGC. Secondly, the licenses often contain undecipherable��legal jargon��and leave a lot of room for interpretation, meaning UGC creators must stew in legal uncertainty. Frustratingly, the licenses can also be revoked at any time.��Lastly, players still have no say over the licenses’ terms.

Conclusion

It seems unlikely that legislation or case law will give UGC creators more rights in the near future. However, out of fear of backlash, gaming companies often choose not to sue players who infringe copyright in their UGC. Microsoft even allowed Rooster Teeth Productions to continue producing Red vs. Blue without paying royalty fees to them.��Thus, the smart thing for players to do may be to vote with their wallets and voice, and not support companies that do not accommodate UGC.

Sabrina Ding is an IPilogue Editor and a J.D. candidate at Osgoode Hall Law School.��

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