This Week in Law 288 (Transcript)
Denise Howell: Next up on This Week in Law, it's game on. We've got a special gaming panel here for you today. Suzanne Jackiw's back on the show, along with Patrick Sweeney and Mona Ibrahim. We're going to talk about the big bucks of the gaming industry; the second-most searched term on YouTube in 2014; what's new with Flappy Bird; how close the Supreme Court came to upholding California's ban on the sale of violent video games; and much, much more, next on This Week in Law.
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Denise: This is TWIL, This Week in Law with Denise Howell, episode 288, recorded January 16, 2015
It's a Mod, Mod, Mod, Mod World
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Hi, folks. I'm Denise Howell. Thank you so much for joining us for This Week in Law. Game on, people. We are going to have an all-gaming episode this week, and I am so excited about it because there's been so much going on on this front; and I'm really thrilled to have a wonderful panel of lawyers and one law student who know a great deal about gaming law and all the current issue that, if you're not thinking about, you should be. Coming back to the show is Suzanne Jackiw. Hello, Suzanne; great to have you again.
Suzanne Jackiw: Hi. Stoked to be back on the show.
Denise: Suzanne is our law student. Remind me where you're going to school. I know it's in Chicago.
Suzanne: Chicago Kent. It's right in the loop.
Denise: Got it. And Suzanne actually interns for our other two lawyer guests on the show. They are both practicing at I.E. Law Group. Patrick Sweeney is the founder of that law firm, also the founder of the Video Game Bar Association. Hello, Patrick.
Patrick Sweeney: Hi. How are you? Thanks for having us.
Denise: I'm great. I'm thrilled you guys are here. Also with us is Mona, who works with Patrick, Mona Ibrahim. Hello, Mona.
Mona Ibrahim: Hey, everyone.
Denise: Hey, Mona. How did you and Patrick get together?
Mona: He was my professor at Southwestern, actually. I was taking the video game law agreement seminar that he teaches, and I wound up working with him later on. We stayed in touch.
Denise: Very good. So we have, basically, three levels of law firm here. It might be fun for people to understand the different roles you guys play in your small firm, a little inside baseball for the legal practice. Patrick, could you fill us in a bit?
Patrick: Sure. Yeah. So I started in the games business about 15, 16 years ago doing transactional work for games clients; and when I started up the firm here about a little over a year ago, I reached out to Mona to help me with some of the work that I have to do that sort of gets in the way of me running the business and going out and talking to clients and going to trade shows and whatnot. So we split the work up relatively evenly. Certain areas are more up her alley, so, like, some of the privacy work that she does and the incorporation work; and certain areas like the traditional Hollywood licensing or the publisher/co-publisher arrangements, the clients expect me on the deal. So it really just depends on what we're working on, so we divide the work that way.
Denise: And like me, for this show, I'm on my third — and so grateful for all of them — intern who've all worked with me remotely from a distance except for our intern right now. [Inaudible] actually just serendipitously is local to me here in Southern California. But with Suzanne in Chicago being an intern, is that something that you think is unique to a small firm such as yourself, or is this something that the entire legal industry is seeing?
Patrick: Well, I think it's more unique to the smaller end of the practice size in general because I can be a little bit more nimble than, say, some of the bigger firms that I've been at before. And, Denise, we talked about the one that we shared in common. But Suzanne is an avid gamer and has been focusing her education on the legal side; and we've met at conferences, and I've seen some of her writing. And so she's very energetic and very interested and enthusiastic in this space; and so obviously, I wanted to tap into that and put that to work for the firm. So she's been great, and that really doesn't matter where the person sits as far as I'm concerned.
Denise: And it's really interesting that you founded a video game bar association. I think there are a host of legal issues that are unique to the gaming field — and we're going to talk about a slew of them today — where perhaps copyright law cuts across all kinds of industries, but really unique issues come up for the gaming industry in general, don't they?
Patrick: Yeah. I mean, we think so. And years ago, there was a lot smaller sort of ecosystem of our peers, and we'd all bump into each other at the same conferences or we'd be on the opposite side of a table in a deal or a controversy, or certainly meet at the various trade shows. So we decided, as the industry had grown and the proliferation of mobile and the tablet business and a lot of new entrance into the space, it would be nice if we all could still have a networking area, or a networking organization, to keep up with best practices and just to stay tuned into who's doing what and where. And that really was the genesis of the Video Game Bar Association about three years ago.
Denise: Is it very big?
Patrick: We've got about 60 members in Europe and North America and then a handful in Asia; and it's certainly a small niche area of practice in general, but we don't have all of them in the organization yet. We're working on that. We hired a new executive director a few months ago by the name of Joseph Olen who used to run the Academy of Interactive Arts and Sciences and the D.I.C.E. Conference for video games; and so he's taken over, he's doing a great job so far. So we're looking forward to seeing the group grow.
Denise: All right. Well, just to frame our discussion today, there was an article I read — came out in December, and I read it over the holidays — that is from some part of Google that's called Think with Google. And I think it's mostly aimed at encouraging people to use their marketing services. It seems to have a real marketing bent to it and ends with some suggestions on how brands — and I hate referring to certain companies as a brand, but that's exactly what they do in this piece — can harness the opportunity presented by the video game industry. It's a really interesting article because of the way that — let's see. It's written by — oh, goodness; I'm going to have trouble pronouncing his name. But it's written by a Googler. (Laughs) And you can check it out, of course, with everything else we discuss today in our discussion points at Delicious.com/thisweekinlaw/288. Really interesting piece. And to sort of encourage people to use Google's marketing tools in the gaming industry milieu, Gautam Ramdurai — that's my attempt at his name; I'm so sorry if I'm butchering it — really kicks people in the pants with a bunch of stats about the gaming industry that maybe you might not have known. And so I think it'll be a good frame for our discussion today to put these out on the table; and if people haven't read this, let them know some of this great data. And one thing that is no surprise to me as the parent of an 11-year-old that might be a surprise to the world at large is that Google and YouTube do their Zeitgeist kinds of things at the end of the year and let you know what sort of year it was across their properties. On YouTube, the second most searched term was "Minecraft." A bunch of other really interesting stats from YouTube: several of their most subscribed — I think it was eight of the ten of the most subscribed channels on YouTube relate to gaming. PewDiePie, who does Let's Play videos, has more subscribers to his channel than the entire population of Canada.
And then, if we're talking dollars, we've got, of course, Twitch that was acquired last fall by Amazon — Let's Play streaming video-oriented channel, acquired by Amazon for something like a billion dollars. And as long as we're talking about a billion dollars — and of course you have to (Puts on announcer voice) "One billion dollars!" (Laughs) — they point out as well in this Google piece that video games as far as revenue are a powerhouse that you might not have realized, and not just on par for Hollywood blockbusters, but in some instances just blowing them away. And the example they give is Grand Theft Auto 5, which hit a billion in sales in its first week of release. When you compare that to the highest-grossing Hollywood movie of last year, global grosses — that was Transformers: Age of Distinction — it's made somewhat more than a billion dollars in its entire six months release. So we're talking about an industry that is not just kids on their iPads downloading 99-cent games. And maybe it is partially that, and that's quite lucrative as well; but we're talking about some serious cultural penetration and a force in our world that I don't know if people necessarily recognize. This — again, as the mom of a kid that is right in gaming demographic — up and coming gaming demographic — none of that is too surprising to me; but other people might find this eye-opening. Do you find yourself, Patrick, having to explain the significance of the gaming industry more and more, or are people starting to get it?
Patrick: No, all the time, mostly to my parents. They still don't understand how I make a living at this. But yeah, I mean, the games industry always likes to tout that it's surpassed Hollywood in revenue, that each iteration of Call of Duty is the largest entertainment launch in history preceding last year's Call of Duty launch. Activision's very adept at doing that. It's a little bit of apples to oranges because the game is, at least on that type of game, a singular buy, versus the repeatable experience of buying multiple movie tickets; and there's not as many downstream revenue opportunities for a game as there is with a film that's going to go to cable or to — you buy the DVD or whatnot or free channels and everything. So it's a little bit of apples and oranges on that front. But yeah, it still goes to show that it's a huge industry. I want to say it's, what, a 25 billion-dollar industry, I think, globally, with hardware and software. So it's big money; and yeah, you have to explain that it's not kids in their basements playing the next Grand Theft Auto only; it's also everybody who's playing Candy Crush and everything in between.
Patrick: So there's lots of things that are games in the same way there's lots of things that are films and lots of things that are books.
Denise: Yeah. And it's also not just young kids and young boys like my son. Another tidbit they lead off with in this Google piece is that women are the largest video game-playing demographic. Did you know that, Suzanne? Is it any surprise to you?
Suzanne: I actually knew that. I saw an article not too long ago that women in my age group outnumber teenage boys in terms of being gamers. And over the summer, I taught a camp that taught kiddos how to program games, and I loved to tote that out whenever the boys were like, "Oh, you can't tell me how to program this." And I'm like, "Oh, wait. Actually, I can."
Denise: (Laughs) That's awesome. It's really good to hear. I do see my own experience with kids and games is — I take my son to a gaming camp in the summertime that he just loves. It's one of the ID Tech camps, and it does seem to be still a really heavily young male demographic at those events, but maybe the word just hasn't gotten out yet, so it's good to know that that'll be changing. So where we're talking about just enormous concentration of energy and ideas and people focused around games, we're also talking about legal considerations that are going to — if they haven't been enforced yet, they will be soon because the dollars on the table are just too much. I know, Mona, you gave a talk recently in the last couple of months — loved the title of the talk; it was called "Keep it Secret, Keep it Safe" — (Laughs) — about intellectual property concerns for video game developers. I don't want you to rehash your whole talk; but obviously, this is something that you and Patrick are advising game developer clients on all the time, and I'm just wondering — it would be interesting to sort of get your take on the attitude toward IP protection in general. Do you feel like game developers are very much of the mind that they have to keep it secret, keep it safe these days; or is there more flexibility?
