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About
I am an intellectual property lawyer in Palo Alto, CA, where I specialize in interactive media. What this means is that I get a pat on the back when I play World of Warcraft at work. Yea-uh! I am also Editor-in-chief and founder of Bloggey Kong, a blog dedicated to tracking legal developments in Interactive Media.

I wouldn't be a lawyer without a disclaimer:
Joe Gabaeff is a licensed attorney in the State of California. Opinions expressed in this column are Mr. Gabaeff's own (but even he doesn't believe all of this stuff). Reach him at: jgabaeff@hotmail.com.


The content of his blog articles is not legal advice, and is for educational and informational purposes only. It only constitutes commentary on legal issues. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of Destructoid.com. As with any legal issue that may confront you in a particular situation, you should always consult a licensed attorney familiar with the laws in your state.

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When I first heard of this month's topic, I knew exactly what I had to write about. I consider myself a mature gamer (in attitude, not years: I'm 26), and with maturity comes responsibility. No not doing my homework cuz I would rather play Final Fantasy Tactics, no ditching class to conquer Rome and make my Chinese empire reign supreme in Civilization III, no playing hookie from work to drum Joker and the Thief one more time in Rock Band. I thought I had it all under control, but I was wrong.

I have been an avid gamer my entire life. Some of my first memories are playing Adventure and King's Quest whatever, back when having 32 colors was straight luxury. My console game life has traveled along similar lines to many in this community: sinking my teeth into Nintendo, moving to SNES and Genesis, on and on, into my present 360/PSP/DS self. RPGs are my bag. And, of course, I am a PC gamer (well...Mac now) as well: I crave Blizzard, and their not-so-worthy competitors. I play Blizzard for real, but always single player either because my connection is too slow or I cannot connect to battle.net for some reason that my P2P just will not tell me. It is the content of these games: the tried and true fantasy that takes me back, hitting my video game comfort zone right on the head.

So after finishing off the Frozen Throne (much after it had come out), I stumbled into my local dry cleaner in Ann Arbor, MI and the clerk there was playing a modded WC3 level. I looked at his hero and saw unconventional abilities, new items, and frankly, a chaotic mess - I wanted MOAR! I went home and downloaded it. Cool, its got AI, I thought, cuz I knew multiplayer was not an option. The numbers of hours played in that session is unknown, but when I came to, it was almost four in the morning. No playing past four I told myself, besides, there is always tomorrow. True, true, TRUE.

The next day, there I was back at it. There were about 80 heroes to choose from at that point, and with all of the loot, I set out trying to find my favorite - Kardel caught my eye early, and has remained a frequent choice. Hours, and hours, and hours, and tomorrow became today as I kept playing until late again. I literally had moments of "oh, like two hours have passed," look at the clock, and yeah, its four in the morning again. Luckily I had just graduated from school, so time wasn't too important, but that would change.

Having just graduated from law school, I had to start studying for the bar - it is really not that cool at all. Basically it was 9-9 every day, for 60 days straight. At the end of each of these days, all I wanted to do was not think about the law, or studying, or really life in general (we've all been there). So, my reward for another day of slugging it out was DotA. But, in a perverse way, this game was touching weird pressure centers - I feel in control, but I am not. Most games I play melt in the face of my superiority. Frankly, I do not really play super-challenging games any more because I do not have time, but that AI in DotA would just kick my ass. There is nothing more frustrating than going along for 40 minutes, only to have a misstep, get owned by Viper, and then realize that that one death pretty much just crushed your hopes at victory, AND its one in the morning, AND there is a super hideous day in front of you, now, today. I couldn't remember the last game that frustrated me so (Aztec on 00 Agent?), but I kept coming back for more. Eventually, I found an older AI that was so stupid I could own 1-5, but it didn't feel as gratifying. Nonetheless, I stuck to the stupid AI because I loved the content: I wanted to try out these classes without having to feel like unless I played flawless I would lose. With so many combinations, the possibilities seemed endless - I could play forever.

