How Video Game Mods Are Changing the Intellectual Property Game

Jeffrey N. Rosenthal and Ethan M. Simon

A year ago, the word “fortnight” was relegated to relative obscurity—an archaic way of saying two weeks. In July 2017, however, all that changed. After software developer Epic Games released the blockbuster video game Fortnite Battle Royale—a multi-platform, free-to-play game in which players participate in a cartoonish fight for survival in a post-apocalyptic world—the word “Fortnite” can now be heard everywhere.

Unlike other free games, Fortnite does not include ads; rather, to generate revenue it relies solely on in-game purchases from players to customize their avatar’s appearance (called “skins”) with no other qualitative enhancements. Despite its simple premise and novel business model, Fortnite has been an overwhelming success—boasting 45 million players as of February 2018. USA Today recently reported that in May 2018 alone, Fortnite earned over $318 million, with over $837 million in revenue in the last three months. According to Forbes, the game now earns $1 million a day just on mobile devices. Continue reading “How Video Game Mods Are Changing the Intellectual Property Game”

Loot Boxes in Videogames: Gambling by Any Other Name?

Jeffrey N. Rosenthal and Ethan M. Simon

To quote classicist author Edith Hamilton from her book The Roman Way to Western Civilization, “The comedy of each age holds up a mirror to the people of that age, a mirror that is unique.”  Nowhere is that statement truer than when discussing the comedic genius of the hit animated television series South Park, now approaching its twenty-second season.

In its 2006 Primetime Emmy Award-winning episode “Make Love, Not Warcraft,” South Park delved into video gamers’ obsession with the wildly-popular PC game World of Warcraft.  One of the show’s plotlines focused on a player whose in-game character had become so powerful the game’s developer had to devise a way to stop him.  The developer’s solution: give another player the legendary “Sword of a Thousand Truths,” a unique item that might even the odds.

Eight years later, South Park lambasted so-called “freemium” games in its Primetime Emmy Award-nominated episode “Freemium Isn’t Free.”  This episode, too, took a hard look at gaming culture, paying particular attention to “freemium games”—in which players can play a videogame for free, but to obtain certain desirable upgrades or items they must pay real-world money.  In this episode, an eight-year-old character spent thousands of dollars on freemium upgrades, much to his father’s chagrin.

Not surprisingly, South Park’s observations about videogame culture were right: gamers will place a premium on certain virtual items, and are eager to spend big money to get them.

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“Loot Boxes in Videogames: Gambling by Any Other Name?” by Jeffrey N. Rosenthal and Ethan M. Simon was published in The Legal Intelligencer on April 24, 2018.

Supreme Court Restricts Venue in Patent Infringement Cases

Christopher K. Hu

On May 22, 2017, the United States Supreme Court issued an 8-0 decision, which will have a significant impact on the number of patent infringement cases filed in districts in States in which large or technology-based companies, or other frequent targets of patent litigation, are incorporated. This includes New Jersey, Delaware, California, and Illinois.

The patent infringement litigation venue statute, 28 U.S.C. 1400(b), provides that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has regular and established place of business.” In TC Heartland v. Kraft Foods Group Brands, No. 16-341, 581 U.S. __(2017), the Supreme Court held that for purposes of 28 U.S.C. § 1400(b), as applied to domestic corporations, “‘reside[nce]’ in § 1400(b) refers only to the State of incorporation.” Continue reading “Supreme Court Restricts Venue in Patent Infringement Cases”