In the business of video games, intellectual property protection is critical to success, and Patents, Copyrights, and Trademarks are the bricks with which your IP portfolio is built. The Patent Arcade is the web's primary resource for video game IP law, news, cases, and commentary.
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United States District Court for the Eastern District of Texas
Docket No. 2-18-cv-00284, filed July 10, 2018
On July 10, 2018, Infernal Technology and Terminal Reality (Infernal) filed a lawsuit in the Eastern District of Texas alleging that Crytek GmbH (Crytek) infringed upon U.S. Patent Nos. 6,362,822 (the '822 Patent) and 7,061,488 (the '488 Patent). The two patents relate to lighting and shadowing methods in computer graphic simulations.
Image from the '822 Patent, Fig. 2.
Claim 1 of the '822 Patent reads:
A shadow rendering method for use in a computer system, the method comprising the steps of:
providing observer data of a simulated multi-dimensional scene;
providing lighting data associated with a plurality of simulated light sources arranged to illuminate said scene, said lighting data including light image data;
for each of said plurality of light sources, comparing at least a portion of said observer data with at least a portion of said light data to determine if a modeled point within storing at least a portion of said light image data associated with said point and said light source in a light accumulation buffer; and then
combining at least a portion of said light accumulation buffer with said observer data; and
displaying resulting image data to a computer screen. ('822 patent, col 12, lines 4-21).
Infernal claims that Crytek's utilization of video game engine "CryEngine" allegedly infringes the asserted patents. According to the Complaint, Crytek used the allegedly infringing game engine to develop the Crysis series, Warface, Ryse: Son of Rome, The Climb, and Robinson: The Journey.
Typically, the next step for a defendant in this situation is to petition the Patent Trial and Appeal Board (PTAB) for an Inter Partes Review (IPR), but the '822 and '488 Patents have already survived an IPR because of earlier litigation. In 2015, Infernal sued Electronic Arts for patent infringement. EA responded by petitioning the PTAB for an IPR; however, the PTAB found the '822 and '488 Patents to be "Not Unpatentable." EA settled the lawsuit after the PTAB's decision. Crytek can still petition for an IPR of the asserted patents, but will likely have to use different prior art that the art used by EA or provide a good reason why the Board got it wrong the first time around.
If this seems like deja vu that is because Infernal filed complaints similar to the Crytek Complaint against Microsoft in April and against Activision Blizzard in May. To read our blog post on the Microsoft case click here. We will continue to monitor all three of these cases and provide updates when possible.
Bethesda Softworks LLC v. Behaviour Interactive, Inc., et al
United States District Court for the District of Maryland
Docket No. 8:18-cv-01846-RWT, filed June 21, 2018
On June 21, 2018, Bethesda Softworks filed a complaint in the District of Maryland against Behaviour Interactive and Warner Bros. alleging their Westworld mobile game infringes Bethesda's copyrights in Fallout Shelter. According to the Complaint, Behaviour used Bethesda's copyrighted source code from Fallout Shelter to develop a Westworld mobile game for Warner Bros., which, they allege, not so coincidentally ended up being suspiciously similar to Fallout Shelter. The Complaint also alleges that Behaviour breached a non-disclosure agreement and misappropriated trade secrets in doing so.
According to the Complaint, in 2014 Bethesda hired Behaviour to help develop Fallout Shelter. The Complaint states that Behviour assigned all rights in Fallout Shelter to Bethesda. Then in 2018, Warner Bros. hired Behaviour to develop a game similar to Fallout Shelter but based on Westworld. Warner Bros. released the Westworld game on June 20, 2018. Bethesda notice some similarities, and subsequently filed this lawsuit.