As it turns out, once I finished with the bar, I was also finished with DotA. As with many video games, the experience is linked with a time and a place, and that time and that place, was thankfully over. I kept it on my computer, but never fired it up. Flash forward ten months, I passed the bar, but have been looking for employment for a few months. The job hunt is wearing me thin, and in fact, it made me feel a lot like I did during studying for the bar: hopeless, separated, lost in the face of enormity. Before I got too philosophical, almost like a gut reaction, I saw that picture of Arthas in my finder and thought, I've got some free time, why don't I fire up some DotA? I decided to write this post at four in the morning. The fire is still there.

I think the title of the topic is particularly apt for me: if I've been in a loving, secure relationship for my entire life with video games, DotA is the secretary she doesn't know about. I feel compulsion to play this game. The closest I can get to addiction. But like most addictions, it is not the substance itself I am addicted to, but the escape, the relief from the real world. I needed it when I studied for the bar, and I've needed it again while I search for a job. Part of me is happy that I have an outlet, but another part of me wonders why I waste my time with this "release" when I go to bed wanting Atropos to flame in hell for enfeebling me while some other bastard blinks in and kills me. Love, hate: a very fine line indeed. Perhaps that is the balance that keeps me coming back - it is a controlled mirror world: in real life, I am felling my way through, sometimes painfully, so I can succeed in the future. The game is not much different.

So, why is DotA my smack? It is the content. It is fresh enough that it feels totally new, but conventional enough to slot me right back into my golden-age-of-fascination FF1 days - just think if video games were food, FF1 would be my mac and cheese. In some ways, it is the most original fantasy game I have played in long time because it sheds the conventional classes. How refreshing is it to play as a Stealth Assassin instead of a thief, or Axe instead of a knight? The content is what drew me in and kept me coming back, and back, and back.

You're probably thinking, why doesn't this clown get on battle.net and settle things for real? Time and place. For me, this game is about me, making a my time and a my place.
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Russell Carroll has written an interesting article regarding piracy of casual games that can be found on Gamasutra (link below). Carroll was initially motivated to conduct his research after he learned that 92% of copies of Ricochet Infinity are believed to be pirated. 92! Holy Yar! (As you may have guessed, this post is really just an excuse for me to say YAR...as many times as I can). He then continues to talk about common anti-piracy measures that can be taken and the resulting impact of taking those measures. His conclusions are very interesting. First, he finds that for every 1000 pirated copies eliminated, only 1 additional sale is generated. He also concludes that stopping a pirate is more akin to stopping a download, than stopping a sale.

His results seem congruent with my own experiences with pirating pirates: they take mostly what they cannot afford. I have this "friend," who may have played a counterfeit game or two in his youth (and honestly, in his adulthood), but as his salary grew, he ended up buying the sequels once he could afford them. Dido with music. This friend was able to experience new media that he didn't have money to buy but wanted to consume. Game companies should think about the value of the pirated copy to my friend; it may not be money in their pocket (now), but that player, in this instance my friend, will still enjoy the game, recommend it to friends, and in short, be a fan. A fan that may eventually buy.

What's your take? Is there really 1000 players who want to play but not buy for every one player that wants to play and will buy? Are gamers more willing to play free games than games that cost money, and if so should companies ignore this demographic?

The Article on Gamasutra
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As a huge fan of music/rhythm games, I have shelled out quite a bit of money buying expensive games that come with controllers. Whether it is Guitar Hero "guitars' or Dance Dance Revolution dance mats, my house is becoming littered with these objects like that spoiled kid's room who has just one too many toys. In this post, I want to ask, is it worth paying an extra thirty dollars to get an often poorly made controller specific to the game?



First, let's start with the good. I love playing games with different controllers. As a life long gamer, I have to admit that having a new controller makes me feel like I am playing a game I truly have never played before. I am also a big fan of RPGs, but I do not have as much free time to play RPGs as in my youth, and often when I am playing them now, I feel like I have already played this game, but the castle is cream instead of white, the princess is brunette instead of ginger (shout to my homies across the Atlantic!), and my character still looks like something cool in Japan, but weird and androgynous to my American eyes - but I digress. I think the greatest part of playing games with different controllers is the feeling I get. I feel like I am actually playing guitar. I feel like I am actually dancing. Lord knows, I ain't doing either, but dammit, I feel it, and it is satisfying. I tried playing Guitar Hero on a normal PS2 controller after watching some youtube savant kill Megadeth, and I realized that the whole game is basically the controller. It is well worth the extra cash to experience something new, which is exactly what a new controller provides. I want to see what other kinds of crazy controllers game companies can come up with that push the limits of interaction.



