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Good Old Games on PIPA, SOPA, DRM, and other acronyms

Nov 28 // Brock Janikowski
Here is a bit of a primer: In the United States, economic times are tough, and politicians are looking down the barrel of upcoming elections. Needless to say, they're worried that things haven't gone quite as planned, and many are looking for a way to bolster support and make some powerful friends before the next round of elections. What better way to do that than get cozy with to the Hollywood elite and write a few friendly laws to support those in control of one of the United States' greatest exports, entertainment? Enter PIPA and SOPA, two sister pieces of legislation aimed at allowing the government and big entertainment companies to wrap their gnarled, bony fingers around the throats of consumers. Ok, ok. That's a little one sided and no doubt sounds hyperbolic, but trust me when I say that these bits of legislation could fundamentally change the way we use the Internet for the worse. If someone is hosting copyright-infringing materials on their website, then a copyright holder should have a right to go after them, right? I think we can all agree on that, but PIPA and SOPA make this process far too simple by removing basic protections. Suddenly, if you're an advertiser on a website where copyright infringing material shows up, you're liable. If you sold an IP address to someone who then goes and does something illegal with it, you're liable. If someone complains to the government about your website, you might end up on a government blacklist and will be legally removed from Google search results. More than that, IP holders would be allowed to threaten and scare off everyone involved with a website from the top to bottom without ever taking someone to court. PIPA and SOPA profess to protect IP, but in reality, they offer an unprecedented degree of power to publishers and other IP holders all in the name of stopping piracy and "protecting" IP holders. PIPA and SOPA might well allow big companies to curate the content of the Internet as a whole, and that's something we should all fear. Needless to say, if you're on this website, you have an interest in keeping the Internet free from government and industry control, but it hits even closer to home than that. In my interview with Trevor Longino of Good Old Games, we discussed the effects of piracy and the ways PIPA and SOPA might effect games and commerce on the Internet. In your opinion, what effect is piracy having on the entertainment industry? On the games industry specifically? There's no disputing that piracy is hurting the industry. Even though we're very, very opposed to DRM, we don't argue that fact, but there are a few facts that are worth noting. Piracy isn't nearly as devastating as some studies would have you believe. People throwing around numbers in the billions of dollars of lost revenue are making some false equivalencies. Every copy of a game that is downloaded does not equate to a lost sale. In many cases, torrent trackers display inflated numbers of seeds and downloads. Those scary numbers aren't real, and by letting ourselves be deluded as to the impact of piracy, we don't rationally look at what it really means for the industry and how to go about minimizing it in an effective manner. Legislation, DRM, even advertising campaigns ("Don't copy that floppy!" should ring a bell for gamers of a certain age) aren't what reduces piracy. Convincing your customers that what you are selling is worth their money is the only way to do that. Many big entertainment conglomerates have argued that the PROTECT IP Act is necessary to stop pirates from "stealing" their products. It even states that it has been created "to promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property...." What effect do you think DRM is having on "prosperity," "creativity," and "innovation"? Is DRM necessary to stop gamers from "stealing" their entertainment? DRM doesn't stop theft of games, let's make that clear. It's a false argument to say it does. Every game that came out this year -- every single one regardless of the kind of DRM on it -- was pirated. Frequently before the game was even for sale on retail shelves but within 48 hours after launch, either way. There's a whole industry devoted to selling DRM solutions to publishers and developers, and no one seems to be clued into the fact that it doesn't stop piracy. If DRM doesn't stop theft, what does? Well, according to that very interesting survey that Vigilant Defender conducted a few months ago, the value of the game offer. Almost 50% of the users surveyed stated that one of the main reasons why they pirated games was the lack of perceived value of the package. Either they wanted the game for less money or they wanted more bonus content in the package. That should sound familiar, given that it's's business