US Court Tells Brazilian Court To Stop Ruling On Copyright Issue That It Wants To Rule On First

from the international-disputes dept

One of the issues that we've been discussing on Techdirt since the very beginning is the big question of how do you determine proper jurisdiction on internet related lawsuits, since the internet is accessible anywhere. Over the years there have been different rulings and different thoughts on this, but it's not clear there are good answers. The worst idea, of course, is suggesting that because something is available anywhere, it's subject to all rules. That creates a least common denominator setup, in which the absolute most restrictive rules win out around the world. That would hinder innovation tremendously. Almost as bad is the view that the US government appears to take, which is that the US's rules matter on most of the internet, because the major URLs of the internet (such as .com) are managed by a US company. That's pretty crazy, and is going to lead to serious international problems in the long run. I think a more reasonable (though far from perfect) test is simply an analysis of (1) where the actual business is located and (2) where the servers are located. It seems reasonable to focus mainly on where the company is located, and as a secondary measure, look at where the servers are located, and then use that for jurisdiction.

But, of course, when you're dealing with multiple parties, there can be questions of multiple jurisdictions. In the US, when there's a dispute over jurisdictions, such as when a declaratory judgment is filed for in one district, and the other party wants to file the lawsuit in another district, efforts are made to explain to the court that first got the case which district is best, and the court then decides to keep the case or boot it to a different district. But what happens when there are international jurisdiction disputes?

TechCrunch alerts us to a fun case in which Zynga (who has a well known history of copying other company's games) sued a Brazilian startup named Vostu, which it accused of copying its games. Personally, I think Zynga should shut up and not open up such a can of worms that might come back to bite it as well, but Zynga seems to be focusing a lot on being a legal bully lately. Either way, it filed lawsuits in both the US and in Brazil. While the US court, as typically happens, was taking its sweet time, the Brazilian court actually ruled in favor of Zynga (against the hometown favorite) and issued a preliminary injunction, telling Vostu to shut down within 48 hours.

And here's where things get interesting. This woke up the US court (at the request of Vostu), who has ordered Zynga not to enforce the Brazilian decision. As the court notes, it wants to "maintain the status quo" until it has a chance to decide the preliminary injunction question. Furthermore, even as Zynga argues that the two lawsuits are separate, as one covers Brazilian copyright law and the other covers American copyright law, the US court points out that the impact of the Brazilian ruling will hit the US as well:

But one clear policy that all federal courts recognize—even those which have been loath to interfere with foreign proceedings—is the need to protect the court’s own jurisdiction.... The Brazilian injunction evidently purports to restrict all use of the works in suit everywhere. It appears that enforcement of the exceptionally broad Brazilian injunction would prevent this Court from meaningfully adjudicating the claims of U.S. copyright infringement in this case.

As the court notes, allowing the Brazilian injunction to go forward could harm the US court's ability to decide the case... and, by the way, it notes that Zynga filed in the US first, and should wait for the US court to weigh in:

The injunction issued in the Brazilian action is a grim backdrop against which to consider issues of comity. To be sure, Brazil has an important interest in enforcing its copyright laws. But Zynga—which chose the U.S. forum first—now seeks to enforce an injunction it obtained abroad that would paralyze this Court’s ability to decide this case. Comity norms do not abide such a result.

It will be interesting to see if this cross-border dispute goes much further, because I would expect that we're going to see a lot more international jurisdiction battles in the near future, and how courts deal with these could become a very big deal.

Filed Under: brazil, copyright, jurisdiction, us
Companies: vostu, zynga

Using Gaming To Drive Desired Behavior: Privacy Policy As A Game

from the pros-and-cons dept

I had just been listening to a recent On the Media rebroadcast of their episode all about video games. The episode is fantastic, but the part that I found most fascinating was during the final section on the future of gaming, which includes a wonderful clip from a presentation by Jesse Schell, in which he talks about the potential to "gamify" pretty much everything in life, giving people "points" (possibly points that can have tax implications) for desired behavior. Some of that behavior may be "desired" because it's good for you (if you brush your teeth long enough, you get extra points). And some of it may be "desired" because it's good for some companies (if you drink five Dr. Peppers this week, you get extra points).