To prove copyright infringement, a plaintiff must show the defendant had access to the copyrighted work, and that there is a substantial similarity between the two works. Behaviour likely had access to Fallout Shelter's source code from when it developed the game for Bethesda. However, even access can be inferred if the similarities between two works are so similar that there is no reasonable explanation for the similarities except that one is a copy of the other. Proving substantial similarity for source code can be tricky because separating the non-protectable ideas from protectable expression is difficult. Most courts use the "Abstraction-Filtration-Comparison" test to filter out non-protectable ideas from both works, which can leave a plaintiff with thin copyright protection. Here, Bethesda bases its claim that Behaviour copied the source code on the fact that the Westworld game has the same "bugs" or "glitches" that Fallout Shelter had at release. The presence of the same bugs in alleged infringing software has been used in the past to prove infringement. It will be interesting to see if the Court agrees with Bethesda's point of view.
While the primary focus of Bethesda's Complaint is the source code, Bethesda is also claiming that Behaviour copied the artistic style and gameplay elements of Fallout Shelter. The biggest obstacle for Bethesda with these claims will likely be showing that Behaviour copied protectable expression and not just ideas or a scènes à faire of a game or genre. Even when the Complaint compares the artistic or gameplay features of the two games it does so to establish that those features were a result of the copied source code.
PUBG Corp., the Korean Subsidiary of Bluehole Studios (the developer of PlayerUnknown's Battlegrounds), has dropped its lawsuit against Fortnite developer Epic Games Inc. PUBG had filed a copyright infringement claim against Epic in South Korea back in January. According to reports, PUBG alleged that Epic had copied PlayerUnknown's assets and user interface. You can read our coverage here. However, on Monday, PUBG sent a letter of withdrawal to Epic's lawyers and the South Korean case was closed. Neither side has stated a reason for the withdrawal. PUBG's lawsuit against Netease Inc. is still ongoing, and we will continue to provide updates when available.
It is worth noting that Tencent Holdings Ltd., a Chinese social media/gaming company, is a part-owner in both Bluehole Studios and Epic - each to the tune of hundreds of millions of dollars - and might not want its investments suing each other. Also, PlayerUnknown's currently runs on Epic's Unreal Engine 4, which could also play a part in the settlement. We may never known the exact reason PUBG withdrew, but the cross-over between the two sides could have been a significant factor. As of right now, this appears to be the end of the legal conflict between PUBG and Epic.
United States District Court for the Northern District of California
CAND-3-17-cv-06223, Filed Oct. 27, 2017
We recently reported on Epic Games suing individuals for cheating in Fortnite. You can read about those cases here, here, here, here, here, here, and here. Recently the Northern District of California declined to grant a motion for default judgment against one of the defendants, Konstantin Vladimirovich Rak. In its complaint, Epic claimed that a YouTube video Mr. Rak had posted violated its exclusive right of public performance. Epic filed for a default judgment after Mr. Rak failed to respond to any court motions. The Court denied the motion for default judgment on several grounds, one of which was the public performance claim was insufficient. The District Court's denial was noteworthy because, in its opinion, the Court questioned whether posting gameplay footage to YouTube constituted a public performance.
Epic contends that Mr. Rak publicly performed Fortnite when he posted to YouTube a video about how to hack the game. Under 17 USC 101, to publicly perform means to transmit or communicate a performance of a work to a substantial number of people. The same statute defines a performance of an audiovisual work as showing its images in any sequence. Even though video games are classified as audiovisual works, there are not many cases explaining what constitutes a public performance of a video game. Epic cites Valve Corp. v. Sierra Entertainment, Inc., F. Supp. 2d 1091 (W.D. Wash. 2004) to support its claim of public performance. The NDCA did not find this citation helpful because the Valve case was primarily a contract dispute, which briefly discussed what constitutes a public performance of a video game.
The District Court also discussed Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996), a case briefly discussed in Valve. Allen involved people playing board games in a tournament. The Ninth Circuit held that "playing" is different than "performing," therefore there was no public performance. However, Allen involved board games, not video games. In Red Baron-Franklin Park, Inc. v. Taito Corp., 888 F.2d 275 (4th Cir. 1989), the Fourth Circuit held a video game arcade publicly performed Double Dragon because the game images were being reproduced. For many, this would seem to indicate that playing a game would be a performance because playing requires the reproduction of game images. Neither Epic nor the NDCA mentioned the Red Baron-Franklin Park case. It could be possible the NDCA agrees with this thinking, but it did reiterate the Allen Court's hesitation on granting copyright owners the power to "control when and where purchasers of games may play the game." Ultimately, the NDCA declined to decide the issue because the motion was only for a default judgment and neither side fully briefed the issue. The Court also warned Epic that the sole citation of Valve was not enough to establish a public performance.
