Activision Once Again Abuses DMCA To Try To Bury Leak Of New 'CoD' Content

from the this-again? dept

Back in February of 2020, we wrote about several odd attempts by Activision to use the DMCA takedown process to try to bury leaks of content in its Call of Duty game franchise. It all started with the company attempting to first take down Reddit posts that showed leaked cover art for Call of Duty: Warzone, before Activision then attempted to have Reddit unmask the poster of the image in an attempt to track down where the leak came from. While Activision certainly isn't the first company that has attempted to bury leaks using DMCA notices, it was a fairly high profile attempt, which, of course, just meant that the Streisand Effect took over and suddenly tons of people were seeing the image in media outlets reporting on the matter, such as at Techdirt.

One would think the lesson learned from that episode would be that trying to unboil an egg like this through the DMCA process was futile. Instead, it seems that Activision thought the lesson was that it should go after media outlets. Recently, content for an upcoming map addition to Warzone leaked and VideoGamesChronicle (VGC) reported on it.

VGC can confirm that the work-in-progress live-action spot, which was first shared by Twitter account On Thin Ice, is authentic and shows snippets of the new 1980s Warzone map which we understand will replace the current Verdansk at the end of the season, with an in-game event marking the transition on April 22.

It appears that the new map will be an evolution of Verdansk, rather than an entirely new design. The leaked footage shows Cold War-era landmarks replacing Verdansk’s own points of interest, including an in-construction Stadium and an aqueduct replacing the Dam. Airport, TV Station and Downtown can also be spotted with a 1980s makeover.

So, content leaks, VGC reports on it. That's about as straight a journalistic enterprise as there can be. And, yet, Activision went into its DMCA takedown mode, targeting not only the original leaked footage of the new map, but also the sites and social media accounts for outlets reporting on it.

While there's been no official confirmation from Activision, the publisher has been cracking down on the leak: at least one video has been taken down from YouTube, and news site Charlie Intel says it has received a DMCA notice from Activision.

And the Twitter account for VGC itself was targeted and locked due to Activision's actions.

It is one thing to target leaked footage itself. It's entirely another to get hosts and platforms to take down journalistic content over that same leak. Once the genie is out of the bottle, to compound metaphors, it is flatly an abuse of the DMCA to target speech protected by the First Amendment over it.

And beyond that admittedly major component... what precisely is the point of all this? Once again we have a situation where Activision is supercharging the public's knowledge of a leak it supposedly wants to suppress with actions that, at best, aren't proper and at worst make it look like a massive corporate bully. Perhaps some will believe that this is some sort of marketing ploy and that Activision's real goal with all of this is to get posts like this written.

But between Activision's past behavior and Occam's Razor... I think not.

Filed Under: call of duty, censorship, copyright, dmca, reviews, takedowns, warzone
Companies: activision

Activision Forces Online Check DRM Into New Game, Which Gets Cracked In One Day

from the totally-worth-it dept

By now it should be clear that DRM is essentially an arms race that will never be won by producers and publishers of content. While the fall of even the most vaunted DRM platforms has shown how useless those platforms are, the more consequential outcomes of DRM tend to be the way it bricks the products people bought or else limits the use of those products once the DRM is no longer supported. In sum total, it's very clear that DRM is very much anti-consumer, while failing completely at being anti-pirate.

It's a lesson that some in the video game industry insist on re-learning over and over again. Activision recently re-released Crash Bandicoot 4 for the new generation of consoles... and a long-awaited debut on PC. Despite the game having no online gaming components in it, Activision decided to put an online DRM requirement in the game, forcing it to check in with the Battle.net app for it to work. To be clear, there was no reason to include the DRM beyond it being a piracy check. And to be equally clear, even that reason was silly. Why? Well...

By midday Saturday, one day after the game's Battle.net launch, cracking-group Empress claimed first dibs on stripping Crash 4's PC version of its online check-in system. Their crack replaces one file in an otherwise vanilla install, and the group's release notes don't clarify what the crack does, other than describing the game's defeated DRM as "Battle.net + online only." (We thus believe this isn't a case of someone defeating Denuvo, even though a joke in Empress' release notes mocks the much-maligned DRM provider.)