model. DRM isn't necessary to curb piracy. We've proven that. Make the value of what you sell evident, and you'll reduce the numbers of gamers who don't pay for the games they play. The PROTECT IP Act allows IP holders to not only request that sites take down content which they believe is copyright infringing but also allows IP holders to go after advertisers on the website, domain registrars, and payment processors. These people would share liability for any illegal actions a website might be taking. Does this seem fair? That's a tricky question and a bit of a loaded one -- different cultures have different expectations for "fair." I don't think I can judge whether it's fair or not. I think it is an inelegant solution to the problem of piracy, and I do not think that it will be effective. There is a host of reasons why it fails to perform as well as even the flawed DMCA does, and I do think it will have a definite chilling effect on Internet commerce. America -- and I speak as an American citizen, here -- is losing ground to new marketplaces across practically every industry. Internet businesses are one of the things that we still excel at, and handicapping ourselves by creating what is more or less our own bowdlerized version of the Internet will only hamper our ability to compete in this arena too. It seems short-sighted. Search engines are under attack too. The PROTECT IP Act would require search engines like Google to stop listing sites in searches if the Department of Justice puts the site on its "blacklist." This does not require going to the courts. What potential problems can you foresee websites like Good Old Games or other digital distributors might face as a result? That depends on the level of abuse the system sees. Currently, some people abuse things like the DMCA requirements for takedown notices, forcing content to de-list that they don't even own the rights to. I can see the possibility that some people could definitely exploit this "blacklisting" for their own purposes, which would cause an immense amount of trouble for the website that has been blacklisted. In general, for companies like, I don't foresee a particular problem. We're a legitimate company, we have excellent customer service, we have a strong reputation in the industry, and we obviously have the legal rights to sell the games that we sell. I don't think we're at risk for being targeted as a scam. However, a lot of the abandonware websites (sites that take a curatorial view of their downloads, saying that they're preserving these games from the ash heap of history) that have games that GOG doesn't sell yet could certainly find themselves in a bad situation. Anyone who advertises on these websites could also find themselves in a certain amount of hot water, which will cause the abandonware sites problems even if they aren't directly targeted for blacklisting. Advertisers will leave in droves. Do you think gamers should be worried about the PROTECT IP Act and Stop Online Piracy Act? What would you suggest they do if they don't approve? I don't think that the problems of PROTECT IP and SOPA are unique to gamers. If you use the Internet, PROTECT IP has a good likelihood of impacting how you will consume your information. I'd say the best thing to do in regards to PROTECT IP is to read up on it (Wikipedia has an excellent summary of the bill); if you don't like it or SOPA, then call your representative and let him or her know. Don't send a form email -- those don't have the same impact as a flood of calls. Call. Better yet, organize a few dozen people to all call at the same time. Flood the phone lines and make your voice heard. --- Trevor Longino brings up a good closing point. We're all effected by what PIPA and SOPA might bring to the Internet and the entertainment industry. If we value our rights and our laws, we need to go out in support of consumers rights and join the rogues gallery of other voices already fighting the good fight. EA, Microsoft, Sony, Nintendo, and many other game publishers have all pledged their support to the bills, and with such powerful allies, it's going to take every voice possible to stop them. We as gamers occupy a unique position in society. We're vocal, we're intense, we're connected, and we're technologically savvy. If anyone stands a chance of truly understanding the impact these laws will have on the Internet, it's us. So let's turn all that nerd rage and vigor to a cause for good. Let's break these bills. Here are some good places to start: For a good overview and to sign an online petition, check out If you really want to make a difference, take GOG's advice and get in touch directly with you senators here or your house representatives here. They are your elected officials, so make them speak for you! And big thanks to Trevor Longino and Good Old Games for taking the time to answer my questions about PIPA and SOPA!

