PUBG Corp., the Korean Subsidiary of Bluehole Studios (the developer of PlayerUnknown's Battlegrounds), has dropped its lawsuit against Fortnite developer Epic Games Inc. PUBG had filed a copyright infringement claim against Epic in South Korea back in January. According to reports, PUBG alleged that Epic had copied PlayerUnknown's assets and user interface. You can read our coverage here. However, on Monday, PUBG sent a letter of withdrawal to Epic's lawyers and the South Korean case was closed. Neither side has stated a reason for the withdrawal. PUBG's lawsuit against Netease Inc. is still ongoing, and we will continue to provide updates when available.

It is worth noting that Tencent Holdings Ltd., a Chinese social media/gaming company, is a part-owner in both Bluehole Studios and Epic - each to the tune of hundreds of millions of dollars - and might not want its investments suing each other. Also, PlayerUnknown's currently runs on Epic's Unreal Engine 4, which could also play a part in the settlement. We may never known the exact reason PUBG withdrew, but the cross-over between the two sides could have been a significant factor. As of right now, this appears to be the end of the legal conflict between PUBG and Epic.

We recently reported on Epic Games suing individuals for cheating in Fortnite. You can read about those cases here, here, here, here, here, here, and here. Recently the Northern District of California declined to grant a motion for default judgment against one of the defendants, Konstantin Vladimirovich Rak. In its complaint, Epic claimed that a YouTube video Mr. Rak had posted violated its exclusive right of public performance. Epic filed for a default judgment after Mr. Rak failed to respond to any court motions. The Court denied the motion for default judgment on several grounds, one of which was the public performance claim was insufficient. The District Court's denial was noteworthy because, in its opinion, the Court questioned whether posting gameplay footage to YouTube constituted a public performance.

Epic contends that Mr. Rak publicly performed Fortnite when he posted to YouTube a video about how to hack the game. Under 17 USC 101, to publicly perform means to transmit or communicate a performance of a work to a substantial number of people. The same statute defines a performance of an audiovisual work as showing its images in any sequence. Even though video games are classified as audiovisual works, there are not many cases explaining what constitutes a public performance of a video game. Epic cites Valve Corp. v. Sierra Entertainment, Inc., F. Supp. 2d 1091 (W.D. Wash. 2004) to support its claim of public performance. The NDCA did not find this citation helpful because the Valve case was primarily a contract dispute, which briefly discussed what constitutes a public performance of a video game.

The District Court also discussed Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996), a case briefly discussed in Valve. Allen involved people playing board games in a tournament. The Ninth Circuit held that "playing" is different than "performing," therefore there was no public performance. However, Allen involved board games, not video games. In Red Baron-Franklin Park, Inc. v. Taito Corp., 888 F.2d 275 (4th Cir. 1989), the Fourth Circuit held a video game arcade publicly performed Double Dragon because the game images were being reproduced. For many, this would seem to indicate that playing a game would be a performance because playing requires the reproduction of game images. Neither Epic nor the NDCA mentioned the Red Baron-Franklin Park case. It could be possible the NDCA agrees with this thinking, but it did reiterate the Allen Court's hesitation on granting copyright owners the power to "control when and where purchasers of games may play the game." Ultimately, the NDCA declined to decide the issue because the motion was only for a default judgment and neither side fully briefed the issue. The Court also warned Epic that the sole citation of Valve was not enough to establish a public performance.

The primary focus of Epic's lawsuits is to prevent hackers from cheating in Fortnite. Epic asked the Court for a default judgment because Mr. Rak did not respond. The goal of the public performance claim was to remove a video by Mr. Rak showing others how to hack Fortnite. The Northern District of California felt that Epic had not done enough to establish a public performance claim, but in the Court's analysis, it questioned what it means to preform a video game. The denial order does not change any current laws, but it does indicate the Court's willingness to address the issue of gamers posting videos on YouTube. The Court's interest in the topic may be the result of how popular "Let's Play" videos and streams have become. It will probably be awhile before there is an actual ruling, but Epic has a chance to amend its complaint, so it will be interesting to see Epic's response to the Court's public performance analysis. We will continue to follow this case and provide updates when available.

If you've ever been to Queen Mary's excellent More than Just a Game events, you have probably heard of the new Interactive Entertainment Law Review journal launched by Profs. Dimita, Mimler, and Festinger. This new peer-reviewed journal offers analysis of legal issues arising from interactive entertainment, video games, virtual/augmented/mixed realities, social media, and all related and emergent forms of digital interactive entertainment. Ross and I serve as members of the Editorial Board, along with many others who are well-known in the video game legal community.