Now, on to some of the bad. First of all, the consumer usually has to spend a significant sum of money on this new controller. So far, I have bought the Guitar Hero I bundle, the Guitar Hero II bundle, Rock Band (and another guitar for bass), and DDR Universe 2 with the mat. All of these games have costs over the usual asking price, some more than others: GH I and II were $80 each, $170 for Rock Band, and $70 for DDR. But as I explained above, I think that the new experiences are worth the extra cash. Still though, in my youth this may have prevented me from getting the game I really wanted, especially something like Rock Band, but now that I am totally yupped out, it isn't as big of a deal.

Ok, so I paid an extra thirty dollars and all I got was this toy guitar: was $30 a fair price? This is a very tough question to answer mostly because the logistics of pricing are more or less foreign to me (like inventory, store shelf-space, returns, etc.), but it is clear that bundling a game with a controller requires the folks releasing the game to deal with a whole host of new problems: my strum bar is broken, my fret button is jammed, my three hundred and fifty pound "friend" broke my kick pedal. In short, they have to take on a whole lot of responsibility. Couple this with the fact that if the purchaser wants to fix the equipment himself, he loses any warranty from the company; self-help is not encouraged.



So enough about the game companies, what about me? I have bought all of these controllers and how have they fared? I have had mixed results. My first GH controller (the black one) still works and is my axe of choice. My second GH controller (the red one) broke within about a week - as soon as I get star power there is no holding back. My whammy broke shortly there after. When I would play two player, I would let my not-as-experienced friends play with the black and I would take the red - gotta give them a chance somehow. I could still play with the red, but it was not as fun when the controller didn't control the way it was supposed to. I have had trouble with most of my Rock Band equipment. My guitar came with a loose strum bar (are they all like this? I think I may send it back), my usb adapter broke into two pieces pretty much right away, and my bass pedal broke after a big friend of mine (not quite 350...) got a bit too excited playing Radiohead. To the credit of EA, they replaced my equipment (the pedal and adapter) with very little hassle. My DDR mat is ok; it seems like I constantly hit arrows that I don't think I should be, but then again, I am not tiny asian teenager, with tiny asian teenager feet.

Finally, it is worth noting that storing these extra controllers can be a real pain. I love keeping my old games (the way a reader would keep the books he has read), but where on my media storage shelf am I going to keep two toyish looking guitars. And, if I don't have the guitars, I am never going to play the game again. This means the guitars are put in storage, virtually guaranteeing that I will not ever play this game again. There is a certain level of gimmickosity that comes with these controller games that I didn't realize until I was trying to find a place to comfortably retire my Guitar Hero instruments.

All-in-all, I love games with special controllers and I often find that paying the extra money is well worth the added experience. However, I wonder if over time the hassle of having all of these controllers will diminish the fun. Already I have had to tell people that I cannot bring Rock Band over because lugging all of the gear around is a pain in the arse (and you can imagine how disappointed my friends were!). It should be noted too that I did not discuss other games types with special controllers, like shooters or Scene It?, but I think the same general discussion applies - new controller, new experience, more stuff, less longevity. While game companies think it is all the rage to have these fun controller bundles, in the future, I can see the industry getting out-of-control and then eventually come full circle with standard controllers becoming the new novelty controllers.

What do you think?
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Blaine, WI resident, Geoff Luurs fell victim to a heinous crime. His "friend" obtained his user name and password and wiped his FFXI account clean. Luurs did the math and claims that he lost over $3800 worth of virtual property (and subsequently, his girlfriend [j/k people with $4k worth of good in FFXI don't have girlfriends]). He called the police, but they did nothing because they believe that the goods have no real value. No real value! no real value! Dammit, my gil is worth something!