Mona: Well, as far as the title, it's actually a Lord of the Rings reference.
Mona: So just throwing that out there.
Mona: But with regard to what developers should be doing, that title is also mostly in reference to the early stages of development. Releasing too much information whenever you don't have the necessary protections from, say, copyright, trademark, things like that, that "keep it secret, keep it safe" practice is kind of what puts it in the realm of a trade secret. And what trade secret can do is, so long as it has commercial value and as long as you take measures to actually keep that information secret through confidentiality clauses, non-disclosure agreements, then you get some limited protection to that information and to that content. So that's mostly what that was referring to.
Mona: Are developers very good at that? No, because they want to get as much publicity to their title as possible, so they wind up releasing a lot of information that maybe they should keep closer to their chest — they wind up releasing that earlier than they should, or they get too excited whenever they're trying to sell it to publishers. And then there's the possibility of having parts of their ideas taken from other parties. So it's kind of a bit of a splitting the baby situation; you kind of have to decide what information you want to release — what content you want to release — and what information you want to keep safe so that it can't be taken from you down the road.
Denise: All right. Well, that seems like a great segue into talking about some copyright considerations concerning video games.
(The intro plays.)
Denise: One thing that I think is just fascinating in this area is the whole realm of Let's Play videos. News this week is that Microsoft came out with its own set of rules for Let's Play videos. They are not alone in doing this. Several video game developers, rights-holders, have done similar things; and it seems like the approach has been all over the map. Some — and Microsoft is in this camp — have allowed people to — have expressly given their blessing, as long as certain rules and guidelines are followed, for people that are making Let's Play videos to go ahead and monetize that. Most of the companies who grant express permission for this and publish guidelines for it are being very cautious about how their brands are being used, how their trademarks are being used, and set out a bunch of parameters. But if you're playing within those rules, you should be able to put your Let's Play videos out on platforms that monetize them, like YouTube or Twitch, and go ahead and build your Let's Play empire. But again, that is because certain of these companies — and Mojang has its own separate set of rules along these lines that Microsoft has inherited and not yet changed. So there are certain rules and parameters out there; but in the absence of working with a game where those kinds of rules are there for you to follow, you might well find yourself in the crosshairs of an angry gaming company. And wasn't it Nintendo, Suzanne, who decided that the revenue that YouTubers were making should really be its own?
Suzanne: Yeah. Nintendo has been all over the place, and they change their rules depending on countries. There's one Asian country where Nintendo has allowed anyone using that specific country's video service to make videos without any limitations; and then Nintendo here, on YouTube, wants to take all of the revenue; but then, now they're considering sharing revenue. So I think, as a longer-running developer, they're trying to balance the needs of the modern world with what they know for protecting IP from back in the day when we were getting cartridges.
Denise: So Patrick, as you're looking at this landscape and clients are coming to you going, "We have a game property. we love that people are increasing interest in the game by making these Let's Play videos, but we're concerned about the fact that they are, some of them, building empires on our intellectual property," do you have — without disclosing client confidences, how do you help them work through those issues?
Patrick: Well, it really depends on what they're trying to achieve. I mean, I think a lot of folks — you're trying to balance the visibility that you're getting from the game versus the potential of sending sort of copyright infringement. And they just have to look at that and decide what their goal is. Establishing the rules like Microsoft has is really not a difficult process; but that's really ultimately more of a business call first than it is a legal issue in how you implement it.
Denise: Mona, do you have any other ideas about Let's Play and your clients' approach toward it?
Mona: Actually, one of my clients, Level Up Labs, is a pretty strong supporter of Let's Play because it serves as a great promotional vehicle for independent games. You have services like — podcasts or videocasts like GiantBomb, which is a great example. Something that you have to keep in mind is that — I hate pulling the fair use card because you can never actually say that something is one hundred percent fair use; it's an affirmative defense. So there's — and what I mean by an affirmative defense is that you can't use it until you go to court. So you want to avoid that situation, either as a developer or as the YouTuber. But as far as what I've been discussing with Lars from Level Up or what I've been discussing with any of my other clients in Let's Play is that, to the point where you can get your community involved and get them excited about your product, you should. There are going to be limitations, of course; so we work with a lot of terms of service and community guidelines with regard to that. And it's just kind of making it fit, making it work for the developer in whatever way we can. Saying absolutely no to Let's Play — I mean, that's going to be tricky to do because there's the question of whether or not it will constitute fair comment, fair use, use of the trademark in review. But ultimately, we want to make it work for the developer where we can.
Denise: So I've done a little reading on this in advance of the show, and there are some great articles in our discussion points that talk about the different policies that companies have come down with. I think Activision is one of the ones that might not have an express policy. Certainly hasn't said it's okay to do the Let's Play videos. And it recently — to your point of fair use, Mona — got in trouble — or Activision didn't get in trouble, but came into the spotlight — for issuing copyright takedown notices on Let's Play videos that highlighted glitches and problems in Call of Duty, Advanced Warfare. So whereas perhaps there would be other videos that would be complimentary to the game that were allowed to stay up. These ones that were complaining about issues were the ones that were getting targeted, and that's sort of the danger of the way our copyright law is structured, right, Suzanne, that companies can be inconsistent in their approach. And what it's going to take is someone who has made such a critical video to actually take a stand and say, Okay. I may not be expressly authorized to do this, but this is fair use, and I'm certainly not only giving commentary and criticism on the game but providing a public service. People should know that these problems exist. Do you know, Suzanne, of anyone in the Call of Duty/Activision crosshairs who decided to take a stand?
Suzanne: I haven't seen anything on the legal front. People go on websites — Game-a-Sutra, Kotaku — and mention that this is happening and that it's really bad; and everyone gets really riled up, but that just gives Activision some bad press for a couple weeks; and then we all go back and buy Activision games anyway.
Suzanne: So until someone actually goes to court and uses that as a defense, which would take Activision actually filing suit, I don't think we're going to have a definitive one way or another out of this.
Denise: Right. I love that I've had the opportunity now — and I encourage folks to check them out and compare them — to read through the Minecraft rules for Let's Play video that predated Microsoft's acquisition. They're very conversational and respectful of the users. They're very clear about Minecraft's rights; but it is the opposite of legalese. So it's interesting to read that and compare it to the Microsoft rules that just came out. Substantively, they're not that different; it's just kind of a different approach, as you might expect because Mojang was quite a different company. Patrick, do you have any take on how these things should be presented and whether it makes a difference if you're writing in traditional legal boiler plate or in more clear and comprehensible language?
Patrick: Yeah. No, I always prefer writing or reading things like privacy policies and consumer-facing documents that are written more conversationally because I think we deal with so much of the "whereas," "pursuant to Clause," whatever, in the agreements that we do in our normal life, I think those are a little bit refreshing. I think you have to sort of write to your audience a little bit on that front, so yeah, I enjoy that.
Denise: So one of the things — even for the companies who expressly allow people to monetize Let's Play videos, it seems pretty common in those policies that you just don't get to have a free-for-all with gaming companies' intellectual property. And they do put some content restrictions in; they don't want obscenity; they don't want super, super violent things. Do you have any problem with that, Suzanne?
Suzanne: Yes and no. On the creative side of things, I love for people to come out with things that are interesting and different; and when you put those restrictions, you're obviously going to be cutting off some of that. But it is owned by the company, and they have an interest in making sure that it has a particular vision, a particular public-facing front. So if a video where Mickey Mouse is beheading Donald Duck becomes really popular, Disney's going to get really upset because that's not the kind of image they want for Mickey Mouse. They want mickey Mouse to be kid-friendly and positive and family-facing. So it makes sense to put those kinds of restrictions depending on the content you're using. I couldn't see something like Grand Theft Auto saying, Oh, we don't want any violence if you make Let's Plays using our game, because that makes sense based on what they're doing with their own content.
Denise: So that's, again, Mona, where fair use would kick in, right? If a company has a policy in place that says, We're okay with this as long as you don't do these certain things; and someone does decide that Mickey Mouse beheading Donald Duck is the particular work of art that they wanted to convey, then they'd have to make that case under the Fair Use doctrine; right?
Mona: Well, I mean, it depends. And that's the thing, is that it's not just — you don't just have one arrow in your quiver whenever you're a developer, whenever you're a content owner. So — I mean, you own the copyright; you own the trademark, things like that; you have a lot of different things that you can use to counter that entire fair use defense. And that's something that we have to advise clients of frequently; that's the basis of protecting your portfolio. So that's why I was saying you have to use fair use with caution; it is an affirmative defense. It's not an absolute defense by any stretch of the imagination. We don't really have a clear definition of everything that fair use can cover or what fair comment can cover for trademark, so you can't rely on it. I mean — and for a developer, you want to make sure that people don't rely on it too frequently. You want to be able to have control over your content to the extent you can; so as I said, it depends. I mean, you can raise it; but is it in everybody's best interest to raise it? I'm not really sure.
Denise: Right. Suzanne, do you really think that Let's Players out there are taking a look at these policies and trying to comply with them, or does it just sort of come up after the fact when they get in trouble?
