EA Sued For Shutting Down Online Games Too Quickly

from the shall-we-play-a-game? dept

Electronics Arts continues to suffer from a case of fans-hate-us-itis. Wonderfully hilarious mishaps like the SimCity debacle, calling their critics homophobes, and simply shutting down social media games without refunding the money for in-app purchases culminated in the game publisher obtaining the coveted Worst Company In America award...again. With all that having happened in the last year or so, executives at EA are probably thinking the same thing I think when I wake up on the bathroom floor at 4am on a Sunday with the dog looking at me like she's trying to figure out if I'm dead or not: surely this is rock bottom and it can only get better from here.

Well, no it can't. Not for me and not for EA either, now that a federal class action suit has been filed against the company for falsely suggesting in the marketing for their EA Sports titles that online play would last a lot longer than it actually does.

Justin Bassett claims he bought several sports-themed games for Xbox 360 for about $59.99 each, relying on Electronic Arts' representation that the games were enabled for unlimited, online play. But the games were available for only a limited time, he says.

"Had plaintiff known at the time that he would not be able to play the products online for a certain amount of time, he would not have purchased the products or paid the price he paid for the products," Bassett claims.

Now, I don't know if it counts as a conflict of interest that I play a ton of sports games and also find it massively annoying when I can't beat 14 year old Russian children anymore because EA shut down the servers, but I figured I'd disclose that anyway. The fact is that marketing material for these games at the very least gives no indication for how long EA will allow online play and at worst vaguely insinuates that there is no predetermined time limit. Certainly most owners of sports titles don't purchase them every single year, so a time limit of a calendar year seems ridiculous sans a strong indicator that that's the plan. As such, the suit alleges a host of wrong-doings.

"Consumers frequently rely on labels in making purchase decisions. Here, plaintiff and the other class members reasonably relied to their detriment on defendant's misleading representations and omissions. Defendant's misleading affirmative statements about the capability of online play for the products obscured the material fact that defendant failed to disclose about the limited nature of its online support for the products."

Bennett seeks compensatory, statutory and punitive damages for consumer law violations, false advertising, unfair competition, and breach of warranty.

Nobody is suggesting that EA has to keep their online play servers going indefinitely, but reasonable should mean reasonable. There may be some folks out there that buy Madden every year, but most do not. They update their rosters, either on their own or with help, and keep playing that title for 2-4 years. Is a 3 year online play window really unreasonable? And if they weren't going to support online play for that long, shouldn't EA disclose that in their advertising and/or packaging?

Filed Under: expectations, lawsuits, online games

Myriad Mocks Supreme Court's Ruling On Gene Patents; Sues New Competitors Doing Breast Cancer Tests

from the chutzpah dept

Remember how, just a month ago, the Supreme Court had struck down gene patents in the Myriad case? If you don't recall, Myriad claimed, effectively, to have patented the isolated BRCA1 and BRCA2 genes, which are indicators of a likelihood for developing breast cancer. As such, they blocked anyone else from doing tests to find those two genes, and charged a whopping $4,000 or so for anyone who wanted the test. The Supreme Court, thankfully, tossed out those claims, noting that Myriad "did not create or alter any of the genetic information" in those genes, and that if found valid, it would "give it the exclusive right to isolate an individual’s BRCA1 and BRCA2 genes." That's obviously crazy, so it was good that the Supreme Court rejected those claims.

Immediately after that, a few competitors jumped into the space, offering BRCA1 and BRCA2 testing -- for significantly lower prices. And, Myriad wasted very little time in suing them all for patent infringement. Huh? The short version is that Myriad claims that the Supreme Court merely removed five total claims out of its patents, and it still has 515 remaining claims across 24 patents -- and these tests violate those:

As of the morning of June 13, 2013, Plaintiffs collectively had 24 patents containing 520 claims concerning two genes (BRCA1 and BRCA2), and methods of use and synthetic compositions of matter related thereto. On June 13, the Supreme Court of the United States ruled that five patent claims covering isolated naturally occurring DNA were not patent-eligible, thereby reducing the overall patent estate to 24 patents and 515 patent claims. This case involves none of those five rejected claims.

