So I was again invited to be a panelist at MAGFEST, and not being an idiot, I immediately accepted. I again had a marvelous time, hung out with cool people, and hopefully helped a few. Herein, my comments on this year’s amazing-palooza.
- My panel, “How Not To Make a Game: Revenge of the Lawyers,” was a huge hit. I say that not just to make myself sound good, but because I have photographic evidence:https://twitter.com/LoadingLaw/status/817549252067033089
Note that that’s from several minutes before the panel started. It was SRO for most of the actual panel, and we kept going for twenty minutes after in the room and another half hour outside in the hall.
It is very flattering to me that one of the comments on the MAGFEST app was “100% the most had-their-sh**-together panel at mag.” However, it is also very funny because one of the other panelists and I literally made up the panel format on the flight from Chicago that morning and the other two agreed to it at lunch. (The panel was at 3.) If you attended the panel and have more questions, or, heck, even if you didn’t, please feel free to contact me and we can continue the conversation.
- Shoutout to my other game law friends, including Sam Castree (this is all your fault, Sam – see him @IndieGameLawyer,) Ross Hersemann (@LoadingLaw,) and Joe Neuman (who is a lawyer at EA) for being on the panel with me, Ryan Morrison (@MrRyanMorrison) and Ma’idah Lashani (@BANParty) of Morrison/Lee, Scott Kelly from Banner & Witcoff, and all the others whose names I’ve misplaced (told you I would.) It’s a small community, but a very, very cool one.
- Speaking of Ryan Morrison, another shoutout to him and Sheena Perez (@psychobilly2422), Travis Rupp-Greene (@stealthymoose), and Phil Didn’tGetHisLastNameButEverybodyCallsHimMowtenDoo (@mowtendoo) for the “Video Game Industry Real Talk: The Indie Sequel” panel. Fabulous information, good times. And thanks especially for this exchange:Ryan: “I’m going to ask Marc, who’s in the audience and is a video game patent lawyer, to say something about that question.”
Me: “Yes, thanks, there are three or four of us.” *audience laughs* *answers question*
Ryan: “Thanks. By the way, he wasn’t really joking. There’s like 12.”
- Jax and Tasker and Damocles Thread and Overwatch LARP and Witcher LARP and the Solemn and Venerable Goth Court. Let the record show: Wow. Just wow. Last year this merry band of magicians introduced me to LARP and it was amazing. This year, it was just as amazing and the people both old and new were too.
Friday, we did “The Fall of Overwatch,” a LARP based on some of the game’s backstory. Somehow I ended up not only as a combat engineer, but as head of security for Overwatch Central. Running around yelling “Holographic Display!” and reminding everyone that this was the 21st century and we had portable communicators just never got old, at least for me. (The ST may feel differently. ) Despite never having played, I got into the story immediately thanks to the skill and hard work of the storytellers. They made excellent mechanics choices and allowed all of us to become super-soldiers, etc, with just a few key choices and random assignments.
Then, the amazing Jax did “Goth Court.” I don’t know that I can put into words how something so wrong could become so right. I played a Normie who accidentally let my Goth neighbor’s pet snake eat her pet rat (One of the highest praises I have ever received: “Are you a Goth? Somebody get this man some eyeliner.”) as well as an expert witness in both Goth Dry Cleaning (of COURSE there is) and Gothic Interpretive Dance (of COURSE there is.) Jax was a little worried in that there were like four or five actual lawyers in the LARP and we’d laugh at her. I knew she was wrong and as usual, I was right. It was fantastic. Extra points also to Lauren the Bailiff (“I sentence you to my bailiff.”) and Abby the Clerk of the Court (“The record will show: Whoa.”)
Saturday, we did “The Witcher: When the Wyvern Wills,” a Witcher-based LARP. I haven’t played any Witcher games, either (yes I am lame shut up) but we did one last year and it was fine, and so was this one. While Ryan may have had the most amazing characterization (“I’m trying to see things from the perspective of the little people”) I consider myself to have won, because a) nobody realized I was the one who woke up the wyvern, and b) the person I wanted to get the throne actually got it, and c) NOBODY REALIZED ANYTHING I WAS UP TO THE ENTIRE GAME. Plus I got to use my magic power which was cool. (“I hit him ba…” “Oh no, you don’t.”)
