Creating a game? Get a lawyer

With patents, copyrights and marketing rights playing an ever bigger role, gamemakers are discovering they need legal hawks just as much as everyone else.

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."

He did say that many would-be and existing clients ask if they can simply copy other games' EULAs, and said he strongly cautions against doing so, in part because the agreements should be written to be specific to the needs and requirements of each individual game, and because EULAs are copyrightable documents.

And players might not ever think about it, but Boyd suggested a great deal of thought should go into issues such as whether disputes are handled through arbitration or litigation, whether players must scroll all the way to the bottom before clicking the "I Agree" button, how information from children should be handled, and what the agreement says about what can happen with personal information if the company is sold.

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

Another important issue Boyd talked about--particularly in light of Bragg v. Linden Research, a case currently in federal court in which a Second Life user sued the virtual world's publisher for the value of his virtual assets after he was banned--is the customer service issue of how game companies treat such assets.

"If you grant intellectual property in (user's) stuff," Boyd said, "there are a lot of legal obligations you now have by holding (on developers' servers) their intellectual property."

The key issue here, especially in the case of a virtual world like Second Life and its publisher, is what legal liability comes from the developer acknowledging the monetary value of virtual assets. Many game developers get around this by insisting that virtual goods like game currency, weapons, clothing and the like have no value. But others use the value of such goods as marketing.

And that crosses some potential legal lines that have yet to be fully worked out in the courts, Boyd said, echoing the issues raised in the Bragg case.

"Granting intellectual property rights to people, and placing and acknowledging monetary value on assets," Boyd said, "creates a tension the law may not allow."

Referring to the question of what the law says about what rights developers and consumers have over valuable virtual assets, Boyd said, only half-joking, "The moral of the story is that there is an emerging tension that no one can answer clearly yet, and it probably varies from country to country. One thing it guarantees is employment for a number of lawyers."

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