Disclaimer: While the following can be used as a rough guide to how the law works, you should always talk to a lawyer individually about your specific situation.
Game where blocks fall, and call it Tetris what will happen to me? Thomas Franklin - Maybe nothing. He would want to know, is that copyrighted, is name trademarked, do they have patents? If you are riding on coattails you always have potential prob. Ben Oelsner - How many have interacted with attorney - about 1/3, about 1/4 know about area. Thomas Franklin - Write categories on board Intellectual Capital Tools -- Trade Secrets, Copyrights, Trademarks, Right of Publicity, Patents Ben Oelsner - If you wrote code all on your own, you are probably okay, unless they have a patent. Patent protects idea, if you have patent it is unique that nobody thought of before. Diff from copyright which is expression of idea
Familiar with everything but Trade Secrets, what are those? Jason Haislmaier - High level, it is something that is maintained in secret and provides advantage to your company. VERY BROAD. Broadest area in IP. NDA, Employment Agreements protect this. Ben Oelsner - Things we develop will be covered under multiple categories, copyrightable, and has trademark Thomas Frey - Ex. of TS - Ball type head IBM made had a process to attach metal to typing element, guards protected it. Thomas Franklin - Generally TS you have to have a strategy for protecting stuff, start with TS because it is cheaper (no lawyers). If it goes in shipped product, probably not a TS, however manufacturing process could be. Employees are mobile, weakens TS.
If you have TS how do you protect Ben Oelsner - Copyright, must have expression in tangible form, magnetic or optical. Source code is TS because you don't want to give out through copyright portion. To copyright, you disclose first and last few pages. Trademark are protected by using term in commerce. Get protection from using it, identify and distinguish if you register it. Jason Haislmaier - Patents are different because no rights unless you file and register it. Once have, you have exclusive rights 20 years from date of filing application. US Patent provides rights only within US, must have foreign patent. Ben Oelsner - Question about Scrabble, there is a patent for Scrabble Thomas Franklin - Duration of property rights, TS is good forever as long as it is secret. Copyright lasts a long but finite amount 95 years corporation, or life +70 years. TM never expires. Patents 20 years from file.
Catch-22 when you are small, to get patent you have to have money to register it and research it. For startups it isn't always worthwhile for filing patents, etc? Thomas Frey - Right, If people don't plan on making money, then it doesn't make sense to get it. If not willing to file infringement lawsuit, money resources, then it doesn't make sense.
Should file patents in foreign? Thomas Frey - US is plenty big, if you exploit it, you should be okay. For foreign have to be willing to file and defend. Typically file a provisional patent, lasts 1 year to come up with enough money to go all the way. Many people do everything right, and make it too difficult for themselves. Thomas Franklin - There are big companies, and large companies. IP may help you get there but costs lots of $$$. What would large company do? Make sure that each product has 20 patents on product. File lots of patents, shotgun approach. Small companies don't have that luxury, need to have 'silver bullets', research well, start with provisional patents. It is a lot of money, but best money spent if you want to be big. Jason Haislmaier - If you want to file, how do you do that as a small business? One method is boot-strapping, use what you have, provide services related to your invention, where that will get you closer to fully developing invention, or to fund your IP strategy. If you publicly disclose your product, you must patent it within 1 year.
Suppose big guy comes after you? Thomas Franklin - You are out of business, and they usually know that. For a certain amount of time you are under radar, and they don't want to mess until you make money. Thomas Franklin - 5 Million to sue or win on a patent case. Not going to do that to everybody. Thomas Frey - Recent innovation - patent insurance, $5000 / year for insuring patent. Doesn't know personal experience, but designed to balance scale with little guy. Thomas Franklin - Intially you are judgement proof, become LLC so that business entity gets damages, but not you personally. (Company goes, but you don't). Use that time to get plan together for if you are successfully.
Corporate veil can be broken? Jason Haislmaier - A corporation operated through LLC, creating second entity that owns everything, and that is what would be infringing property, and that is what is attacked. Unless they draw the line of liability back to you, if you keep corporation formalities, you should be okay.
If you register a Federal Trademark, what protection does that give against foreigners? Ben Oelsner - Federal registration will not protect you outside of the US, EU has one, each country has its own system. Cost of getting trademark $1500 - $2000 - $5000 to get it completed. About 1 year. The way it works, you apply for a term.
With related trademarks, provide? Ben Oelsner - Trademarks have spectre of stuff. "Championship Spades" is descriptive enough.