And in particular: Ryan and Marshall, so good to see you again. Lauren and Aaron, it was like meeting two (awesome) old friends for the very first time. Those of you whose names I didn’t catch or don’t remember (warned you,) you all rock.
I’ll briefly recount the other panels I attended as well. I will be covering the indie game booths I reviewed in separate posts elsewhere, but in general, I was really pleased with what I saw. Keep doing what you’re doing, guys.
“Lights, Sound, Movement: Taking Cosplay to the Next Level with Arduino:” I have mixed feelings about this panel. The description made it seem a lot more intro-level than it was. It was really interesting and gave me some ideas (I really want to make a Diskos. ) but the flow was choppy and random, and given the size of the crowd I suspect there were a lot of people for whom they skipped way too many steps before diving into coding the controller.
“The Morality of Worldbuilding:” I really enjoyed this panel. Despite the fact that the panelists were all clearly of a particular position on the issues, they were extremely evenhanded in their approach. As someone who has been dealing with the fact that a few pinheaded players will ruin a massive online game system for everybody if you let them for many years, it’s interesting to see that while the stakes have changed, the basic problems have not.
“Video Games: Unique Among Media (Just Like All Other Media:)” Loved it, and not just because Sam was on it. Starting from the old question, “Why do video game movies suck?” the panel explored the differences between pop culture media in what they can and can’t do well, poorly, or at all. Hopefully it gave the creatives in the audience some food for thought about what medium a particular story, or way to tell it, would be best suited for that purpose.
“The Rise of Mobile Gaming:” This panel was… confused. The people on it were fun, and they obviously love gaming. Hard to find fault with that. But I’m not really sure I understood what it was they were trying to accomplish. Certainly some interesting facts and figures (I did not know that the first smartphone was made by IBM) but it needed more specific direction to really be good, in my opinion.
I honestly did not interact with anyone the ENTIRE WEEKEND who I did not enjoy interacting with, so if you got left out, blame my bad memory and eight hours of sleep. (Sounds like a lot… but that was over three days.) Thanks so much, and see you next year!
Software patents are a pretty confusing topic, and that’s if you’re a patent attorney who understands software. If you’re not, it goes way beyond confusing. The situation has been confused since the Supreme Court ruled in a case called Bilski v. Kappos, in which it basically said software patents were okay, unless they weren’t. That caused some problems. So, ever helpful, more recently the Supreme Court ruled on a case called Alice Corp v. CLS Bank International, which could be read as saying that software patents aren’t okay, except when they are. So. That clears that up, right?
Okay. More details are in order.
The problem, fundamentally, is that you can only get a patent for what patent lawyers call patentable subject matter. Ideas, by definition, are not patentable subject matter. (Nor are they artistic creations, which is why, to oversimplify somewhat, you can neither patent nor copyright an “idea.”) The laws of nature, logic, and mathematics are, likewise, not patentable subject matter. To be patentable subject matter something must be a “process, machine, manufacture, or composition of matter.” We usually refer to patents for a process as “method” patents, in that one patents a method which comprises (“comprises” is how patent lawyers say “is made of, consists of, or otherwise is composed of”) a series of specific steps which arrive at a specific result. Software patents are by definition method or process patents: a patent on a machine which is incidentally run by software is not a software patent: it’s a machine (or device) patent.
Many patent lawyers, including the author, will usually include claims on a machine which runs software which embodies the method in a patent application as well as the method itself, to try to obtain the broadest possible protection (and in case later the Supreme Court just says, “You know what? Software patents. Just not okay, period.”) But in the end it’s about the method.
So Alice (You thought I forgot, didn’t you?) set forth a new test which we are supposed to use to evaluate whether a particular method, or software incorporating it, is patentable subject matter. Or rather, it stated that a test it had previously established to determine whether a “law of nature” was patentable subject matter applied to method patents generally. (This case was Mayo Medical Laboratories, et al. v. Prometheus Laboratories, Inc.) Here are the elements:
First, does the patent claim an abstract idea, like an algorithm, that is entirely separable from any physical embodiment? For software patents, the answer to this is almost always going to be “yes.” Which means the second part of the test applies.