If you're at all tapped into the world of tech, you've no doubt noticed that there is a higher than usual number of acronyms flying around as of late. While gamers typically find themselves embroiled with issues of DRM, the S...

Copyright infringement is alright with Angry Birds

Nov 04 // Brock Janikowski
Taking the stage at TechCrunch's Disrupt conference in Beijing last week, Vesterbacka presented a set of "Angry Birds" balloons to the crowd. I say "Angry Birds" in quotes as opposed to Angry Birds in italics because, as Vesterbacka pointed out, there seemed to be a lot of Angry Birds merchandise for sale in China, the vast majority of which was not licensed by Rovio. Yet Vesterbacka was sanguine on the topic of copyright infringement, stating that it showed a "proven demand" for Angry Birds in China. Instead of starting the arduous task of hunting down every street vendor and game pirate providing Angry Birds games and merchandise in China, Vesterbacka felt the copyright infringement was actually helping to build a market for the for the Angry Birds brand. Vesterbacka believed the rampant copyright infringement was building the popularity of Angry Birds and would eventually lead to Rovio's opening its first stores to capitalize on the demand. The approach is uncommon in a tech company, but Vesterbacka stated, "The way we look at it, of course we want to see the officially licensed, good-quality products, but at the same time, we have to be happy about the fact that the brand is so loved that it is the most copied brand in China." The game has already registered 50 million downloads in China, and Vesterbacka hopes to be at 100 million in the next year. Is it really possible that allowing copyright infringement could be a good thing? I think either intuitively or based on our own experience, we can probably imagine a time when copyright infringement or bending the law in the tech world seemed like a reasonable, even good, option. Have you ever downloaded music from a foreign country that you couldn't otherwise get your hands on? Have you ever imported a game outside of your region despite the fact that it wasn't meant for sale in your area? Sometimes, this sort of illegal activity acts to balance out a market that fails to provide a legal means for getting your hands on certain products. This doesn't make it any less illegal, but when laws get in the way of willing consumers, there might be a problem. Vesterbacka isn't faulting pirates and infringers in China because he understands his company isn't providing Chinese consumers with the products they want. Even in Rovio's absence, the Angry Birds brand can still grow due to the actions of fans and some enterprising "entrepreneurs." Seems like a decent compromise, doesn't it? Vesterbacka's comments fly in the face of the actions of many of our industry's other gaming giants. Whether it is forcing complex DRM measures into games, requiring persistent online connections for even single-player experiences, or region-locking consoles and games to stop people from importing them into other countries, the industry is rife with schemes to control game properties. These issues only amount to a hassle for those of us in tech-centric countries like Japan and the US, but it can be easy to forget that those who live outside of territories where the tech world is established may struggle to get their hands on properties we take for granted.  In countries like Brazil where tariffs on things like videogames are extremely high, videogames may be prohibitively expensive for many to legally obtain. Without videogame companies and publishers making an effort to bolster their presence in such countries to bring down the prices, a little piracy and copyright infringement might be the only real options for those interested in getting into videogames. China is similar -- with a government that heavily controls business practices and is not always welcoming to videogame companies, allowing copyright infringement to fill the gaps and provide people with the products they desire might help companies build mind share with the public, even if they can't be there themselves. I'm certainly not advocating that everyone go out and pirate games if they live outside videogame-inundated territories. If you live in a foreign country and have the means to get your games legally, you should do so. Still, Vesterbacka points out that even though Rovio isn't making money on Angry Birds in China, they are allowing others to help build the future of the brand. Isn't it better for companies to reach those who otherwise might never get to play their games, even if it means people won't be able to pay for them? Companies may be building fans who might be able to pay for those games in the future. Of course, there is always another side. Building a culture in which copyright infringement and piracy is the norm can create a standard of not paying for entertainment. That's not a tenable business model for our artists and creators. Infringement might also lead to others' creating low-quality products that give people a bad impression of a brand. Heck, isn't the iTunes AppStore already letting people do that? Copyright Law is at worst a necessary evil. It protects artists and creators from those who would freely distribute their work without care of the consequences. Yet, maybe Rovio's choice not to go after pirates and infringers makes sense if it means fulfilling a demand the company can't personally meet. If game companies don't allow their brands to flourish in other territories, even if it means piracy and copyright infringement, those territories might not get to experience just how amazing the world of gaming really is. Maybe worse, people in areas like China might start to think Angry Birds is the pinnacle of gaming.

