JOLT Digest

By Tyler Lacey

Gamer Appeals Ban from Sony’s Playstation 3 Network

On September 22, 2009, the United States District Court for the Northern District of California dismissed Erik Estavillo’s lawsuit against Sony. Fox40.com reports that Estavillo was banned from Sony’s Playstation 3 Network after allegedly uttering “racial and homophobic slurs to other online gamers.” Estavillo alleged that his freedom of expression was abridged, and likened Sony’s network to a company town. The district court dismissed Estavillo’s First Amendment claims, stating: “Sony’s Network is not similar to a company town. The Network does not serve a substantial portion of a municipality’s functions, but rather serves solely as a forum for people to interact subject to specific contractual terms.” Estavillo recently appealed the dismissal to the Ninth Circuit and has also filed a second lawsuit against Sony.

German Government Pledges to Protect Online Journalism in Germany with a “New Kind of Copyright”

On October 29, 2009, the New York Times reported that Germany’s governing coalition “has pledged to create a new kind of copyright to protect online journalism” with the goal of “level[ing] the playing field with Internet companies like Google.” German publishers fear that Google may be “exploiting their content to build lucrative businesses without sharing the rewards.” Google aggregates news from many news outlets on its Google News website; however, Google News operates in Europe without collecting any advertising revenue. Although “[d]etails of how the proposal would work have not been spelled out,” analysts believes that the new copyright scheme may allow online journalists to “claim royalties for the use of their content by Google or other online ‘aggregators’ of news.” In support of the new scheme, counsel for the German Newspaper Publishers Association argues that there is “no fundamental right to information for free on the Internet.”

United Kingdom to Crack Down on Online Piracy; Could Lead to Outright Disconnection of Pirates

On October 28, 2009, the BBC reported on new legislation that will come into force in the United Kingdom in April 2010. Although “the details of it would need to be hammered out at European level,” the legislation will impose bandwidth restriction on suspected pirates. If necessary, more restrictions will be introduced in the spring of 2011 that could completely disconnect the suspected pirates from the Internet. The legislation already faces challenge from ISP TalkTalk, which has created a “Don’t Disconnect Us” campaign and threatened litigation. Although the legislation is designed to protect the United Kingdom’s creative content industries, legislators emphasize that the long-term solution is for “the industry to educate users and to offer new and cheaper ways to download content.”

Class Action Seeks Compensation for Use of Likeness of Former NCAA Players

By Ian B. Brooks – Edited by Sarah Sorscher
Class Action Complaint, O’Bannon v. NCAA, No. CV 09-3329 (N.D. Cal. July 21, 2009)
Complaint

Former National Collegiate Athletic Association (NCAA) player Edward C. O’Bannon, Jr. filed a class action lawsuit on behalf of former NCAA student-athletes in the US District Court for the Northern District of California against the NCAA, the Collegiate Licensing Company (CLC), and multiple alleged co-conspirators for unlawful use of class member’s images. The complaint seeks unspecified damages and injunctive relief for violations of the Sherman Act and unjust enrichment of the defendants as well as accounting of licensing revenues. In support of his complaint, O’Bannon cites sources of NCAA licensing of players images for which the players receive no direct compensation including DVDs, rentals of game films, on-demand sales of game footage, cable and network broadcasts of games, photographs, action-figures, posters, and video games. The complaint further seeks injunctive relief on behalf of current students with respect to their rights to control the use of their image and likeness.

Sports Illustrated provides an overview of the case and Projo Sports Blog provides background. Kevin Arnovitz and Rush the Court have weighed in their support in favor of the athletes. (more…)

Governor Schwarzenegger’s Video Game Act Terminated by the Ninth Circuit
By Brittany Blueitt- Edited by Anna Lamut

Video Software Dealers Assoc. v. Schwarzenegger
February 20, 2009, Case No. 07-16620
Opinion

The United States Court of Appeals for the Ninth Circuit affirmed the order of the United States District Court for the Northern District of California, enjoining the enforcement of an Act that imposed a mandatory labeling requirement for all “violent” video games and prohibited the sale of such games to minors. 

The Ninth Circuit held that the Act posed a presumptively invalid content-based restriction on speech in violation of the First Amendment of the United States Constitution. The Ninth Circuit also held that the Act’s labeling requirement constituted unconstitutionally compelled speech because it did not require disclosure of purely factual information, but required the carrying of the State’s opinion as to the nature of the video game.  In so holding, the Court noted that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”

Briefs are available here. 

The Wall Street Journal highlights that the state, in defending the law, argued that violence and sex should be governed by analogous prohibitions: the government can prohibit the sale of explicit pornography to minors, and so it should also be able to limit the sale of ultra-violent video games.

Ars Technica notes that should this case reach the Supreme Court, it is unlikely that the Court will discover anything that the court of appeals failed to notice. 

(more…)