Game Industry Roundtable Lessons from Video Game Litigation: Enforcing Rights and Avoiding Risks Susan Fahringer Will Rava

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Agenda  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 IP  User interface  Game play  Plot, characters  Music  Name  Code  Packaging  A-V aspects of game  And more...

Key IP Rights  Copyright  Trademark  Patent  Trade secret  Trade dress

Know What You Own  Initial survey (at least key games, key rights)  Periodic audits

Preserve (and Clarify) What 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 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 With 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 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' IP  Torts  Publicity

Your Content – Others' IP

 Trademarks  Products (trademarks, trade dress, design)  Music/Audio  People (name, image, likeness)  Sports issues (leagues, coaches, venues, etc.)

Your Content – Others' IP Where you use it:  In game  In marketing, advertising

Your Content – Others' IP Practical Considerations:  Exposure  Type of use  Likely cost  Term  Termination rights

Your Content – Torts High school shooting cases  Sanders v. Acclaim Entertainment, Inc.  James v. Meow Media  Wilson v. Midway Games, Inc.

Your Content – Publicity (and more)

Your EULA

 Conspicuousness  Severability  Fairness  Dispute resolution  Privacy and security  Property rights

Risks from Others  Indirect infringement  Contributory infringement  Inducing infringement  Vicarious infringement

Minimizing 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 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 Issues  Subpoenas (process to respond)  Access issues (breach of contract issues)  Property rights issues (follow EULA and make it terminable at will)

Government  Content regulation  Crimes  Taxation  Government as your friend

Government – Content Regulation StrickenPending WashingtonFederal (x3) MissouriDelaware IndianaMassachusetts MichiganNew York CaliforniaNorth Carolina Illinois Minnesota Louisiana Oklahoma

Government – Crimes  Property crimes  Child pornography  Crimes against people/avatars  Financial crimes

Government – Taxation

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)

Questions?