JESSE SCHELL: And what will that world be like? Well, I think it'll be like this: You get up in the morning to brush your teeth and the toothbrush can sense that you’re brushing your teeth, and so, hey [BELL TONE], good job for you! [AUDIENCE LAUGHTER] Ten points for brushing your teeth. And it can measure how long, and you’re supposed to brush ‘em for three minutes, and you did. And so you get a bonus for that. Hey [BELL TONE], you brushed your teeth every day this week, another bonus. All right, and who cares? The toothpaste company, the toothbrush company; the more you brush, the more toothpaste you use. They have a vested financial interest. So then you go and you get on the bus. The bus, why am I taking the bus? You’re taking the bus because the government has started giving out [BELL TONE] all kinds of bonus points to people who use public transportation, and you can use these points for, for tax incentives. And you get to work [BELL TONE] on time, good job. You, you get a, a special bonus. So then you go to lunch and you've had Dr. Peppers all week, and so you know you got to have another Dr. Pepper ‘cause you get 10 points [BELL TONE], 10 points [BELL TONE], 10 points [BELL TONE], 10 points, and then you'll have another one [BELL TONE]. You know there’s a special with Dr. Pepper this week. If you have five Dr. Peppers in a week [BELL TONE], 500 bonus points, so you definitely have to take advantage of that.

And then you've got a meeting at another building that’s a half a mile away. And you could take the shuttle over but you decide, I'm gonna walk because the health insurance plan that you’re on [BELL TONE] gives you bonus points if you walk like more than a mile each day, and we can sense that easily, you know, through your digital shoes. And if you get your heart rate up [BELL TONE] above a certain, a certain amount, then you get more bonus points from your health insurance company. So then you’re going shopping on the way home, and man, this is like a place you can get a lot of points, and it’s really complicated so you let your like your app figure it out. It like looks at all the point systems you have, it looks at what you want and then it tells you which ones to buy [BELL TONE] in order to get, ooh, wow, a lot of points, just because I make good choices shopping. And then you get home and your daughter’s like, oh, I got my report card. And you’re like [BELL TONE] oh, good job. I mean, you’re getting 2,000 points from the state for getting’ such good grades, and [BELL TONE] [LAUGHS] you’re getting 5,000 as a parent from the Obama bonus for the good parenting bonus, which you’re excited ‘cause you can use that as tax relief. And then you say, hey, wait a minute, wait a minute, did you practice your piano? And she’s like, yeah, I practiced my piano. Well, what score did you get? It’s like, oh, well, I got 150,000. A hundred and fifty thousand, that’s the best you've ever had on that particular [BELL TONE] sonata. That’s 9,000 points given by the Arts Council for your scholarship fund, so go you. Right?

Obviously, some of those things may strike some people as "good" and some may strike some people as "bad." But either way, understanding the likelihood of these things coming about is important, and you can see the full (extremely entertaining) video below. In the opening of the video, before he gets into all the stuff above, he talks about Facebook accounts, and things like Farmville, from Zynga, which he describes as "scary." Well, perhaps the scary folks at Zynga watched the video too, and at least thought a little about it in relation to privacy policies. That's because Zynga has revamped their privacy policy to make it a game, called PrivacyVille. Now, I'm on record as saying I think the entire idea of a privacy policy is a failed concept. No one reads them. No one understands that the privacy policy could say "we don't care at all about your privacy." Even those who read them don't know what they mean. It's a joke that makes some "privacy experts" feel good to say that sites need privacy policies.

But, this gets a bit more intriguing, when a company actually tries to give people incentive to not just read, but to understand a privacy policy. I don't think that others will suddenly "gamify" their own privacy policies, but I'm definitely intrigued by the concept of doing something very different with a privacy policy, rather than just what everyone else does.

Update: Or, as pointed out in the comments, it could all end up like this comic....

Filed Under: games, gamification, jesse schell, privacy policy, privacyville
Companies: zynga

Zynga Tries To Trademark 'Ville'

from the there-go-my-plans-for-faceville dept

Back in January, we wrote about Zynga -- who had a reputation for copying the games of lots of other companies, including a blatant copying of the name "Mafia Wars" from another gamemaker (for which Zynga just settled a lawsuit) -- and was now becoming quite the trademark bully itself, specifically going after Blingville, for daring to use the suffix "ville." Zynga has no registered trademark on "ville" (though, in trademark law, you do not necessarily need a registered mark, and can quite frequently get by with a common law mark), but the folks over at Fusible have noticed that Zynga has recently filed for the trademark on "ville" in Europe. The application is to cover three different classifications, including for online computer and electronic games (of course). Once again, this seems pretty extreme. The suffix "ville" is hardly unique to Zynga, and it shouldn't be allowed to monopolize it like this. Hopefully the application is rejected.