In the second step we try to find out whether the patent adds to the abstract idea”something extra” that embodies an “inventive concept.” If there is not, then the claim does not address patentable subject matter, and the patent fails. If it does, then we go into the normal patent tests of novelty (Is this already known to the world?) and unobviousnes (Would a person of ordinary skill in the relevant art consider this an obvious solution to the problem being addressed?)
Here are a few comments the Supreme Court made to try to make this clearer:
- A mere instruction to implement an abstract idea on a computer “cannot impart patent eligibility.”
- “Stating an abstract idea ‘while adding the words “apply it”‘ is not enough for patent eligibility.”
- “Nor is limiting the use of an abstract idea to a particular technological environment.”
So the question of the hour is, is whatever you, the intrepid software developer, wants to patent an abstract idea, and if so, have you come up with an “inventive concept” which makes it patentable?
Spoiler: It very likely is, and you very likely have not. I hate to be a downer, but them’s the odds. That doesn’t mean you shouldn’t ask a patent attorney to review your invention, nor does it mean that they will automatically tell you it’s not patentable. But prepare yourself for a negative response, and then anything else will be a pleasant surprise.
How do you know whether you have added an “inventive concept?” In the context of software patents, this seems to be evolving in the direction of a “technological improvement,” which of course seems to be somewhat redundant with the “novelty” requirement, but nobody said this has to make sense. Here’s a very, very rough rule of thumb: if your invention performs some task in a way which is different from the way in which that task has historically been done, you may have added an inventive concept. If it performs some task in a way which a person of ordinary skill would see as actively less advantageous than the historical approach, but in fact improves the solution to the task, you have a very good chance of having added an inventive concept. Contrarily, if you are simply doing something which has not been done historically, but which simply implements a straightforward solution to a novel problem, you very likely have not added an inventive concept.
Suppose, for instance, that nobody had ever made a “po-kee-no” computer game. (That is, a computer game which implemented a known game which is a combination of poker and keno.) To make such a game, you would need an algorithm which implemented the rules of po-kee-no in such a way that a computer could evaluate any given po-kee-no “hand” and determine the payout. No matter how clever your algorithm, it in the end would be an abstract idea (“the rules of po-kee-no, evaluated by a computer”) and would not include any inventive concept since you did not invent the rules of po-kee-no nor the traditional approach to converting game rules to compute algorithms. So no patent for you!
However, further suppose you had discovered that while it is not part of the rules of po-kee-no, it is much faster and more efficient to evaluate a po-kee-no hand by first looking to see if there are any jacks in it. Mathematically, this makes no sense (and, I hasten to add, it’s not actually true.) So while it is still an abstract idea (“look for jacks first,”) it contains an inventive concept which is not suggested by either the algorithm (“follow the rules of po-kee-no”) or the traditional approach to implementing game rules on a computer (“turn the rules into mathematical/logical statements and evaluate the statements.”) So there is a good chance that a method of playing po-kee-no on a computer which looked for jacks first would be patentable under Alice.
For those of you who are game developers, here’s a link to another little article on some game-specific Alice-type decisions.
Note that more than eighty percent of the patents adjudicated after Alice have been found invalid!
At the end of the day, there is a whole host of other questions which come into the analysis of whether to patent a software method. (Including whether you have the funds to support both the application process and any necessary enforcement proceedings.) But at the heart of it, be honest with yourself about whether you have really created a technological improvement, which is a very high bar to clear, or whether you have just come up with a kick-ass implementation, which is nothing to sneeze at even if you can’t patent it. I hope that gives you a sense of the current thinking of patent attorneys regarding software patents. As always, questions and comments are welcome.
The other day I had the following exchange on Twitter:
It was in the context of whether a lawyer’s client should ever talk to the press or publicly discuss an ongoing case. (Spoiler: No.) But Dr. Kubik asked nicely if I would comment on it in my blog. So here we are. It’s all her fault!
She’s right in that this is not something that gets a lot of attention in law school. Even this quote from my torts prof would probably not be made in most law schools today:
“A woman comes into your office. Her husband was recently killed. It’s winter. She can’t pay the heating bill. Her children are hungry. So far as anybody can tell, her husband’s death was an unfortunate accident. She begs you to find some way for her to sue…
… The answer is *pound on the lectern* no! It’s not in the law, she has no case, and telling her otherwise is a breach of your duty to your client.”