As of press time, Crash 4 has zero online content, in spite of a couch co-op mode (designed to let a parent and child take turns with the single-player campaign) and a simple four-player versus mode dubbed Bandicoot Battle. Thus, the Battle.net handshake appears to revolve entirely around DRM, as opposed to checking for add-on content like new levels or even score leaderboards.

It's all so pointless. I have no idea how much time and effort it took for Activision to build this online-check into the PC release of the game. And it really doesn't matter, because literally every second of time and energy spent on it was completely wasted. The game was cracked in a day. Previous PC releases of Activision titles didn't include this DRM, though some will like to argue that any title released on Steam technically has DRM saddled into it. Still, as a new effort, this was all pointless.

Which is why it's so frustrating that game publishers keep going down this futile road. Instead, developers and publishers should be focusing on creating great gaming experiences for the public, building a bond with that public by treating them well, and not hampering their efforts with stupid online-checks that are defeated on the order of hours.

Is that really so hard?

Filed Under: copy protection, copyright, crack, crash bandicoot 4, drm, online check, video games
Companies: activision

Happy 20th Birthday To 'No One Lives Forever', The Classic PC Game That Can't Be Sold Today Thanks To IP

from the and-yet-it's-dead dept

There are a great many interesting arguments we tend to have over both the purpose of copyright law and how effectively its current application aligns with that purpose. Still, we are on fairly solid legal footing when we state that the main thrust of copyright was supposed to be to drive more and better content to the public. Much of the disagreement we tend to have with naysayers revolves around whether ever expanding rights coupled with protectionist attitudes truly results in more and better content for the public. We, to a large extent, say the current copyright bargain is horribly one-sided against the public interest. Detractors say, essentially, "nuh-uh!".

But if one were to distill the problems with the current state of copyright to their most basic forms, you would get No One Lives Forever. The classic PC shooter/spy game was released way back in 2000, times of antiquity in the PC gaming space. It was a critically acclaimed hit, mixing Deus Ex style shooter missions, spycraft, and an aesthetic style built on 1960s classic spy films. And, as RockPaperShotgun reminds us, No One Lives Forever celebrated its 20th birthday this November.

If you remember the game fondly, or perhaps if you never played it and are curious as to why there's so much love for the game, you might be thinking about going and getting a copy for yourself to play. Well, too bad. You can't.

FPS spy romp No One Lives Forever turns 20 today but alas Cate Archer is still confined to her room, unable to come out and play. The secret agent shooter has been tied up in legal gridlock for years. You’ll not find it for sale online aside from second-hand, but that hasn’t stopped RPS singing its praises all this time. A remaster still seems unlikely, but Nightdive Studios say they aren’t done trying to make it happen.

Legal gridlock is being extremely kind. Why you cannot buy this game is one of the most frustrating stories in intellectual property. We discussed much of this back in 2015. Nightdive Studios is a company that buys up the rights to older video games, updates and/or remasters them for modern gaming hardware, and then rereleases them. And we're talking about a professional operation that has managed to rerelease games like Doom 64, 7th Guest, and System Shock. In other words, these guys are legit and they know what they're doing.

And they really, really wanted to give No One Lives Forever the treatment. There was just one problem: nobody seems to know who holds the copyright for the game, but everyone independently has told Nightdive that they'll sue if they make the game. Warner Bros., Activision, and 20th Centry Fox all might own the copyright to the game, except that the paperwork for how the rights all shake out was contrived in a time before such records were digitized. So, someone owns the rights to this game. And Nightdive very much wants to work out an arrangement with whoever that someone is. But none of the three potential owners are willing to go hunt down the paperwork so such a deal could be worked out.

You can get a sense of how each is communicating with Nightdive from our original post on the subject.

"So we went back to Activision and, [after] numerous correspondence going back and forth, they replied that they thought they might have some rights, but that any records predated digital storage. So we're talking about a contract in a box someplace." Kuperman laughed. "The image I get is the end of Indiana Jones… somewhere in a box, maybe in the bowels of Activision, maybe it was shipped off to Iron Mountain or somewhere. And they confessed, they didn't have [their] hands on it. And they weren't sure that they even had any of those rights."