How do you create a product line such as Championship .X? Ben Oelsner - Registering one will help with others, you can create a family of marks. Protection comes from protection. TM - non-registered TradeMark (R) is registered. Most of money for protection comes from marketing it. Thomas Franklin - Can get Trademark for house brand, such as QwestX If you have use in all states, you should be okay. If you register, it provides notice to others that you have it. Jason Haislmaier - It's all about use, likelihood of confusion. As the use of games proliferates, they become synonomous with your company. If I use Coca-Cola, anything will be confused with them. Ben Oelsner - TM's are your right to use it, and your right to keep others from using it. More people using mark, the weaker it is. Your field of use is very broad. When you pick mark, keep this in mind. Who will come after me? Do I want to go after others? Thomas Franklin - uspto.gov you can search federal register. Look at category you are dealing with. Class 9 hardware/software or services (38,42) Don't ride on someone else's coattails. That gives likelihood of confusion. Name that means nothing (Xerox, DOW, etc.)
Small Games Cartoons, etc. What should be the copyright, what about year? Ben Oelsner - Everything you publish, you should but (C) copyright YEAR, owner. Put people on notice that it is copyrighted, if it is updated, you should put year-year.
Should I go 97-2002 if not updated? Ben Oelsner - No, you only copyright for a particular time, if it is modified then you should update it because it is a separate work with the date range.
All Rights Reserved? Ben Oelsner - Funny, comes from South American treaty, says you cannot protect unless you put that down. Now it doesn't make much difference, but why not? Most countries under treaties agreeing on copyright. In the US you probably can go after someone in France.
How things are infringed. You get exclusive rights. Patent - very broad, keep people from using technology. Copyright - no copy, distributed, modified. Someone has to do something to it to infringe on your copyright. Does not protect ideas, create same game as long as you use your own code, you are okay per copyright. Thomas Franklin - One thing to remember. Does not give you the right to produce anything. If you make a derivative game, you still may not be able to produce it, even if you have a copyright, patent, etc. Jason Haislmaier - Might not be able to produce without permission.
What if you want to get permission? Thomas Franklin - First step is who are the rights holder? Who claims it? Ben Oelsner - Don't copy someone else's work. Jason Haislmaier - Could be something else like sound samples, film, stills, etc. Often the rights for audio are through large organizations. Ben Oelsner - Music is different because royalties that the government has set. Thomas Franklin - Research rights to make sure that people own it. eg. Go Fish has been around for long enough. Patent from 54 has expired, so you can copy 100%. Ben Oelsner - Where you run into problems is where you hit TM issues. You can use Scrabble, however you can't call it the same thing as Scrabble, or anything similar. TM rights last forever. Thomas Franklin - Copyright is emodiment of expression. "Clean room development" of Intel chip. Doesn't talk about implementation, that follows rules, but not from Thomas Franklin - Yacht, Yahtzee, Yacht is too close to Yahtzee to use, even though you can use the same rules. Poker DIce could be the same. Rules are not protectable, in most cases. Won't have a copyright issues, however you may have a Patent issue. Courts have said business methods are patentable. US is a use-based country. everything based on use. Other countries aren't, sort of like cyber-squatting. eg. China, make a couple token sales, register the name, and then you have it period. Jason Haislmaier - Another is the intent to use Trademark application. You only have to have an intent to use it, but you don't have to already be using it. Thomas Franklin - New rules have made it so that you cannot really cyber-squat effectively Jason Haislmaier - Be careful if you pre-register because people will search those to see what competitors are doing.
If you write code, and company dissolves, what issues are there for using that code? Ben Oelsner - The way lots of things work. If you are employee, anything that is copyrightable, everything is owned by company. If you are a contractor, it is yours unless assigned to them. You can re-write the code yourself in most cases. Companies can't keep you from using anything in your head. Thomas Franklin - Don't leave with your laptop full of source-code. Beyond that it goes down to individual state law. Can you use what is in your head or does the company have it?
If company no longer exists? Thomas Franklin - Talk to a bankruptcy lawyer.