But one of the most important – and least pleasant – duties of the attorney is to be able to say no to a client. I have had to say to clients, among many other things, “No, you cannot…”
- “…get out of this contract without incurring significant expense and/or risking major liability.”
- “…use that previously-trademarked name for your new business.”
- “…practice that patented invention without a license.”
- “…prevent that person from stating their unpleasant opinions about you in public.”
- “…make that pricing arrangement all your major customers are screaming for without risking the wrath of anti-trust regulators.”
I am a very good lawyer. And I have found ways to make a lot of things work that looked like they couldn’t be made to work at first. I firmly believe my job is not to say no, but to find a way to say yes.
But sometimes the answer is… *pound on the lectern* no!
And if you can’t say no to your client you have no business doing this work. Yes, it’s hard. Everybody wants to please, everybody wants to be liked, everybody wants to be a team player. But lawyers are, if you’ll pardon the expression, on the special teams. We have to be able to say, “Coach, I can’t make that kick,” if we really don’t think we can make it. Because otherwise the team will rely on us to do something that cannot be done. This will not only result in failure, it will make things much worse than they would have been had a realistic approach been adopted in the first place.
In the context of my discussion with Dr. Kubik, your client may feel they have been wronged, that their reputation is on the line, that they have been unfairly maligned in the public eye. They think it’s only reasonable to talk to that nice, sympathetic reporter and tell “their side of the story…”
*pound on the lectern* No!
If you haven’t already seen it, go watch this video: Don’t Talk to the Police.
Everything in that video goes for talking to not only police, but regulators, journalists, bloggers, and random people on the street. It could, theoretically, help you. But it’s unlikely to, you have no control over the outcome once you say anything, and there are an infinitely larger number of ways it could hurt you. We shouldn’t even have to have this discussion. If you must, the lawyer vettes every word in that statement first, and no questions.
That being said, of course your client has to speak publicly in the normal course of business to all of those people. And that’s fine, so long as all the personnel doing so understand their roles and their limits. By all means, communicate openly, freely, honestly and truthfully.
But once something has started to go wrong, your client’s livelihood, assets, freedom and/or life may be on the line. You must make clear to them that their feelings and desires to be understood are not only irrelevant, they may end up costing them everything. There’s a reason big companies issue those weasel-worded lawyer-lingo statements that everybody hates. Because you don’t get to be a big company without acquiring some smart lawyers. That’s you. You have to be the smart lawyer even when it makes the marketing people scream like they’re being tortured.
How do you do this?
You set forth risks clearly. You advise on the risks associated with alternatives. And you make sure you don’t get a reputation for exaggerating risks and being the lawyer who just says no to everything. In other words, you don’t be this guy:
But you don’t, I repeat you do not, ever minimize or dismiss those risks. You don’t leave one off the list because it’s just so unlikely, unless no reasonable attorney would include it. Stabbing Future-Gandhi is pretty bad. Alien invasion would severely disrupt almost any business operation. However, it’s okay to leave them off the risk table. Short of that, if it’s a possibility, you need to advise on the potential legal risk. And if they try to make you say a risk really isn’t a risk, you do not, ever, agree with them. It’s okay to agree that a risk is minimal. It’s not okay to agree that it doesn’t exist.
And in the end, you may have to ask them that question, just as I asked it: “Do you want to make a little more money/be understood, or do you want to avoid bankruptcy and/or jail?”
It’s hard. You learn from experience. And if you are a freshly-minted attorney, so new you still squeak going around corners, you may very justly fear irritating powerful/experienced/successful clients or giving up work you need to keep food on the table. I get that. I’ve been there. But it is your duty. And ultimately, it’s your assets and livelihood on the line, because if you don’t give competent advice, you are going to be liable for malpractice and open to sanction for it.
If your client wants to act against legal advice about something that will “just” get them sued/cost them a lot of money, you have a little more leeway. You can continue representation (document everything!) and try to mitigate the result of the action. Who knows, you might even be wrong!
But if they want to do something that could get someone hurt, or violate criminal law, or be considered an act of moral turpitude, you have to make clear to them that you cannot continue to represent them. (Don’t lead with this, obviously.) And then you have to back it up. Here is another quote, from the first legal conference for General Counsels I ever attended:
“Repeat after me: I’m not going to jail for the shareholders.”