And yet Nightdive was also told by all three entities, independently mind you, that they might own some rights and would go find out if Nightdive tried to rerelease the game to see if they could sue over it. The end result is a game that can't be released legitimately to the public over rights three companies insist are important enough to sue over, but not so important that they should know if they even have those rights to begin with.

Which brings us back to the RPS post, five years later on the 20th birthday of No One Lives Forever, where we find out that essentially zero progress has been made.

As one of the best FPS games on PC, it seems plenty worthy of a remaster or re-release, but efforts on that front have died in the water over the past decade or more. Hit any one of those quoted links to get the evolving story, but the short version is this: Nightdive Studios, who want to modernise No One Lives Forever, don’t own the rights to it. More than one company might have legal claim to it, but none of them are terribly motivated to unearth stacks of paper contracts literally hidden in basements. They’re just sure they don’t want anyone else making money off it without them. So Cate’s all tied up in the super villain’s lair without a Deus Ex Machina to save her.

On that front, Nightdive recently told The Gamer that they aren’t done trying to make it happen. “It is a process that we’re continuing,” said director of business development Larry Kuperman. “We continue on with our mission to unearth and bring back these classic games.”

And so the public is flatly denied legitimate access to content that is a piece of our culture over copyrights nobody can say for sure if they have. I can't claim to crawl into the founding fathers' heads to say precisely how they wanted copyright to work, but it sure as shit can't be like this.

Filed Under: copyright, licensing, limitations, no one lives forever, rights, updates, video games
Companies: 20th century fox, activision, nightdrive studio, warner bros.

Activision Deletes And Replaces 'Call Of Duty' Trailer Worldwide Over 1 Second That Hurt China's Feelings

from the bow-down dept

While China-bashing is all the rage right now (much of it deserved given the country's abhorrent human rights practices), it's sort of amazing what a difference a year makes. While the current focus of ire towards the Chinese government seems focused on the COVID-19 pandemic and a few mobile dance apps, never mind the fully embedded nature of Chinese-manufactured technology in use every day in the West, late 2019 was all about China's translucent skin. Much of that had to do with China's inching towards a slow takeover of Hong Kong and how several corporate interests in the West reacted to it. Does anyone else remember when our discussion about China was dominated by stories dealing with Blizzard banning Hearthstone players for supporting Hong Kong and American professional sports leagues looking like cowards in the face of a huge economic market?

Yeah, me neither. But with all that is going on the world and all of the criticism, deserved or otherwise, being lobbed at the Chinese government, it's worth pointing out that the problems of last year are still going on. And, while Google most recently took something of a stand against the aggression on Hong Kong specifically, other companies are still bowing to China's thin-skin in heavy-handed ways. The latest example of this is an admittedly relatively trivial attempt by Activision to kneel at the altar of Chinese historical censorship.

The debut trailer for Call of Duty: Black Ops Cold War has been blocked in China, and subsequently edited everywhere else, after featuring around one second’s worth of footage from the Communist government’s crackdown on pro-democracy protesters in 1989. When the game was first announced last week, a trailer running for 2:02 was released to the world and hosted on the official Call of Duty and Xbox YouTube pages, along with major trailer sites like IGN and Gamespot.

On August 21, however, the videos on Call of Duty and Xbox’s YouTube pages were replaced with a much shorter, 1:00 version. This isn’t an additional trailer, it’s a replacement, which we know because...the original 2:02 video we embedded in our own story is no longer working, having been marked as “private”.

So here's the, ahem, tik-tok on this. Activision, which also owns Blizzard, releases a new trailer for a new Call of Duty game. That trailer includes a single second of an image from Chinese protests against the government from three decades ago. The Chinese government, true to form, flips the fuck out and bans the trailer entirely. One imagines there were also threats of banning the game entirely, but that is yet to be confirmed. Activision then, seeing the Chinese government go full carpet bomb over the trailer in its country, decides to try to out-carpet-bomb the carpet bomb by doing a delete/replace of the offending trailer worldwide.

While we're talking about a mere video game trailer here, the implications aren't as insignificant as they might seem. Games are a subset of culture and commerce. While much of the discourse over how companies do business in China is overstated to say the least, what Activision did here is something different. Indeed, it could probably be best summarized as: Activision allowed the Chinese government to censor the company's art throughout the world.