How can you make a game without copying someone's game mechanic? Ben Oelsner - Fairy Tale example. You can have one kind of fairy tale that is same type of tale over and over again. You can never be truly sure that there isn't something there, however if you are creating it on your own, you are PROBABLY okay. Don't get too hung up on this stuff. If it doesn't look or work like someone else's stuff, then your risk is very low. Thomas Frey - Every famous person in all of history was a rule-breaker. How much of a rule-breaker do you want to be, but don't just break all rules? Jason Haislmaier - You will always take risks on company side, or client side regardless. You should understand the risks that you are taking. What rights do you have on the parts that aren't yours? If you are an employee, what do you have that you think is yours? You should disclose that at the beginning. You want to mitigate your risks as much as you can. Thomas Franklin - Design a strategy that fits your situation. Don't do "everything right" get out a product that people like, instead of making sure everything is "legally correct" Still you must listen to attorneys, and sometimes you have to deal with it. When you are starting a business, meet with an attorney. Thomas Frey - Put in perspective. Who is a famous inventor within the past 10 years? Can't really think of anyone. In last century, inventors had more clout than companies, this means that now companies have everything, inventors have less drive, and less ownership in their inventions. Odds of being successful on a patent is very slim. only 2% make money ever. Need to be realistic about their patent and their inventions. To make a successful product, you must tell them about it, many, many times. Ben Oelsner - He makes everyone paranoid. Has client with great idea, have a patent application out, need to work NDA carefully. Basically, there is a flipside. Don't get too paranoid, but don't give everything away. Thomas Franklin - Created to solve a problem. Industrial revolution, ideas could be kept forever. Patent combats that.
If creating a game for a big company, as a contractor, create own idea who owns it? Thomas Franklin - Company may require license of anything that you create while working for them. Otherwise if it is patentable, you do have a patent right to use against them. Not for that particular product, because that will almost definitely be part of your work contract with them. Jason Haislmaier - You can do this to anticipate the direction they are going in. Thomas Frey - Asymmetrical economics. You are at a disadvantage vs. other entities. ie you vs. car dealer, you vs. Nintendo, etc. This is why you hire people who do know.
What about parody, how close to the line can you get? Ben Oelsner - Make sure that it is a parody, not a satire. Parody is when you are making fun of the original. Satire is making fun of something else in the same manner. Parody is a fair-use exemption to copyright. ie you can't use Mickey Mouse to make fun of something, however you can change Mickey to make fun of him (although Disney will probably still come after you :)
First ammendment protects your right to comment about things, but not how far you can go. Commercial speech is not as protected. Jason Haislmaier - eg Using parody of Mickey Mouse to make fun of something Disney did, vs. using it to sell your software.
What about 'dumb' patents? Thomas Franklin - When you enforce a patent, go after weak people, or go after strong, or everyone, etc. In most circumstances you are probably under radar. Once you are aware of a patent, you can suffer from treble damages, and lawyer's fees. For a silly one like British Telecom wait until someone else takes care of it. Jason Haislmaier - Standards, JPEG, MPEG, etc. usually put together an IP pool, this usually means they agree not to go after others helping to design the standard. Perhaps you can participate in the standard.
How does fair-use affect people? Jason Haislmaier - Depending on who you talk to, Intellectual Commons is no more. Open Source software however is an example. As soon as you create something you have a copyright. OpenSource is where you say that if you agree to keep it open, then I will keep mine open. Thomas Franklin - Tricky issues where people want OpenSource, but want to have something to fall back on. Ogg Vorbis is copyright free, however it could have problems with patents.
At what point can you call it abusive process and counter-sue? Thomas Franklin - Attorneys have a high ethical code, they cannot lie, cheat, or steal. If he believes a patent is invalid, he cannot assert it. Typically it is in a grey area. If you found they truly knew it was invalid and asserted it can be fought. Still, this is expensive. Thomas Frey - Is the patent system fair? No, it radically favors the people who have money. Ben Oelsner - You can go through this stuff, but you can't prevent them from suing you. How can you stay off of the radar screen? What do you do when you do get sued? Usually it is better to keep from being sued in the first place. Thomas Franklin - Partner up with 800-lb gorilla, but if you work with them, they probably won't sue you. Jason Haislmaier - There are far more 15-300lb gorillas then there are 1600 lb gorillas. Most companies just want to grow their business, not squash others. Position yourself accordingly.
A lot of games let users bring content into the game. Where is your liability for the users? Ben Oelsner - Concept called contributory infringement. May apply. Do you let them insert content without restrictions? Thomas Franklin - You can have them idemnify you by clicking through agreement that says they are liable for their creations. Jason Haislmaier - You may fall into the ISP type provision for the DMCA. This might limit your liability. Thomas Franklin - Setup business right so you aren't liable, rather the company is. Ben Oelsner - If someone is doing something wrong on your network, you will usually get a letter about it, and you assess and then decide to act based on that.
