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March 14, 2005
More on Marvel v. NCSoft
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There have been a number of reports either suggesting or stating outright that NCSoft had a big victory in the recent ruling in Marvel v. NCSoft -- causing not a little confusion in the blogosphere, even here among the contributors at Copyfight. Below, Fred von Lohmann helpfully clarifies the situation, concluding that the "victory" was more like "a modest result in a preliminary skirmish." Meanwhile, John Turitzin, Executive Vice President and General Counsel for Marvel, offers his perspective over @ PC Games, arguing (unsurprisingly) that Marvel's case remains strong:
This is primarily a case for copyright infringement -- Marvel had three different causes of action alleging copyright infringement and all three were sustained by the Court. Marvel also had several different kinds of claims for trademark infringement and the judge decided that one of them was the right theory and another two were not. There are some non-trademark and -copyright claims in the case and one of those was upheld and a much more technical claim for a declaratory judgment was dismissed as not necessary.
The upshot: While it's true that more than half of the claims were dismissed, more than enough remain to cause trouble for NCSoft.
For background on what's at stake in the case, check out Fred's Law.com editorial, Et Tu, Marvel?
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1. Dr. wex on March 16, 2005 10:33 AM writes...
I understand that this is a preliminary ruling and a long way from ultimate victory. But as I see it there are two radically different ways this can go. In one scenario the issue is about specific player actions, e.g. naming a character "Captain Marvel." If that's what the case is about then NCSoft can reasonably hope to shelter under the DMCA. I don't see this track as all that significant (though it could be problematic for NCSoft, I agree).
On the other side, Marvel's case presents a fundamental challenge to whether game makers can have a highly flexible character creation engine. If this part of the case stands, it is much more significant. (Anyone besides me see a link to the broadcast flag issue?) If a content company is allowed to use IP law to radically restrict what a technology company can include in their product that's a much more far-reaching and in my mind significant issue.
My sense in reading the ruling was that the judge significantly weakened Marvel's claims along the second track.
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