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Brandon Villery, 29, a four-year associate at Morrison & Foerster, uses an impressive collection of legal resources, but it’s got nothing to do with the Code of Civil Procedure. It’s also a bit more interesting: Playstation, X-Box and Game Boy Advance, otherwise known as video games. One recent afternoon, Villery gathered in the conference room of the San Francisco firm’s 28th-floor office with a handful of other lawyers to examine the latest prototype of an interactive video game produced by a top client. The gaming session is not exactly work, but it is useful. “There are many thorny issues when representing video game companies,” Villery said. “Having a good understanding [of the industry and their products] really helps. It takes away hours of explanations from the clients.” Being on top of developments in the video game industry is a priority for Morrison & Foerster. The firm recently formalized a 25-lawyer video game practice in response to its ever-increasing business with the video game industry. While many firms have ventured into the field and litigated big cases in the industry, Morrison is among the first to have a formal video game practice area within the firm. However, other firms may soon follow suit. “As the video game industry becomes more important, we realized [the practice] was a natural step to better serve our clients,” said Morrison partner William Schwartz. “It’s a reflection of the amount of business we’ve been doing within the industry.” Schwartz said the firm’s focus in the entertainment and technological fields and its office locations in California, Japan, Korea and the United Kingdom�where most of the video game companies are located�have given them an edge in the industry. The firm currently represents two dozen video game companies, including Atari Corp., Disney Interactive and Sega Corp., as well as video game publishers, content owners and technological companies. The industry’s $7 billion in 2003 sales has created more opportunities for law firms to expand their services into the field, where key legal issues include copyright and content ownership. Video game law has come a long way in the last 20 years. Until a 1983 ruling by the 3d U.S. Circuit Court of Appeals in Apple Computer Inc. v. Franklin Computer Corp., 714 F.2d 1240, it was not clear if computer software copyright could be protected. Before that 1983 ruling, attorneys had to resort to some creative litigating. Neil A. Smith, one of the earliest attorneys in the field, represented Namco, the makers of the arcade game Pac Man when that game was a top seller. Smith, a director of the litigation department of San Francisco’s Howard, Rice, Nemerovski, Canady, Falk & Rabkin and chair of the American Bar Association’s Internet and Cyberspace Committee, registered the game’s “attract mode,” or demonstration of the game being played, as an audio-visual work. Namco continues to protect Pac Man through this form of copyright registration. Though no lawyers in Smith’s firm work exclusively in the field, many of them do handle video game cases. “Legal issues from video games have often served as an incubator and crystal ball for the development of later intellectual property law,” Smith said. Lawyers continually negotiate deals so that their clients can acquire and safeguard the cutting-edge technology needed for the games, said Russell Weiss, a partner with Morrison & Foerster. Weiss said he also looks out for “file sharing,” or illegally downloading a game over the Internet. Though not as prevalent in the video game industry as in music, Weiss said it has been a factor when negotiating with distributors to ensure their methods will make it hard to download the game illegally. The file-sharing issue In fact, the file-sharing issue traces its beginnings to the video game industry. Smith represented Sega Enterprises in a 1994 case to stop Internet file sharing of Sega games. Sega v. Maphia, 857 F. Supp. 679 (N.D. Calif. 1994). The ruling was cited in the landmark Napster case. A&M Records Inc. v. Napster Inc. 114 F. Supp. 2d 896 (N.D. Calif. 2000). And video games generate more than intellectual property litigation. Larry Walters of Weston Garrou & DeWitt in Altamonte Springs, Fla., said video game clients make up about 20% of his practice. Walters’ firm focuses on issues regarding free speech and preventing government censorship. Since the industry has been under fire recently regarding the use of sexual or violent images in the games, Walters advises his clients on the content of their product as well as what rating they may receive by the Entertainment Software Rating Board. Because of the limited resources of the 11-member firm, only Walters and one colleague handle work in the video game industry. He said, however, that they are continually forced to turn down work, and added that the demand exists to form a practice group in the industry. Landau’s e-mail is [email protected].

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