Briefing note on the OFT’s Principles for online and app-based games

Recent updates to consumer protection regulations may change the way web and mobile applications are monetized in the United Kingdom.  Developers, particularly those developing promotional or paid-for content directed toward children, may want to know about how UK regulators are ensuring content is transparent, accurate, and fair to consumers.

We are pleased to share an article written by Bird & Bird’s Media team titled “Briefing note on the OFT’s Principles for online and app-based games,” available here.  The article provides a wealth of practical and sophisticated advice for online and app-based game developers and publishers.

IRS Says Bitcoin Isn’t Money

On March 25, 2014 the IRS issued Notice 2014-21, which describes how the IRS will interpret existing general tax principles to apply to transactions using “virtual currencies” such as Bitcoin. This Notice is the most recent in a line of similar regulatory pronouncements issued by several governmental actors such as the Government Accountability Office’s report in May of last year and the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) Guidance memorandum issued March 18, 2013.

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Bargaining with the Little Green Robot: Understanding the Google Play Developer Distribution Agreement [1]

This blog entry, which focuses on the Google Play Developer Distribution Agreement, is the first of two articles geared at helping app developers understand the fine print of the agreements they are asked to enter into with the companies that distribute their products. Following later this year, the second installment will focus on the iOS Program Developer Program License Agreement.

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Kid Gamers: Safe Harbors for Video Game Providers

As online social gaming becomes more pervasive in the lives of children today, it is vital for video game providers to understand and comply with the Children’s Online Privacy Protection Act Rule (“COPPA Rule”).[1]  The COPPA Rule applies to websites or online services directed to children under 13 years of age, and to operators of websites or online services that have actual knowledge that they are collecting personal information online from children under 13 (“operators”).  It requires them to provide notice to parents and obtain verifiable parental consent before collecting, using, or disclosing personal information from children under the age of 13.[2]  It also requires them to keep the information they collect from children secure, and prohibits them from conditioning a child’s participation in activities on the collection of more personal information than is reasonably necessary to participate in those activities.[3]

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Bitcoins and Liability in the Wake of Recent Silk Road Arrests

Last week’s arrests[1] of Robert Faiella, an alleged seller on online marketplace Silk Road, and Charlie Shrem, the CEO of the startup BitInstant, marked a recent round in a series of law enforcement actions against what the government characterizes as a “rise in criminal activity”[2] by people using the cryptographically-controlled digital currency, Bitcoin.[3]  The arrests of Shrem and Faiella occurred nearly contemporaneously with hearings by the New York Department of Financial Services to determine how to regulate Bitcoin in the State of New York.  More than one source has suggested the timing of the arrests may have cast at least some cloud on the New York hearings on regulation of Bitcoin.

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Ninth Circuit Fumbles The Ball In Videogame Likeness Cases

Edited by Ben Mulcahy[1]

Creating a new rule that gives videogames much more limited protection than other expressive works, the Ninth Circuit has ruled that realistically depicting college athletes in videogames showing them doing what they became famous for doing—in this case, playing football—is not sufficiently transformative to avoid a state law right of publicity claim. In In re NCAA Student-Athlete Name & Likeness Licensing Litigation (Keller), 2013 WL 3928293 (9th Cir. July 31, 2013), the court held that Keller, a former college athlete prohibited by NCAA rules from commercializing his name and likeness rights, could pursue a right of publicity claim based on the use of his likeness in a football videogame—a work admittedly protected by the First Amendment—despite the game producer’s assertion of First Amendment defenses. This decision, following on the heels of the May 21, 2013 opinion in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3rd Cir. 2013), which was heavily relied on by the Keller decision, as well as its re-interpretation of precedent in the right of publicity area that had up-to-now been considered well-established, are sure to have unintended consequences extending to branded entertainment and other hybrid contexts where brand messages and creative expression combine.

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An Unreasonable Royalty Rate is No Gaming Matter

The Honorable Judge James L. Robart recently took on the challenging task of determining a reasonable and non-discriminatory (“RAND”) royalty rate for Motorola’s standards-essential patents (“SEP”). Microsoft Corp. v. Motorola, Inc., 2013 U.S. Dist. LEXIS 60233, No. C10-11823 (W.D. Wash. Apr. 25, 2013). This decision comes after a two-year patent war between Microsoft and Motorola. In November 2010, Microsoft filed a breach of contract suit, alleging Motorola breached its obligation to license its SEP at a RAND rate.

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California AG to Begin Enforcing Privacy Law Against App Developers – $2500-per-Download Fines

Mobile app developers must now conspicuously post and follow privacy policies just like websites and other commercial online services according to California Attorney General Kamala Harris. On October 30, the Attorney General’s office began sending warning letters to app developers notifying them that they had 30 days to comply. Time is now up. And the consequences are potentially substantial with the law carrying fines of up to $2,500 per download.

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Game On!

As companies are presented with the ever-challenging goal of achieving and maintaining brand recognition, many fashion companies are now attempting to engage consumers in both the real and virtual worlds. Gaming represents one non-traditional avenue that has undergone recent growth, as brands find value in connecting with existing and potential consumers through interactive online means.

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