Michelle Mao is an IPilogue Writer and an incoming 2L JD candidate at Osgoode Hall Law School.

The fantastical and mind-blowing virtual worlds of and may soon be within reach as the for virtual reality technology heats up between major companies like , , and . Virtual reality has been dubbed by entertainment and media companies as the next big advancement in modern-day lifestyle. The appeal of virtual reality has been further developed as people have been cooped up in their homes for over two years as a result of the COVID-19 pandemic. The desire to feel connected while in the comfort and safety of one’s home can be uniquely targeted by innovations in virtual reality.����

To get to that immersive ideal, companies are racing to own patents for innovative, user-friendly technologies that would entice everyday consumers to use virtual reality platforms in a hassle-free way. One notable example is Meta’s (formerly known as Facebook) ownership of a that can when worn around the torso. Apple, on the other hand, owns the patent for a , where the user can manipulate objects in virtual and mixed reality environments. Notably, both devices are less bulky than current-day VR headsets and allow for much finer control over a virtual avatar’s interaction within a virtual environment. Companies are racing to patent the most comfortable options for VR hardware.��

As a result, are being bought up by large tech companies. In the , Microsoft, and Samsung continue to top other companies in the number of new AR/VR patents assigned.����

What does this mean for Future Patent Issues in the Virtual Reality Context?

As the patent collections of large corporations grow and products begin to materialize, one should expect an increase in surrounding virtual reality soon.�� In the face of increased patent litigation, IP lawyers and lawmakers interacting with the AR/VR patent landscape should consider 2 potential problems.

��AR/VR developers face two different legal interests that IP lawyers must balance when advising these developers Firstly, developers and the companies they are employed at want broad protection of their patented innovation. They want their patents, when read at the “”, to sufficiently block competitors from infringing on their patentable innovation. The patent must be strong enough to sufficiently protect the level of investment and time spent on developing an innovation – which is especially important in AR/VR patent issues, where development is .

Second, developers want to be protected from patent litigation. The descriptions of their patent must also be detailed and fully described such that other competitors cannot accuse them of intellectual property theft.

IP lawyers may need to navigate the increasing practice of when working with AR/VR developers. With the thousands of patents being issued around AR/VR technology each quarter, it is not surprising that NPEs are purchasing patents to assert their patent rights against companies . Thus, IP lawyers and companies targeted by NPE litigation must learn to prepare themselves in the AR/VR patent world, where patent issuance moves at a much faster pace than ever before.

While the pace of patent issuance in AR/VR can bring a diverse set of issues that IP lawyers must navigate in an already fast-paced legal environment, the developments and innovations surrounding AR/VR technology are exciting. It will be interesting to see how the legal profession and policymakers step up to deal with these issues as AR/VR technology continues its trajectory into modern, everyday living.

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Booker Zhang is an IPilogue Writer and a 1L JD Candidate at the University of Manitoba.

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On February 15, 2022, Spider-Man: No Way Home has hit at the box office, becoming the sixth-highest grossing movie of all time. Building on the massive success of Avengers: Endgame, Marvel has rapidly become one of the most famous and profitable movie studios worldwide. However, Marvel suffered financial hardships in the early years and made tough decisions. One of them is to sell the Spider-Man film rights. In 1999, Marvel with Sony and officially handed over its most famous superhero for $7 million, which created a list of complex copyright issues for the next 20 years.

In 2002, the first well-known movie was filmed by Columbia Pictures, a division of Sony Entertainment. The film generated $800 million at the box office, redefining what it means to be and successfully saving Sony’s Picture Division from a deficit. The popularity of Spider-Man also made Marvel realize that they gave up a money machine. However, Marvel had no right to unilaterally retain Spider-Man’s copyright unless Sony decided to terminate the contract—which seemed unlikely to happen.

A plot twist occurred in 2008 after Marvel released . The film received praise from critics. The American Film Institution selected it as one of the best films of 2008. The Walt Disney Company saw the potential and purchased Marvel in 2009. With solid financial support from Disney, Marvel ��has successfully promoted the “” and earned a worldwide reputation. In the meantime, Sony’s The Amazing Spider-Man 2 released in 2014 was met with criticism, ending the reboot series.

In 2015, Marvel and Sony made an unprecedented that the two companies would share joint-ownership in Spider-Man's copyright. Marvel would film the movie while Sony would take all the box office earnings and be responsible for the investment and distribution. There is no dispute that the new Spider-Man, starring Tom Holland, is a hit.

According to the deal, Marvel was only authorized to have Spider-Man in 5 movies, and Spider-Man: No Way Home indicated the end of the contract. To avoid spoiling, I will not go into details of the plot, but the movie did result in concerns about the future of Spider-Man. Marvel is currently seeking to retain complete control of Spider-Man through a against Sony.