The filing goes on to suggest that the Supreme Court ruling really didn't mean very much at all. In many ways, this really does appear to be Myriad giving the middle finger to the Supreme Court. As Tim Lee notes, if Myriad's interpretation of the Supreme Court ruling is correct, then the Court's ruling is effectively meaningless, because Myriad (and anyone else) can effectively write patents for genes by just changing how they structure the patents:

The patent claims the Supreme Court invalidated last month were “composition of matter” claims, covering the chemical structure of the BRCA genes. But Myriad’s patents also have “method” claims covering processes for diagnosing breast cancer. And while these patents use different language than the composition-of-matter patents the high court invalidated, their practical effect on the genetic testing market could be very similar.

Consider Patent 6,951,721, one of the patents cited by Myriad in its lawsuit against competitor Ambry Genetics. It claims the concept of diagnosing breast cancer by “determining the nucleotide sequence of the BRCA1 gene” from a “female individual” and then checking for mutations at specific points on the gene. The patent isn’t limited to any particular technology for isolating or sequencing the patient’s BRCA1 gene. So while it’s not technically a patent on the BRCA1 gene, it might as well be.

Of course, as you look over the details, it seems like Myriad is still going to be in trouble. Effectively, the claims it's relying on may appear to be more similar to a patent on the diagnostic process itself. But, that's a problem for Myriad, because in the big Prometheus Labs case, which the Supreme Court decided a year ago, and which it relied on in the Myriad case itself, medical diagnostics aren't patentable either.

It seems like Myriad is just trying to squeeze some more money out of these patents before it gets smacked down again. Of course, not everyone agrees. Dennis Crouch seems to think they have a "very strong case," while PubPat's outspoken Dan Ravicher feels otherwise:

PubPat director Dan Ravicher, e-mailing Ars from Beijing, described Myriad's new suits as a way to save face with Wall Street. He said the Supreme Court decision was a "total loss" for Myriad, and the synthetic cDNA they are focused on now is not needed for genetic testing. "I am confident they will lose these cases, too, so long as the defendants have the financial resources and institutional desire to fight," said Ravicher.

Of course, it's that last bit that's the challenge. Any such case will take years and millions of dollars. And, during that time some may just choose to settle, and if lower courts side with Myriad and issue injunctions it can be a big risk for the competitors in the space. The end result may work in Myriad's favor even if these cases are completely bogus: it's likely to scare away competitors, and keep the prices of its breast cancer gene tests very high, making it much more likely people will die. I do wonder how Myriad's execs look at themselves in the mirror. There is no reason for doing what they're doing other than to enrich themselves, while ensuring that more women will die from undetected breast cancer. Sickening.

While the FTC has claimed that it's going to go after patent trolls, this seems like another situation where they, along with the DOJ, should also look into Myriad. While it may not be a traditional "troll," there's certainly a strong argument to be made that the company is abusing patents in a manner this is likely to lead to much higher prices for consumers, especially following the Supreme Court rejecting the very premise that they're now relying on in these new lawsuits -- that no one but Myriad can offer tests for BRCA1 and BRCA2. One hopes that the FTC decides to expand its "investigations" into companies like Myriad.

