Gibson Sues More Than Just Activision Over Virtual Music Concert Patent

from the who-else-can-we-sue dept

Fri, Mar 21st 2008 5:12pm — Mike Masnick

Remember how Activision had preemptively sued Gibson for a declaratory judgment that it didn't infringe on a really questionable patent concerning a computerized guitar for a "virtual" concert? Well, Gibson has now struck back, and it's not just suing Activision, but almost all the retailers who sell it as well, including Wal-Mart, Target, Kmart, Amazon.com, Toys 'R' Us and GameStop. The idea, clearly, is to have those retailers put pressure on Activision. Update: Wired reports that the lawsuit also covers a bunch of other companies. Basically, Gibson is suing anyone even remotely connected to video games that involve fake guitars.

Of course, there are all sorts of questionable things about this lawsuit. As we pointed out when Activision first sued, Gibson's patent doesn't seem similar to "Guitar Hero" at all. It talks about playing a real concert, with a real guitar (with strings) attached to a head mounted display. Also, as Activision points out, Gibson didn't care about the patent as long as Activision and Gibson had a marketing agreement. They only started calling for patent infringement after the marketing agreement ended. Finally, suing retailers for selling the game is quite sketchy. In fact, the Supreme Court just heard a case looking at whether or not that was legit, and the Justices sounded quite skeptical. Gibson is clearly posturing to try to push for a settlement -- and in the process, showing yet another way to abuse the patent system.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: guitar hero, lawsuits, patents, retailers, supply chain
Companies: activision, amazon, gamestop, gibson, kmart, target, toys r us, wal-mart

19 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

freakengine, 21 Mar 2008 @ 5:34pm

Mmmmmm...Lawyers!
At least all the attorneys will make more money. We all know how much they need it. After all, they're the only winners when it comes to useless lawsuits like these.
[ link to this | view in thread ]
Anonymous Coward, 21 Mar 2008 @ 5:56pm

What's next ... Smith & Wesson sues Hasbro for selling squirt guns
[ link to this | view in thread ]
Anonymous Coward, 21 Mar 2008 @ 6:02pm

Burning my Gibson in protest.
[ link to this | view in thread ]
Anonymous Coward, 21 Mar 2008 @ 8:30pm

I hope they go out of business because of legal fees and lose their shirts
[ link to this | view in thread ]
Mitch the Bitch, 21 Mar 2008 @ 8:51pm

Once someone comes out with a fake guitar with strings then an old favorite of the name Immersion Technology will sue them all for having ANY device that connects to ANY computer where the device works in conjunction with what is displayed on screen.

This is why the Force Feedback industry has suffered.

At one point in time Microsoft was fighting them as this is an obviously broad patent but the second Immersion offered MS part ownership the suit was dropped.

Forget how bad Vista is this is the real issue facing MS and it's many subsidiares. It's called collusion....

Some lawyer somewhere MUST be willing to break this BS patent.
[ link to this | view in thread ]
Anonymous Coward, 21 Mar 2008 @ 11:48pm

LP is too heavy, tele and strat no longer good for like past 30 years, gibson sucks and whole patent/legal system blows.
[ link to this | view in thread ]
Codename Edinburgh, 22 Mar 2008 @ 12:43am

We're on it, Bill.
[ link to this | view in thread ]
Pete, 22 Mar 2008 @ 5:38am

Next Generation
They might was well hand the next generation of players to Fender and Ibanez.

They will lose the suit, lose the fans and lose any ability to influence next generation players.
[ link to this | view in thread ]
PaddyMag, 22 Mar 2008 @ 6:37am

Are you kidding me!?
So I looked up and read the Patent(Patent number: 5990405 http://www.google.com/patents?id=YAUZAAAAEBAJ) and the only portions that have any possible bearing are System of Claim 13c
(13. A system for simulating participation of a user playing a musical instrument in a pre-recorded musical performance having audio and video portions, the musical instrument producing instrument audio signals at an instrument audio output when the instrument is played, comprising: c. the source audio control device is responsive to the instrument audio signals whereby at least one characteristic of the audio portion of the pre-recorded musical performance is controlled by playing of the musical instrument by the user. )
and 25
(25. A method of a simulating participation by a musician in a recorded concert comprising the steps of a. playing on a playback device a pre-recorded concert video track in synchronization with a pre-recorded concert sound track and a pre-recorded instrument sound track; b. separating the instrument sound track from the concert sound track and providing the separated instrument sound track to a control device; c. varying in the control circuit at least one parameter of the instrument sound track in response to audio signals generated by a musical instrument when played by the musician, thereby generating a controlled instrument sound track; and d. providing a normal simulation mode in which the controlled instrument sound track and the concert sound track are played on a sound system in synchronization with display of the concert video track.)
Both of these are vague to an extreme. So vague in fact that any game in which you are a musician could be included. In the areas where thay aren't vague, even a moron can see that Even System of Claim 25 has a fault in Activision's favor in that it states that the participant is a musician playing a musical instrument, not a video game controller. Then the real laugh sets in...take a look at the diagram listed in the patent for the system.
The system calls for:
1. A Real Guitar (not a controller)
2. An Interface with a bypass
3. An Effects Bank
4. Audio mixer
5. DVD/BETA player (BETA!!! Are you serious?)
6. Stereoscopic headset

This patent is in no way being infringed on by Activision (or Harmonix for Rock Band), who is using a guitar shaped controller, connected to a video game console where you occasionally see a computer generated band on stage (Not real life footage as in the patent), played by a console gamer, not necessarily a musician (I know both real musicians and gamers who play and love this game).