Most companies go out of their way to protect their intellectual property. The scenarios, stories, and characters found in famous gaming titles are the lifeblood of many companies; allowing others to take their creative works...

Should anyone own DOTA?

Oct 26 // Brock Janikowski
Blizzard's Mike Morhaime reiterated this during last weekend's BlizzCon, stating in an interview with Eurogamer, "Our opinion about the situation is that the DOTA name really should belong to the community. I think that it's been part of the Warcraft 3 community for a very long time, and we would like to see the community continue being able to use that name, and having an exclusive mark owned by a competitor doesn't feel right to us." As far as the US Patent and Trademark Office is concerned, Valve is free to take the DOTA trademark. Before final approval, though, the USPTO publishes its rationale so others may oppose the decision. If no one challenges Valve's application, the USPTO will file the mark and afford Valve full trademark protection for DOTA. That future doesn't sit well with Blizzard.  Who came up with DOTA, anyway? DotA, short for "Defense of the Ancients," started as a mod for the Blizzard-owned property Warcraft III. I won't go into the history of DotA too much, but suffice it to say that the creation was a product of Blizzard and the modding community. It's an interesting spin on the traditional RTS structure that has helped to create an entirely new genre of game, spawning titles like Riot Games' League of Legends and Gas Powered Games' Demigod. Who among these creators should own the rights to the name DOTA is confusing at best. But maybe no one should own the rights to DOTA. A trademark needs to identify a product, and whether or not DOTA identifies anything specifically is highly questionable. As the community uses it, and as it is used across the internet as a whole, DOTA seems more to denote a genre of game rather than a specific title. It seems to me the phrase "DOTA" has become a descriptor similar to the likes of FPS or RTS. Of course, there is a difference. Real-Time Strategy and First-Person-Shooter are very clearly descriptors of a certain type of game; as descriptions of a product, they are not traditionally granted any kind of trademark. DOTA as "Defense of the Ancients" is in no way descriptive, but the community does have an implicit understanding of what this series of letters means. A better argument may be that DOTA has become "generic." A word that is considered "generic" does not get trademark protection because it is just too common to point to a specific product. A word like "zipper" was at one time the name of a company and a product, but today we have no notion of this, only an understanding that it is a common device. If DOTA is a genre rather than a singular game, then it is likely too "generic" for trademark protection. Of course, there are also those who say MOBA is the genre, so who knows how a court might feel about this. There is one other wrinkle that might serve as a defense for Valve: "DOTA" and "DotA" are technically different marks. If Valve could argue that DOTA is its property and DotA is everything else it might have a case for the trademark. Then again, neither company can seem to keep their naming conventions straight. If anyone would have a claim to the use of "DotA," you would think it would be Blizzard. Yet Blizzard chooses to use DOTA in its title. Valve is trademarking "DOTA" and many of its ads say DOTA 2, yet its own website uses "Dota" repeatedly. Raise your hand if you're feeling confused. So with all these potential attacks on Valve's DOTA application, why hasn't anyone sued? Blizzard is in a tough spot. Since Blizzard has stated it thinks the community is responsible for the DOTA mark, the company can't really claim it has any rights to DOTA and therefore doesn't have any right to sue Valve. Does that mean Valve gets to trademark DOTA without challenge? Thankfully, no. This is a good example of how the USPTO actually does do some things right. In the current phase of Valve's DOTA trademark application, the USPTO has published their findings "for opposition," basically meaning it is looking for someone to tell the office it is wrong for granting Valve the trademark. The paperwork has already been filed to extend this timeframe to allow for debate on the issue, and Blizzard will no doubt be strongly voicing its opinion. The USPTO will be free to change its opinion on the DOTA trademark afterward, all without going to court. Amazing, right? Valve seems to think they have some sort of claim to DOTA, but if the company is afforded the trademark a reckoning between Blizzard and Valve is bound to occur. Valve will need to start policing the mark, which will certainly mean suing Blizzard for their upcoming DOTA titles and might even mean suing modders for their own DOTA creations. It all sounds a bit scary and would only serve to stifle the future growth of what has thus far been a runaway community success story. Let's hope cooler heads prevail.