Filed Under: trademark, ville
Companies: zynga

Zynga Becoming A Trademark Bully: Threatens Blingville For Daring To Use 'ville'

from the get-over-it dept

Zynga is really building up quite a reputation as a trademark bully lately. The company, which also has a reputation for copying everyone else, got into a legal fight last year after it copied the name of its game Mafia Wars, from another company who had that. The two companies had come to an agreement earlier, which Zynga simply decided to ignore. And now it's stretching its trademark bullying in more ridiculous ways, claiming that no one else can append "ville" to any social media game. It sent a cease & desist to the company that runs Blingville (which has had the domain for many years). Eric Goldman alerts us to the news that the company behind Blingville, has hit back by filing a lawsuit against Zynga (full filing embedded below) asking the court to declare that Blingville doesn't infringe on any Zynga trademark. What I really don't understand is why Zynga is acting this way. It has no reason to be a trademark bully, and doing so only makes the company look petty.

Filed Under: blingville, bully, trademark, ville
Companies: blingville, zynga

Putting 'Game Pieces' Together Online To Win Something Patented; All The Big Social Gaming Companies Sued

from the this-got-a-patent? dept

Someone, who prefers to remain anonymous, sent over the news that a company named Everglades Interactive has sued basically all of the big "social gaming" providers for patent infringement. Among those sued are EA, Playdom, Disney (which just bought Playdom), Zynga, Playfish, Rockyou and Crowdstar. The patent in question? It's patent 6,656,050, for an "odds accelerator for promotional type sweepstakes, games, and contests." If you read the details, it seems like the pretty standard process of taking various sweepstakes involving matching pieces (bottle caps, peel off stickers, etc.) to get certain prizes but moving it online. Of course, once you move such a physical process online, you can do slightly different things since you're not limited by geography and physical distribution. But all that seems like it should be obvious. Not to the patent examiners of course, who judged it patent worthy.

So how do all these social gaming sites infringe?

... by, among other things, making, using, importing, offering for sale, and/or selling products and services that provide game pieces that are applied to a game board at a game site, make information available about the pieces needed to complete a winning combination, allow the player to share or trade the game pieces, and enable the players to easily and securely store game pieces....

Of course, you would think that since pretty much every social gaming system does this, that it would be clear that this was an obvious thing to do if you're building a social gaming system. But, tragically (and ridiculously), that's not how our patent system works.

Filed Under: patents, social gaming, sweepstakes
Companies: disney, ea, playdom, rockyou, zynga

Zynga Trying To Patent Virtual Currency

from the copy-everything dept

Back in September, SF Weekly put out an article pointing out that super popular Facebook gamemaker Zynga's strategy has been to copy anyone else's popular game, change the name, market the hell out of it and take over the market. The company has been famous for its somewhat underhanded tactics over the years. That said, I don't think there's anything wrong with copying what's been successful (within the law, obviously) and trying to improve the overall experience. Where things get questionable is when it seeks to stop others from doing the same thing. We've noted in the past that Zynga has tried using copyright and trademark law to block others from the market, which is pretty sleazy given its own style of creating games.

Now it looks like it may be looking to do the same with patent law as well. Jarrett Streebin points us to an article highlighting a patent application from Zynga that certainly appears to be trying to patent a rather common form of virtual currencies. You can see the full patent application, which (amusingly) was published the day after that SF Weekly article.

Now, this is only a patent application, so one can hope that the USPTO comes to its senses and rejects it (though, it's been approving a lot more lately). However, it's still a pretty questionable move -- especially given that two of Zynga's investors, Brad Feld and Fred Wilson, are some of the most vocal anti-software patent advocates out there. It would be a shame if their money is being used to create more bad patents.

Filed Under: patents, virtual currency
Companies: zynga

Looks Like There May Be More Trademark Fights About Mafia Wars Than There Were Actual Mafia Wars

from the going-to-the-mattresses dept

In February of 2009, we noted that the makers of the popular Facebook game Mob Wars was suing Zynga, the makers of the (also popular) Facebook game Mafia Wars. As we noted at the time, this was a bit silly, since both games were based on a series of other very, very similar games that had come before them. Neither was particularly original. And then, a few months later, Zynga struck out and claimed trademark infringement against another company, Playdom (recently purchased by Disney) for its game Mobsters. Again, this seemed to be a blatant abuse of trademark law to attack a competitor, rather than a legitimate complaint. Either way, Zynga eventually paid up on the first complaint, shelling out an estimated $7 to $9 million.