Don’t go to jail for the shareholders. Don’t get yourself disbarred for the shareholders. Don’t get yourself sued for malpractice by the shareholders for the actions of corporate personnel.
Learn to say no.
And, if you have to, pound on the lectern.
Had an interesting Twittersation last night with Dr. Sara Kubik, a Ph.D. in Technology (and current third-year law student.) First I Storified it, which I’d never done before, so here’s that:
But I thought I’d expand on some of my points a bit.
1) Losing a lawsuit is the only thing worse than winning a lawsuit.
Lawsuits suck. They purely suck. It doesn’t matter how good your case is: every lawsuit I’ve ever brought, I brought because someone had out-and-out stolen from my client. No fair use defense, no inadvertent infringement defense. Likewise (I am really good at picking clients) every time one of my clients has been sued, the claim could at best have been described as “colorable.” That’s a legal term of art which means “I probably can’t report opposing counsel to the disciplinary commission for filing frivolous lawsuits.”
And I’ve won every time.
(Well okay we settled one but it was pretty favorable.)
My clients still had to go through a very distracting, draining legal process which cost them a lot of money up front. While we recovered costs of suit in most cases, sadly I’m not as good at picking lottery tickets so we never got a zillion-dollar payday. Maybe that would make a suit worth it, but frankly given the level of disruption they cause a business that’s what it would take, if I cared about money. I had to file most of those suits because there were intellectual property protection concerns. In that respect, I won – my clients’ IP was protected. But I wish I could have found some other way.
2) Rocket Lawyer/Legal Zoom/Et Al and their impact on the legal profession.
Okay, I can unpack that a little. I have seen people get work from “inexpensive legal services providers,” (hereafter, “ILSP”) without naming names (and not necessarily either of the two providers given as examples) which required extensive additional legal work to… well, to fix, to be blunt. I know other lawyers have had similar experiences.
Without knowing how much of what kind of legal work ILSP provide, I can’t give accurate evaluations of whether they are cost-effective in the long run for individual clients and/or society. I admit that freely. But the numbers I used above in the Twittersation seem, if not provable, plausible. It only takes one actual court case or even the preparation for one to wipe out the savings from a very large number of inexpensive legal services.
The people who work for ILSP are, one fervently hopes, licensed and competent attorneys. But given the nature of such operations, they simply can’t become as familiar with a particular client’s needs and issues as a personal counsel can. The numbers don’t work. That extra hour to review, that extra bit of specialized knowledge… they are not worth saving a hundred bucks over. In legal services, as in few other things, you get what you pay for.
3) AI and the future of legal work.
My reference to “Happy Fun Space” is a shout-out to Iain M. Banks’ “Culture” novels, where we are told some AI become so computationally powerful that they spend their time in simulated universes of their own design, which they call”Infinite Fun Space.” The “Singularity” is a hypothetical point in history where human beings or their AI colleagues become so powerful that they can transition mankind to a post-scarcity society. In short, once we get AI powerful enough to do what I do, they’ll be so powerful we won’t have to do anything at all. (This could go really wrong, or really right, depending on whether we get AI of the type Scott Alexander refers to as “Moloch” or “Elua” in his amazing essay Meditations on Moloch.)
However, even absent Skynet or Mother, AI will still have a significant impact on the legal profession as technology advances. There are already AI (though they aren’t true AI, they’re agents) which can draft simple contracts or help people protest parking tickets. For parking tickets, this is probably okay. But even for simple contracts, I am not convinced this is a good idea at all. I am fond of saying that an AI could probably safely do a big chunk of my job… but part of the chunk it could not safely do is accurately determining which chunk it could safely do. Any transaction more complicated than buying a pack of gum at the drugstore is inherently individual. AI aren’t there yet. Human programming isn’t there yet. Subjective judgment and experience are holistic and intuitive and that’s just how it is.
For instance, say you’re an attorney for a private, closely-held company which is subject to significant regulatory restrictions. (Yes, this is an example from experience.) You want to redraft the bylaws for your client’s corporate entity. Here are just two things an experienced lawyer will think about which have nothing to do with the actual bylaws.
a) You only have a handful of shareholders. What are their estate arrangements? If one of them passes away or becomes incompetent, will their ownership interest pass to an individual or individuals who will need findings of suitability? Or worse, who can’t get findings of suitability? What will that mean to your client’s regulatory compliance?
b) Maybe you’re lucky and your client’s ownership structure is such that it qualifies for WBE or MBE status. (Don’t know what that is? Does the AI?) First, analogous question to the above. Second, are you sure the bylaws structure control such that in the event of a shareholder conflict, you always have the outcome required to satisfy the WBE/MBE certification agency?