One interesting fact to mention is that Sony only has the film rights of Spider-Man, not the video game rights. Nevertheless, under the authority of Marvel, Sony released on PlayStation 4 — the best-selling video game in 2018. Until Marvel and Sony reach an agreement, Spider-Man's copyright (like his fate) remains up in the air.

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Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School

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Although many aspects of life have become virtual, video games have always been virtual and well-loved. Behind every video game, there is a video game designer. And behind every designer, there is a publisher.

As of January 31, 2022, Sony Interactive Entertainment (“Sony”) is behind the video game publisher Bungie. Sony the independent Washington-based publisher for USD. Sony is no stranger to the video game industry, having created the world-renowned . However, Sony’s acquisition raises questions regarding the state of Bungie’s existing games, what freedoms Bungie has in terms of video game creation, and how the acquisition affects video game competition.

An is when one company purchases most or all of another company’s shares to gain control of that company. Unlike a takeover, acquisitions are as both parties tend to agree to the terms of the acquisition for the purchase to proceed. Acquisitions may occur where a company prefers to purchase another company’s successful , rather than spend developing similar products.

In Sony’s case, it is likely more cost-efficient to purchase Bungie and gain some ownership over its future games than to create games itself for its PlayStation consoles. After all, Bungie has created such as Halo and Destiny. While Sony’s gains in this acquisition are clear, will Bungie lose recognition for its games in the future?

According to The Verge, Bungie will maintain within Sony, self-publishing games while still fully owned by Sony. The ownership raises questions regarding Bungie’s intellectual property rights. Rather than giving Sony exclusivity over its games, Bungie has committed to s available on both Microsoft-owned Xbox and Sony consoles.

A video game is full of potential intellectual property interests. The can all fall under this protection. Further details regarding Bungie and Sony’s intellectual property agreements have yet to be divulged. Typically, there is a push-pull in a merger involving video games. The buyer in the acquisition should of the acquired company’s assets (including their intellectual property) and attempt to acquire as many rights as possible. On the other side, the seller should as much of their intellectual property with the government as possible, to ensure the seller commits to licensing agreements prior to the acquisition’s completion. These considerations can help balance each party’s gains and losses in large acquisitions.

Sony’s acquisition follows a trend in big video game purchases. On , Sony’s competitor Microsoft purchased Activision Blizzard in a . Once this deal closes in 2023, Microsoft will have internal game development studios. As these acquisitions effectively reduce the number of independent video game developers, could this be an issue for competition? U.S. competition regulators are Microsoft’s acquisition to determine if it will allow Microsoft to unfairly dominate the video game market and wipe out competitors. While acquisitions can be fruitful for some, there are intellectual property and anti-trust considerations that can make these deals a losing game for independent video game developers.

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Sally Yoon is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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Playing games in your room is one thing, but what about bringing your room into your game? allegedly updated a patent for virtual reality (“VR”) technology that can scan real objects into virtual reality. , Sony appears to finally be moving forward with the patent process despite issues and resubmissions following their initial filing on June 23, 2021.

The technology appears to stem from , which uses “overlapping images to create a 3D point cloud of an object or landscape.” SfM photogrammetry is a concept that has already been widely used in the video game industry to add greater immersive elements. One of the first games that might pop into mind would be , which exhibits photogrammetry cities through a collaboration with . Using SfM photogrammetry in the game, players can virtually experience flying over photorealistic cities around the world.

Photo from

The technology in Sony’s recent patent aims to bring this technique closer to home, literally. The 3D-scanning technology would enable users to scan real-life items into a VR space and interact with them, with the requirement that the user has a 360-degree view of the object for a successful scan. It’s currently unclear what Sony intends to do with this technology and whether it will eventually have any connection with the new , which is anticipated to release sometime this year. However, it does promise a greater level of user customization within the virtual reality space as well as signal interesting developments for both gaming and collaborations with .

Photo from GameRant

Over the years, VR technology has increasingly shown its potential to create extravagant, otherworldly environments, but also simulate the real world. VR has been a space for various subjects, from as well as . You may have stumbled across the of a man using a VR headset for a week in 2019 where he engaged in various activities such as meditation and movie screenings. On top of already prominent developments from (formerly known as Facebook) and , and their investments in virtual reality, Sony’s patent has interesting future implications for a more immersive metaverse.

The 3D-scanning technology is also reminiscent of the company’s infamous “” patent last year, where the company introduced technology that would enable non-luminous objects (mostly simple, household objects) to be used as controllers. These patents suggest the company's desire to close the gap between players' real and virtual lives. After all, regardless of how impressive it is to replicate historical events or fly through picture-perfect cities, no space will ever be more realistic than your living room.