Filed Under: brca1, brca2, breast cancer, cancer, gene patents, lawsuits, patents
Companies: myriad genetics

Woman Sues Plastic Surgeon For $23 Million Because He Put Before/After Pictures Of Her On The Web

from the proportionality-means-something dept

A bunch of folks have sent in variations on the following story involving Catherine Manizone, who had a nose job done a few years ago by plastic surgeon Grigoriy Mashkevich, but who is now suing him for $23 million. You might think that the lawsuit is about the nose job gone wrong. But, no, her complaint is that Dr. Mashkevich put "before" and "after" pictures he took of Manizone online as an example of his work. $23 million? New York does have a relatively strong "publicity rights" law -- which are state based laws that are being increasingly expanded and abused these days. However, at their core, the idea is that people wouldn't be put in advertisements or seen as endorsing a product or service without their permission. So, perhaps there's a small publicity rights claim here, though it would be surprising if Dr. Mashkevich never actually had patients sign a release form for the use of such photos (Update: there is evidence that she signed a form saying the photos were only for her confidential files, so it appears that he did fail to get the proper permission). Of course, even if he failed in that basic step, the idea that having these photos posted online should lead to a $23 million award is just insane.

Equally as ridiculous is the idea that finding these pictures online caused such horrible harm to Manizone and her reputation. In the lawsuit, she explains the "harm" the photos have caused:

Plaintiff has been, is and will continue to be greatly distressed and humiliated, has been, is and will continue to be exposed to public ridicule and contempt; and the plaintiff has been, is and will continue to be greatly injured in her reputation and has been, is and will continue to be otherwise greatly injured.

As Plaintiff's photographs are still available for viewing on the World Wide Web, Plaintiff's damages continue to accrue to date and will continue for an undeterminable period of time.

Of course, there are a few issues with this. First, the surgery happened in January of 2011 "to improve her appearance, self esteem and confidence" but she didn't notice the photos online until February 2013. If she didn't even know the photos were online for two years how could she possibly have been so greatly distressed by the photos online? If they were really causing her to be "exposed to public ridicule and contempt" then, um, wouldn't she have examples of that actually happening?

Second, I'm still trying to figure out why she would have been subject to "public ridicule and contempt" merely for getting a nose job. I mean, I guess it's possible, but wouldn't people who already knew her simply notice the nose job? And would people who didn't know her really care at all?

Finally, and most importantly, it seems likely that filing a highly questionable $23 million lawsuit against your plastic surgeon is a hell of a lot more likely to create public ridicule and contempt than any before and after photos of a nose job. So, will she be suing her lawyer next for being "greatly distressed and humiliated" while being "exposed to public ridicule and contempt" for filing this lawsuit? And, of course, if she was concerned that people would know she got a nose job because of the photos, which even she didn't realize existed for two years, shouldn't someone have pointed out to her that filing a public lawsuit like this would be a hell of a lot more likely to draw attention to the fact that she got a nose job?

Again, if it really is true that he used her images without signed permission, there may be a minor publicity rights issue, but the claims about public ridicule and contempt, along with the idea that the photos created massive damages, just don't make any sense. Combined with the insane request for $23 million, the whole thing really feels a lot more like a money grab than a serious complaint.

Filed Under: catherine manizone, grigoriy mashkevich, lawsuits, privacy, reputation, rights of publicity

Suburban Express Wants Round 3: Re-Files Against Customers

from the leeeeeeeeet's-get-ready-to-rumble! dept

In case you don't recall, Suburban Express is a bus company run by self-proclaimed human being Dennis Toeppen, who is best known for squatting on domains and levying fees against his bus company's customers for, well, everything. Included in that everything is saying mean things about Suburban Express online. That led them to threatening legal action on a Redditor for a sub-reddit about how mind-numbingly prickish the company is. The blow back from those threats, including a cameo by Ken "Popehat" White, revealed 100+ lawsuits Suburban Express had filed against former customers. Blow back having been received, Toeppen promised to drop all of those active suits, which his attorney then did, even as Toeppen continued a creepy campaign against the Redditor, Jeremy Leval.

And now Toeppen is taking decisive action to make sure everyone on the planet knows how petty he is, having hired a new attorney and attempted to reopen all of those previously dropped lawsuits against his own customers.

Well, he's now trying to re-open the lawsuit against the complaining passenger with a new attorney after his previous attorney had the case dismissed with prejudice. And he's trying to intimidate redditors by filing Freedom of Information Act requests with the University of Illinois in an attempt to expose their personal data. Also, he—or someone posing as him—has returned to reddit to trash-talk.