Suzanne: Oh, I guarantee you that almost no one actually knows what the policy says.
Suzanne: You click "Agree" when you buy the game; and then you click "Agree" when you start your streaming software; and you have no idea what you've just agreed to. The problems arise when you get that letter from the developer, and you have to be like, Oh, hey, so there's a problem here; I did something wrong. Let me call someone to retroactively look at what I did wrong, or let me try and dig through this sometimes-massive agreement I have and see what exactly I'm in trouble for.
Denise: Right. The other thing I think we have to discuss in discussing Let's Play videos is, there's sort of copyright concern on top of copyright concern involved here because not only are Let's Players using the game itself as the platform for their video — playing through it, showing their strategies, giving commentary, etc. — but oftentimes, particularly in the case of second-most popular YouTube search Minecraft, what they're highlighting in their video are the mods that have been made of the game. And again, Minecraft has authorized a lot of those mods, but there are restrictions there, too; and one of the things in the Minecraft ULA when discussing how you can mod the game is that you are supposed to make your own creative work and not incorporate logos and trademarks and characters and things that are copyrighted by third parties, and that you actually — and there is an indemnification provision in there that — here, I'll read it to you. "If you post content on our game and we get challenged, threatened, or sued by someone because the content infringes that person's rights, we may hold you responsible; and that means you may have to pay us back for any damages we suffer as a result. Therefore, it is really important that you only make content available that you have created, and you don't do so with any content created by anyone else." Of course, all the people who have created Minecraft mods for anything you can imagine — things we've talked about already — Call of Duty, Disney, Spongebob, Harry Potter. There's a Minecraft mod for just about everything. I asked my son this morning if there was one for AdventureTime, and he said, "Oh, yep, absolutely." So a lot of the Let's Play videos feature those mods; so they not only feature the game, but then the intellectual property that Minecraft has not authorized its users to make mods consisting of. What do you think of that thorny issue, Patrick?
Patrick: You know, I don't know. I see both sides of it. I'm on the fence on that, on where to go.
Denise: Okay. Because seems to me like — and again, I get some of my good information on this from my son and his friends, who I was interviewing in the car before the show. And I was asking them about mods and how important it is to them to actually have familiar content in something like a Minecraft mod. Do you care if it's an AdventureTime mod or not? Do you like seeing your familiar characters there? And the take I got from them was that yeah, it's fun and interesting; it's — the take I got from them is how important the transformative nature is of the mod, that it's fun to see their familiar characters doing things those characters would not otherwise do. So again, the beheading of Donald concern comes in. Perhaps they're doing things that their creators would be not on board with. So I do think that we're into an interesting area here that will wind up in court at some point; I'm just wondering when. Suzanne, what do you think about the double-copyright nature of Let's Play videos concerning mods?
Suzanne, Well, Mojang, and now Microsoft, are very smart to protect themselves from this. It seems to me, like you said, a lot of the players of this game are kids; and that means that a lot of the people making mods are also children. So that brings up yet another legal issue of, are you really going to go after the 13-year-old over the fact that they made this Disney mod for Minecraft?
Suzanne: I also like to think that Minecraft is the Legos of this generation. And I grew up with a fair amount of licensed Lego sets — Star Wars and everything else — and it just came out. And it seems like Microsoft is trying to do that with Minecraft. I was on my Xbox earlier today, and I saw the Simpsons pack is now available on Minecraft. So it seems like they are going the license route and the legitimate route, but maybe they're not producing content fast enough. And unlike where I couldn't make Lego figurines that were spot-on of the TV shows I didn't get Legos for, it's much easier to create that in a digital universe. So it might be responsiveness; Mojang should definitely be protecting themselves this way, though, because there is a lot of it happening.
Denise: Right. As far as the economic value of the mod, another thing that seems true is that they have a lot of value in the Let's Play universe, and perhaps more value than they even have to players who want to download and play them, that there's maybe more appeal even to watching someone play through a mod rather than putting it on your system yourself and playing through it, that it's just sort of fun to know the mod exists. It's great to see how it goes; but when it comes to, Oh, I'm now downloading some third-party software; it's going to take up, perhaps, a ton of space; I'm not going to know if it's secure; I'm not going to know if I'm getting a virus; I'm not going to know if it's going to work when I download it. So I think, at least among the demographic I get to observe on a daily basis, watching the mods be played is almost more valuable and fun than playing through themselves. So yet another consideration on the Let's Play side. Mona, any thoughts on that?
Mona: I mean, as far as economic value, I mean, that's kind of the most important factor that we need to look at. It's the content owner's right to benefit from that economic value, I mean, under copyright law. That's the principle behind copyright law and behind intellectual property law in general. It's just giving people an opportunity to financially benefit from their creations. And that includes derivative works, which is exactly what a mod is. So I think that, in an ideal world, people who create mods would be able to work with the content owners in order to develop that third-party software; and I think that's what Microsoft is trying to do. That's what a lot of people who put out mods for their own content try to do. But that's not a perfect world. We don't live in a perfect world, so there's always going to be conflict with regard to that. And it just comes down to, is the content owner — is Disney, is Marvel — are these people going to view this as a commercial benefit? Is this going to be promotional for them? Is this something that they can get in on and kind of work with the person who's creating it, or is this something that they need to actively defend against? Is this something that they need to put a stop to? So as far as the economic interest, I mean, that's the only thing that really matters in all of this to a lot of people. I mean, a lot of content owners aren't really concerned too much about integrity. Many of them are, but it ultimately comes down to the bottom line; it comes down to money.
Denise: Right. Well, having control over your popular video game was certainly important in the case of Flappy Bird. Everybody remembers the saga of this game last year. We have some news on the Flappy Bird front. Apparently, there's going to be — even though Flappy Bird was pulled down from the iTunes store publicly and famously, it is now going to come out as a life-sized arcade game, which would be really fun to have even if you didn't have an arcade.
Denise: I could certainly see one doing well in our studio there in Petaluma and distracting all our staff. So it seems like Dong Nguyen — if I'm pronouncing his name correctly — aside from pulling the game from iTunes, has other ideas and other licensing in mind for his very popular game. The other platform that it is available on in a fully authorized and licensed way is the Android smartwatch universe, which seems like a very different kind of experience playing on a little watch versus playing on a big arcade game. But Flappy Bird is still flapping, apparently. Suzanne, can you add anything to this for us?
Suzanne: Flappy Bird — I don't get it. (Laughs)
Suzanne: I should probably not admit that on a recorded show. But it's been really interesting to watch the rise and then disappearance and then all of the clones that came out of nowhere.
Suzanne: And then there was, briefly, a series of letters sent out from someone that held the trademark on the word "flappy" in games. But they held it prior to Flappy Bird becoming a thing and never pursued the Flappy Bird directly creator, just the clones, and never actually went to court over it and just kind of died off on that. And now, to see it back again, it's like the one thing that just won't go away.
Denise: (Laughs) Let's talk about the clones, Patrick. How do you handle it when a client's game is popular and is subject to a bunch of clones that want to capitalize on its success?
Patrick: Well, this isn't really a new concept at all. What's happened is, the rise of mobile and tablet games, and the short production times for them, has just made it more prevalent, right? This is something that — ten years ago, if you really wanted to make a Grand Theft Auto clone, you could; it would just take you two years and millions of dollars. So you kind of had the marketplace to yourself on a particular style or book or genre; but cloning happened then. What happens now is, if something really cool comes out, you can iterate on it and clone it in weeks or months. And hundreds of other people are doing it because it's an open playing field, so we see it more. I think, from how we approach it — from a transactional end, when you're working in a production collaboration kind of environment, you have to deal with your reps and warranties about who's creating it and whether it's original, your indemnifications about who's responsibility it is. If you're cloning something else that I'm funding, for example, I'm going to get sued. Well, that's not what I signed up for. So from a transactional side, you handle it that way. And then, obviously, from a litigation side — which we don't handle at our firm — there's a lot of other aspects, whether it's cease and desist and moving up the ladder. But there's plenty of cases out there — Zynga with everything "ville" related certainly took that position, that anything like that out there was a clone. But like I said, this goes back a long, long time. I mean, years ago, when I was working for a company that was doing a Lord of the Rings game based on the books, we got a letter from the company who's making the Lord of the Rings games based on the movies saying that our wizard as depicted looked too much like their wizard.
Patrick: Well, the wizard was wearing a pointy gray hat and had a long beard in both. And theirs was based on the book, which they had rights to. So this is not a new phenomenon. Now, that's obviously a singular expression rather than the whole game; but the concepts are pretty much the same.
Denise: Would you say that —
Patrick: You won't see these litigations going away anytime soon.
Denise: Right. And on the legal front — maybe you could remind us; I know we've talked about it on the show before, but for anybody who might have missed those previous episodes — that there is some legal latitude here. You can copy a game's mechanics with impunity, right?
Patrick: Yeah. I mean, mechanics are not protectable in the same way that the expression is, right? Copyright doesn't cover the mechanics; copyrights covers the expression. So that's — but where that line is between the expression and the mechanic is often really tough to figure out or to delineate. And that sometimes unfortunately happens at court. And sometimes you can muddy the waters on some of those as well.
Denise: In one —
Patrick: So just getting to court sometimes is a victory for some people.
Denise: In some of the recent coverage of Flappy Bird and what it's doing now, I read that the creator, or whoever he is working with to manage the game, has attempted to patent the game. Is this something you see commonly?