And, sinophobia aside, that is a very dangerous precedent to set. That it was an action taken on a trailer for a game called Call of Duty: Cold War, in fact, is probably proof that the universe is not without a sense of irony.

Filed Under: call of duty, china, free speech, games, human rights, video games
Companies: activision, blizzard

Federal Court Affirms Activision's First Amendment Rights In Using Humvees in 'Call Of Duty' Game

from the humdinger dept

Almost exactly a year ago, we first wrote about a trademark lawsuit brought by AM General LLC, the company that makes Humvee vehicles, and Activision. At issue is the inclusion of historically accurate Humvee vehicles in the publisher's Call of Duty games. AM General decried those depictions as trademark infringement, leading Activision to say its use was protected by the First Amendment, given that the entire goal here was to accurately depict warfare in an artistic fashion. Shortly after, the ESA chimed in with an amicus brief siding with Activision. Given the implications for the gaming industry should AM General win the suit, this was no surprise.

Well, fortunately for creative expression in gaming, the court has ruled and has sided with Activision.

In his ruling this week, though, District Judge George B. Daniels dismissed AM General's claim. That decision hinged in part on a 1989 precedent that established that artistic works could make reference to outside trademarks as long as the usage was relevant to the work and did not "explicitly mislead as to the source of the content or work."

The court then went through an eight-prong "Polaroid" test (named after a precedential 1961 case) to determine whether Activision's use of Humvees amounted to a legally relevant "explicit misleading" that would trump First Amendment protections. As part of that argument, AM General submitted a survey it conducted showing 16 percent of consumers "were confused as to AM General's association with Call of Duty." As Judge Daniels notes, "less than 20 percent confusion regarding two companies' 'association'... is at most some confusion" and does not amount to the "particularly compelling" confusion required by legal precedent.

The court actually continued on in its analysis as to why AM General's claims were nonsense. It's a fairly thorough debunking by the court. Ultimately, however, the court dove into the impact that ruling otherwise would have on the First Amendment rights for artistic expression in mediums where realism is part of the art.

Daniels writes that "if realism is an artistic goal, then the presence in Modern Warfare games of vehicles employed by actual militaries undoubtedly furthers that goal." And even if that commitment to realism causes a modicum of brand confusion in this case, it's not enough to override the First Amendment protections that video games have enjoyed since a 2011 Supreme Court ruling.

In other words, the tiny bit of maybe, potentially confusion that AM General ginned up in its filing doesn't remotely undue the protections artists and content creators enjoy for free and open expression. You know, the type of freedoms that the US Military has helped our country secure... often times using Humvees!

It's good to see a court side with free expression over corporate protectionism every once in a while.

Filed Under: 1st amendment, humvee, trademark, video games
Companies: activision, am general

Well Then: Activision Issues DMCA Subpoena To Have Reddit Unmask Whoever Posted That CoD Image Leak

from the the-nuclear-option dept

Well, okay then. We had just been discussing Activision's silly attempt to DMCA to death a leaked image purporting to be the cover art or marketing material for a new Call of Duty game. The whole thing was idiotic in that once word got around that Activision was trying to bury the leak, it immediately caused everyone to think the image was for a real game, rather than some faked pretend leak, which is a thing that sometimes happens. From there, reporting and reproduction of the image in question went mildly viral. In other words, Activision Streisanded the leak it was attempting to bury. Pretty dumb.

But it turns out that Activision isn't screwing around. There were some in our comments who posited that perhaps this was some marketing attempt to create virality of the image. That certainly doesn't appear to be the case, as Activision has issued a subpoena to have Reddit unmask the user who posted the image.

In a filing on February 14, 2020 at a California district court, attorneys acting for Activision requested a DMCA subpoena against Reddit.

“Petitioner, Activision Publishing, Inc. through its undersigned counsel of record, hereby requests that the Clerk of this Court issue a subpoena to Reddit, Inc. to identify alleged infringers at issue, pursuant to the Digital Millennium Copyright Act (‘DMCA’), 17 U.S.C. § 512(h),” the request reads.

“The DMCA Subpoena is directed to Reddit, Inc. Reddit is the service provider to which the subject of the subpoena – Reddit user ‘Assyrian241O’ – posted infringing Activision content.”