Dennis Toeppen, once a notorious domain-squatter, filed a FOIA request with the University of Ilinois requesting "Any and all communications to which Joel Steinfeldt of Office of Public Affairs is a party which mention, relate, or pertain to to Suburban Express, Matthew Finnicum, Murph Finnicum, or Jeremy Leval, for the period 1/1/2013 to present." A link to the electronic files generated in response to the FOIA request was then posted to reddit.

Oh, Dennis, how the childish never seem to learn. Everyone can rest assured that another round of blow back is on the way, an exodus of customers and potential customers, and all the bad press Toeppen could possibly want. You can't, can't, make a habit of suing large numbers of your own customers. That isn't Business 101, it's Human Being 101. Even more so when you promised, and in fact, did drop all of those cases once already. The internet monkey knows which lever to push to get him to back off again and I expect it to be pushed once more.

Even if this doesn't get the attention of Popehat, and I'll be severely disappointed if it doesn't, we may be seeing the beginning of the end of a business.

Filed Under: dennis toeppen, jeremy leval, lawsuits
Companies: reddit, suburban express

ACLU Sues The Government On Its Own Behalf, As A Verizon Customer, Arguing 4th Amendment Violations

from the to-which-the-feds-will-scream-national-security-and-shut-up dept

There have already been a few lawsuits filed about the various NSA surveillance revelations of the last week, but one to watch closely is the lawsuit filed yesterday by the ACLU on its own behalf. The ACLU frequently represents others, but in this case, it notes that it's a Verizon customer, so the mass sucking up of all phone call records on Verizon directly impacts the ACLU.

"This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens," said Jameel Jaffer, ACLU deputy legal director. "It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy."

The ACLU is a customer of Verizon Business Network Services, which was the recipient of a secret FISA Court order published by The Guardian last week. The order required the company to "turn over on 'an ongoing daily basis' phone call details" such as who calls are placed to and from, and when those calls are made. The lawsuit argues that the government's blanket seizure of and ability to search the ACLU's phone records compromises sensitive information about its work, undermining the organization's ability to engage in legitimate communications with clients, journalists, advocacy partners, and others.

As we had just pointed out, the ACLU lost its case before the Supreme Court on this very subject (the Constitutionality of the FISA Amendments Act) just a few months ago, because the Supreme Court argued that the plaintiffs in that case (Amnesty International) only had speculation that its lawyers had their records monitored. But here, the ACLU rightly points out, it now has the evidence that the ACLU's calls were sucked up in this dragnet.

In other words, this time, there should be no issue of "standing" to deal with.

Of course, the feds will respond the way they normally do in such cases: claiming national security and sovereign immunity. That's what let the feds off the hook on the only other case where evidence of actual monitoring had been leaked, and where the "standing" issue wasn't in dispute. In that case, an appeals court ruled, basically, that the government never actually has to have the Constitutionality of such laws determined in court, because it can claim sovereign immunity to kill off any such lawsuits. If that seems like a crazy result, you'd be correct. That ruling was in the 9th Circuit. This new case is being filed in the Southern District of NY, which is in the Second Circuit. Hopefully, the court rules the other way, setting up a Supreme Court case to resolve the circuit split. Unfortunately, the Supreme Court isn't known for being particularly great at protecting civil liberties lately, so even that may be risky. But, at least there's a chance.

Filed Under: 4th amendment, aclu, lawsuits, nsa, nsa surveillance
Companies: verizon

Kim Dotcom Threatens To Sue Google, Facebook And Twitter Over 2-Factor Authentication Patent If They Don't Help Him

from the hmmm dept

So, a lot of people are talking about Kim Dotcom's latest gambit, which was to point out that he holds a patent (US 6,078,908 and apparently others in 12 other countries as well) that covers the basics of two-factor authentication, with a priority date of April of 1997. While interesting, he goes on to point out that he's never sued over the patent because "I believe in sharing knowledge and ideas for the good of society."

