Applications for mobile devices are in their infancy (think of Hollywood in the 1930s). Apple’s App Store is one year old, barely out of diapers, and in that time customers have downloaded more than 1.5 billion applications. More than 65,000 apps populate the store, and the number of developers is growing by the month.  Blackberry entered the game in April with its own App World, already featuring a few thousand apps.  And Android Market – designed for Google’s platform – provides another venue for mobile applications.  There are currently about 6,000 apps available for Android.

Many businesses have recognized that a well-designed app can have benefits on many levels including revenue generation, exposure, access to early-adopter customers, and viral-marketing.  If you are considering this, ensure you have a proper App Development Agreement in place when engaging a developer, and consider intellectual-property ownership, cross-platform concerns and potential trade-mark issues.

Related reading: Apple’s battle over apps

Calgary – 09:00 MST

A Montreal company has been hit with a cease-and-desist letter over its launch of an iPhone app that helps users find the city’s “Bixi bikes”. Bixi is the public-use bicycle system in downtown Montreal. Bixi (contrary to some reports) is not a registered trade-mark, though an application for registration has been filed.

There are many iPhone apps which permit users to schedule or locate public services, such as STM mobile (designed for the Montreal transit system), not to mention similar public transit apps for cities all over the world. Apps which locate private companies are also common, such as apps which pinpoint Starbucks, Tim Horton’s and TD bank locations.

It would be interesting to hear the court’s view on whether the use of Bixi in this form constitutes trade-mark infringement, but the letter appears to have worked. The app site now contains a French-language notice that says “We understand that it was an error (made in good faith) to use the trade-mark Bixi. We hope to work with Stationnement de Montréal and Bixi to find a solution that will respond to your needs.”
Calgary – 13:45 MST

In the (now notorious) Colorado case of InfoMedia, Inc. v. Air-O-Matic Inc. (Court Case Number: 1:09-cv-00302-ZLW), two makers of rival iPhone applications are in a trade-mark battle over the use of the phrase “Pull My Finger” in association with an application for the mobile device. InfoMedia uses the phrase “pull my finger” in its marketing and is seeking a declaration that the phrase is generic when applied to the product, and cannot function to distinguish Air-O-Matic.  Air-O-Matic counters that InfoMedia is riding its coat-tails by using the phrase.  Air-O-Matic has applied for registration of the phrase as a trade-mark, in association with “Computer application software for mobile phones”, though the application is encountering trouble because of the specimen that was filed. (They should have taken a screen-shot from iTunes.) In any event they’re both enjoying some additional press, which may have been the whole point to the dispute in the first place.

Battles between competing iPhone apps will become a feature of the legal landscape, and these cases trace their lineage to the old video-game disputes of the early 1980s:

• Atari Inc. v. Williams, a 1981 case out of California, pitted Atari’s famous Pac-Man against a rival game, Jawbreaker.  The court found that the strategy of the Pac-Man game was not protectable.
• Atari Inc v. Tyrom Inc., a 1982 case, decided that rival “Gobbleman” was infringing in its use of characters and design features; Pac-Man won that round.
• Williams Electronics Inc. vs. Artic International Inc. , a 1982 case over the popular game “Defender”, established important principles in video game copyright infringement cases, and specifically determined that a player’s interaction with a game – such that the player is “creating” or “authoring” new scenes as the game is played – does not detract from the copyright protection afforded the game.

We’ve come a long way from Pac-Man… though 25 years later, that game retains a certain diginity when measured against the “Pull My Finger” fart-simulator.

Calgary – 14:45 MST 

There are virtual lawyers, virtual commerce, virtual brands.  So logically someone has finally opened what purports to be the Second Life Patent and Trademark Office saying: “We allow you to register, protect, and add value to your Second Life creations to protect your intellectual property rights.” 

It is unclear how virtual protection of virtual rights would function in Second Life (let alone First Life).  There have been more real-world disputes over virtual rights, including a real lawsuit  launched a few months ago by virtual business operators Le Cadre Network and others who complain of copyright infringement and passing off within Second Life.  Bear with me here…  The complainants in that suit filed (real) copyright registrations for their (virtual) products in the (real) US Copyright Office.  Maybe they can convince their lawyers to charge virtual legal fees. 

 

Calgary – 11:45 MST

Imagine an outraged citizen who sues the government for confiscating his property. Well that’s essentially what Marc Bragg was doing when he launched his lawsuit against Linden Research, the makers of Second Life for seizing his virtual property within Second Life.  In the US case of Marc Bragg vs Linden Research, Inc., No. 06-4925 (ED Pa. May 30, 2007), the court analyzed the Second Life Terms of Service (TOS), which is the online contract governing the relationship between Linden Research and its customers. Linden tried to use the TOS to force Bragg into binding arbitration in San Francisco. The court decided that the mandatory arbitration provision in the TOS were unenforceable against Bragg for the following reasons:

“Taken together, the lack of mutuality, the costs of arbitration, the forum selection clause, and the confidentiality provision that Linden unilaterally imposes through the TOS demonstrate that the arbitration clause is not designed to provide Second Life participants an effective means of resolving disputes with Linden. Rather, it is a one-sided means which tilts unfairly, in almost all situations, in Linden’s favor.”