At first, it's hard to see how this makes any sense. Yes, it surely must be annoying to a content creator to have any plans for future content to be upended by a leak. On the other hand, first DMCAing that leak in a failed attempt to bury it, and then going to the lengths of unmasking a Reddit poster is surely the nuclear option when it comes to how to handle a leak of game art.

Except, it seems, this might not be about the Reddit post itself so much as where the leak originally came from.

Contrary to the initial claim, that the user “found this image online”, he or she later confessed to it being sent to them by an “inside source”. That raises the question of who Activision is more interested in – the Reddit user or the person who sent them the image, possibly from inside Activision or a related company.

In other words, this is all looking like an attempt to unmask the leaker of the image, not the Reddit user. Still, these are extreme lengths to go to combat a leak that would have barely been noticed had Activision not gone into legal rage mode.

Instead, the company could have chosen to try to use this all as a marketing opportunity, as comments on the previous post thought they had.

Filed Under: call of duty, dmca, dmca subpoena, leaks, subpoena
Companies: activision, reddit

Activision Tries To Bury Cover Art For New CoD Game Via Copyright Threat...So Let's All Look At It Together, Shall We?

from the ready-fire-aim dept

Of all the dumb ways that the DMCA process has been misused in the very recent past, one of the most frustratingly stupid certainly has to be certain interests using it to try to bottle up leaks. From Nintendo to Universal to Marvel, among others, each and every time some content, often times unfinished, gets leaked onto the internet, the lawyers fire off a bunch of DMCA notices to try to get the content taken down. And each and every time, the whole thing backfires completely and instead this leaked content gets Streisanded into the public consciousness.

It's with that in mind that we can all take a look at some art for the next unannounced Call of Duty game, entitled Warzone.

What is that image for and where does it come from, you ask? Well, according to a Reddit post from a few days ago, which has since been deleted, it's the cover art for Activision's new CoD game. In that original Reddit thread, a whole bunch of folks seemed to think that the uploader had created fake game art, which occasionally happens. Instead, Activision, in an attempt to stifle this leak to control its own messaging, confirmed the authenticity of the leak by issuing a copyright threat, thereby propelling interest in the image itself.

One Redditor says they received a notice from “Activision/Call of Duty” that this was a “copyrighted image containing key artwork for an upcoming video game Call of Duty: Warzone.”

This is all relatively solid indication that the Warzone name is real, and refers to battle royale. Ghost’s appearance in the image ties it closely to Modern Warfare, and the fact that a ‘classified’ option has joined that game’s main menu suggests it will be available inside Call of Duty proper.

And, so, instead of one Reddit thread that half the readers distrust, Activision has created for itself dozens of internet articles about the image, the forthcoming game, and its own actions in trying to copyright a leak to hell. Meanwhile, as you can see above, the image the company attempted to nuke from the internet is still very, very much available.

Maybe someone needs to create Call of Duty: Modern Internet Warfare?

Filed Under: call of duty, confirmation, copyright, dmca, leaks, overreacting, takedowns, warzone
Companies: activision, reddit

In These Partisan Times, The Only Thing That Gets Bi-Partisan Agreement Is That Blizzard Sucks

from the crossing-aisles dept

We live in partisan times. The left and the right might as well be cats and dogs, mostly incapable of living together and the subject of fascination by the public when they manage to work together in the slightest way. The country needs a rallying cry. Something to bring both sides of the aisle together to demonstrate to all that they can actually agree on things.

Blizzard appears to be that something. In the wake of the backlash against Blizzard for its actions taken to silence and punish eSports competitors that chose to voice support for the ongoing protests in Hong Kong, it seems that everyone from Alexandria Ocasio-Cortez to Marco Rubio agrees that the company needs to do much, much better.

Today, United States Senators Ron Wyden and Marco Rubio signed a bi-partisan letter with support from Representatives Alexandria Ocasio-Cortez, Mike Gallagher, and Tom Malinowski addressed to Bobby Kotick, CEO of Activision Blizzard, over the recent suspension of professional Hearthstone player Chung “Blitzchung” Ng Wai.

