Creating a game? Get a lawyer

AUSTIN, Texas--If you ever play online games, you're probably way too busy battling orcs, completing quests or accumulating virtual gold to think about the passel of legal considerations that went into shaping your experience.

More than likely, however, a gaggle of lawyers were involved in getting that MMO off the ground. Among the elements they likely focused on were general intellectual property issues, terms of service and privacy concerns, the legality of contests and sweepstakes related to the game, and forward thinking involving any future investments in or sales of the company that created the title.

These were the major areas discussed Thursday in "Emerging Legal Issues in Online Games," a talk given at the Austin Game Developers Conference here, one of the most important gatherings of online game developers and industry professionals.

Ostensibly, the talk by attorney Greg Boyd from the firm Paul, Weiss was aimed at the many game developers in the room. But the discussion also shed light on the less visible machinations that influence what ends up in consumers' hands and on their computers.

"Imagine if Google comes to you with a $500 million check and your privacy policy didn't say it could sell your (account) information. How are you going to get out of that?"

--Greg Boyd, attorney

To begin with, Boyd talked about how patents figure into the creation of online games. Not long ago, he pointed out that game publication Gamasutra compared the number of patents issued to video game developers with the number issued to those who create toothbrushes. The publication found many more patents issued for the dental instruments.

Today, however, the online game industry has caught on to the value of patents, and Boyd said that in his practice--he has represented clients from small start-ups to giants like Electronic Arts and Vivendi Universal--he now gets questions about patents' effectiveness, their cost and how long it takes to get one in almost every client discussion.

He also talked about other areas related to intellectual property, including trademarks and copyright, pointing out that game developers have to think about these issues, even if it's not their first priority, because they have to protect themselves and their legal rights as they move forward with the creation of a company or a new game.

Ultimately, Boyd argued that game developers need to take their intellectual property rights and responsibilities seriously if they want to be taken seriously in business, and also to avoid getting caught up in unnecessary legal fracases.

Among the things getting set up with strong intellectual property protections does, he added, is give a company a sense of professional sophistication.

"It says, (you're) not just three guys in a garage working on Mom's borrowed money," Boyd said. You're "not just going to work every day, hitting on a bong and seeing what comes out."

Further, game developers who have made an effort to ensure that their intellectual property rights are in order--by taking steps like putting everything in writing and making sure they don't let other entities encroach their patents, trademarks or copyrights without responding--are in the advantageous position of having an ongoing defense against competitors who might otherwise breach those rights.

For consumers, meanwhile, issues related to terms of service or end-user license agreements (EULAs), as well as privacy, are likely to have more direct relevance.

Boyd said he considers it crucial that his clients take their EULAs and privacy policies seriously, since those are the instruments that govern what consumers can do and what the developers can do with players' personal information.

"This tells people how you're going to treat information from them," said Boyd, "and what are (developers') obligations."

[play7]

What?

How in the hell did Second Life get in to this matter? Oh PLEASE! Stop this shameless jokee of a PR game!

[menotbug]

Re: WHAT?

Oh come on, it's entirely appropriate for the article. It's not like it's telling you to play the game for chrissake.

[asdf]

Software Patents are garbage law, on it's way to the trash can

Software patent attorneys are little more than the mafioso, attempting to inject themselves into economic transactions they have no business in, in order to extort a "fee for services".

The reality is, software has always been developed very nicely without patents. If patent attorneys had shown up sooner, do you think software would be at the level it is today? There wouldn't even BE an internet except for a few very rich companies who used to as a "competitive advantage". The internet for the rest of us would be some far-off thing of the future that we were dimly aware of thanks to that article in Newsweek. We'd hear is was SO expensive that economist projected it would be 2080 before anything similar could be expected for the general public.

The proof of history is clear: patents are NOT needed for innovation and therefore there is no moral, economic or philosophical basis for their presence in our industry.

The Constitution clearly states that the purpose of patents is to promote the useful arts and sciences. If a patent doesn't serve that function, no patent is to be issued. Software patents don't serve any function except to put a brake on innovation and create a new class of mafioso-middleman, the patent attorney.

So they found some LAWYER to get up in front of a bunch of productive, goal directed, intelligent creative types and tell them that THEY can't do business without HIM. That they have to pay the stupid lawyers of this world a fee, a tax, a rent, a tribute, in order that they should be permitted to continue to create.