On August 8th, 2010, Valve filed for the trademark "DOTA" in anticipation of their latest title, DOTA 2. Just over a year later, the final stages of this process have arrived. The US Patent and Trademark Office is ready to gi...

The art of copying a videogame

Oct 21 // Brock Janikowski
Before we go any further, let me clear up a bit of confusion about the difference between Copyright and Trademark Law.  Trademark Law is about protecting the identification of a product. If you buy a cup of coffee labelled Dunkin' Donuts or eat a burger from a McDonald's wrapper -- neither of which I would suggest -- you have a certain expectation that your product comes from that company. Company names, game titles, and other monikers that identify a product or its origin are all considered trademarks. Trademarks can last forever as long as they remain well known and well protected. The Notch vs. Bethesda debate is about trademark. Copyright Law, on the other hand, is a much broader right that offers protection to "original expression fixed in a tangible medium." That's a complicated way of saying that anyone who produces a creative work has a right to protect that work from people who would copy it without their permission. Just about every book, movie, song, and videogame you have ever enjoyed is protected by copyright. Theoretically, this protection only lasts as long as the author remains alive plus 70 years, but if Disney has its way and keeps pushing this date back every time its copyright comes up, it may prove to last forever.  So, while Gears of War 3 is protected by a trademark, the storyline and characters -- or lack thereof, as your opinion might have it -- are protected by copyright. Every game, big and small, has copyright protection automatically. Maybe, like me, you are sometimes surprised at the absolute lack of creativity that exists in so many games. After all, how many games can include a bald-headed space marine before someone shouts, "Hey! You're copying us!" Copyright only goes so far, though. You can't copyright an idea. The bald-headed space marine is too broad and generic for anyone to have a copyright of it. On the other hand, the Warhammer 40k Blood Raven or the Gears of War COG are variations of that general idea and are much more original by comparison. Anyone could easily get away with making small alterations and reworking these characters to make their own bald-headed space marine complete with their own copyright protection. That sort of broad interpretation of what it means for something to be "original" doesn't do much for creativity, but it does allow game makers to build upon the ideas of those who came before them. You still needs to put your own creative juices into a work such that it can be considered a new, original work. I can make as many games as I want about bald-headed space marines; they just can't be rote copies of something that has come prior. If others can prove that my game uses their space marine, or at least a nearly identical marine, I might quickly have lawyers breathing down my neck. How close is too close, though, and how much creativity needs to be put into a work for it to be considered original? At least in the case of our space marines, upon closer inspection, the characters actually have a lot of different details. It is easy to argue that while the general idea, they are each their own original work.  The creative bar is pretty low, in fact. With that understanding, it's easier to see why companies can get away with games like Jewel Craft (a Bejeweled ripoff) and StarFront (a StarCraft ripoff). Even minor changes to a general formula can be enough to protect these games. As long as there isn't any evidence that something has been directly copied, the companies are most likely okay.  Overall, I think that's a good thing. If developers and artists need to borrow and steal a few elements here and there from one another to make their ideas flourish, then that’s fine. Creativity is not always purely original, often deriving from building upon the work of another. If Gears of War needed to steal some ideas from Warhammer 40k in order to get off the ground, I think we would all agree, Relic Entertainment included, that the videogame industry is better for it. Still, there is definitely a line between not caring if your product is very original and violating someone's copyright. Unfortunately, there are some companies that seem to wholly disregard this distinction. Enter Attack Touch. Or was it Sound Attack? Or how about Audio Attack? Actually, come to think of it, the company seems to go by a lot of different names. Odd that all these company names lead back to the same website. Coincidence? Or is this publisher trying to obscure its identity by posing under a large number of pseudonyms? It is probably also a coincidence that all of Attack Touch's games happen to use similar or identical art assets, feature