“We write to express our deep concern about Activision Blizzard’s decision to make player Ng Wai Chung forfeit prize money and ban him from participating in tournaments for a year after he voiced support for pro-democracy protests in Hong Kong,” the letter reads. “This decision is particularly concerning in light of the Chinese government’s growing appetite for pressuring American businesses to help stifle free speech.”

Now, it's true that this particular letter is toothless. It's also true that Blizzard has already reduced some of the penalties it levied on Chung, even though such a reduction was entirely besides the point and lowered the temperature on this controversy not at all. Still, what this really should highlight for the reader is that the public backlash against Blizzard has reached a volume that Congress critters are making public statements about it, and in a bi-partisan way. That's no small thing.

There is a great deal for one side or the other of the political aisle to be angry about these days. For Blizzard to unify that anger against itself should really inform the company's assessment as to how beneficial it is to bow to Chinese demands to stifle the speech of its competitors.

Again, this is a toothless letter...for now. But if it changes the calculus on future decisions Blizzard might take, that's a good thing.

Filed Under: alexandria ocasio-cortez, blitzchung, free speech, hong kong, marco rubio, mike gallagher, ron wyden, tom malinowski, video games
Companies: activision, activision blizzard, blizzard

ESA Steps In With Amicus Brief In Support Of Activision Versus Humvee

from the hum-dinger dept

A short while ago, we discussed a rather concerning lawsuit brought by AM General LLC, the company that makes Humvees, against Activision, the game publisher that occasionally publishes Call of Duty games that include depictions of Humvees. AM General's claims are pretty silly, suggesting that players of the games will think that those games were somehow created by or endorsed by AM General. I can't imagine that's the case; instead, most people are likely to think that Activision is attempting realism in their warfare game, since you basically cannot make an American warfare game accurately without including Humvees. Activision's response was on First Amendment grounds, arguing that its games are partly an historically accurate work of art, for which including Humvees is accurate and fair use.

As we pointed out in our original post, this case has great implications for the wider video game industry. Because of that, perhaps it's not hugely surprising to see that the Entertainment Software Association has jumped into the case with an amicus brief arguing for the granting of Activision's summary judgement motion. The whole thing is worth reading, but you can tell that the ESA's viewpoints on this are framed by the wider gaming industry.

AM General LLC’s (“AM General”) lawsuit raises issues of substantial importance to the video-game industry. Today’s video games are exceptionally diverse in their artistic expression, ranging from the action-adventure of Activision’s Call of Duty franchise, to educational games like Where in the World is Carmen San Diego?, to sports-themed games like Madden NFL, to historical simulation games like the Civilization franchise, to games that are derived from motion pictures like Star Wars or that inspire motion pictures like Assassin’s Creed. Whether factbased, fictional, or somewhere in between, many of these games refer to or incorporate real-life historical and cultural elements – often including real products like the military vehicles at issue in this case, and the trademarks, trade dress, and other distinctive elements used to accurately identify and depict those products – to create realistic interactive environments that facilitate expression, enhance verisimilitude, and enrich the user experience.

If AM General succeeds in punishing Activision for exercising its First Amendment right to depict realistic U.S. military vehicles in Call of Duty – or in forcing Activision to endure the burdens of a trial to vindicate its First Amendment rights – ESA’s members and gamers will suffer. Video-game developers and publishers will be exposed to even more frequent litigation, with some developers and publishers foregoing the use of real products in their works to avoid being dragged into court. Because AM General’s theory is antithetical to the rights of ESA’s members – and is irreconcilable with well-settled authority governing the use of real products in expressive works – ESA respectfully requests that this Court grant Activision’s motion for summary judgment.

There are many reasons why AM General's lawsuit should fail, but the risk to artistic output must certainly be first and foremost. The idea that a storied vehicle used in American warfare could be blocked from being depicted in artistic expression over intellectual property rights is purely antithetical to the First Amendment. What I suspect is happening here is something else that regularly annoys me: the dismissal of video games as artistic expression. After all, it's not as though we've heard about many fights between the Humvee people and the film industry. And, yet, the number of depictions of Humvees in TV and film is countless. So why should Call of Duty be any different?

The ESA brief makes this point in the brief.