Patrick: Again, we're not dealing in patent prosecution at our firm, and software patents are a bit dicey in general, and generally just favored under the current environment. But yeah, it's just one of the areas that people are always looking at to protect their IP, whether it's a copyright/trademark patent, trade secret and trade [inaudible] — I mean, whatever works. They're trying to achieve a goal and using whatever legal protections they have.
Denise: All right. Any thoughts on clones, Mona?
Mona: Again, another tricky issue. When I first started practicing law, a big chunk of my practice was cease and desist letters based on clones for apps on both the iPhone and the Android market. So as far as success rate on how to handle it from a developer perspective or from one of our clients' perspective, you have two options. You can confront the cloner directly, or you can target the marketplace itself and send a takedown notice. And you see mixed success doing both. You can get the person who's making the clone to take it down on his own, which kind of keeps you from having to go through the process and the risk of putting up a takedown notice. You have to keep in mind that whenever you send in a takedown notice, you might subject yourself to a declaratory judgment action. There's some case laws substantiating that claim. So once you send in that takedown notice, the person that you're trying to take down can actually file a lawsuit against you under a declaratory judgment action saying, We want the law to say that this is okay. So it kind of forces your hand. So you take that risk whenever you start sending in those takedown notices; and that's something that we always have to advise clients on.
Patrick: And you also — adding on to what Mona was saying, you also have to look at some of the background of it. I mean, again, whether it violates the letter of the law is one thing; but you're also sort of painting a picture, I think, from a plaintiff's side of a potential case. You look at the situation with Yeti Town and Triple Town, where — I don't know if the audience is familiar with that, but —
Denise: Why don't you tell us, Patrick?
Patrick: Yeah. So Triple Town was a game which — sort of a match three game — and it was a fun little game. And they went under an NDA with another company to say, Take a look at this game; maybe you'll publish it for us. The company they went under the NDA with took a look at it, had access to all the code, saw the game, played all the way through the game, said no, we're not going to publish it. We're not going to pay you to work on this game. And by the way, two weeks later they came out with a game called Yeti Town, which was the exact same thing set in a snow environment, match three, etc. And the fact that they were talking to them and they were under NDA and they had access to the code came into the litigation, and it made the situation worse. Regardless of looking at what was copyrightable or what was protectable or not, the access made them a little bit of a bad actor. And the case ultimately settled with the Yeti Town guys giving up all of the Yeti Town IP and giving it over as part of the settlement. So we don't know, actually, how it would have turned out; but you can't overlook the background and the factual situation that goes with this because you're painting a pretty grim picture; it's not going to look too good.
Denise: So just as an aside, I'm wondering how many — of course a lot of games are played on computer and other devices now. But I'm wondering if your offices are littered with arcade games.
Patrick: We have our fair share of games here, but not to the arcade level.
Patrick: We wouldn't get any work done.
Denise: Yeah, I guess that's a testament to how long ago I was in law school.
Denise: When — I've told this story on the show before, but I have to tell it to you guys because it's right in context with what we're discussing. One of my assignments as a summer associate at Manatt/Phelps — one of all of our assignments as a summer associate at that West L.A. law firm way back in the day when I was in law school — was to go down into the basement of the building of Manatt's offices; and there were a couple of arcade video games set up that was a similar kind of situation, where — I think that the lawsuit involved allegations that information had been shared under an NDA, and then a very similar game came out from the party who was supposedly barred; but this was an arcade game. And we were supposed to play the two games and note any similarities and differences so that it helped the analysis of prosecuting the claim. So I guess summer associates can still look forward to that kind of assignment, but it might be on a different platform.
Patrick: I don't think clients want to see you bill them for playing their games, though.
Denise: Yeah, I don't think they probably billed that time. (Laughs)
Patrick: Yeah. (Laughs)
Denise: Let's see. Let's move on to another area that is sort of a legal gray area for the gaming industry. A very popular thing for people to do when games are no longer being actively marketed, when they're very nostalgic for people who played them in their youth, is to find a way to play older games on an emulator. So there's still plenty of market value involved and rights held by someone usually, although there's the abandoned game problem as well. But game emulators technically aren't legal, are they, Patrick?
Patrick: No. You run into the same problem. Those rights and that intellectual property belongs to somebody. So if you're monetizing it and it doesn't belong to you, then obviously there's an issue there. If they're abandoned games and that IP holder doesn't know it's occurring, you might be getting away with it; but that doesn't mean that you're in the right.
Denise: Right. So Suzanne, along these lines, what do you think of the EFF's exemption request? They've filed a number of them. One of them relates to how you can — they are asking the copyright office to give people an exemption from circumvention liability under the DMCA if you are going to remove digital locks, etc., protections, DRM, on games so that they will play after a developer has stopped supporting them. So you've bought the game; it's old enough that the developer either has abandoned it or is not paying attention to it anymore; and you still want to play. But the only way you can go about doing that is if you do something that would otherwise be illegal under the DMCA. Have you looked at this at all, Suzanne?
Suzanne: I have. I think the EFF does some really great things, and they work for really good purposes; but I don't see this actually happening for several reasons. One, if there were enough people who really wanted to play one of these games that are no longer supported, I feel like the company would allow support or would give a newer version so that those people could be monetized. it's just good business to do that. And allowing them to have this previous option and not move on and not be monetized is something that companies are inherently against. Also, I don't know that many companies would, given the few number of people that are still playing these old versions, see this as a big enough threat to go after. It's obviously illegal under the DCMA; that's why the EFF is trying for the exemption. But if there are 10 kids with a server somewhere that are playing a game that's no longer supported, I don't see any of the big guys coming down on it too hard because they're only losing 10 sales. It's when it gets up into those big numbers that you're going to start having issues, so I don't think it's really going to go anywhere in terms of their exemption request.
Denise: But they're not even losing sales on old games, right? It's not even something that's actively on the market anymore.
Suzanne: They're kind of losing sales because a lot of these games are from franchises. They mentioned Need for Speed and MarioCart in the article online. If you're playing the old Need for Speed on a server your friend has, you're not buying the new Need for Speed for the new server; so in that way, they're losing income.
Denise: Or maybe you just really like the old game.
Suzanne, Yeah. Yeah, definitely. There are some good old games that I still play. Right now, Wolfenstein and Portal are at the top of my list. But they're both single player, so I don't have the server issue.
Denise: All right. Well, I think we should take a break for a moment before we jump into the relationship between gaming and Hollywood. Before we do that, we have a sponsor for this episode of This Week in Law that I would love to bring your attention to; and that is FreshBooks this week. As you might know, FreshBooks is a cloud accounting software that's designed from the ground up for businesses, entrepreneurs; and it's actually perfect for attorneys. I use it in my practice all the time. In fact, it's how I make sure that when I'm doing work for clients, I accurately account for the time that I'm spending, generally not playing video games and comparing one side by side to another. That's not the kind of thing that generally gets billed through. But when I'm doing things more substantive for them, I need to know how much time's being spent. I need to accurately and nicely format it into a presentation that lets them understand exactly what I was doing and what they're paying for. And then I need to conveniently get it out and get myself paid. That's what accounting software and billing software's all about, right? So FreshBooks just makes this part of my even smaller law practice than Mona's and Patrick's go seamlessly. I don't need an accountant; I don't need an assistant; FreshBooks takes care of all that for me, and I just can't tell you how nice it is to be able to know that I'm able to have a solo law practice and have it handled so professionally. So you can use the software for tracking your time, as I mentioned. It really will grow with your business; so if — you might just have a handful of clients starting out. FreshBooks is going to be able to handle your capacity as you grow. And it's going to help you grow because you're going to get paid on an average of five days faster, they've found, using their product. You don't need Word or Excel or cobbling together some kind of invoice or spreadsheet; FreshBooks does all that for you. It looks very professional; it's very quick. And you also — nothing's worse than that awkward reminder to a client when it's been a while and you haven't been paid. You can actually set up FreshBooks to automate that process. And I think that just a little tickler to a client sometimes is received a lot better than you getting on the phone and dunning them. So that's built in for it, too. You can set up recurring profiles, put your automatic billing right on auto-pilot. You know things that you're doing every month for a client, and you're going to bill for that on a consistent basis. You don't even need to pay attention to it; you can set it up like a macro almost, and it'll just go out for you. You're going to spend less time on paperwork; you're going to free up, they've found, up to two days a month to focus on all the other things related to your business, all the things that don't relate to that sort of boring time and billing facet of it. It's also going to help you keep track of your own expenses. You can snap photos of receipts right from your phone to instantly capture those expenses; and then, when they're reimbursable, pass those through to a client. You can instantly access complete financial reports so you can keep track of expenses and be ready for tax time — right around the corner here. And it's going to integrate with what you're already using. It integrates with all kinds of applications like Google apps, PayPal, Stripe, MailChimp, FundBox, Zen Payroll, and more. And if you ever need help — I've never needed help with the software; it just works right, and works great and I've never had to call up customer service. But if something ever goes awry for you, you're going to talk to a real person every time you call, and support is free forever. So you've got to try it; FreshBooks is free right now with no obligation when you're a listener to This Week in Law. All you need to do is go to FreshBooks.com/twil. Don't forget to enter "This Week in Law" in the "How did you hear about us" section, and you're going to get 30 days for free, no strings attached at all. And thanks so much, FreshBooks, for extending our listeners that offer and for supporting This Week in Law.
All right. Well, we were already talking about some tie-ins of media properties with games. Let's go there; let's take a trip to Hollywood.
(The intro plays.)
Denise: So this is up the alley of I.E. law group, correct? You guys engage in licensing, negotiating licenses for games who want to work with well-known people and/or well-known properties and incorporate them into games?