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Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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, a Canadian accessories company notorious for its tongue-in-cheek marketing, taunted Sony earlier this year after launching an unofficial Sony PlayStation 5 (“PS5”) product. Unsurprisingly, Sony sent DBrand , which the Canadian company published and used to generate marketing for a newer, allegedly “not illegal,” albeit similar, product.

In February of this year, DBrand released unlicensed PS5 Darkplates, which are essentially a different shell/casing for the console. The PS5, if you are lucky enough to find one, can only be found in white. Until Sony releases official options, consumers who want a different colour must resort to purchasing skins, painting their consoles, or buying a different casing altogether. In the past, other companies have tried to sell custom plates for the PS5. PlateStation5.com, for example, after Sony threatened legal action over a trademark dispute. DBrand is apparently aware of Sony’s efforts to suppress these custom products, as they marketed their Darkplates with the tagline ��

The DBrand Darkplates were available in multiple colours and allowed for They also featured a textured pattern that is reminiscent of Sony PlayStation logos: the circle, square, triangle, and X. DBrand itself stated the pattern was “a familiar-but-legally-distinct apocalyptic spin on the classic PlayStation button shapes.”

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Until Sony caught on, the Darkplates quickly sold out and were placed on back-order. The cease-and-desist letter can be found . The 7-page document expresses that DBrand is infringing Sony’s copyrights in numerous ways, notably by selling plates that replicate Sony’s protected design, featuring the Sony PlayStation family mark logo and shape symbols, and using the PlayStation name to promote their product.

Sony further stipulates that, under both Canadian and US Copyright law, they reserve the right to protect their goodwill and associated intellectual property. The letter refers to the tagline “Go ahead, sue us,” and requests a resolution from DBrand. In response, DBrand pulled the products in issue, published a rather , and later re-released a new similar product: , touted to circumvent any legal issues. The 2.0 model is a different shape, devoid of all Sony logos, and features brand new vents for increased air circulation. The marketing is riddled with references to legality and the conflict with Sony. Even on the header, a scrolling text reads “FUND OUR LEGAL DEFENSE – FREE SHIPPING TO THE USA…” The new model’s tagline? “Checkmate, lawyers.”

Checkmate or not, DBrand’s transparency on the matter and relentless taunts are a curious marketing twist. Whether DBrand has closed the loop on their legal trouble with the brand-new design remains to be seen. Personally, I love the slimming effect of the design. I hope that Sony launches an official option soon.

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Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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is a 1994 (RPG) released in North America on the . It is the second entry in Nintendo’s series and the first to be translated and released outside of Japan. The game is satirical, featuring many zany characters and subversive content that mostly provides commentary and homage to Western culture. The soundtrack is just as strange, featuring , despite the of . The game’s 8-bit songs are inspired by genres ranging from to . Everything about the game defies what you would expect from a typical RPG, especially one from 27 years ago.

It also happens to be my all-time favourite game. ; the game has established itself as a . videos (LP) are a YouTube staple and popular games will have many LP series. Earthbound is no exception,

History of Earthbound

Though mass-marketed in a , Earthbound failed replicate its Japanese success in North America. Copies of the game along with a gamer’s guide packaged in special extra-large cardboard boxes sat unsold on shelves for months. Due to low sales ( sold in North America), the game remained a hidden gem for years until Earthbound’s main character appeared in the popular 1999 fighting game for the (and ), sparking a newfound interest in the forgotten series.

As popularity increased throughout the years, . Since many did not originally own or buy Earthbound, dwindling supply allowed the cartridges’ price to far beyond that of a regular SNES game. , software meant to emulate a game system, instead of shelling out over $100 USD to purchase the game. Thankfully, after endless lobbying from thousands of dedicated fans, Nintendo eventually re-released Earthbound for the Nintendo and for the in 2016—a move that finally allowed fans legal and affordable access to the game. The re-releases have also enabled many to broadcast their playthroughs with greater ease than previously possible. As it’s not on the yet, many who don’t own the older consoles may still enjoy watching others play online.

Let’s Plays & YouTube
Gamers and streamers often upload their gaming content onto sites like YouTube hoping to share their experiences with viewers. This type of video documentation is called “Let’s Play”. Legally publishing videogame footage largely depends on who the developers are and what they allow.

In late 2018, Nintendo discontinued the and implemented the . Nintendo “will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright (‘Nintendo Game Content’) in the content you create for appropriate video and image sharing sites,” as long as the guidelines are followed. The rules allow streamers to via “methods separately specified by Nintendo.” Nintendo further mandates “creative input and commentary” and explicitly disallows videos lacking such commentary. The remaining guidelines detail Nintendo’s reserved rights, Nintendo’s non-affiliation with YouTubers utilizing their intellectual property, and a FAQ section.

