December 2008

Our Legal System Continues To Suffer From Random Drooling

As the latest pool of saliva in point, a patent lawsuit filed against NCsoft for creating MMOs. That’ll show ’em!

Specifically, the suit claims that NCsoft has infringed on patent 7,181,690, “System and Method for Enabling Users to Interact in a Virtual Space” through its games, including City of Heroes, City of Villains, Dungeon Runners, Exteel, Guild Wars, Lineage, Lineage II, and Tablula Rasa.

This, despite the fact that about 9 seconds of research would turn up quite a few “systems and methods for enabling users to interact in a virtual space” prior to the patent’s filing in 2000 – one of which was even listed in the complaint (Edit: as pointed out in comments, the patent refers to an earlier filing date of 1996 – which just barely precludes most Internet-era MMOs with the exception of Meridian:59 –  but there’s still no shortage of earlier titles.)


So why was NCsoft targeted specifically, and not, say, a somewhat larger and more well known company with thousands of slavering lawyers on standby ACHING to take your call? Well, as another lawyer speculated, Texas is like a whole other country.

“Being a foreign defendant in Texas is not a pleasant thing,” he said of NCsoft, which is primarily a Korean company. “The juries are, many would say, biased towards American plaintiffs and have a propensity to offer high damages. Some defendants might view them as an unfriendly jury and it might make the defendant more likely to settle.”

Uh huh. Riiiiight., when not targeting frivolous lawsuits on racial grounds, develops branded versions of the antediluvian “ActiveWorlds” system.

This dance happens quite often in the high tech industry – a company with no actual products files ridiculous patents, and then basically blackmails larger companies to take them to court, where (after the appropriate legal fees are paid out by all parties) the patent is thrown out as spurious after a clerk with five minutes of time on Google defines “prior art“.

And that brings us back to East Texas. Spectres of good upstanding Texas cowboys standing up to those uppity Asians raised by the quoted patent lawyer aside, the suit was filed in that district for a somewhat more mercenary reason.

Conditions never have been better for patent pirates. Patent cases in general are getting more expensive and difficult to defend. According to the 2003 American Intellectual Property Lawyers Association Economic Survey, it will cost a defendant in a patent action filed in Texas with between $1 million and $25 million at stake roughly $1.5 million just to get through discovery. Even worse, for that same amount at stake, the defendant is looking at spending more than $2.5 million if it has to go through trial.

OK, so that’s why they’re filing an obviously absurd claim… but why east Texas?

Texas, particularly the Eastern District of Texas, has become a favorite venue of these pirates for two reasons: our judges and our juries. First, many of our federal courts have relatively quick dockets and judges with greater-than-average experience in patent cases. For instance, judges in the Eastern District have dealt with hundreds of patent cases, and some judges have developed special rules for dealing with them. Unlike the Northern District of California, which also has its own patent rules, courts in the Eastern District of Texas typically try to set a trial date in a patent case within 18 months or less from its filing date. This threat of imminent trial is the “gun to the head” that the patent pirate needs to execute his strategy.


Perhaps more important, many in the patent bar know that juries typically have little technical training or knowledge, and often even less interest in technically complex arguments, so they’re not inclined to consider fully the merits of a difficult infringement analysis. Juries in East Texas, unlike those in Houston, Dallas or Austin, are much less likely to have a member with any technical training or education, which exacerbates the problem from the defense perspective, but makes East Texas federal courts an attractive venue for would-be plaintiffs, who know that the jury will, instead, gravitate toward softer or superficial issues that are difficult to predict.

Randy Farmer, one of the developers of Habitat, isn’t too happy either, and retells his last adventure with patent trolls here.


Our legal system: totally awesome.

Eve To Flee Iceland?

Hidden in a Guardian story about the general Icelandic economic collapse:

On three shiny floors of a former fish factory is CCP, a company best known in computer gaming for Eve Online, which has 300,000 participants all over the world – as many inhabitants as Iceland itself. However, restrictions on access to foreign currency for individuals and businesses and on foreign investment into Iceland are making life difficult. “To make new games, we need foreign investors,” says Eyjolfur Gudmundsson, formerly an assistant professor at the University of Akureyri, who supervises Eve’s virtual economy. “The present currency restrictions are putting us in a straitjacket. We are in talks with the government, but if we can’t let capital in, we might be compelled to leave Iceland, even though this would be against our wishes.”

No word on if this is a lock-stock-and-barrel move or, more likely, Eve’s ‘headquarters’ moving to offshore offices, as hinted by a CCP developer in a related thread. CCP is one of Iceland’s more successful companies, so changing its mailing address to Bermuda would be kinda a big deal.

It’s Beginning… To Look A Lot Like… Pontification

It’s time for PREDICTIONS, that being the job of every pundit this time of year. But first, let’s see how I did last year so you can judge whether or not you should bother to read the rest of this post!

This is going to be a slow year for MMOs… …In the next few years following, we’ll see the results of everyone trying to go all aikido and step where WoW isn’t. But for this next year or so, you’re going to see the effect of an entire MMO industry three to four years ago going “Holy crap. They sold how many boxes? And our entire development team is in a WoW guild? Hmm.”