VIDEO GAMES ARE CULTURALLY SIGNIFICANT EXPRESSIVE WORKS Since the creation of the first electronic game in the 1950s – a highly pixelated version of tic-tac-toe entitled Noughts and Crosses3 – video games have evolved into complex works that are similar to interactive movies. Video games equal books, films, and television shows in terms of cultural significance and share myriad elements with these more traditional forms of expression. Like novels, many video games have multi-dimensional characters, complex storylines, and carefully crafted dialogue. Like films and television shows, many video games contain story arcs, visual images, and musical scores that contribute to their emotional impact.

Video games have become an integral part of American culture. In 2018, nearly 165 million adults in the United States played video games, and 75 percent of all Americans had at least one gamer in their household.

In other words, Call of Duty is every bit as much art and culture as Saving Private Ryan, in which case it is afforded all of the same First Amendment and fair use protections as that movie. Given that, the use of a Humvee is pretty clear fair use in an expressive work. If found to be otherwise, the gaming industry writ large is in a whole lot of trouble, particularly for any game that wants to depict realism.

But I don't think it'll get that far.

Filed Under: 1st amendment, art, call of duty, humvee
Companies: activision, am general, am general llc, esa

Activision Shouts 'First Amendment' Over Humvee's Trademark Lawsuit For Call Of Duty Depictions

from the humming-along dept

If we were to judge the success of a video game by just how many times a particular series had appeared in Techdirt posts, Call of Duty would be one of the contenders for the top rank. Publisher Activision has been on both ends of absurd IP issues, facing publicity and trademark attacks from historical figures over depictions in the game series, while also occasionally mulling trademark actions against non-competitors over poo-puns.

Well, Activision once again finds itself on defense in a trademark lawsuit over the game series, this time brought by famed military auto-maker Humvee. In its warfare series, which aims to be a realistic artistic expression of armed conflict, Humvees of course make regular appearances. The vehicles are ubiquitous on any battlefield in which America participates. Activision, in a motion for summary judgement, has asked the court to view all of this as an attack on the First Amendment rights the publisher enjoys.

"This case is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare," opens a summary judgment motion filed on Friday by Activision. "AM General LLC, a government contractor that manufactured military 'HMMWV' (or 'Humvee') vehicles for the U.S. military, seeks to use trademark law to control the mere depiction of those vehicles in Defendants’ fictional Call of Duty video games. The use of purported trademark rights to restrict the content of expressive works is dangerous under any circumstance. But the claims in this case are particularly egregious because they involve a U.S. military vehicle paid for by American taxpayers and deployed in every significant military conflict for the past three decades."

It's an interesting point to make, though we'll have to see how the court views it on the question of the First Amendment. Regardless, aggressive trademark enforcement over a vehicle depiction that has cultural and historical significance, and one which is generally paid for by American tax dollars, certainly sounds like First Amendment territory. If one were to create an artistic expression of historical fiction in game form to depict modern day warfare, how could one not include Humvees? The vehicle's omission would frankly be glaring in the extreme.

Humvee's maker, of course, sees it differently and claims Activision's own internal communication suggests the company knew what it was doing was wrong.

AM General, of course, disagrees with the proposition that it can't protect its intellectual property from unauthorized use — especially when Activision has licensed other material for its multibillion-dollar game franchise and when in the games at issue, characters call out to one another to “get in the Humvee.”

In its own summary judgment memorandum, AM General asks a New York federal judge to dispose of Activision's affirmative defense of laches, meaning a prejudicial delay in asserting a claim. Although the defendants point to how Humvees have become "common in fictional movies and television shows" — The Hurt Locker, 24, Sicario: Day of the Soldado, etc. — AM's attorneys have spent months collecting discovery from Activision and assert the trademark misappropriation was not secret inside the video game's headquarters.

Most of the discovery being referenced is yet to be public. Depositions are under seal and there is a ton of material that has been redacted. What's visible is some general information from Activision's internal team noting that there is some risk in the game being too realistic as it could invite the very sorts of IP fights that it is now enduring.

Again, what's the other option? Games are works of art and protected by the First Amendment. Humvees have played a storied role in American warfare for decades. If this art is to be made, and is to be realistic, it essentially cannot be made without including Humvees any more than could a war movie.

Filed Under: 1st amendment, call of duty, depictions, free speech, historical accuracy, humvee, video games
Companies: activision, am general