Patrick: Yeah. This is definitely something that we've done a lot of in the past and are still doing a lot of.
Denise: And just — I'm curious because there are games that are very closely tied to something well-known and popular culturally from TV or movies, and there are games that are not. Do you see any — anecdotally, do you see any better strategy to pursue from a business standpoint?
Patrick: Well, I mean, it really just sort of depends on the property and what kind of game you're making. I mean, there's plenty of obscure properties that probably would make a great game, but the question is the valuation. What are you going to value that license at when, really, what you need it for is the audience recognition, right? It's easy to go out and make a video game based on the next Avengers. Everybody knows that the next Avengers movie is coming out, and they're probably going to see the movie and at least look at the game or think about the game. But you still have to figure out a way to make a compelling product there; whereas, if you do something obscure without the audience built into it that's already there, then I guess the question is, what are you paying for? So it becomes a valuation issue. There’s been a huge gap there and we could probably do an entire episode on that to be honest with you. It usually boils down to the production time for a lot of these games. By the time the movie gets green lit and the movie company decides that they’re going to license it out and has their parade of people who would potentially bid on those rights and then the contract process there and then the licensee spitting out the game production you’ve wasted months of time and that’s one thing you can’t get back in production is that time. If you’re then trying to get a game out in half the time that it takes the movie to get made then you’re going to have a pretty sub-standard game and that’s been sort of historically borne out.
Denise: So do you feel like Hollywood is starting to recognize this and following a series of unsuccessful movie tie in games are they starting to clue in?
Patrick: Yes. Unsuccessful might not be the right term. They are unsuccessful critically but a lot of these games will still do really well (particularly kids games in the animated genre) they’ll still do really well commercially and they’ll accomplish the goal. But I do think that most of the studios have gotten a little more savvy on that over the years and particularly now if they’re licensing games for mobile and tablet it’s an entirely different exercise. You can look at some of the games that Kabam has done with the Hobbit and I think they did the Godfather game and I know they did the Hunger Games because we were involved in that license. So they are able to make a mobile game, iterate on it quickly and still make it out in time for the next movie. In some cases they’re trying to do it outside of the movie and there is no launch time which helps a lot as well. Mobile is definitely invigorated the license business a little bit.
Denise: I’m going to seize on a phrase you just used – launch time – and make that our first MCLE passphrase for this episode of This Week in Law. We’re coming up on California’s MCLE compliance deadline and I’m assuming other states do it about this time of year too. We put these passphrases in the show if you are listening to claim continuing legal education or other professional education credit wherever you may be in the US. A lot of jurisdictions would like you to be able to demonstrate that you’ve actually listened to or watched the show so we put a couple of phrases in to help you show that after the fact. Our first one for this show is going to be “launch time”. Suzanne do you think that games tied to TV or movie or I guess also we could build in books; which if a book has been successful there is probably been a movie made out of it anyway so we might be talking about the same universe of properties. Do you think that there’s been progress on the game development side for those games?
Suzanne: Absolutely. I saw in the chat room that someone brought up ET the game and I laughed. Part of it is that we’re recognizing that games are a separate form of expression that are trying to tell different stories and that games a no longer necessarily a rehashing of what you saw in the theater. Part of it is that we’re finally getting to where technology makes people that have expectations that having seen a movie and having seen the characters on the screen align better with what you see in the game. But there were also fantastic games before. I was thinking of Aladdin. I used to go over to my friend’s house and we would spend just hours playing the Aladdin game and it was fantastic.
Denise: For our video viewers “ET the game” is now wandering across the screen.
Suzanne: It’s terrible. That’s the game you go to when you talk about bad games. But there have been bad Teenage Mutant Ninja Turtle games. It’s really down to the development team and whether or not they realize that this is a different medium; we’re trying to tell a different story but we’re relating it back to this other content and we need to respect that too.
Denise: Mona with this sort of specter out there that perhaps the game development side of these Hollywood properties has not always lived up to its potential; is that something that you guys see on the transactional side? Do you see the rights holders trying to build in stipulations or requirements that the game be of a certain quality?
Mona: It’s kind of difficult to predict something like that so on the whole it’s not something that you see a lot in warranties. You can’t warrant the success or failure of a game. You can make it up to commercial and technical standards; you can have approval rights over what’s going to be released, but how the audience is going to accept it… If you want a successful game to come out as a content owner you need to give the developer time to make it, it’s like Patrick said; “the biggest problem that you have is that you have unreasonable development cycles where the developer just doesn’t have time to put out a premium product. And like Patrick said “mobile has kind of reinvigorated this market because you can put out a really slick nice looking mobile game based on an existing IP in a very short amount of time. So to that end you might have a little more freedom to make sure the product you’re putting out is going to have more commercial success. If you want a game with critical acclaim based on an existing franchiser or movie franchise look at the Batman series; they have a lot of time to develop it, they have a lot of time to… Or the most recent “Lord of the Rings game”. It became a project in and of itself. The game itself took on a life of its own apart from the property. I think that’s actually – it kind of reinvents the franchise and I think it makes for a better quality game.
Denise: Is that the Shadow of Mordor game?
Mona: Yes, thank you.
Denise: Which has done really well right?
Patrick: Echoing on what Mona said; years ago a couple of the movie studios tried to build in metrics or penalties if the game quality wasn’t there or if it didn’t sell well enough but to me that was always sort of a strange argument to make because they were the ones who were proving the direction creatively of the game. So they’re telling the game company “don’t do this, tell the story this way” and then punishing the game company when the game didn’t resonate with the consumer; so that argument sort of folded in on itself and thankfully has more or less gone away. You have to be on the same page and collaborate between the property owner and the game company but it’s really hard to mandate a quality bar.
Denise: Right, I can see where that would be. Another area, a very popular culture area that has a lot of cross over with games is sports and we’ve talked a lot about issues with sports players who… hopefully what happens in the best case scenario for a game developer if they’re going to make a sporting game is they go to all of the players and all of the franchises that they want to use in the game and they make sure they’ve got all their licensing lined up. EA has been in litigation with various NFL players in the news this week and that case is going to be able to go ahead and go forward. That the players in the game are significantly close to former players names; well it’s certainly not their name but their likeness. A realistic virtual simulation of someone that you might recognize; so EA has been fighting this and this case is going to advance and it’s certainly not first of these kinds of cases that we’ve seen. Do you think that they’ll begin to diminish and people will start to say ok if we’re going to make someone who looks like Terry Bradshaw we’re going to need Terry Bradshaw’s permission, Patrick?
Patrick: It’s definitely an area that we’re paying attention to. We’re not necessarily deeply involved with this case but I think what it does is that it shows that companies are going to need to make sure that the right they’re getting are complete. Sports is a bit of a different piece because there are so many different rights and you have to get them through the league and through the union in some cases. You see the EA backed off of their college game for some of these same issues for the NCAA but I think what it boils down to from the transactional side again if you’re representing the developer they’ve got to make sure that the rights are actually held by the company that is purporting to give them to you or license them to you to make the game. Sports is really unique in that the player, the player likeness, the player bio and obviously the player statistics do drive sales; where as you don’t necessarily need Harrison Ford’s voice to have a successful Indiana Jones game. You can have somebody else’s voice. The character can look pretty similar obviously like we’ve talked about with The Lord of the Rings and Gandalf but you don’t necessarily need the talent involved in the same way that you probably do for sports. So it’s more important there.
Denise: I guess that answers another one of my questions for you on the show today and we’ve obviously been paying attention to here on This Week in Law you guys probably have too – the Garcia versus Google case in the 9th circuit where Google is being sued. That case was held to be able to go forward. The 9th circuit is now rethinking that and we might have a ruling out on that soon but Cindy Lee Garcia basically was duped into acting in the movie Innocence of the Muslims and claimed a copyright in her own performance which would entitle her to remove or request removal of that movie from YouTube. This has been really controversial because if an actress has a copyright in her own performance that begins to wreak havoc with who gets control over a property once it’s done. I’m wondering if this might become an issue for the gaming industry as well. What do you think Patrick?
Patrick: I think it touches on an issue for the games industry and it also touches back on an issue that we talk about early in the show about trade secrets and protecting them that Mona mentioned. A lot of the smaller entities in the space are moving fast and they’re moving in a lean capacity and they’re not always necessarily tying up all the loose ends and this is definitely a loose end; any contributor to the game whether it’s an actor or voice over talent, whether it’s a writer or a coder. You have the same issues with the people that are writing code for you. You have to make sure that you have the rights to the work product whether you have them under license or if you have them in an ownership capacity; you still need to cover off on all those loose ends and smaller companies don’t always think about it that way. I think this is a good example. I don’t know if this particular instance of this case is going to have an impact on games but I think it definitely illustrates a problem that games have or that game companies face.
Denise: So your preference would be for clients that you’re consulting with that they cross every t and dot every i and just assume that maybe somebody is going to be able to assert some sort of ownership interest that could wreak havoc with the game developer’s ability to control whatever they develop right?
Patrick: If every t is crossed and every I is dotted theoretically you won’t have these issues. Somebody could assert something and then you’ve got it cover and you’ve got back up for it, you’ve got the rights to the music, you’ve got ownership of the code that was created for you on a contract basis; the voice over talent that came in a spend a day isn’t going to assert any copyright infringement on their performance right. All of that could theoretically be covered on a well thought out plan; it’s just that a lot of game developers are focusing on creating and getting their game to market and they don’t always focus on those details in a way that I would like.