However, if the government begins recognizing virtual items as having real value, then the next logical step would be to tax them. It would not make sense otherwise. It is akin to the "don't give licenses to illegals" argument in the sense that one arm of the government (police saying the virtual goods have worth) to take an opposite stance to another arm of the government (the IRS saying they have no worth). The thing that perplexes me though is that it seems well-settled to me that this stuff has value. While it may not have a physical manifestation, there are still people who are willing to buy 'worthless' virtual items - if a WoW gift card came out that only had an azure dragon whelp pet, I bet people would buy it. Virtual goods are commodities.

While I agree that the tax implications are mind-boggling, and surely going to be a pain to gamers everywhere, virtual goods will be eventually thought of the way they should be, as valuable property, for better or worse.

What do you think?

Bloggey Kong
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Blizzard, with the help of mega-firm Sonnenschein, Nath, and Rosenthal, secured a settlement, including a permanent injunction against In Game Dollar (peons4hire) to prevent them from "engaging in the sale of [WoW] virtual assets or power level services, making any use of the [WoW] in-game communication or chat system to advertise any website, business, or commercial endeavor, or sending messages to the [WoW] servers, the [WoW] in-game communication or chat system [...] if such messages mention or advertise any commercial endeavor." In addition, the business is blocked from investing in any other business that are doing any of these things.

IGD Got Pwned!

In case anybody cares (me! me!), this case is not setting precedent because it is a settlement. Still, this case will serve as a beacon of hope for those who hate the influence of gold farmers, power levelers, biatches, and others that make MMOs unfair to all those who log endless hours (this means you!). Significant also is the enforcement of the terms of service - there has been much buzz about whether these terms of service contracts are contracts of adhesion (meaning, since the consumer is given no real choice about the terms of the contract, the contract may be void if the terms are too lop-sided), but at least for now, WoW's ToS stood up.

Joe Gabaeff is an associate at Kokka and Backus, PC, an intellectual property firm located in Palo Alto, CA. Mr. Gabaeff is a licensed attorney in the State of California, and a member of the American Bar Association and the International Game Developers Association. He is also the Editor-in-chief and founder of Bloggey Kong, a blog dedicated to legal developments surrounding interactive media. Opinions expressed in this column are Mr. Gabaeff's own (but even he doesn't believe all of this stuff). Reach him at: jgabaeff@kokkalaw.com.


The content of this blog article is not legal advice, and is for educational and informational purposes only. It only constitutes commentary on legal issues. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of Destructoid.com or Kokka and Backus, PC. As with any legal issue that may confront you in a particular situation, you should always consult a licensed attorney familiar with the laws in your state.
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As an intellectual property lawyer, I am not surprised, ever, when people do not know the differences between the three types of law that normally fall under the umbrella of intellectual property: copyrights, trademarks, and patents. First, I will give a little tidbit about each type of intellectual property, and then I will talk more about the burning question on everyone's mind: where is Sanjaya now? I mean, what is the difference between a copyright and a patent, and what do they mean for the video game industry? It took years for me to distill the information contained in this article, so feel lucky that you did not have to suffer through three years of Socratic goodness to arrive at the level of expertise this article will confer.

Trademark is defined as "a name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer."¯ (Thank you answers.com; I knew I could count on you!) We all see trademarks every day, like Xbox 360, Nintendo, Metal Gear: just name any company, product, or service, and it is likely protected by trademark. I could get all complicated on your ass, but this is neither the time, nor the place.