I’m going to call this one a HIT, since there wasn’t any good positive news out of the MMO industry this year except things that were kind of pre-loaded already from years past. (Bioware’s SW:TOR, Sony’s Freerealms) Plus, as we’re going to see, I really, really, really need to pad that hit percentage.

Specifically, PotBS will be a niche title a la Eve which does well long term but nothing spectacular out of the gate, Warhammer will grab over a million subscribers (counting both the US and European markets) which will make it the second biggest MMO, disappointing everyone who wanted it to be Teh Giant Slayer. Age of Conan will do somewhere in the 200K range, much less if there are launch issues (it remains to be seen if Funcom’s learned from Anarchy Online). No one will care about the much-vaunted nudity. It didn’t save Shadowbane, either.

Pirates of the Burning Sea – jury is still out. It wasn’t a smash hit, but after an initial server merge it seems to be keeping on keeping on, too, out of everyone’s radar and on SOE’s Station Pass life support system.

Age of Conan – well, I hedged and said that if there were launch issues, it would tank. There were some pretty significant ones, and all avoidable ones at that – fundamentally broken design flaws (equipment had apparently no use whatsoever, for example) compounded by rapid twice-a-week patching in response that finally broke Funcom’s version control safeguards (Necromancers had half their talent tree patched in one week accidentally, which made for some interesting ‘found gameplay’). And by all reports, it has tanked pretty seriously.

As has Warhammer, my biggest miss in this category – I predicted it to be over a million by this time. It’s hard to tell what their subscriber numbers are due to EA’s habit of only announcing “registered players“, but it’s safe to say if Warhammer had ever broken 1 million subscribers (or even registered users) it would be difficult to dodge the press releases. Failing that, the most visible metric would be “voluntary character transfers” in the wake of the hurricane called “Wrath of the Lich King” effectively closing half their servers. So we’re going to go ahead and call this a MISS. Damn it, we needed some hits this year from companies not named Blizzard. And we didn’t get any.

Speaking of Blizzard: Starcraft 2 will slip to 2009, sorry. However, fear not – the PC market will still be in a Blizzard hammerlock, as the next World of Warcraft expansion pack will ship just in time for the Christmas rush, dwarfing any other game’s launch that year. Note: I did not say “any other MMO game”. I meant “ANY OTHER GAME”.

Yeah. Never underestimate the ability of Blizzard to make the PC market their bitch. Last month here was NPD’s top 10 11 sales chart:

1. World Of Warcraft: Wrath of the Lich King
2. World Of Warcraft: Wrath of the Lich King Collector’s Ed.
3. Call Of Duty: World At War
4. Spore / EA Maxis
5. Fallout 3 / Bethesda
6. World Of Warcraft: Battle Chest
7. The Sims 2 Deluxe
8. Left 4 Dead
9. The Sims 2 Apartment Life Exp. Pack
10. Command & Conquer: Red Alert 3
11. World Of Warcraft

I made this top 11 just to show that World of Warcraft – the original, non-expanded World of Warcraft released years ago – is still just shy of the top 10 in TWO THOUSAND FRAKKIN EIGHT. And the top 2? Yeah, that’d be the same game. Warhammer? Age of Conan? Guild Wars? Hello Kitty Online? Nowhere to be found in the top 20. Welcome to the Blizzard Desert. Not only a HIT, but a body blow to the solar plexus. The only MMO title in the top 20 was Everquest 2’s just-released and generally well-recieved expansion at #14, just below Nancy Drew: The Haunting of Castle Malloy. Yes, below. And the linked-to PC World recap remarked on that with:

“They still make Everquest games?” What I said, too.


EA Austin — sorry, Bioware Austin will finally announce that yes, they’re working on Knights of the Old Republic Online. Everyone will yawn since that was leaked all over the place LAST year. Or maybe those leaks were MISDIRECTION! And they’re really working on Peggle Online. That Gordon Walton fellow is crafty.

OK, so they dropped the Knights part, but still, they had to announce sometime, so this is a HIT albeit somewhat of a gimme.

Free MMOs will continue to pull in more free users, more paid users, and more money than the vast majority of “old school” MMOs, as Raph Koster is vindicated in spades, over and over, when people start to actually notice that more people play Maple Story than World of Warcraft.

I’m going to call this a MISS for two reasons – first off, no one has really noticed yet that more people play Maple Story than World of Warcraft. Second, the reason for that is that World of Warcraft makes about a skillion more dollars than Maple Story, thanks to 80% or 85% of Maple Story players not actually paying any money. I still think free-to-play is a pretty significant market (and John Riccitiello apparently agrees with me) but… the jury’s still out on the big iron I think. Of course, it may well be that the only company that can still make subscription big-budget MMOs is Blizzard. Sucks for all of us not working there!

Second Life will no longer be all over the news as even Reuters figures out that a lot more people talk about Second Life than actually participate in it. They will continue to have server and client issues, and near the end of the year the first Second Life clones that were conceived back when Second Life was the new hotness hit the market. I don’t know what they are off the top of my head, and you won’t either, because as Linden already knows and these new kids will learn, enabling a game wholly based on user generated content in a 3D space is REALLY REALLY REALLY freakin’ hard.