And now it continues with yet another player. Eric Goldman points us to the news that game maker Digital Chocolate is now suing Zynga for trademark infringement over the name "Mafia Wars," noting that it has actually offered a game called Mafia Wars itself since 2004: Apparently Digital Chocolate complained about Zynga's use of the identical name from early on, and Zynga promised that it would not trademark or claim trademark on "Mafia Wars." Yet, as the complaint against Playdom demonstrated, it absolutely did exactly that, and Digital Chocolate is not at all pleased:

Digital Chocolate has repeatedly objected to Zynga's ongoing use of the MAFIA WARS mark, but despite Digital Chocolate's notices and demands, Zynga has persisted in offering its game under the MAFIA WARS mark. Although in May 2009 Zynga expressly assured Digital Chocolate, in writing, that "Zynga does not claim trademark rights in MAFIA WARS," just two months later Zynga filed an application with the United States Patent and Trademark Office ("USPTO") seeking to register MAFIA WARS as its trademark. Despite being on notice of Digital Chocolate's senior rights and infringement claim, Zynga repeatedly misrepresented to the USPTO that no other entity owned or claimed rights in the MAFIA WARS mark.

Through duplicity and bad faith, Zynga has effectively hijacked the MAFIA WARS mark from Digital Chocolate and is aggressively marketing its games under the MAFIA WARS mark to Digital Chocolate's substantial detriment. To protect its intellectual property rights and prevent Zynga from benefitting from its wrongful conduct, Digital Chocolate has initiated this action.

The complaint certainly doesn't make Zynga look good, though the company has always had a really nasty reputation when it comes to its business practices. Still, it's really amazing how many legal fights there can be over a game like Mafia Wars, with such a generic name, and based on a concept that was around in other games for ages. Either way, given the pretty clear evidence that Digital Chocolate was first in this market, and Zynga's questionable statements claiming that it was first, I'd be surprised if Zynga doesn't end up handing over a large check to Digital Chocolate at some point soon. Considering that (unlike the other disputes), Digital Chocolate clearly was using the identical name, and offering a similar game, this seems like one trademark dispute that actually does involve a legitimate "likelihood of confusion."

Filed Under: mafia wars, trademark
Companies: digital chocolate, playdom, zynga

Blaming Users When You Screw Up

from the not-cool dept

We're always amazed when we see companies blame their users for their own screwups. The latest company to do this, as reported on TechCrunch, is Zynga, who gave out some codes to certain users for $120 worth of in-game currency in one of its games if those users moved off of one social networking platform to another. However, Zynga didn't take the most basic technical precautions to stop anyone and everyone from using the codes. So, of course, anyone and everyone started using the codes. These things happen and even though it's embarrassing, the company can just turn off the code and get on with life. Instead, it not only rolled back user accounts, deleting lots of things many had done, but also tried to blame them for "exploiting" their system:

Attention:

Our records indicate you have redeemed Rewards Points using an exploit. Please note that future use of exploits may result in disciplinary actions, up to and including the permanent banning of your account.

We will keep your account active at this point, but have rolled back your account to 06/08/2010, the date prior to the redemption of these unauthorized Reward Points.

It wasn't an exploit, it was poor programming on the part of Zynga. With a company like Zynga that has so many users, I'm sure it doesn't really care that some are quite pissed off, but at some point, the company may realize that cavalierly blaming users for their own mistakes can come back to haunt them in a big way.

Filed Under: blame, users
Companies: zynga

Zynga Threatens Mafia Wars Auto Play Script Over Copyright Violations...

from the but-what-copyright? dept

I have to admit to massive disappointment with Zynga. The company who was founded by and invested in by folks who I tend to think are rather "clueful" has been involved in all sorts of questionable activity, from virtual goods scams to ridiculous trademark lawsuits against competitors. The latest, sent in by reader Eric, is a case where it looks like Zynga is really stretching copyright law as well. Specifically, Zynga has sent a cease & desist to the folks who make an autoplayer script called Mafia Wars Auto Player. MWAP appears to do what you would expect: which is allow a player who has installed it in his or her Firefox browser (it's a Greasemonkey userscript) to "autoplay" the game Mafia Wars based on parameters set in the tool. Seems pretty straightforward.