some sort of copyrighted property, and also attempt to obscure themselves through the use of the letter 'i' or exclamation points. Some of these great titles include Minecraft Jump!, Top DBZ Jump, Garfield Bounce!!, Hello Kitty Hop, Bratz Fly, 007 Spy Climb, and my personal favorite, pictured above, Ultimate iZelda Climb. They all also appear to be mechanically blatant copies of Doodle Jump. Before I say anything else, let me offer a disclaimer: I'm not an arbiter of the law, only a student of it. I can't make any definitive judgements about the legality or illegality of something, but this is my opinion based on my research. I'm typically not one to judge. My legal training has taught me to pause and contemplate all the facts before determining my opinion on an issue. In fact, while writing this article, I actively sought out some type of law that would immunize a company like Attack Touch from copyright infringement, because frankly, these games seemed too ridiculous to be true. I even attempted to contact the company through its many listings in order to get its side of the situation. Perhaps unsurprisingly, I have yet to hear anything back. Through all my research, I've yet to find a single factor that doesn't point to companies like this being anything but thieves preying on the young and ignorant in the hopes of making a quick buck. The wholesale theft of characters from properties that artists have taken the time to create and nurture is illegal, not to mention downright ethically wrong, and we as gamers should be furious. Unless these games are licensed by the creators of these characters -- and we all know Nintendo isn't putting its games on iOS anytime soon -- I just don't see how this is legal. The only other possibility that someone can get away with using another's copyright without permission is through an idea called "derivative fair use." You've probably heard the term "fair use" before in the context of using copyrighted music or video without paying for it, but it can apply to all copyrights. "Fair use" is actually pretty complicated. It essentially means that one doesn't have to pay to use someone's copyrighted materials because other more important rights trump the copyright. For example, this mustachioed Mona Lisa by the famous French artist Marcel Duchamp shows a good example of "fair use." Even though he didn't own the copyright to the famous work, Duchamp could make his own version of it without worrying about legal repercussions because he was exercising his right to freedom of expression. It was a parody of the original, as well as an artistic endeavor with a message rather than a commercial product. "Fair use" can be tricky because you only know you have a right to "fair use" after you go to court. The alternative, of course, is that a court might find you liable for copyright infringement. It's a rather big gamble. So, without a license from Nintendo, could Ultimate iZelda Climb be considered "derivative fair use"? Using Link in this setting may well be considered an original idea, but the issue is that they used Link at all. Nintendo is the owner of this character, and as such, it has the right to dictate how this character is used. Do Attack Touch's games have some deeper artistic message that I'm just missing, or is Ultimate iZelda Climb just trying to bank off the popularity of Nintendo's famous character? Maybe they should have put a mustache on Link just to be clear.  Moreover, these games point out a huge problem with the iTunes App Store. No doubt that buried deep within Apple's Terms of Service is a provision absolving Apple of all liability associated with publishers who make copyright-infringing software. That doesn't mean Apple shouldn't be more wary of what it allows into the App Store, as these apps should never have been allowed in the first place. If Apple is going to curate content, it needs to worry more about who might be breaking the law rather than who has put something potentially offensive in an app. Copyright Law exists not only to protect artists from those who would steal their work but also to protect artists who build on the work of others. I don't mean to single Apple out for blame here -- they aren't the ones creating copyright-infringing content after all. However, as market leader in the mobile gaming sphere, Apple does have something of an obligation to the artists who put their work in the App Store. Apple thrives on the work of artists in music, movies, and games, and it needs to protect these creators from leeches who would steal their copyrighted properties. Such issues hardly make iOS seem like a respectable development platform. But you can do something about this problem too! No matter how curious you are about Attack Touch's apps, DON'T DOWNLOAD THEM! While you're not breaking any laws, you're supporting some seriously questionable business practices, and that's just plain mean.