So they found some LAWYER to intimidate and scare a bunch of high IQs into believing they all owe stupid, Armani-wearing, greasy-haired, dirtbag LAWYERS millions of dollars in order to create and make a living -

data point: it costs 1 million per patent per claim to defend your patent in court. What's YOUR bank account look like.

So they found a LAWYER to demoralize and depress a group of smart people into believing that no creation can take place outside of the corporate fiefdom of established players because no independent can afford to play THEIR game.

I think this is known as eliminating the competition before it can get started.

What do established players whose corporate hierarchy chokes and kills every creative impulse and whose sole purpose is to put another line of blow up the noses of their white-trash CEOs fear more than anything else?

You.

You and your fresh ideas and your fresh perspective.

What are they going to DO about YOU? They're going to terrorize you and demoralize you into believing that you cannot live without them and that the fee for the continuing to be able to generate your own thoughts and realize them in code is to be the submissive rendering of your best ideas and creative years to them, your corporate masters and their scumbag lawyers, in exchange for a short-lived career of 80 hour weeks under slave labor conditions with 10 PTO days a year.

Ahh.. la cosa nostra.... this thing of ours...

Ain't it great?? HAW HAW HAW....

Funny, but it was these same group of LAWYERS who injected themselves into the business of software in the first place. This is little more than extortion, a pay-to-play scheme of the rankest variety.

Well FPSer's - lock and load. The Supreme court takes a dim view of these bottom dwellers as Teleflex vs KSR has indicated.

To quote the Court:

"These advances, once part of our shared knowledge, define a new threshold from
which innovation starts once more. And as progress beginning from higher levels
of achievement is expected in the nor-mal course, the results of ordinary
innovation are not the subject of exclusive rights under the patent laws. Were
it otherwise patents might stifle, rather than promote, the progress of useful
arts.?"

Amen.

So the next time you're confronted by some dirtbag patent lawyer who wants to force you to hand over the fruits of your labor to him so he can live off your labor, just say-

"back, animal, your days are numbered. I don't OWE you anything. What? NO, I don't care that your trophy wife is going to walk as soon as she finds out you're not pulling down 8 figures. NO, I don't care about your the three kids you've got in $20 grand a year pre-school either. What? No, I don't care that flunked out of engineering school either. Get a real job. Become a productive member of society. Work for a living. And don't let the door hit you on the way out.

[chash360]

Agreed but disagreed (its all about greed)

I agree Patents have no purpose or use with software. What you want to patent Pi or some other number!?!? What if Archemides had a patent on the geometric description of a circle? Software should be protected under copyright law, just like any other publication, because that is what it is, a publication. Patents are for devices and processes. The purpose for Patents was to promote innovation by making sure the inventor or innovator could recover their investment and efforts in the developement of a new device or process. Without patents you, the Garage inventor could develope something truly innovative, and a large company could simply reverse engineer and put you in the poor house with their economies of scale, without giving you a dime! Unfortunately this system has been completely abused. Companies buy up potentially competetive patents and bury them, so they can continue to make money off their less innovative, less efficient products. Just look at the automotive industry, how many truly innovative patents have been bought up and then burried? Look through the patent archive, there are thousands of really good inventions, that have never seen the light of day because they are bought up by energy, oil, automotive, chemical and pharmecutical giants, so that they could protect their profits.

Part of the change that needs to take place is that if a company is not actively pursuing the developement of a purchased patent, that could potentially benefit society or the consumer, then they should lose all rights to that patent and it becomes public domain, or reverts to the original individual developers (personally, not their corperate employers). Secondly it should be clearly stated that Patents are to recover developement and innovation costs, and NOT to ensure profits through IP monopoly. For a patent infringement case to even be considered, the allegedly infringed, should be able to clearly document the amount of investment into the research, that has not yet been recovered from marketing and sale of such, and demostrate that the allegded infringers, have prevented them from recovering that cost. I think if these changes were made it would resolve about 80% of the roadblocks to innovation we are currently experiencing with our current patent system.

So I agree that software should not have anything to do with patents, they should be (and always should have been) covered under copyright law.

But I disagree with eliminating patents, because they do protect the investment of inventors (corperate or individual) when they are actively pursued and developed, with the intention of bringing them to market.

The biggest flaw is aquiring patents for the purpose of suppresion, or eliminating potential competition. This is what needs to change.