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Andreas Lober and Timo Conraths

This article considers the legal issues surrounding the use of cheat software in online games, especially with reference to those games featuring significant online multiplayer functionality, such as massively multiplayer online games. Given the propensity of cheat software to ruin the gaming experience of bona fide players in such multiplayer settings, potentially resulting in significant economic and reputational losses for game publishers, the article evaluates the methods which may be employed by the game publisher to restrict the development, distribution and use of cheat software by the latter's developers, publishers and users. Using provisions of trademark, copyright and competition law, the authors examine the tools available to game publishers to stifle the spread of cheat software and maintain a fair playing field within their online multiplayer games.

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Scott M. Kelly and Alex Nealon

A June 2019 appellate decision marked the end of the patent assertion by Game and Technology Co. (GAT) against Activision Blizzard and Riot Games.1 The patents at issue related to equipping virtual avatars with game items. Activision Blizzard was able to successfully invalidate the patent through inter partes review (IPR) proceedings at the US Patent and Trademark Office. This case illustrates the important role that IPRs play in US patent litigation, as well as the double-edged sword of obtaining very broad patent claims. The article walks through the history of the assertion, the invalidity arguments at the USPTO, and the final decision on appeal to the Federal Circuit, and discusses how IPRs may provide an effective response to patent assertions in the US.

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Keri Grieman

Regulating a population is difficult, and no easier when that population has grenade launchers. Video game publishers and developers face the unenviable challenge of balancing their game's playability with regulating the individuals within it. This is done proactively (by game design) and reactively (by punishing or rewarding player behaviour). What players encounter affects the game's age rating, but also the player's desire to continue playing. Even games focusing on violence impose taboos on unsportsmanlike behaviour, and real-world referential behaviour or attacks. Games can become known for their toxic player behaviour, rather than the gameplay itself. In examining pro and reactive regulation in online multiplayer games, such as type of communication and moderation, there appears to be a correlation between highly proactive in-game regulation and low age ratings, and highly reactive in-game regulation and high age ratings. While further study is needed, this suggests potential avenues for future regulatory efforts.

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Anthony Michael Catton

This article, the first of two parts, assesses the questions of copyright and originality in player made ‘in-game creations’ – player creations which are made incidental to and specifically within the context of playing video games. The article suggests three classifications of in-game creations and respectively discusses the potential protection available under British copyright. It examines whether these creations are capable of satisfying the originality standard required for copyright and it further considers when and why in the case of flexible template games and blank template games in-game creations are capable if not in some cases likely to demonstrate sufficient originality for the purposes of copyright.

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Edited by Gaetano Dimita, Jon Festinger and Marc Mimler

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Felix Hilgert

Consumers in the EU have a discretionary withdrawal right for online transactions. For 14 days (or longer, if they have not been properly informed of this right), they can cancel the contract and claim a refund. This right is generally mandatory and can only be contractually waived in advance in contracts for the provision of digital content. German courts have handed down a series of judgments confirming that virtual in-game currency qualifies as digital content for the purpose of this exception and clarifying the conditions under which such waivers can be obtained. Most decisions indicate waiver language can be integrated into the purchase flow prior to the final purchase decision, with some courts requiring a separate checkbox. One decision would force providers to implement separate consent mechanisms after the consumer has made the purchase but before the virtual currency is made available to them. In any event, implementing the requirements set out by German courts also requires the cooperation of distribution platforms.

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John Kwan

The importance of facts in English cartel damages litigation is evident from the rules governing claims for damages. The rules aim to balance the interests of claimants and defendants and incorporate safeguards against defendants being forced to defend unmeritorious claims. In cartel damages claims, however, claimants have deployed, in some cases successfully, tactics aimed at minimizing engagement with the underlying facts at all stages of the proceedings. This article examines these tactics and the extent to which recent judgments, such as the case of BritNed v ABB, have undermined the viability of such an approach.

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Ricky Versteeg and Alexandra Malina

A new collective actions regime for competition damages claims was introduced in the UK in 2015. Although seven proposed collective proceedings have been brought since that time, none have, as yet, continued beyond the certification stage, and no further cases are likely to proceed to a full certification hearing pending an appeal to the Supreme Court in the Merricks v Mastercard proceedings in 2020. It is, therefore, an opportune time to take stock of the new regime. This article explores the development of the regime to date, considers what lies ahead, and assesses the overall status and progress of the regime. It is suggested that the forthcoming Supreme Court appeal in Merricks provides a welcome opportunity both to build on the significant progress that has already been made on a number of key aspects of the new procedure over the past four years, and to redress some of the legal and policy implications of the recent Court of Appeal judgment in the Merricks proceedings, which risk undermining the important ‘gatekeeping’ function afforded to the Competition Appeal Tribunal under the legislation. The UK collective proceedings regime ought then to be on a strong footing to resume, albeit its development will remain necessarily iterative and cumulative as further important aspects of the new regime are considered by the CAT and appellate courts over the coming years.

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Edited by Sarah Long, Andrew North and Matthew O'Regan