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The rising prevalence of crypto and virtual currencies has invited the scrutiny of several regulatory bodies who continue to grapple with the unique challenges posed by blockchain technology, FinCEN being one prime example. The Financial Crimes Enforcement Network (“FinCEN”) is an arm of the United States Department of Treasury that seeks to impede financial crimes such as money laundering and terrorist financing, and was the first financial regulator in the U.S. to address virtual currency.
Continue Reading Blockchain Game Developers and FinCEN: When are State Money Transmission Laws Applicable?

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When a patent owner loses at the International Trade Commission (“ITC”), can it hire new counsel and try again in district court? That question will be answered in Gamevice, Inc. v. Nintendo Co., Ltd. et al, No. 3-18-cv-01942 (N.D. Cal.), where plaintiff Gamevice is asserting three patents against Nintendo despite losing on those same patents in two prior ITC proceedings.
Continue Reading Too Many Bites at the Apple?

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Video games have come a long way. They have morphed from simulated games of ping pong to today’s fully-immersive virtual reality games that leverage biometrics and artificial intelligence (AI). While the origins of using AI in games were simple – such as to create more realistic non-player characters  – the use of AI now allows for much more. AI-based tools may be used to outsource quality assurance, gain data-driven insights into players, or to better understand player value to maximize retention and in-game revenue. Now is thus a good time for companies to keep in mind regulatory bodies’ increased focus…
Continue Reading Video Games, AI, and …the Law?

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This was originally published by Esports Insider on June 24, 2021

The world of competitive video gaming implicates a complicated patchwork of privacy laws, and esports companies need to keep in mind some key issues when assessing privacy and cybersecurity obligations. Understanding these obligations is all the more important as esports continues to be a quickly growing international trend.
Continue Reading Playing with privacy? Privacy and cybersecurity considerations in esports

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This was originally published by Esports Insider on June 4, 2021

Within the blockchain space, one of the fastest-growing areas is NFTs. Within the games space, esports is growing rapidly. So naturally the combination of NFTs and esports should have tremendous potential. This article will explore some opportunities at the intersection of these trends and some of the potential legal issues that might arise.
Continue Reading The Legal Considerations of Esports NFTs

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The tides have turned again in the litigation campaign against gaming companies by Worlds, Inc., who many may recognize as one of the named parties in often-cited Federal Circuit case law on real-parties in interest (“RPI”). In 2018, the Federal Circuit shook up the IPR landscape with a series of RPI decisions, starting with Wi-Fi One, LLC v. Broadcom Corp., which held that the PTAB’s time-bar determinations under § 315(b) are appealable. A series of frequently-cited Federal Circuit decisions followed, including Applications in Internet Time, LLC v. RPX Corp. and Worlds, Inc. v. Bungie, Inc.
Continue Reading Hello Again, Worlds: A Failed Gaming IPR Leads to § 101 Success

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On April 8, 2021, Activision Publishing, Inc. filed a lawsuit against Warzone.com LLC regarding the use of the word marks “Warzone” and “Call of Duty Warzone.”  Activision is the publisher of the Call of Duty series of military-themed “first-person shooter” games.  Warzone.com is the developer of a multiplayer turn-based strategy and negotiation game similar to Hasbro’s Risk.

Activision’s complaint alleges that, in 2020, Activision released a free-to-play multiplayer game titled Call of Duty: Warzone, a “large-scale, highly competitive, fast-paced military combat game in which 150 players fight to be the last soldier standing in a massive, detailed, fully-realized ‘Warzone,’ spanning…
Continue Reading Activision Files Lawsuit Over the Rights to Use the Word “Warzone” in the Call Of Duty Series

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Despite all of the artistry that goes into making a game, at some point early in the development process the question must be asked, “How are we going to make money?” And with the ever-growing cost of developing modern games, this is no trivial question.

Technology has opened up a litany of new methods for monetizing games; gone are the days where a publisher’s only option was the uniform system of retail sales. Each modern method of monetization has different requirements for what a game must do to be implemented successfully, and these elements need to be intrinsically woven into…
Continue Reading A Primer on Game Monetization

The State of Nevada has taken to the initials steps to create an official commission governing esports with the introduction of Senate Bill 165, and its subsequent discussion in a hearing of the Nevada Senate Judiciary Committee on March 17, 2021. The proposed commission would be tasked with creating regulations overseeing esports competitions within the state. Such a move is the first of its kind in the US, and a major step as esports continues to move into the mainstream.
The size and composition of the commission was still being worked out, though the current draft of the bill…
Continue Reading Nevada Moves to Create Esports Commission

This article was originally published by the International Game Developers Association.
Between the global rise of competitive gaming and esports, the proliferation of mobile and console gaming, and the financial and cultural success of games such as Fortnite and Minecraft, it appears little can stop the growth of the video gaming industry. Having long since overtaken the annual revenues of the film and music industries, the global video game market continues to expand at a rapid pace, with consumer spending on video game products reaching a record $56.9 billion in 2020. With consumers largely being confined to their homes…
Continue Reading Special Considerations in Video Game M&A Transactions

While most patent disputes involving gaming companies are located in district courts, the ITC remains a viable option for at least some gaming disputes, where a patent owner can have the U.S. government bar importation of products found to infringe. While the ITC does not provide monetary damages, it’s extremely fast schedule and willingness to bar importation of infringing products makes it a desirable forum for patent owners.
The desirability of this forum has also increased recently with the PTAB seemingly unwilling to grant IPR challenges for patents being asserted in ITC investigations. Earlier this week, an IPR challenge filed…
Continue Reading ITC Threat for Gaming Companies Grows with PTAB Discretionary Denials

The esports ecosystem experienced transcendental growth in 2020 due at least in part to the Covid-19 pandemic, and is poised to act as a spring board for even further growth this year. With traditional sports largely sidelined last year, stadiums closed to fans, and people starving for personal interaction, gamers and spectators alike have turned to esports in record numbers.  According to Newzoo, a prominent esports analytics company, 22% of the internet population participates in esports, and global gaming revenue is expected to hit $159 billion by the end of 2020.[1] Streamers and streaming platforms have exploded in popularity,…
Continue Reading Esports: What We Should Expect in 2021

When participating in an M&A process involving a video game company, whether you are on the sell-side or the buy-side, there are certain key terms that are included in industry standard commercial agreements that the parties need to keep on their radar. Failure to identify these terms early in the due diligence process can create roadblocks for the parties as they near the finish line, whether that be signing the definitive acquisition agreement or closing the transaction.
A key aspect of the due diligence process is going to be the review of the developer’s publishing agreements, development agreements and/or tool…
Continue Reading Planning for an M&A Transaction: Key commercial terms to look-out for

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