Copyright is "the legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work." (Answers.com! Answers.com!) Basically, once you take any form of artistic expression and fix it in a "tangible medium,"¯ you are granted copyright protection for your expression (assuming you take the steps the Man tells you to). The two biggies here are "expression"¯ and "tangible medium."¯ First, tangible medium can be anything tangible, meaning anything with physical properties, so writing on paper, painting on canvas, and recording music on your hard drive would all be yes. This premise has even been pushed as far as calling copies of files stored in RAM as being "fixed in tangible mediumā" (though there is controversy about this). The second part is the expression. Expression refers to the literal words themselves, or the actual picture, or the code itself. Yes folks, computer code is considered an expression (my arrangement of 1's and 0's is purdy, ain't it?). And, for computer products, copyright protection even extends to the "look and feel"¯ of a program. What this means is that Nintendo is granted copyright protection for its code, that when run, produces Super Mario Bros.. This also means that if I wrote my own new code for a game called Super Mario Sistas, and all I changed was Mario's red outfit to a more dykish camo and made him black, but otherwise copied everything else, I would probably be liable for copyright infringement. However, this does not mean that Nintendo has a copyright on the *idea* for a game where a hero must defeat a monster to save the princess. It should be noted that copyright protection lasts a really long time; how long exactly is hard to say because the duration keeps increasing (Thanks Disney!), but for now, it is around 95 years. Also, if two expressions are similar but the authors know nothing of the similar work's existence, then copyright protection can be granted to both. Again, complexity, that evil beast that you need a forty-person raid to even consider toppling, will not be engaged (and trust me, complexity doesn't drop anything even close to epic gear).

Patents are "a grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time." (Guess where I got this one!). The set period of time right now is 20 years after the patent application is filed. Patents are granted to those who invent something, and are readily available for ideas, as long as there is a working embodiment in existence (no patenting a time machine unless you can build it). For example, a patent was issued for Eternal Darkness's'ss' fear meter: a novel concept in gaming up to that point to literally have the functions of the system and television set hooked to the game (recall the TV shutting off, right when you were getting wailed on). Patents may be issued for any invention that is novel, non-obvious, and useful. Useful is more-or-less a throw away since any use can be cited, even amusement (think getting a patent on a big hot dog hat and saying that it is useful as means for having fun: uh, good enough for the patent office!). Novel means that you thought of something new. Non-obvious requires that even if your idea is new, it isn't totally obvious that a combination of already patented things together would produce your invention (say a patent was issued on a new shoe, but that patent only discloses shoe laces; you couldn't patent the shoe with Velcro). Patents may be had for even the smallest steps in innovation (though their protection is limited), so as you can imagine, if every software engineer patented every new step they took (think writing a program that has not been written before), well, software would not progress quite so fast...

All three represent so-called "intangible"¯ assets, which, as you might imagine are valuable commodities that have no definite physical embodiment (well...sorta). It is also worth mentioning that franchise IP is a different beast (usually a combination of copyrights and trademarks) from the same genus, and refers generally to all of the ideas behind a franchise. Think Guitar Hero franchise, and Activision buying "it"¯ for millions.

So, enough with all of this mumbo-jumbo (and complicating parentheticals), what is the skinny and sweet? Copyrights protect expression; patents protect ideas. What is interesting though is that video games occupy a special niche that theoretically, can be afforded solid protection from both areas of law. They offer different degrees of protection, last different lengths, and can co-exist quite peacefully. Ideally, from a business standpoint, and I am not just saying this because I am a lawyer, a game company would be wise to get both types of protection if possible. And before everyone leaves me nasty comments about how gaming patents are stupid and ruin everything, remember that a patent is only as evil as its holder. Some get patents for defensive purposes, holding it to protect themselves if a big dog comes a barkin'; some get patents to make sure others do not steal the idea, and attack anyone that might try; and some get patents just 'cuz. Regardless, as the video game industry becomes bigger and bigger, patent protection will be increasingly utilized as a tool of business. However, for now, copyright protection is the BFG.

Joe Gabaeff is an associate at Kokka and Backus, PC, an intellectual property firm located in Palo Alto, CA. Mr. Gabaeff is a licensed attorney in the State of California, and a member of the American Bar Association and the International Game Developers Association. He is also the Editor-in-chief and founder of Bloggey Kong, a blog dedicated to legal developments surrounding interactive media. Opinions expressed in this column are Mr. Gabaeff's own (but even he doesnā€™t believe all of this stuff). Reach him at: jgabaeff@kokkalaw.com.


The content of this blog article is not legal advice, and is for educational and informational purposes only. It only constitutes commentary on legal issues. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of Destructoid.com or Kokka and Backus, PC. As with any legal issue that may confront you in a particular situation, you should always consult a licensed attorney familiar with the laws in your state.


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