Denise: Well back to the sports arena and likeness issues; I’m afraid we’ve got bad news for you Suzanne. I know you probably were looking forward to playing Glorious Leader the game where Kim Jong Hyun was going to be assisted by the ghost of his father and also Dennis Rodman in fighting the evil forces of the US. It looks like not only Dennis Rodman came out and said no I’m going to sue over this and you can’t use my name and likeness and sent a demand letter shot across the bow, but now according to the game maker their website was hacked and they’re not going to release the game so I’m sorry Suzanne.
Suzanne: I’m a little bit heartbroken I’m not going to lie. I love the humor in games and that’s a perfect example of that kind of humor, that irreverent experience that you can only get in games. But I know from seeing it that it was just going to be riddled with issues from the very beginning and the timing on it was just terrible with everything that happened to Sony. So you win some, you lose some.
Denise: The coverage of it people seemed to be looking askance at the game developer and saying really you got hacked? That’s kind of convenient when you had an unsuccessful run at funding the game via Kickstarter and they seem to be… their guess is that it was a copycat hacker modeling what happened to Sony and taking them down. They also say that they lost all their backups, all their code. Does that seem like something that could happen, Suzanne?
Suzanne: I’m not really much of a developer, I’m working on a game right now but it’s not a product by any means that large but I have backups on top of backups and I feel that if you’re investing that much time and especially a project that you’re asking for 55 thousand dollars on you’d have backups on top of backups and cloud saves and emails and things from which you’d be able to rebuild it. It is a little convenient.
Denise: Alright, well we’re not saying anything. The game isn’t available and unfortunately it doesn’t look like it will be. One thing that is a positive development this week and I think we talked about this the last time you were on Suzanne is that there was a lot of controversy when Twitch decided to blank out the music not in its live streams but in videos that were available on demand after being recorded. If there was unlicensed copyrighted music in the video you would find yourself watching a silent video because the music was being muted. They’re trying to work towards a situation where there is a universe of music that is available for people making videos on Twitch. They only have 500 titles available right now in this realm of usable music. It reminds me of back when podcasting got its started and people were recording pod safe music specifically for use in that context. It seems that’s the approach Twitch is trying to adopt as well. They’re hoping that because they already have musicians that are using their platform for marketing that they can encourage those musicians to also make the music they’re putting up there available for lets players and other to incorporate their music into their videos. What do you think of this approach Suzanne?
Suzanne: I think it’s clever. Twitch needs to cover themselves and music is one of those industries where there is a lot going on in terms of copyright particularly with all the piracy. We see a lot of it in the game industry too. Pirate Bay and all of that, so I think they’re being smart about it. They’re trying to give people options. I don’t know that shutting down the music was the best initial response but at least they’re trying to fix it now.
Denise: Music is certainly one of those t’s the needs to be crossed and I’s that needs to be dotted when developing a game. Mona can you tell us how your clients try and deal with that problem?
Mona: Well it’s not really a problem. It’s kind of part of the parcel with developing a game. You’re always going to need sound. I’ve done some work with the game audio alliance which is a group of composers. So you come up against 2 models; you either get a straight work for hire deal or you get a license deal and that’s kind of how it is with any kind of content that you license for a game whether it be code etc. I don’t know, I can’t really call it a problem. It’s just part of what you need to have. The composer agreements tend to be a bit more straightforward. They tend to be… especially if they’re on a work for hire deal you get the rights to pretty much all the music. You may get paid in installments or you may get paid on a back end royalty, based on the success of the game. If you just license the music straight out it could be a non-exclusive or an exclusive license. There are a lot of iterations that sound and audio music itself can have in the context of game licensing.
Denise: Right, it seems like there are some games where recognizable music is super important. Rock band kind of games you can’t really have one of those games without having songs that people know and then on the other hand you can do obscure or unknown or originally authored for the game kind of music for other kinds of games; Patrick, anything along these lines that you want to tell us?
Patrick: I’m sorry I was responding to someone’s comment on chat. Can you repeat that Denise?
Denise: Sure. I’m talking about music and games and we were talking about the role of popular recognizable movies, books and games before and now I’m sort of shifting gears and thinking about that in the music sense. There are some games like rock band and that sort of genre of game where you absolutely need to have certain very recognizable tracks. I’m remembering some of the dance games that came out when the Connect first developed, how you needed to have those top hits for people to do their crazy dancing too. But there are other games where original music is perfectly fine or something more obscure could give more public exposure to an artist that might have an audience like Jonathan Colton with Portal and just wonder about your take on the intersection between music and games at this point.
Patrick: I think like Mona said; it is just a reality that you’re going to have to license your music or you’re going to have to count for it somehow and make sure you have the rights. It depends on the game and depends on what you’re trying to make. Obviously if you’re going to make a James Bond game you need the James Bond theme song. It’d be weird if you didn’t have it. If you made Star Wars you’d have to have that theme music with it and you’d have to pay what the price is with that. But in other instances original compositions are fine and by the way the original compositions are not cheap either. We’ve done some original composition deals for our clients that are making games and one of our clients is a company that was the creative team behind Flower and they’re making this game that is sort of heavy visuals, heavy sound and music design and they’re paying a premium for that and that’s just the reality and you just have to factor that into the budget. It’s no different that accounting for coders and engineers and artists and animators.
Denise: Got it. Hey I wanted to shift gears. We were talking before about the language used in communicating rights and obligations related games. This caught my eye this week and I wanted to get your guys take on the waiver that people are being made to agree to if they download a free copy of Assassin’s Creed Unity. Apparently there were some problems and glitches and Ubie Soft did say they’d fix it and make it good. The game, I guess needed 4 patches in its first month and I know how popular that game has been. Again with the demographic that I see every day with my son and his friends; none of them even know that they have the right to download a free game. But if they were to do it they are now under the language and it’s this language that no one would really notice or pay attention to that makes them agree that they’re not going to participate in any class action against Ubie Soft for… Again we were talking about guaranteeing the quality of the game; apparently Ubie Soft is worried that it would be sued, because it’s really a glitchy game, because they’re making people sign away their rights to do just that. Suzanne what do you think of this?
Suzanne: I’ve seen a couple of these suits come in and out where the player is upset that there was an online connectivity right at the launch time or they didn’t’ t have all of the features that they were supposed to have. They call up the government all angry and they say; “well they lied to us in advertising” and it never seems to go anywhere so on the legal side I don’t necessarily know that a claim about the quality or the issues with the patches would go anywhere. I do think it was a really good business decision to say hey here’s a free game, let’s not bring this up again. It’s been happening with the Halo Masterchief Collection that I’ve been playing; they’re now giving away a free game because of the numbers of issues in multi-player. It kind of seems to be the way things are going. But overall game quality with the constant ability to patch and not having to have that final Gold Master that you’re sending out, it may be diminishing game quality because they know that if there is an issue in week one they can send out a mime and everyone will be covered by it and it will all be better. So it’s an issues that is endemic in the industry now.
Denise: Do you know when if you downloaded your free Halo Universe game whether you were giving up your right to sue when you did that?
Suzanne: I don’t know that they’ve released it yet. They’ve just said that it’s coming and when they do I’m definitely going to take a look at those terms.
Denise: Yes exactly. It seems like initially when you look at this and see they’re hiding some kind of gotcha in the legalese; as you were saying Suzanne it may be a way to enable game developers to iterate quickly and somewhat protect themselves from suit, to be less concerned about putting out something that isn’t absolutely perfect. Could that be a good thing?
Suzanne: I think it could be a good thing. We’re in an age where there are certain expectations of we’re going to get the next fallout next year or the next half-life which will absolutely never happen but theoretically you have this expectation that you’re going to get the next version of a game very quickly and that expectation is putting this pressure on developers to produce more quickly. So there needs to be a certain degree of understanding and that legal protection is definitely important on the development side; to be able to give the consumer what they want but still have the flexibility to fix it later.
Patrick: Adding on to that; we’re a litigious society in general and I think in some cases that’s sad and in some cases it’s warranted. Obviously protecting the consumer is a valid concern but a free copy and a patch and a quality issue… that’s not a legal problem, that’s a customer service issues. I don’t blame Ubie Soft on that case for preemptively shutting that end down. I think when you get into privacy issues and things along those lines I think the question is a little bit different or the impact is a little bit different but there really shouldn’t be a class action suit over a patched game that you’re getting for free. It just seems silly to me.
Denise: Ok, let’s get into some privacy issues and some other issues that relate to how lawmakers and regulators think about the gaming universe. So as with lots of other kinds of businesses that have a lot of information, credit card information in the case of gaming platforms like the Xbox or PS4. Those companies are going to know a whole lot about what your interest are what your habits are, how much time you’re spending engaged in a leisure activity; all of these things that are sensitive on the privacy front and I’m wondering Patrick and Mona how you think game developers are addressing those concerns.
Patrick: Well I’ll start it but certainly from a transactional side and stand point perspective it’s something that both sides of the deal take very seriously. There are carve outs for limitations and liability, for unlimited liability on the potential privacy side. That matters in a lot of cases. It’s definitely a strong area and a strong concern. As far as the evaluation and the formulation of the policy that is an area that Mona deals with more I think more with our clients so I’ll kick it over to her on that.
Denise: I think also what is really important is for game developers both on the hardware and software and platform side to really think through how privacy comes into what they’re doing. I think we’re still kind of early days in figuring out all of the data especially as platforms continue to develop and innovate and find new ways to interact with you and record what you’re doing; that maybe some of the stuff just hasn’t hit people’s radar yet. I remember Suzanne when the Connect came out and whether it was on or off would be an issue and it might be watching you at times when you were not particularly not aware and there were just all kinds of ways in which gaming companies might have data about you aren’t there?