What else can I say...Gibson, like most of corporate America, is greedy to a fault, and jealous that their "Music Experience" didn't work out for them, now they want MORE of the fruits of someone else's labor. They already were paid for licensing to have models of their guitars displayed in the game. Do they really need more? I think not!
[ link to this | view in thread ]
Clapton, 22 Mar 2008 @ 6:52am

It's The Lawyers
Everyone thinks that someone at Gibson called a meeting and said "Let's sue everyone. Hire a lawyer". Only problem is that's not how it works.

Make no mistake - I'm not defending Gibson. Stupidity permeates corporate boardrooms as much as anyplace.

There are too many lawyers in the US, and they are all chasing a dwindling client base. They continually recommend litigation as the solution to problems because that's when they make billable hours or get fat retainers. CEOs and boards that buy into this line of thinking are gutless, stupid idiots that "delegate" thinking to someone else instead of being a leader and settling issues like real business people.

There's a simple solution to this glut of patent suits - sanction the attorneys that bring such suits to court if they lose. When attorneys have a stake in the loss as well as a victory, then such nonsensical litigation will diminish. Make them accountable and let's see if negotiations and common sense begins to retrun.
[ link to this | view in thread ]
Anonymous Coward, 22 Mar 2008 @ 1:30pm

does this mean, i need to throw a way my guitar tutorial beta discs? drat. sorry gibson.
[ link to this | view in thread ]
Freedom, 22 Mar 2008 @ 2:02pm

Internet = Check & Balances...
One of things I love about the Internet and sites like these is that this abuse of corporate power is now balanced by the power of the people.

No longer are the days when a company like Gibson can do abusive things like this and keep it under the radar.

Because of this story, I'm sure many have written to Gibson and even more will seriously look for alternatives before purchasing their products.

It should be interesting to see how Gibson handles the backlash. If they handle it like Sony and the RootKit issue (i.e. no remorse and no public apologies for their trust breech) then I'll think in the long run this will hurt them for a what appears to be a very smalll chance for short term gains.

Freedom
[ link to this | view in thread ]
Anonymous Coward, 22 Mar 2008 @ 9:38pm

freakin retards - real guitar players dont care about this lawsuit and will BUY Gibson because Gibson makes quality guitars.

There is most likely something that isnt public knowledge that is causing this lawsuit. Perhaps GH4 loaded with the competitors guitars?
[ link to this | view in thread ]
Torm, 24 Mar 2008 @ 12:00am

Re: What's next ...
I suppose that depends, does Hasbro® put S&W's name/TM on the squirtgun?

...'Cause my GuitHero guitar has Gibson's right on the head. Which, if they don't have a contract, might look a bit like infringment, dont'cha think?
[ link to this | view in thread ]
mkinsj, 24 Mar 2008 @ 5:31am

Re: Re: What's next ...
ummm they do have an agreement with Gibson to make the controller look like a Gibson Guitar. That is not what Gibson is even suing over.
[ link to this | view in thread ]
CVPunk, 24 Mar 2008 @ 9:19am

ummm..
"LP is too heavy, tele and strat no longer good for like past 30 years, gibson sucks and whole patent/legal system blows."

what do tele's and strats have to do with Gibson?? They are made by Fender.

I agree this lawsuit is pretty lame, but Gibson still makes really great guitars so I don't think it will effect sales too badly.

Oh, and btw, SG's are light and still rip.
[ link to this | view in thread ]
Fushta, 25 Mar 2008 @ 1:10pm

Strumming....Patented!
If the Gibson lawyers make the stretch to sue over this, then what is stopping them from banning air guitar contests? Not that much more of a stretch.

Also, let's define "concert." Taken from http://dictionary.reference.com/browse/concert:
1. a public musical performance in which a number of singers or instrumentalists, or both, participate.
2. a public performance, usually by an individual singer, instrumentalist, or the like; recital: The violinist has given concerts all over the world.

Where is the public performance with Guitar Hero? Who is the audience? If it's just me playing Guitar Hero, is that a concert?
[ link to this | view in thread ]
Mitch, 8 Apr 2008 @ 11:27am

you are all idiots
[ link to this | view in thread ]
screw guitar hero, 8 Apr 2008 @ 1:36pm

Re:
bro, strats and teles are Fender, not Gibson, and I love my Les Paul. it may be heavy, but that's a good thing. Gibson makes some of the best musical instruments around, not just the parent company, but Gibson's subsidiaries too, like steinberger. I hope activision gets their shirts ripped off in this case, because not only did they copy Gibson's patent ( maybe it's not 100% exact, but it's the concept that they copied ), but they created a guitar hero generation. kids don't want to take the time and learn how to play guitar, they use tabs to learn nothing fast. they don't learn how to read real sheet music. tabs are a nice reference, but unless bought in a book, it's illegal, because it infringes on the artist's copyrights. so activision has done more than infringe a patent as far as i'm concerned. when sony was sued for dualshock, i'm sure the opposing company (don't remember who) didn't put the technology in a playstation controller, yet sony lost the suit. now guitar hero isn't exact to Gibson's patent, but it's the same concept
[ link to this | view in thread ]