Ironically, the success of Second Life counted against it: one of the factors that the court pointed to was the lack of any “reasonably available market alternatives” to Second Life, and particularly Linden’s unique policy of permitting customers to retain intellectual property rights in their virtual creations and other virtual assets.

Linden lost this round, but responded by amending their TOS to provide for a clearer, more flexible arbitration process which defused many of the court’s objections.  This should bolster the enforceability of the TOS in future disputes.  

Another lawsuit was filed last week in Federal Court in New York, claiming damages for copyright infringement, trade-mark infringement and passing off – all of which is alleged to be taking place within Second Life. 

For further information in this interesting area, see the following additional resources:

Blog: Our earlier post

Article: Eight questions to ask before doing business in a virtual world

Paper: Intellectual Property Rights In Virtual Environments: Considering The Rights Of Owners, Programmers And Virtual Avatars

 

Calgary – 10:35 MST

RIM has dealt with its share of intellectual property infringement claims.

In this latest chapter, iconic video-game maker Atari has accused the Blackberry maker of infringing copyright in two video games: Breakout and Asteroid. Both games first went to market in the 1970s. Atari alleges that the copyright in these games was infringed in the creation of RIM’s games BrickBreaker and Meteor Crusher, both of which were created for bored executives on their handhelds…executives who probably used to play Atari’s Breakout in 1977.

Atari’s lawyers issued a series of threats last year, and RIM decided to take the initiative by suing Atari in Ontario in October 2006. Atari quickly registered copyright in the two games and responded by trying to move the case the US.

In an Ontario decision released earlier this month Research in Motion Limited v. Atari Inc., 2007 CanLII 33987 (ON S.C.) Atari suffered a set-back when the court sided with RIM in this initial skirmish. The case will likely proceed and will be interesting to watch.

Calgary -  23:10 MST

In a case involving three computer game makers, a UK Court of Appeal decision (Nova Productions Limited v. Mazooma Games Limited & Others [2007] EWCA Civ 219) has confirmed that the general ideas and structures underlying a computer game do not enjoy copyright protection.  The decision, handed down last week, confirms that as long as the source code and graphics are not copied, the ideas and structures may be copied without infringing copyright. 

The law is very similar in Canada. One of the leading cases analyzing the question of copyright infringement in software is Delrina Corporation v. Triolet Systems Inc., a 2002 Ontario Court of Appeal decision.  Generally, Canadian copyright law is clear that ideas and structures are not protectable by copyright.  To arrive at that conclusion however often requires an exhaustive analysis of the code and the underlying structures.  Courts will consider whether one work is a “substantial” copy of another.  In measuring what is “substantial” the court will disregard elements of the work that either have no originality, are dictated by functional considerations (such as underlying structures) or are otherwise not protectable by copyright (such as ideas).

 

Calgary – 10:32 MST

 

Every once and while a story comes along that seems to capture an essential quality of the times. This is one of those stories: In December, CNET News.com interviewed Second Life entrepreneur Anshe Chung, the virtual identity of real-life entrepreneur Aillin Graef.

The interview took place in CNET’s virtual Second Life studio in front of dozens of virtual audience members. Video taken during the interview was sabotaged by digital hecklers who harrassed both Anshe Chung and her real-life owner, Ailin Graef. Afterward (like any other video taken in the real world), a video of the harrassment was posted on YouTube.  Real-life company Anshe Chung Studios filed a complaint against YouTube, claiming that real-life Graef’s copyright in the virtual character Anshe Chung had been infringed because the images had been used in the video without her permission. YouTube removed the offending video. (Link to story)

A news report in the (real-life) Syndey Morning Herald was also the subject of a complaint by Graef, since the news story reproduced a screen shot of the offending video image. However, in the real world, fair-use or fair-dealing exceptions allow reproduction of copyright-protected content for the purpose of news reporting.

It seems that the more distortion we see in layers of reality (the digital alter-ego of a real person is digitally harrassed in a digital world and a digital video of the harassment is digitally posted in the real world, prompting the real person to complain to the real-life company that hosts the digital video), the more fascinating the intellectual property issues become. At its most basic level, the (virtual) Anshe Chung character is merely a string of code protected by (real-world) copyright.  In the Second Life, however, was it copyright that was infringed, or were the personality rights of Anshe Chung infringed? If Ms. Chung can’t bring an action for defamation of character in the virtual world, I’m sure those days aren’t far in the future.

Calgary – 09:13 MST