DISGRUNTLED CONSUMER LAUNCHES WII
As you have probably heard, there have been some problems with the wrist straps for Nintendo’s new Wii controllers and Nintendo announced a voluntary replacement program last week. In the meantime, a Wii purchaser from Texas has filed a lawsuit against Nintendo, claiming that Nintendo engaged in “unfair or deceptive practices†by telling consumers that the Wiimote’s wrist strap was meant to prevent the controller from flying from a user’s hand during use, but then providing a strap that was not effective for that intended use. The lawsuit also claims that the wrist strap defects are a breach of warranty. Nintendo has responded by stating that the lawsuit is without merit. Coverage at:http://shorl.com/buvomyfroduka(GameSpot) It will be back to the drawing board for console makers who have to re-think anti-piracy technology in consoles after the Australian government announced plans to pass amendments legalizing mod chips that circumvent certain kinds of anti-piracy technology. Under the amendments, technologies which prevent the use of copyrighted material legally bought in a different geographic region will not have the benefit of anti-circumvention laws. Only those mod chips whose sole purpose is to thwart anti-piracy technology will be illegal. The amendments are suspected to be passed this week. More coverage on this at Australian IT:http://shorl.com/gejosepupredri Toys "R" Us is said to be under investigation by the Better Business Bureau over its Wii bundling practices. Some Chicago consumers are complaining of having been misled and railroaded into purchasing Wii bundles costing about $200 more than an advertised price (not for a bundle). The BBB is reported to now be “apparently challenging Toys "R" Us on its advertising of the Wii†while Toys "R" Us has apparently told NBC that it was not an advertising problem and that it was simply a "misunderstandingâ€, that consumers that wish to return the bundle and purchase the cheaper product will be allowed to so. Mere bundling is not necessarily illegal. coverage at:http://shorl.com/bobrybigamoda(GameDaily)
Illinois, $510,000; Washington state, $344,000; St. Louis, $180, 000; Indianapolis, $318,000; Michigan, $182,349… All in USD!
In April, Michigan’s video game law was declared unconstitutional and now the state has been ordered to pay the video industry’s legal bill.
Douglas Lowenstein, president of the Entertainment Software Association, is quoted as saying that "In nine out of nine cases in the past six years, judges have struck down these clearly unconstitutional laws, and in each instance ESA has or will recover its legal fees from the states. What's worse, the politicians proposing and voting for these laws know this will be the outcomeâ€.
coverage at:http://shorl.com/hygrutrapifoni(GameDaily)
In the mid-80’s, Keirin Kirby (better known to us video game lawyers of the ‘80s as "Lady Kier") was the lead singer of a band called "Deee-Lite". But wait—that’s not all! Kirby was more than just a retro-funk-dance pretty face: she was also a dancer, choreographer and fashion designer. And she believes she has created a distinctive look and character.
Enter Sega.
In 1999 Sega released Space Channel 5, a futuristic space game which featured a character called "Ulala" who dressed in an outfit similar to the outfits Kirby liked to wear (i.e. mini-skirt, tank top with a number on the front, pink hair in pigtails, etc.). THQ later released a Gameboy Advance version of the game.
Kirby sued, claiming that the game misappropriated her likeness and identity. The lower court dismissed the lawsuit (through summary judgment). Kirby appealed but lost.
The courts found there were similarities between the appearances of Kirby and Ulala, so Kirby at least had an argument that her likeness and identity were misappropriated. However, the courts also found that the First Amendment (freedom of expression) provided a complete defence to Kirby’s claims because Ulala was not a literal depiction of Kirby—there were sufficient differences between Kirby and Ulala.
At one time or another, many of you have probably considered basing a video game character on one of the many buff, distinctive and charismatic video game lawyers at Davis. And you probably wondered how to do it.
Well here’s how. According to the California Court of Appeal, all you need to do is ensure that your work contains "something new, with a further purpose or different character, altering the first with new expression, meaning, or message."
The test in Canada will likely be different, of course, but there doesn’t appear to be any video game case law on point yet. But heck, we’re willing to make some, so here’s a link to our photos: http://www.shorl.com/divofrakodefri
Kirby v. Sega is here:http://www.shorl.com/distokimynagu
Just two weeks after the release of the Nintendo Wii, the Wall Street journal has reported cases of numb arms, sore shoulders and “Wii-elbow†caused by jerky or repetitive motions. It’s not just the Wii gamers, of course, that can suffer from overplay – Dr. Daniel Latch, a gamer and a chiropractor, says that gamers on all consoles overwork their thumb tendons and neck muscles. Similarly, Dr. Chester Quan, an optometrist, is seeing a growing trend in nearsightedness and, in teens, a need for more frequent changes in prescription which he says is likely attributable to an increased exposure to computer screens and video games. So, could these type of overplay-related injuries lead to a product liability suit against a console maker? It would appear at least theoretically possible. What about product warnings, though? Will warnings in the console manual about the dangers of repetitive motion be sufficient to shield a console maker from this kind of product liability claim? We note, for example, that such warnings also appear on both the Wii and Xbox360 web pages though, until a product liability claim based on repetitive injuries is litigated, it’s not clear how much protection the warnings will ultimately offer. Coverage at:http://shorl.com/gigotovynino (CBS5.com)
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