But... he says he may sue them now. Specifically, he's asking them to help fund his defense, in exchange for not getting sued for the patent. He points out that his actual funds are still frozen by the DOJ and (more importantly) that his case actually matters a great deal to Google, Facebook and Twitter, because the eventual ruling will likely set a precedent that may impact them -- especially around the DMCA. That's actually a pretty good reason for the tech industry to think about participating in the case even if they don't like Dotcom at all and don't want to be associated with him. Bad cases make dangerous caselaw, so having a good defense would be useful.

That said, the threat of suing over a patent if they don't fund his defense seems like a potentially poorly thought out strategic move that could backfire. Remember, Dotcom has been hit with racketeering claims, and I would think that anything that implies "give me money or I'll sue" isn't the best move for someone already facing racketeering charges.

Filed Under: copyright, dmca, kim dotcom, lawsuits, patents, threats, two factor authentication
Companies: facebook, google, twitter

Copyright Trolls So Sloppy They Sue The Same Guy Multiple Times

from the i'm-sure-tat's-effective dept

In yet another copyright trolling case, it appears that the trolls are so sloppy that they're suing over the same IP address for sharing the same file (the animated movie, Zambezia) in multiple cases. The story focuses on one guy, who has filed a motion to quash in response, noting that the sloppiness of filing three times raises significant questions about the trolling operation. Either they're incredibly sloppy and not very careful, or they're hoping that by repeating the same IP address in multiple lawsuits, at least one judge will let the subpoena go through, leading to the inevitable demand letter. Either way, it should raise some eyebrows from the court about why anyone would file against the same IP address for the same movie in three different cases.

Filed Under: copyright, copyright trolls, errors, lawsuits, sloppy

Leading Italian Film Producer Calls For $16 Billion Lawsuit Against Italian State For Alleged Inaction Against Piracy

from the good-luck-with-that dept

Last year we wrote about EMI suing the Irish government for having the temerity not to pass a SOPA-Like censorship law. That truly extraordinary sense of entitlement seemed to be a one-off, but The Hollywood Reporter now brings us another (via @LifeinSicily):

Italian producer Aurelio De Laurentiis has proposed a €12.5 billion ($16 billion) class action lawsuit against the Italian state for lost revenue he says movie producers have sustained because the state has done too little to combat piracy.

The justification for that rather significant sum is the following:

"The problem of piracy is very important, and I say we should ask for €12.5 billion in order to obtain at least €2.5 billion [$3.2 billion], the amount we lose each year because of piracy," De Laurentiis said.

There was no explanation of where that €2.5 billion figure came from. According to estimates quoted in Techdirt's "The Sky is Rising 2", gross box office sales for the Italian film industry were €700 million in 2011, so it seems highly unlikely that it is "losing" €2.5 billion each year. It may be significant that De Laurentiis is part of a dynasty of famous Italian film producers who can be justifiably proud of helping to create some of the greatest masterpieces of 20th-century Italian cinema. Perhaps he is still hankering for those good old days when people flocked to see the latest productions from his father and uncle.

But that was then, this is now: the Internet is having a massively disruptive effect on the film industry, just as it is on many others. That doesn't give film producers any entitlement to handouts from the Italian state for sales they claim they might have made. And notice, too, that De Laurentiis is calling for compensation for allegedly lost sales, not lost profits, which might have been minimal.

It's sad that so many in the copyright world apply their creativity to thinking up reasons why they should be protected by governments from the massive changes underway throughout the world, rather than applying that creativity to coming up with new ways of making money. They could do worse than listen to Riccardo Tozzi, president of Italy's audiovisual association, who was the co-host with De Laurentiis of the film industry symposium where the latter made his call for legal action:

Tozzi suggested a different tact: making it easier for people to legally download films, for a fee. "We should balance the threat of illegal downloads with a legal supply of films," he said. "It can be too difficult to download films legally, so there's no good alternative" to piracy.

