2004 Web and Downloadable Games White Paper 

IGDA Online Games SIG 

court found that there was no jurisdiction over an out of state web site in an online copyright 

infringement action.  

The U.S District Court (DofMd) issued an opinion on September 30, 2003 in 

Electronic Broking 

Services Limited v. E Business Solutions & Services, et al

. D.C. No. JFM 03 1350, a case regarding 

personal jurisdiction based on Internet activity. The Court concluded that the  Defendants' contacts 

with Maryland do not rise to the level of `minimum contacts' necessary to constitutionally subject them 

to either general or specific personal jurisdiction in this court . Case was dismissed.  

As of this date the Supreme Court has yet to take a case in this area. 

(Australia) On December 10th, 2002, the High Court Australia issued its opinion in 

Dow Jones v. 

Gutnick

. This was a tort action brought in Australia for an allegedly inflammatory new story published 

on the Internet by Dow Jones, a U.S. publisher. The court held that because of publication on the 

Internet the Australian courts have jurisdiction, that Australian law applies, and that the case should 

proceed in the trial court in the Australian state of Victoria. 

d) 

Insurance Policy Covering Property Damage 

Prudent businesses should consider taking an insurance policy to cover possible damage by their 

product. AOL subscribers sued AOL alleging that version 5.0 had substantial bugs, and was 

incompatible with their computers' other application software and operating systems, causing the 

computers to be damaged. In that lawsuit AOL tendered the defense of these claims to St. Paul, 

which denied coverage. AOL settled claims, and filed a complaint against St. Paul alleging wrongful 

denial of coverage. In the case of 

America Online, Inc, v. St. Paul Mercury Insurance Company

, the 

U.S. Court of Appeals (4th Circuit) on October 15, 2003 issued a split opinion. The District Court 

denied AOL's claims and granted summary judgment to St. Paul on the grounds that the computer 

users 

 underlying complaint did not allege physical damage to tangible property within the meaning of 

the insurance policy only   software damage which was not covered by AOL's insurance policy. 

Developers should review their insurance policies to make sure that if anyone alleges that their game 

has damaged other application software and operating systems, they are adequately covered. 

e) 

Information or Telecommunications Carrier 

Classification of what type of service provider you are can subject you to various state and federal 

agency regulations. On October 16, 2003 the U.S. District Court (DofMinn) issued a memorandum 

and order in 

Vonage v. Minnesota Public Utilities Commission

, holding that Vonage is an information 

service provider, and that the MPUC cannot apply state laws that regulate telecommunication carriers 

to Vonage. The court wrote  state regulation would effectively decimate Congress 

s mandate that the 

Internet remain unfettered by regulation." The conclusion was that service providers are personal 

information servers, rather than telecommunication servers, which prevents state and federal 

government entities from applying rules that apply to telecommunications, such as those pertaining to 

filing of tariffs, cross subsidiaries, unbundling, wiretapping and other electronic surveillance by the 

FBI, law enforcement agencies and 911.

12

f) 

Patent Issues 

(1) 

Eolas Technologies  

In 1999, Eolas Technologies filed suit against Microsoft alleging that it had infringed on one of its 

patents when enabling Internet Explorer to use plug ins and applets. Eolas Technology first 

outlined the process in a patent application in the early 1990s. The technology in question is one 

of the fundamental elements of web browsing. Applets and plug ins allow web surfers to view 

multimedia of real time content within the web browser rather than a separate software 

application. Features such as movie clips, streaming audio, and live stock quotes can be 

embedded into web pages and served to consumers. On August 11th 2003, a federal court in 

Chicago ruled that Microsoft must pay $521 million after finding that its Internet Explorer program 

infringed on Eolas 

 patent. On September 11th, 2003, a federal judge rejected Microsoft 

s post 

trial claim that Eolas had misrepresented the facts. On Monday, October 6, 2003, Microsoft filed 

motions to set aside the $521 million judgment and to be granted a new trial. On October 8th, 

12

 Tech Law Journal October 17, 2003 

Page 36 of 93