Now, Mafia Wars bans the use of such scripts in its terms of service, and has apparently been known to ban users caught using such scripts. I don't quite understand why this is a big deal (admittedly, I don't play the game, but I don't see how this is different than if a player sat there and played repetitively themselves), but if Zynga wants to ban players, so be it. But what isn't clear at all is how the makers of this userscript are violating Zynga's copyright. You can look at the full source code of the user script here, and I'm at a loss to see where the copyright violation occurs. I can understand that Zynga doesn't like that this userscript exists, but I'm not clear how "we don't like it" means "it infringes our copyright." Instead, it has the feeling of a (now) big company using the threat of copyright law to try to push a small community to shut down. And, it appears to have worked, as the MWAP people have decided to comply with the C&D rather than fight it.

Filed Under: copyright, mafia wars, threats
Companies: zynga

Virtual Goods, Scams, Investigative Reporting And The Media

from the all-in-one-package dept

For many years, we've been quite skeptical of any business model in virtual worlds/social networks that rely on "buying virtual goods." That's because these are all based on artificial scarcities, and as we all know (hopefully, by now), relying on artificial scarcities for a business model is incredibly risky, especially once people realize the scarcities are artificial. And yet, over the past few years, a number of businesses have been built on this very premise. In fact, Silicon Valley is crawling these days with businesses built on selling virtual goods, and if you talk to many VCs about it, you'll quickly note that they're positively giddy over the fact that people are paying for this stuff. What they don't seem to realize is that it's unlikely to last.

In the last couple weeks, Mike Arrington, over at TechCrunch, did an amazing job calling attention to the widely known, but rarely discussed in polite company, dark underbelly to most of those business models: quite a large part of their revenue is based on scammy offers that effectively trick unsophisticated purchasers (often kids) into signing up for expensive subscriptions to things they don't want. I was at an investor "roundtable" a couple months ago, which was mostly bankers in suits, and they were laughing about just how gullible people are on these things, and it's great to see TechCrunch exposing them, and pushing the worst abusers to clean up their act. Of course, even when some, like Zynga, claim to be cleaning up their act, Arrington was able to dig up a video where Zynga's CEO proudly talked about the scammy tactics he used -- and then noted that these same scammy tactics showed right back up on Zynga, after the company promised they were gone. Those who use these kinds of tactics may find that while they "bring revenue now," it may be short-lived. Companies that focus on such abusive tactics live to regret it (just ask RealNetworks).

But, the really amazing thing, as pointed out by Dan Lyons/Fake Steve Jobs, in an amazingly un-Fake-Steve-Jobs-like rant, is to compare the series of writeups by Arrington with the love letter to Zynga and other "virtual goods" companies in the NY Times, which came out after most of Arrington's posts, and makes no mention of them at all. As Lyons/FSJ notes:

So: they walked into this shit-storm and somehow, by some miracle, managed not to notice the fecal matter flying all around them. It's like covering a football game that took place in the middle of the blizzard and neglecting to mention the weather.

Now, maybe they did all the reporting before Arrington's stuff broke. In which case they should have gone back and updated their info. Or maybe, just maybe, Zynga's PR people teed up a Times story as a kind of rebuttal to what Arrington was reporting. Either way, that's what ended up happening: Zynga used the Times to deflect the bad shit flying at them from Arrington. They need good press because they're hoping to cash out by going public next year. That story in the Times will be worth millions. Many millions.

Meanwhile, Arrington, still digging, blasted again on Saturday night, reporting that sleazy ads had popped up again on Zynga, despite promises that they would be taken down.

Um, New York Times? If you guys are still wondering why people are dropping their subscriptions and getting their news from blogs instead of you -- this is why.

After which, Lyons/FSJ notes:

And to all those people who go around wringing their hands and saying what are we going to do when the "real newspapers" all die and we have to get our news from Gawker and HuffPo and TechCrunch? Friends, I think we're going to be just fine.... What really cracks me up is how often I still hear people say that bloggers are mere "aggregators" and the "real journalism" gets done at places like the Times. Because time after time, blogs are simply beating the shit out of the newspapers. They're the ones who still dare to go for the throat, while their counterparts at big newspapers just keep reaching for the shrimp cocktail.

Of course, there's just a bit of irony in noting that Dan Lyons wrote one of the quintessential blog bashing articles four years ago, when he was writing for Forbes, at one point suggesting that blogger "journalists" were no different than notorious (NY Times) maker-up-of-stories, Jayson Blair. Nice to see he's coming around to recognizing things perhaps aren't so bad in the blog world.

Filed Under: bloggers, dan lyons, media, michael arrington, offers, reporting, scams, virtual goods
Companies: offerpal, techcrunch, zynga