Sounds easier than suing the Italian government....

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: anti-piracy, aurelio de laurentiis, copyright, italy, lawsuits, piracy

Copyright Troll Malibu Media Seeking 'Six Strikes' Info From Verizon In Lawsuit

from the but-of-course dept

One of the many complaints about the "six strikes" Copyright Alert System (CAS) in the US is the fact that while it doesn't directly lead to litigation, there is nothing in the agreement that prevents copyright holders from seeking out and using information from the six strikes system in copyright infringement lawsuits. And, surprise surprise, it appears that at least one copyright trolling operation has jumped to the front of the line in testing this out. Malibu Media, who was already building up quite the reputation as a copyright troll (not quite Prenda-like, but still up there), is trying to get Verizon to cough up a ton of information, including details from its six strikes system.

As TorrentFreak notes, the list of information demanded via subpoena has been culled down to the following:

• DMCA notices and if applicable six strike notices sent to the applicable subscribers.
• Defendants’ bandwidth usage.
• Information about the (reliability of the) correlation of the IP-Address to the subscriber for purposes of use at trial.
• Content viewed by Defendants to the extent the content is the same show or movie that Plaintiff learned from third-party BitTorrent scanning companies that Defendants also used BitTorrent to download and distribute.

So far, Verizon (who has been one of the better companies in resisting copyright trolls) is objecting to handing over the information and has so far refused to do so, arguing that it does not wish to help "shakedown tactics" by copyright trolls. Malibu is now trying to have the court compel Verizon to cough up the info. Given that we'll likely see more of this, how the court responds should be worth following.

Filed Under: copyright, copyright alert system, copyright troll, information, lawsuits, six strikes
Companies: malibu media, verizon

Surprise: Sony Decides Not To Sue Over Copycat Game; Says Legal Action Wouldn't Be Beneficial

from the you-don't-have-to-sue dept

All too often, when it comes to copying one another, companies seem to feel that they have to sue. In fact, there are times when we see copyright and patent holders bizarrely claim that not suing is not an option. So here's a bit of a surprise. A. Yeh points us to a story of a Korean company, Netmarble, who produced a game called Everybody Cha Cha Cha, which some claimed was a pretty close copy of a Sony min-game called Everybody's Stress Buster. To be clear, the two games do seem pretty similar... but also seem to use pretty standard driving game mechanics found in tons of games throughout the history of video games. You can see the two in this video. Stress Buster is on top, Cha Cha Cha on the bottom. Sony did initially cry foul at this copying, leading NetMarble to (amusingly) claim that Sony was trying to piggyback on its success. Of course, after that NetMarble then started adding a bunch of other features to its game to further distinguish it from the Sony game. Oh look, competition spurring innovation.

Either way, in the end, Sony decided not to pursue any sort of legal response. While it still uses some slightly menacing language about how this doesn't mean they've settled, Sony admits that any "prolonged controversy" over this wouldn't be beneficial for the mobile game development community.

According to ET News and This Is Game, Sony told the Korean media that it did not want to "hamper" the mobile gaming industry in Korea.

A Sony spokesperson is quoted by This Is Game as saying, "We were concerned that any prolonged controversy such as this is not beneficial for both the local and the international mobile game development community. Internally, we decided not to pursue any legal action as long as no additional problems arise. Some may think it's because we've settled with Netmarble already, but we are simply choosing not to pursue legal action in a broader view/sense. This does not mean we have settled with Netmarble."

That's a fairly enlightened view, actually. It's one that we've suggested in the past, though. Even as it may be frustrating and annoying to have someone copy you, going legal in response often is not the best strategic response. We've urged companies to recognize that fact, and kudos to Sony for holding back on releasing the legal hounds upon realizing the cost-benefit analysis meant it wouldn't be helpful (and would possibly be harmful to the wider community).

Filed Under: copycats, everybody cha cha cha, everybody's stress buster, lawsuits
Companies: netmarble, sony