Did whoever programmed your “Makin’ Corporations!” AI/agent think about things like that? Did they KNOW about things like that? Do they keep the program constantly updated with legal, business, and tax strategic background? Can you sue them for malpractice and report them to the bar if they don’t? This is the kind of thing I mean when I say that 999 times in a thousand, the client may save a small amount of money, and the thousandth time, they may end up bankrupt, in jail, or both.
Anyway, those are my thoughts on the matter. Comments invited.
I had the honor of being a speaker on two of the panels at CVGLS 2016, and as always (well, they’re two for two) it was a great time and I met a lot of cool people. First, congrats to Ross (@loadinglaw) and Suzanne (@zedthegamer) for organizing another great summit. Thanks for inviting me and I hope we do it again soon!
To briefly review the panels:
The Changing Scene of eSports
I was on this panel, so it was great. You can find the written materials I referred to several times at this link: MarcWhippleCVGlS2016
Thanks to my fellow speakers Jason Greenglass, Ryan Morrison, and Lydia Picknell. I covered the basics of gambling law in the US and talked about just a few ways you could run afoul of them when developing video games, and why the Daily Fantasy Sports operations like FanDuel and DraftKings were kicking up a lot of dirt that might land on us. Jason and Ryan talked about the legal aspects of eSports, player contracts, et cetera, and Lydia talked about them from the perspective of a player/coach/owner. (Yes, she’s a female eSports team coach and owner. Fear her!) We had a lot of fun and everybody seemed to enjoy it very much.
Recent Developments in Video Game Law
I was on this panel, so it was great.
I was on this panel with Greg Boyd (who also moderated, to the extent we let him,) Patrick Sweeney, and Ryan Morrison, again. (Ryan and I were on stage literally all morning and people still stayed!) We covered the basics of intellectual property law, always a hot topic in video game development, as well as advertising and other matters of current interest. We also got into crowdfunding a little bit – just enough to reveal that it is fraught with peril, especially if you want to give backers equity or a right to some of the revenue stream, so you really, really need a lawyer!
Privacy, Harassment, and Free Speech in Video Games
I was not on this panel, but it was still pretty good.
While this panel covered a lot of important issues, it focused on the problem of harassment in the video gaming world. Lydia told some powerful stories about the things she’d encountered as an eSports professional. Sadly, a lot of the really excellent questions more or less boiled down to, “How can we use the law to make people nicer?” To which the legal answer is ultimately, “We can’t.”
Video Games and the Right of Publicity
I was not on this panel, but it was still pretty good.
This was probably the legal-iest of the panels, with lots of actual case law and real-world examples of using other people’s likenesses (not just their faces – their names, their voices, you name it) and the trouble it can cause. “Don’t, unless you’ve talked to a lawyer,” was probably the takeaway from this panel.
The History of the Video Game Industry in Chicago
I was not on this panel, but it was still interesting.
While I won’t try to recount the stories, I will point out something that was said multiple times. One of the developers worked for Bally when they were making arcade games – the typical dev time was a few months! It was very much a pipeline process: electrical engineers and the first game artists would come up with a game, program it, make master copies, and then it went to the assembly line for mass production. What he said was, “If you didn’t finish your game on time, people got laid off.”
That’s still an important concept for developers to keep in mind: the publishers have marketing slots. If you don’t finish your game on time, they lose the slot. Somebody else gets the spot on the shelf or the promoted marketing page on Amazon/Steam/etc. It’s not a question of whether your game is good or it sells: those are equally important but different questions. You have to finish on time or somebody who was going to try to sell your game has no product. That’s never good. If you finish on time and give them the product, you make their lives a lot more pleasant. Even if the game isn’t great (so long as it doesn’t suck) that’s worth a lot for next time. Relationships and reputation are still important, even as assembly lines lose their importance in the world of gaming.
Thanks for reading, and see you next year!