The first issue went live just the other day and we are very happy to report that it includes our new article on copyright issues raised by game input streaming and replays, titled "The Key to Key Presses: eSports Game Input Streaming and Copyright Protection."  In the article, Kirk and I explore whether and how copyright protection applies to recorded game inputs (e.g. mouse clicks and key presses in replay files), and who owns the copyright in recorded game play.  Here's the full abstract:

The eSports industry has exploded, in no small part due to the ease with which exciting matches may be watched. Many modern video games stream game user inputs to viewers, rather than bandwidth-intensive video. These game input streams can be used by the viewers’ game clients to perfectly reproduce a match in real-time. In World Chess U.S. v. Chessgames Services, a U.S. District Court held that allegedly pilfered chess game moves, as facts, were neither subject to copyright protection nor eligible for ‘hot news’ misappropriation. But might video game input streams (as facts, per the World Chess court) nonetheless be eligible for copyright protection to the extent that the input data corresponds to a copyright-eligible game performance? After all, input streams are significantly more granular and exacting than mere chess game moves: they capture millisecond-by-millisecond input and effectuate perfect reproducibility of gameplay, rather than a mere description thereof. This article explores the copyright issues under U.S. law presented by live streaming of video game inputs and proposes that video game input streams are, to the extent that they are usable to perfectly generate a faithful recreation of a gameplay performance, copyright-eligible and owned by the player of the game.

On June 4, 2018, Groove Digital filed a lawsuit in the District Court of Delaware alleging King.com infringed upon U.S. Pat. No. 9,454,762 (the '762 Patent), titled "System and Method for Delivery of Content to a Network Device." Groove Digital claims the '762 Patent relates to push notifications for mobile apps. In the Complaint, King's game, Candy Crush Saga, infringes upon the '762 Patent.

Claim 1 of the '762 Patent reads:

A system for delivering information to a networked device of a user, the system comprising:

a microprocessor running a software application for delivering an applet application to the networked device and managing the delivery of the applet application to the networked device, wherein the applet application passively deploys one or more applets at a time of deployment,

wherein the applet application provides for delivery of content to the networked device and a display of the content in a predetermined portion of a user display that is less than an entire display of the networked device, by the one or more applet, wherein the one or more applet is configured to deploy at least one of independent of or in conjunction with an internet browser window, wherein an internet browser is configured to deploy subsequent to deployment of the one or more applets based on at least one action or inaction of the user, wherein at least one of the applets is configured to become idle upon deployment of the internet browser, and wherein the deployment of the one or more applets is such that at the time of deployment of the one or more applets the user can continue to operate the networked device in a state prior to the deployment of the one or more applets;

a first database coupled to the microprocessor and storing a first set of information relating to the user; and

a second database coupled to the microprocessor and including a second set of information for comparison to the first set of information,

wherein the microprocessor compares the first set of information to the second set of information to determine whether the content should be transmitted to the networked device for display by the one or more applets. ('762 patent, col. 14, lines 9-43).

The '762 Patent has an interesting prosecution history. Samuel Gaidemak and Paul Chacko filed the '762 Patent on March 17, 2006, but the USPTO did not issue the patent until September 27, 2016. During those ten years, the PTO issued eleven office actions against the '762 Patent. On average a patent will face three or four office actions. The more office actions a patent faces, the more prosecution history estoppel the patent acquires, which is used to narrow the patent's claims and restrict the owner's use of the doctrine of equivalents. Groove Digital is asserting the doctrine of equivalents in addition to allegations of literal infringement. King has not yet filed an Answer in response to the Complaint.

Groove Digital is also suing United Bank for infringing the '762 Patent. Normally, we do not report on non-video game related case, but this is the only other lawsuit in which the '762 Patent is asserted. Groove Digital filed the lawsuit against United Bank on December 1, 2017, in the Eastern District of Virginia. The Complaint in that lawsuit alleges that United Bank's mobile banking app infringes the '762 Patent by using push notifications, and the Complaint filed against United Bank is very similar to the Complaint filed against King. United Bank has only filed a motion to dismiss for lack of jurisdiction. These lawsuits against United Bank and King could be the start of Groove Digital suing every mobile app developer that uses push notifications, so it will be interesting to see if Apple takes notice (in view of the integrated push notification technology built into iOS).

We will continue to follow Groove Digital's lawsuit against King and provide updates when available.

Call me old school, but Halo 2 is still my favorite multiplayer first-person shooter.  It was the most balanced FPS game I've ever played, and I still get excited with each new release.  The Halo franchise is one of those franchises that makes it in my top 10 list for all time best games (what are the other 9?  Well, there's the Myst franchise (including Obduction), but I'm otherwise still working on it).

Microsoft released a teaser video for Halo Infinite today, and it looks awesome. This will probably give me the push I needed to upgrade from my Xbox One to the newer Xbox One X. It wouldn't be the first time I've bought new hardware just to play a new game (Quake and America's Army also did that trick).

Check it out!

-Ross

The '218 Patent is related to U.S. Patent 7,666,096 (the '096 Patent), also owned by Techno View and also subject to an IPR petitioned by Sony. Both the '218 and '096 Patents are at the center of a lawsuit Techno View filed against Sony in the Central District of California, in which Techno View alleges that Sony's PlayStation VR infringes Techno View's patents. Sony is using the IPRs to challenge the validity of the allegedly infringed patents. Techno View is also suing Oculus VR claiming their VR system infringes the '218 and '096 Patents. Oculus was not part of the IPR petitions filed by Sony.

This is the third IPR petition Sony has filed this year relating to stereoscopic images. For background on the previous two IPR petitions click here and here.