Denise: Good advice. Another thing that lawmakers are always conscious of when dealing with the video game industry is the violence piece and not just violence in the game; I think a related topic is the way that online players interact with each other which may or may not depending on whatever study you’re reading these days have some relationship to the violence in the game or games and how that is impacting our society as a whole. I know that in 2013 President Obama actually asked the CDC – the center for disease control to study whether video games are linked to violence. I haven’t seen a whole lot of follow up information or conclusions on that request. I guess we can just assume that the research is ongoing but as I mentioned a moment ago people are always doing studies that either say violence in video games is damaging our society or there is no link between violence in video games and the violence we see in our society or maybe there are studies that come out and say something in between those 2 polar points. But it’s something that lawmakers pay attention to and in fact in the last week Ars Technica was paying attention to a talk that Justice Kagan of the US Supreme Court gave in November at Princeton and she was being asked about the California case that was called Brown versus EMA that considered whether California could enact a law that would put some pretty tight restrictions on selling violent video games to minors; tighter than what we already have in California right now and a little more amorphous. It wouldn’t just be based on the ESRB rating of the game whether it was violent but it would be subject to a kind of a variety of the Miller Test for obscene content. It’s sort of a squishy test that looks at community standards and what average people think about the property in question. You’d get a whole bunch of variables in deciding whether or not a game was violent. The Supreme Court split 5 to 4 on whether that California law was going to be constitutional and ultimately found that it was not and that free speech value of the games trumped any interest that the state would have in controlling the sale of them to minors. Justice Kagan at this talk, talked in detail about how conflicted she was about deciding this case and if she had gone the other way then California’s law would be constitutional. So it was a good illustration of just how difficult this issue is for judges and lawmakers. The violence issue isn’t just going to go away. I wanted to get your take on – first of all Justice Kagan’s comments and the state of the Art in violence and video games and what kind of a concern it is to developers. Can we start with Patrick?
Patrick: I just saw the article on Justice Kagan. Of course I get her concerns and everybody wants to understand and think about what can be bought but that is a parenting issue and I think she got it right in her vote; whether she laments her vote or not it doesn’t mesh with free expression and that’s what she ultimately decided. So as far as I’m concerned this is pretty much a dead issue although it’s easy political fodder for people to jump in and say “we should study it more” or like other states are still trying to figure out ways to regulate it or to tax it; to tax violent video games in whatever capacity. But as far as I’m concerned this is a dead issues and the ERSB does a great job in rating their games and it’s not a government entity which is the whole point. Thankfully it’s more or less put to rest for a while.
Denise: You know all of this made me think back to a few years ago – I think it was in 2006 with the Cleanflix case where somebody attempted to develop a product that would… I forget exactly how it worked technologically, if it altered a movie as it was playing or if it distributed an altered version of the movie. But it was called Cleanflix and the idea was to take an otherwise objectionable violent movie and clean it up a bit and take out the gory parts, the profanity and the nudity, the sex etc. and it did not pass muster for similar reasons. For free speech and altering the artistic expression of the creator kind of reasons but I don’t think that anyone has attempted a Cleanflix kind of strategy towards video games. I can certainly see someone trying, couldn’t you Suzanne?
Suzanne: I could see someone trying. I’ve seen developers try. I have a game in my living room right now, (the name of which escapes me of course because I’m being recorded) that at the beginning of the game it asked me if I’m ok with swearing blood and gore and of course I clicked yet but people have the option to say no. So I think developers understand that that is an issue that needs to be addressed. I don’t think anyone technological would want to change the content of games enough to make an alteration on that level though; because there is such a wide range of games that if you don’t want blood and gore you’ve got plenty of options and if you do want blood and gore you’ve got plenty of options. I would also like to point out that my undergrad degree is in psychology and I used to work in the psychology field so whenever I see studies come out that say “violent video games cause violence” I just… correlation is not causation, you have it controlled for all the external factors, how do you know that this isn’t a self-selecting group? Did you test all age groups, all types of games, all types of levels of playing and everything else? It’s a mess when studies get into the news.
Denise: Yes, absolutely! It’s confusing and of course you can find the study that proves exactly whatever your conclusion was and then argue from there if you want to. I do think that this is an interesting issue. I wish you could remember what game it was that you could turn off the violence on.
Suzanne: If you don’t mind I can run out and grab it.
Denise: Oh do it after the show and I’ll stick it in the discussion points. My son is continually telling me that there are games out there that he wants to buy and play that has that option and it seems like unfailingly we get them home and that option isn’t there and it’s just blood and guts and gore all over the place. So I’d like to see more of that as a parent in games and I hope that the industry does more to give people that option.
Suzanne: It’s Brutal Legend.
Denise: Brutal legend, I’m writing it down. So it’s clearly an M rated game correct?
Suzanne: I don’t think it is M rated if you switch off the violence then the blood and gore and swearing then it would probably be an E rated game but if you keep it on then yes it would be an M rated game.
Denise: I think that’s kind of a moving target. I think parents want it and it’s not as widely available as it might be and certainly the Cleanflix type approach has its share of legal problems. Mona do you have any thoughts?
Mona: We bring up the regulation and censorship of games and media content in general and it’s something that we have to take into consideration whenever we’re talking about our clients; it’s that even if it’s not necessarily a state censored issue in the US because we have this whole freedom of speech thing. Most of these games are hopefully going to be distributed internationally and we can’t say the same universally. We can’t say there are not going to be state regulated content issues that we’re going to come across in the future. Australia and the UK have some pretty strict state sanctioned censorship issues that come into play so it’s not like we’re totally free from this from a global perspective. So it’s fine to say that the US offers that freedom of speech protection but it doesn’t protect the developer nearly as much as people think. Censorship is always going to be an issue. Yes the guidelines as Patrick was saying are absolutely great and I think it’s a wonderful system but at the end of the day censorship is always going to be an issue and it’s going to be something that developers always have to think about if they want to see any success in their product. Some people get off on the sensationalism of violent video games and that’s fine. I am strong believer in freedom of expression; I just think the reality is that censorship is always going to be an issue.
Denise: Right. Again as a parent it’s interesting for me to watch kid’s reactions to games and what they’re allowed or not allowed to play. One of my friend’s sons the other day had a comment about how, “I’m just not a violent person at all but God I love destroying things in games”. There is just something very cathartic about it for him. I know this kid well and I believe him that he can blow stuff up and blood and guts and gore everywhere and that it’s not having an impact on him where it’s making him a more violent person. He’s a really gentle person.
Patrick: I think you touched on 2 things there Denise. 1 that there are far more TV shows that I’d be worried about my kid watching than playing games and 2 like you keep saying as a parent you have a concern. I think that’s a valid concern and I have that same concern with my kids. I just don’t think it’s a government responsibility that’s all.
Denise: Yes. Alright well for the video game bar association the CDC ratings are great I agree but they could use even more detail I think from the parental stand point. They tell you what is in a game but again I’d love the ability to turn some stuff off and know more about it. I guess it’s a really good private industry solution but again you need a bit more to make decisions as a parent. You need to be going to something like common sense media and seeing their take from people who’ve actually played through and know the game well. Let’s see, other regulation and policy issues? Oh we should put a second MCLE passphrase in the show before we close out here and since Suzanne did the great mental effort of figuring out the game she was thinking of – Brutal Legend – let’s make that our 2nd phrase for the show. Before we get out of here I wanted to ask you guys since we’re coming down to a vote on net neutrality in the FCC next month how those issues impact the gaming industry now that so much of it is happening; either the game play itself is online and a bandwidth issue or the distribution of the games or both. Suzanne do you think the gaming industry is paying attention to net neutrality and what it might mean for them?
Suzanne: I think they're trying. There's so much on either side, there's so much going on back and forth, it's hard to get down to the nitty-gritty actual issue, and how things will play out. For my end, I'm being more responsive and reading ahead, and trying to be like; well, if this comes through, if we don't get net neutrality, then if Steam-heaven forbid- starts getting throttled, then what would be the appropriate response, how would that be handled on our end.
Denise: And what do you think?
Suzanne: I think it would just wind up being a mess, because you'd have to pay for the wider band width on the behalf of the distributer, whoever else, or maybe it would be independent publishers that are paying for greater band width. And, when everything is digital, it's kind of a huge issue to just shut it down like that.
Denise: Is this something that comes into play in the development stages when you're working with clients, Patrick? How the game's going to be distributed, and what sort of band width considerations might be necessary, and might need to be built in?
Patrick: We definitely talk about it in the agreements relative to the development processes, pipelines, specifications and things along those lines. The issue of net-neutrality, more band width is going to be required, hasn't really come up specifically, other than what it's going to boil down to, the pricing issue. I mean, if there are more band-width costs that the game companies are going to have to pay, then they're going to squeeze somewhere else. And eventually, that's going to get passed down to the consumers, they're going to end up paying more for the game. Or paying more directly for the band-width; so one way or another, I think the consumer's going to end up paying more in that scenario. But, I haven't seen any agreements that are directly responsive to the potential of the net-neutrality efforts.
Denise: Mona, what do you think?
Mona: I think, like Patrick said, as of yet, it hasn't been an issue, because it's not something that's been actively enforced. So the person that's ultimately going to suffer is going to be the consumer. It's going to be the end user. Really, it's a horrible situation, but hopefully it's something that we won't have to deal with. I think that's kind of cautious optimism is what we're looking towards, though the reality is that it might come through, and if so we'll just have to see what happens down that road. It's not something that I’ve really confronted with in a lot of deals, it's not really a consideration at this point yet.