It can be frustrating when the law seems to get in the way of videogames, and doubly so when lawsuits seem ridiculous. Regardless of how you feel about gaming lawsuits, there are times when the law should step in to protect d...

Just how evil is ZeniMax?

Oct 14 // Brock Janikowski
You've probably already read the first indications that there is more to the Notch vs. Bethesda debate than angry bloggers may have led folks to believe. Maybe it was a feeling of loyalty to Bethesda or a skepticism over what seemed like an arbitrary attack on Notch. Regardless of the reason, since the start of this debacle I've felt a need to dig deeper. After all, Bethesda Marketing VP Pete Hines' statement that, "Nobody here enjoys being forced into this," doesn't mean much unless there is actual justification.  So, putting my legal training to the test, I dove into researching Trademark Law in an effort to understand whether ZeniMax really was an evil corporation crushing the future of gaming under its uncaring heels, or if just maybe there could be another explanation. What I found was that an issue called Trademark Maintenance may indeed be forcing ZeniMax’s hand. Trademark Law is traditionally all about protecting consumers from being confused as to the origin or composition of a product. If a trademark holder takes the time to make a mark famous, others aren’t allowed to leech off that success. Therefore, if a court finds that consumers might be confused by the name of a new product, a court may find that the name infringes on the trademark holder’s mark and can therefore not be used. Once a trademark holder establishes its mark though, it has to maintain the mark. Part of Trademark Maintenance is the idea that a trademark holder must “police” its mark. If ZeniMax becomes aware another developer might be infringing upon its marks, it must address the issue, possibly by sending a letter and asking the developer to stop using the mark, or failing that, by taking the developer to court. If ZeniMax, or any corporation in this situation does nothing, a future court may find that a trademark has become “diluted” and is therefore not deserving of trademark protection. This tends to lead to some rather ridiculous cases for companies with famous trademarks; McDonalds for example has a long history of suing the "little guy" for using names that might be "confusingly similar." Just a few cases include a man named Norman McDonald who was forced to change the name of his restaurant, and another man by the name of McAllan who won a case brought against him for opening a restaurant under his name.  ZeniMax has stated that they believe consumers could potentially be confused by the similarity between The Elder Scrolls mark and Notch’s Scrolls. Is ZeniMax truly worried that people won’t be able to tell the difference? Possibly, but even if the company has little fear of such confusion, allowing Scrolls to slide by could create an unfortunate precedent should a larger, future trademark issue arise.  Keep in mind as well that Notch's offer to change or alter the Scrolls name doesn't count for much in this case. If Scrolls became Scrolls: Insert Sub-Title Here the potentially confusing word "scrolls" still exists. In fact, adding something to Scrolls might make is seem even more similar to The Elder Scrolls. The only thing that would truly end this case would be Notch dropping the Scrolls title altogether, an option Notch and Mojang have yet to offer. But Scrolls will most likely be a niche game with a niche audience, so then why spend all this time and money to litigate a case against a poor indie developer? It’s the reality of Trademark Law. If you don’t make efforts to maintain your mark, you may lose your mark. I believe that Bethesda and ZeinMax are taking very little joy in this litigation, but if they are worried about the long-term survivability of The Elder Scrolls mark, the companies may well feel they have no choice but to take Notch to court. Whether or not this is right, or whether Trademark Law should be revised to avoid “trademark maintenance” litigation are entirely relevant questions to ask, but this case won’t be addressing these issues. So is ZeniMax evil? I personally don’t think so, but that determination is up for debate. I think the company is following what is ultimately an unfortunate aspect of Trademark Law and Notch is suffering as a result. Maybe adherence to this flawed system still makes ZeniMax evil, but if it were a choice between potentially losing your ability to protect your famous trademark and suing an indie developer, what would you do?

[Editor's note: Brock Janikowski is currently a law school student with an interesting take on the recent ZeniMax scandal. He will be contributing to Destructoid every once and a while with features focusing on the fascinatin...

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