Also a MISS. The media’s love affair with Second Life may have cooled, but some of the ardor remains. And more importantly, no Second Life clones have reached the market yet – the closest are efforts to bring an open source version of SL to the masses (driven largely by Linden Lab’s community mismanagement) but those are still alpha-quality at this point.

2008 will be to Facebook as 2007 was to Myspace – no one will care any more, some hot new thing will come along, and everyone currently working on Facebook-centric startups will feel awfully silly (but still make hojillions of dollars).

Bzzzt, MISS. Facebook still is where everyone knows your name (and irritatingly, your birthday. Thanks, Facebook, for reminding everyone I know that I’m old.)

The election matchup will be Barack Obama vs. Mitt Romney, and Obama will win in a landslide. I’m willing to fudge on the Republican side given Iowa’s results but it’ll still be a Democrat landslide. Ron Paul will run from the right as a Libertarian candidate (I know, he said he wouldn’t, HE FIBBED DEAL WITH IT) and break 5%, which dwarfs the LP’s previous best of 2% but is still a statistical blip.

Mitt Romney? MITT ROMNEY? I don’t care if Obama DID win in a landslide, MITT ROMNEY? Dear god, 2007 Lum, what the hell were you smoking. Oh, and Ron Paul didn’t run as an independent and the Libertarians’ Bobbarr managed to get 0.40% of the vote. MISS.

So, now that we’ve established that I am wildly, wackily unqualified to make any predictions ever again, let’s do it ag’n!

* The video game industry is not going to be immune from the Great Recession. The MMO industry is especially not going to be immune, as the only proven path to success for MMOs is in huge budget gambles that have missed more often than not. There will be a couple of high profile announcements next year, but they are all games that managed to secure funding before the global economy fell over in a drunken stupor. There will be major, major consolidations between companies (“EA buys Ubisoft! No, wait, Ubisoft buys EA!”) which will result in consequent massive layoffs – layoffs which have dwarfed any to date. A not insignificant number of people, burned by the consequently flooded job market, will leave the game industry entirely for safer climes, and the usual incestuous job hopping will come to a screeching halt as everyone lucky enough to have a paying gig holds on tight to ride out the storm. Austin, Vancouver, and Boston will depopulate (not entirely – but significantly, as has already happened in Austin) as game development hubs as consolidation moves everyone towards California. The impact of this hammer blow will be felt over the next 3-4 years as new development slows to a crawl and the large publishers focus their efforts on safe, secure investments. Hope you like fantasy RPGs and Madden games.

* Those unemployed game developers have to do something – expect something of a boom in iPhone and web titles, both platforms friendly to small teams (in the iPhone’s case, sometimes talented one-man teams). Some really surprising and technologically sophisticated titles will be released there, and that will be where all the technical and design innovation is centered around. There’s movement by hobbyist/unemployed developers in semi-open platforms such as SL’s Opengrid and Metaplace as well.

* World of Warcraft will not deliver an expansion next year, focusing on live patching (effectively, the raid-level instances left out of WotLK’s release) as the company focuses on delivering its first Starcraft title and moving Diablo 3 into beta. Blizzcon will see an announcement of a new MMO that isn’t World of Starcraft, World of Diablo or World of World of Warcraft and everyone will glom to it as The Savior Of The PC Gaming Industry (which by this time will be pretty painfully obviously in desperate need of saving). Wrath of the Lich King will still be in the top 10 PC titles at the end of the year.

* Aion will do well in Korea. It won’t do well enough (like Tabula Rasa, Aion has been a high-profile and high-budget project in development for far too long). NCsoft will undergo serious retrenchment (related to the general global downturn) in Korea, although not in the West, because, well, they kind of already did that and there’s not much left to cut (though currently unannounced projects may disappear from lack of funding). Given the cutbacks from Webzen and Nexon earlier this year, this will mark the high water market of Korea’s investment in the US market, to be replaced as 2010 begins with Chinese investment, as the Chinese MMO market will continue to boom, unlike the West or Korea.

And… that’s it. 2009 is going to be a grim year. Sorry. On the up side, I think Battlestar Galactica’s final episodes will be pretty cool!

Well, That’s One Way To Avoid Pick Up Groups

Maybe I’m the last one to hear about this, but saw this on an F13 thread: the Crown Prince of Dubai is providing backing for Europe’s most notorious uberguild.

Ensidia is a joint effort by members of two of the top guilds in World of Warcraft, with the support and endorsement of a private entity based in Dubai, United Arab Emirates.

So if peak oil hits, the UAE can smoothly transition to primal motes.

Next Week, On A Very Special Episode Of “Diff’rent Strokes”…

Hollywood is ‘crafting’ a movie based around the mindblowing spectre that MMOs may be bad for you.

The story focuses on a married man who spends as many as twenty hours a day on a computer, existing through an avatar who is a thriving, musclebound entrepreneur. In reality, he is a diabetic, chain-smoking 53-year-old.

The movie is based on this article from last year about Second Life marital hijinks, so I fully expect a caring, nuanced portrayal of pixelated nudity.