Denise: All right, well we're watching it, as it might impact many industries, and this is just one of them of course. Let's go on to our tip and resource of the week. Our tip of the week is for all of you out there. Suzanne, maybe a couple of years ago, this might have been you. Who think you might want to attend college on a gamer scholarship; there are actually two places in the U.S. where you can do that now. One is in the University of Pikeville in Kentucky, and the other one is in Chicago. Do you guys remember where that is, Suzanne?
Suzanne: I'm not entirely sure, no.
Denise: Hold on, I have to look it up then.
Suzanne: I only know that one in Kentucky.
Denise: Robert Morris University in Chicago was the first school to make League Of an official sport. And now, university of Pikeville is jumping in too. There are going to be 20 scholarships given away at the University of Pikeville. Playing League Of Legends is going to be part of playing the school’s sports program, they're calling it Varsity E-Sports, and they're treating the gaming athletes just like other athletes, they're going to have G.P.A. requirements they're going to have to maintain, they're going to have practice time, and time spent reviewing videos of other players and developing strategies, there’s going to be coaches, etc. This is a thing, gamer athletes. What do you think, Suzanne?
Suzanne: I think it's awesome that it's reaching this level of legitimacy; I mean e-sports, from an observers stand-point, are packing stadiums, and being watched in line in huge numbers. Dodo tournaments, League of Legends tournaments, these people are becoming real celebrities, these players. So it's good to see this kind of legitimacy coming through the university network. It's changing the definition of "what is a sport, what constitutes a sport, whether the physical aspects of sports are really necessary, and, really, there is a physical aspect to gaming. So, it'll be interesting to see whether it sticks and continues as a trend.
Denise: Right, the new media director at University of Pike Ville, says "what makes a good League of Legends player and E Sports player also makes a good student." So, does this say something overall, something broader, Patrick, about the role of games in education in our lives?
Patrick: Absolutely, I again think the fact that it's reaching down to this level at the E-Sports and the player level, it's phenomenal, but there's been a meteoric rise, I think, in the number of University level of schools that are having a game development program usually tied to their computer science division. The University of Texas just started a really good one that I'm going to be speaking at in March. U.S.C here in Las Angeles has the top games program I believe, in the country, according to the Princeton review. That's a phenomenal group. So they've been educating people on that level on how to make games, and the Texas one is more of a management level one. Law schools, there's a dozen law schools that offer specific courses in video game law. So this has been happening in a variety of places. And a variety of levels, at the university level at the university system, so this is great to see it at an E Sports level.
Denise: Right, and it's worth mentioning that even though there are only 2 colleges in the U.S. where you can get a scholarship to play League Of Legends, more than 230 universities and colleges are competing Colligates Start League which I guess plays that game. Can you tell us more about that game, Suzanne?
Suzanne: It's a team game where you battle it out, basically. You select your character, you can upgrade, and you can choose particular weapons. It's an arena style battle game, it's a lot of fun, a lot of my friends are really into it, I’m not really on their level, nor do I make any claim that I could win a competition, but it's a fun time to get out there and do something with a bunch of people.
Denise: All right, Mona, any thoughts about gaming scholarships, or E-Sports in general?
Mona: The work horse in me is kind of obsessing over how is that going to play out with the players who are with existing M.L.G teams. I had a friend who I actually helped with his Evil Geniuses contract whenever he was working with that team. When we were talking about M.L.G. teams, these teams are endorsed, heavily sponsored teams, they have contracts with their players, so how are these scholarships going to play into that, are they going to be prohibitive as far as being able to work with existing teams and existing leagues. I'm kind of interested to see how that’s going to work out for these agreements, for the players.
Denise. Right, so what you're saying-first of all, what does M.L.G. stand for?
Mona: Major League Gaming.
Denise. Major League Gaming. So, what you're describing is a world that’s sort of like skateboarding and surfing, where the really talented young players are scouted and identified, and sponsored, and signed?
Mona: Yes, absolutely. It's been going on for years, I went to an M.L.G. tournament in 2008-2009 maybe, and a friend of mine was playing. The same one I was helping with his agreements. And it's a huge thing, it's a massive event and any time we go to pack, you see the League of Legends tournaments that are happening there. But M.L.G is becoming a real thing, it's becoming a real industry, and I’m interested to see how that's going to grow.
Denise: All right, well, we have a couple of resources for you in Keeping With Our Gaming episode today. One is, it's called… actually I don't know if it has its own name, but the internet archive has… it might be called The Incredible Machine, that’s what this graphic says anyway, but it has over 2,000 free classic MS-DOS games that it's bringing to your browser. Again, the legal status of these games is somewhat questionable. But for the time being, they are up at the internet archive. We’ve got games like, Duke Nookum 3D which also actively on sale which is why that particular one might be a problem, but Wolfenstein 3D, we'd love some Lemming’s titles; Oregon Trail, love that one, that one is also on sale, I noticed. It is available in the app stores for mobile devices. Oh, Incredible Machine is a game itself. The Kings Quest games, I remember those; The Island of Doctor Brain, the Leisure Suit Larry, of course, and a lot of other Sierra games. There are over almost 2,000 games, available at the internet archive to play in your browser. And some of them, there's no ability save games, its kind of an interesting experience, playing in your browser, it's not going to be exactly in what you remember, but just making them available is kind of fun. But as the author of this piece in PC world points out, enjoy it while you can because the legal status of these things is somewhat dicey. Suzanne, do you have any thoughts?
Suzanne: I'm excited to have them available, a lot of them I already have on my Steam account legitimately, but its retro, it's fun, it's good to go after but the legal issues won't let it be there for too long.
Denise: All right. And then our second resource just for fun for our viewers and our listeners, we like to play the Twil drinking game; we have a way that you can augment that. The Twil drinking game is generally whenever anyone speaks in Latin on the show or makes a Monty Python reference or you know you guys in ISC will have to remind me of all the other things that are part of the Twil drinking game. But, over at Above the Law, which is a fun, sort of snarky website, which gossips about the legal industry- they highlighted the fact that a lot of law students, when they're bored in class, will play law school Bingo. Which is very similar, you make up a Bingo card and put things on it, like various Latin terms. I never was personally sitting in a law school class where someone shouted out "bingo" but it's probably happened. So, if you're interested in augmenting your Twil drinking game, I encourage you to head on over to the Above The Law article that's in our discussion points on delicious, there are words in there that you can add, lots of Latin phrases like per say, penumbras, emanation, prima facie, query, fungible, rem, proximate cause or palsgraf; all kinds of other fun things to add to your legal lexicon and make your viewing of This Week in Law even more fun and or liquid if that’s the way you like to enjoy the show. I just wanted to toss that out for you. have had so much fun chatting today with our gaming panel, I hope you guys have too, thank you so much Suzanne, for joining us once again.
Suzanne: Glad to be back, it was a wonderful time.
Denise: It was. And Patrick and Mona of I.E. Law Group, great that you guys are developing your gaming law practice, we’ll continue to pay attention to the video game bar association, right Patrick?
Denise: Ah, you said you have a speaking thing coming up soon. Anything else you want to point people toward before we go ahead and round out the show?
Patrick: Well, we'll all be at G.D.C. in San Francisco, coming up in March. I think Suzanne, Mona and I are all attending that. South by Southwest, The University of Texas is also in March.
Patrick: Chicago, that's right, Suzanne's got a conference that she's helping run in association with John Marshall Law School, I believe in March. Suzanne do you want to talk a little bit more about that?
Suzanne: Yeah, it's legal and business focus conference down in Chicago; it’s the Chicago video game law summit. It's at the end of March so we're going to have awesome speakers like Patrick and Mona come out and talk about legal issues in the industry and we've got a couple developers to talk about the business side, and it's just going to be a fun time.
Denise. Wonderful, I'm glad you guys are doing what you do, and it's kind of the Wild West of legal issues concerning video games, but it's good to know that there are smart people like yourselves, applying your grey matter and trying to help both users and developers get it right. So, thank you so much for joining us today on This Week in Law. If you have been joining us live than that means that you too, have joined us here on Friday at 11:00 in the morning, California time, 1900 U.T.C, that's when we record the show every week. But don't think that you have to do that all the time, it i
s great when you can, we love it when you can join us live. But don't be concerned. We're going to be here for you on demand, as far as I know, no one is muting out any of our audio when you listen to us on demand after the fact. You can do that by going to www.twit.tv/twil or go to www.youtube.com/thisweekinlaw you can go to iTunes, or just on your Roku, however you like to enjoy the show, we're going to be there for you. You can go to the Twit page, the twit.tv/twil page, there are a whole myriad of places you can go to enjoy the show after we have recorded. So whatever works for you we are just thrilled to have you. You are so important to our doing of this show, our listeners and viewers, we love to hear from you, love to know what you've thought of our discussions, love to know what other issues it made you think of that we didn’t touch on; we'd love to hear about that. You can email me, I’m email@example.com, you can reach me on twitter, I'm dhowell over there, and we have google+ and Facebook pages for the show too if you have a bit more to say, love hearing from you about what you think we should discuss, what you thought of what we did discuss, and who you think we should have on the show. Those are all real fruitful areas of discussion with me between the shows so please take advantage and let me know what’s on your mind. Thank you so much for joining us once again for this gaming oriented issue of This Week in Law. We'll let you get back to your consoles, right? We've taken up way too much of you time. Thanks so much, we'll see you next week!