(Cross-posted from Terra Nova)

A few days ago, there was an interesting ruling in the Triple Town / Yeti Town game cloning case, a.k.a. Spry Fox, LLC v. Lolapps, Inc. Triple Town and Yeti Town are both casual puzzle apps where tile elements are assembled and evolve.  Spry Fox had sought to license the game to the defendants, but the defendants pursued a cloning strategy instead.  The litigation presents roughly the same sorts of legal issues as the current EA/Zynga dispute and the recent Tetris clone decision.

This particular case has been talked up pretty extensively in the blogosphere over the last year.  For instance, James Grimmelmann had some thoughts about the early stages of the litigation and game cloning generally:

“if Triple Town flops on the iPhone because Yeti Town eats its lunch, at
some point Dave and his colleagues won’t be able to afford to spend
their time writing games any more.”

Eric Goldman weighed in yesterday on this new ruling, connecting it to the EA litigation:

“The Triple Town ruling suggests that Zynga probably can’t score a quick win.”

Continue reading →

William Ford and Raizel Liebler recently wrote a great article about how games have historically been of treated as a second-class medium when it comes to the right of publicity. On that topic, I’ve got a short essay up over at Gamasutra about the Hart v. EA case, which is currently pending in the Third Circuit.  If you have not heard about the case, more information can be found here at Harvard’s Berkman Center, with some excellent commentary by Andrew Sellars on the issues raised.

For me, the fundamental question is this — if you create a video game and you want to include in that setting an indentifiable individual, do you need to pay a licensing fee to that person or the heir of that person?  And the basic answer for me is this: if games are like books (and not a second class medium) there should be a wide degree of freedom to make references to celebrities without a risk of infringing publicity rights.

In my opinion, the Hart district court (at least in broad strokes) got the case right.  Now that we have EMA v. Brown on the book, federal courts should not be shy about protecting the creative freedoms of game designers.  But given the shifting cultural intuitions about “owning” personal identity and the growth of licensing culture (which Jim Gibson has described), I am not entirely confident that the zeitgeist is trending positive.  We’ll have to wait to see if the Third Circuit in the Hart case will get this right.

The Journal of Virtual Worlds Research will be publishing a special issue dedicated to law and virtual worlds.   Dan Hunter, Melissa de Zwart, and I will be editing the issue.  The Call for Papers and more information can be found here: http://bit.ly/CFP-lawvirtual

Here’s an excerpt from the site:

This special issue will focus on legal questions generated by the creation, regulation and participation in virtual worlds. We are looking for papers that explore beyond the basics of ‘the magic circle’ (asserting that virtual worlds are immune from external laws and norms) and consider emerging legal issues that may encourage or inhibit the uptake of virtual worlds. In particular, we are interested in papers that adopt a multi-jurisdictional focus and which propose new ways that the legal issues may be approached by developers and regulators. Innovative and creative papers are encouraged.

Given the audience and nature of the JVWR we are looking for papers which are accessible to a non-legal readership. They should demonstrate a good awareness of the nature of virtual worlds.

So all those eager to move beyond debates about the magic circle, please submit a 600 word abstract before June 30, 2012.  Again, more info on the website.

The Dutch Supreme Court issued its long-awaited ruling in the Runescape theft case today.  You can find the ruling here, and here’s a Google-translated version.  The ruling cites to the work of my friend Professor Arno Lodder, who has been keeping close tabs on the case, as well as to my book and to my work with Dan Hunter on virtual law & virtual crime.

This is a virtual crime case that involved real violence used to obtain virtual goods.  The victim was beaten and threatened with a (real) knife, with the defendants demanding he hand over a virtual mask and a virtual amulet within the online game Runescape.  So at the very least, this was a case of criminal assault.  The only issue was whether the crime amounted to theft, which hinged on whether or not the virtual items could be classified, under Dutch law, as goods.

The lawyer for the defendants argued that Runescape’s virtual items are not goods because they are not tangible and have no commercial value.  The Dutch Supreme Court disagreed.  Citing to the size of virtual economies as well as to specific sales on eBay of Runescape items, it rejected the argument that the goods had no economic value.  It also observed that the victim had invested time and effort to obtain the value of the items, that the game gave him exclusive rights to the items, and that the defendants had, by violence, acquired that value and those exclusive rights from the victim.

In my opinion, the reasoning of the Dutch Supreme Court is roughly analogous to the reasoning in the U.S. decision of Kremen v. Cohen, which found that domain names were subject to civil conversion in California despite their intangible nature.  Though I have mixed feelings about the Cohen case, I believe the recognition of the Runescape items as legal goods is the right result in this case.  As the Court explains, the victims here were clearly motivated by the prospect of acquiring the value of the virtual items of the victim and they used violence to obtain that value.

Additionally, as the Dutch Supreme Court explicitly notes, the violence here was not in the context of the game.  As I explain in Chapter 6 of my book, there can be cases where legal prohibitions against in-game theft of virtual property may be in tension with the rules of a game.  In this case, however, the theft occurred completely outside the rules of Runescape.  Given this, I think the Dutch Supreme Court’s recognition of the economic and status value of virtual items is entirely appropriate.

In addition to my work with Dan and Arno’s writing, the Court AG opinion accompanying the decision (see my comment below) cites the work of Orin Kerr, Jack Balkin, Fred Schauer, Andrea Arias, and Alec Levine.  I may have more to say once I get a better translation of the ruling — Google Translate is great to get the gist of the matter, but I have a feeling I’m missing plenty of nuance.

(X-posted on Terra Nova.)