Copyright Claims
Earthbound content and music have remained mostly unscathed on YouTube for many years. Unfortunately, in recent months, many Earthbound players who uploaded their Let’s Plays have been struck with , effectively demonetizing the videos or, in some cases, outright removing them. One YouTuber, recently lost their Earthbound LPs’ ad revenue and their videos were removed. The YouTuber , with many fans responding with similar experiences and concerns.

How Does Sony Fit into This?

Nintendo owns the game’s brand and composed its music, but licensed the first two Earthbound series soundtracks to Sony for . Many fans were unaware of Sony’s Earthbound connection. Even though Nintendo allows LP videos, Sony can take down LPs and related content to protect its rights in the music. Users have attempted to dispute copyright claims, only to allegedly be hit by counterclaims from Sony. Google’s likely automatically detected Earthbound music and subsequently initiated the claims. , leading game developers to introduce “copyright-free” and . Earthbound is an old game though, and nobody seemingly knew Sony’s music license for the Japanese album even existed, until these claims arose.

The entire situation is noticeably disheartening for fans of a game where the music is integral to the plot and experience. Even though it is likely an algorithmic flagging issue, and Sony is entitled to defend their IP, the issue seems to indicate a larger problem. YouTube gaming is many users’ livelihood and/or dedicated hobby. Even if Sony eventually allows videos to return, unexpected copyright issues like these make the gaming process unnecessarily burdensome and financially detrimental. Suspended video publication interrupts potential ad revenue; while this may not have consequences for most, it can trouble users with millions of viewers. While potentially disingenuous to the experience, muting or changing the audio might be the easiest workaround to continue publishing LPs.

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The patent application��provides that when a game is purchased, the medium itself (game disk) would contain a unique identification tag which would be read by the reproduction device of the gaming system (Playstation 3 for example).�� The first time the disk is inserted into the gaming system, the reproduction device would record the disk ID and player ID, and use an authentication process to confirm that the combination satisfies Sony’s terms of use. ��If the combination of IDs does not meet the terms of use on any subsequent use of the game, the game will not start. ��The effect of the technology would be similar to having a single licence for the game and will not require internet access to work.�� This process nullifies any resale value of the game (unless you sold the system at the same time).

It is worth noting that this isn’t the first tactic the game developers such as Sony have employed to try and limit the resale of games.�� In the , Sony has attempted to employ the use of passwords to unlock games, but was unsuccessful as passwords could be shared between first-time buyers and subsequent ones.�� Online passes, which limited online play to the first online user of a game were also less effective because they could not limit offline gameplay.�� One method that I experienced first-hand was a bar-code on a game package which prevented resale to commercial businesses such as EB Games. ��The newest tactic by Sony creates a stronger protection by introducing protection measures into the hardware and essentially marrying game disks to game systems.�� This would prevent any second-hand user from playing the game in any capacity.

Despite the effectiveness of the method described in Sony's patent application for preventing the resale of games, there are some obvious unintended�� of this process.�� The first absurd result occurs in a situation where a game system is irreparably damaged.�� As inconvenient as having to buy a new system can be for gamers, if Sony adopted their game to a��system marriage method, it would effectively require gamers to purchase new copies of all of their games in the event��their system broke down. ��It also potentially eliminates the commercial rental market since a game disk will be permanently married to the first system it is played on.�� And though it may be possible for Sony to address these problems in some way, doing so will either be burdensome on the consumer or diminish the effectiveness of this new protection method.

The new applied for��method also greatly affects the rights of consumers.�� The history of the gaming industry until this point has been that games can always be sold, given away, or shared after initial purchase at the whims of the initial purchaser.�� That expectation through past experiences of the gaming community is also reflected in the copyright laws which apply to games.�� One of the fundamental principles of copyright is the (US Copyright section 109) which states that the holder of exclusive rights to sell copies only has that right in-so-far as the first sale of the copy.�� And while the new protection measure doesn’t technically violate the US Copyright Act (you could still sell a disk for zero value), the protection does violate the purpose of the copyright system.

Even if a court would disagree that the first-sale doctrine is violated by this patent, there is a simpler reason why the gaming community shouldn’t worry about this patent.�� That reason is that Sony would have to offer this technology to its competitors in order to affect the gaming industry as a whole.�� If they do not, then consumers will be given the option of purchasing a Sony system, which has these restrictions, or a competitors system (ex. Microsoft system) which does not.�� Since many modern games are produced for multiple systems, Sony’s new protection process will likely hurt their sales.�� Sony also has a number of patents on products that were never introduced into the market therefore it’s possible that this protection patent will never be anything more than theoretical. ��As a result, I doubt the gaming community will need to worry about the widespread adoption of the method described in Sony's patent application��any time soon.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

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