The primary focus of Epic's lawsuits is to prevent hackers from cheating in Fortnite. Epic asked the Court for a default judgment because Mr. Rak did not respond. The goal of the public performance claim was to remove a video by Mr. Rak showing others how to hack Fortnite. The Northern District of California felt that Epic had not done enough to establish a public performance claim, but in the Court's analysis, it questioned what it means to preform a video game. The denial order does not change any current laws, but it does indicate the Court's willingness to address the issue of gamers posting videos on YouTube. The Court's interest in the topic may be the result of how popular "Let's Play" videos and streams have become. It will probably be awhile before there is an actual ruling, but Epic has a chance to amend its complaint, so it will be interesting to see Epic's response to the Court's public performance analysis. We will continue to follow this case and provide updates when available.
If you've ever been to Queen Mary's excellent More than Just a Game events, you have probably heard of the new Interactive Entertainment Law Review journal launched by Profs. Dimita, Mimler, and Festinger. This new peer-reviewed journal offers analysis of legal issues arising from interactive entertainment, video games, virtual/augmented/mixed realities, social media, and all related and emergent forms of digital interactive entertainment. Ross and I serve as members of the Editorial Board, along with many others who are well-known in the video game legal community.
The first issue went live just the other day and we are very happy to report that it includes our new article on copyright issues raised by game input streaming and replays, titled "The Key to Key Presses: eSports Game Input Streaming and Copyright Protection." In the article, Kirk and I explore whether and how copyright protection applies to recorded game inputs (e.g. mouse clicks and key presses in replay files), and who owns the copyright in recorded game play. Here's the full abstract:
The eSports industry has exploded, in no small part due to the ease with which exciting matches may be watched. Many modern video games stream game user inputs to viewers, rather than bandwidth-intensive video. These game input streams can be used by the viewers’ game clients to perfectly reproduce a match in real-time. In World Chess U.S. v. Chessgames Services, a U.S. District Court held that allegedly pilfered chess game moves, as facts, were neither subject to copyright protection nor eligible for ‘hot news’ misappropriation. But might video game input streams (as facts, per the World Chess court) nonetheless be eligible for copyright protection to the extent that the input data corresponds to a copyright-eligible game performance? After all, input streams are significantly more granular and exacting than mere chess game moves: they capture millisecond-by-millisecond input and effectuate perfect reproducibility of gameplay, rather than a mere description thereof. This article explores the copyright issues under U.S. law presented by live streaming of video game inputs and proposes that video game input streams are, to the extent that they are usable to perfectly generate a faithful recreation of a gameplay performance, copyright-eligible and owned by the player of the game.
While these base-line rights are usually overruled by developer EULAs, the question of copyright ownership in replays may be particularly important in disputes between third party leagues. In the past year, we've seen hints of this issue beginning to flare up in the form of the ESL/Valve/Twitch controversy back in January. Allowing third party leagues to exercise copyright over their tournament game play (through agreement with the players) may foster further growth in the eSports community.
Call me old school, but Halo 2 is still my favorite multiplayer first-person shooter. It was the most balanced FPS game I've ever played, and I still get excited with each new release. The Halo franchise is one of those franchises that makes it in my top 10 list for all time best games (what are the other 9? Well, there's the Myst franchise (including Obduction), but I'm otherwise still working on it).
Microsoft released a teaser video for Halo Infinite today, and it looks awesome. This will probably give me the push I needed to upgrade from my Xbox One to the newer Xbox One X. It wouldn't be the first time I've bought new hardware just to play a new game (Quake and America's Army also did that trick).