The intersection between intellectual property law and video games and immersive entertainment is exciting, fast-paced, and complex, as technology evolves at breakneck speed and often outpaces established case law. Game developers routinely wrestle with all aspects of IP law and need counsel on end-user license agreements; ownership and challenges of user-generated content; the scope and limitations of copyright protection; remedies for trade secret appropriation; duration of right of publicity protection; approaches for simulating reality without running afoul of existing trademark and brand rights of real-world companies and people; ramifications of international law; and more.
This new edition of Computer Games and Immersive Entertainment covers a broader range of topics and helps lawyers understand the ongoing changes, developing creative and nimble solutions to protect companies while still engaging the players.
Table of Contents
How to Use This Book Introduction Chapter 1: Contracts as Private Law in Video Games and Immersive Entertainment Chapter 2: Copyright Law Chapter 3: Patents: Real-World Issues in Mixed Realities Chapter 4: Implications of Video Games and Immersive Entertainment in Trademark Law Chapter 5: Implications of Video Games and Immersive Entertainment and the Law of Trade Secrets Chapter 6: Rights of Publicity Chapter 7: International Considerations of Video Games and Immersive Entertainment Table of Cases and Index
How to Use This Book |
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ix | |
Introduction |
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xi | |
Contributors |
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xvii | |
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Chapter 1 Contracts as Private Law in Video Games and Immersive Entertainment |
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1 | (60) |
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2 | (2) |
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I Purpose and Scope of Agreements |
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4 | (15) |
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A History of EULAs, TOS, and TOU Agreements |
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4 | (6) |
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B Common Provisions in Modern Agreements |
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10 | (4) |
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C Scholarly Criticisms of Terms: One Brief Example |
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14 | (3) |
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D The Future of EULAs, TOS, and TOU |
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17 | (2) |
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II Current and Potential Limitations on Terms and Agreements in Digital Games |
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19 | (32) |
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19 | (20) |
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39 | (4) |
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43 | (5) |
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48 | (3) |
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III Potential Resolutions to TOU Limitations in Digital Games |
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51 | (9) |
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52 | (4) |
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56 | (2) |
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58 | (2) |
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60 | (1) |
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61 | (58) |
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62 | (2) |
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I Basic Requirements for Copyright Protection |
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64 | (25) |
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A Literal and Nonliteral Aspects of Computer Games |
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64 | (8) |
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72 | (3) |
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75 | (5) |
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D Limitations on the Scope of Copyright Protection |
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80 | (9) |
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II Authorship and Ownership |
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89 | (12) |
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91 | (4) |
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B Joint Works and Contributions |
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95 | (2) |
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C EULAs and Ownership of Game Mods and Virtual Property |
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97 | (4) |
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III Copyright Infringement |
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101 | (16) |
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A Copycat or "Clone" Games |
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104 | (4) |
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B Your Game Stole My Movie/Screenplay/Book! |
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108 | (3) |
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C Streaming, Twitch, Machinima, and "Let's Play" Videos |
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111 | (6) |
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117 | (2) |
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Chapter 3 Patents: Real-World Issues in Mixed Realities |
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119 | (54) |
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120 | (1) |
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I A Brief Overview of U.S. Patent Protection |
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120 | (10) |
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A Utility Patents: U.S. Patentability Requirements |
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120 | (8) |
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B Design Patents: U.S. Patentability Requirements |
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128 | (1) |
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C Obtaining a Patent for Inventions on Video Games and Virtual Worlds |
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129 | (1) |
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II Patent Protection for Video Games and Virtual Worlds |
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130 | (16) |
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130 | (8) |
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138 | (8) |
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III Using a Patent in a Virtual World |
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146 | (26) |
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146 | (11) |
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157 | (3) |
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160 | (4) |
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164 | (8) |
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172 | (1) |
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Chapter 4 Implications of Video Games and Immersive Entertainment in Trademark Law |
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173 | (52) |
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174 | (2) |
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I Overview of Trademark Protection |
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176 | (8) |
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II Trademark Issues in the Video Game and Virtual World Contexts |
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184 | (8) |
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A Traditional Uses: Physical Products |
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185 | (2) |
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B In-Game Uses: Direct Liability |
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187 | (4) |
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C In-Game Uses: Secondary Liability |
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191 | (1) |
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III Analysis of Trademark Issues in Video Games and Virtual Worlds |
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192 | (24) |
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202 | (6) |
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208 | (8) |
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216 | (3) |
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V Unfair Competition: Trademark Infringement and Misappropriation |
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219 | (3) |
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222 | (3) |
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Chapter 5 Implications of Video Games and Immersive Entertainment and the Law of Trade Secrets |
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225 | (30) |
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226 | (1) |
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I Trade Secrets Generally |
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226 | (13) |
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A What Is a Trade Secret and What Can Be Protected? |
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226 | (4) |
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B The Competitive Advantage Requirement |
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230 | (2) |
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C The Secrecy Requirement |
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232 | (4) |
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D Trade Secret Information Protected by Other IP Laws |
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236 | (3) |
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II Trade Secrets in Video Games and Virtual Worlds |
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239 | (10) |
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A Gameplay: What Players/Users See |
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239 | (6) |
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B Game Design: Behind the Scenes |
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245 | (4) |
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III Applying the Traditional Analysis to Video Game and Virtual World Issues |
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249 | (2) |
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IV What Remedies Are Available for Trade Secret Misappropriation? |
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251 | (3) |
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251 | (2) |
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253 | (1) |
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253 | (1) |
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254 | (1) |
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Chapter 6 Rights of Publicity |
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255 | (44) |
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256 | (2) |
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I The Development of Right of Publicity Protection in the United States |
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258 | (38) |
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259 | (5) |
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B Types of Potential Claims Overlapping with the Right of Publicity |
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264 | (7) |
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C Variations in State Law |
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271 | (1) |
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272 | (24) |
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296 | (3) |
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Chapter 7 International Considerations of Video Games and Immersive Entertainment |
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299 | (48) |
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300 | (4) |
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I International Copyright Issues in Online Games and Virtual Environments |
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304 | (20) |
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A Choice of Law and Conflict of Laws |
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305 | (9) |
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B Territoriality of Copyright Infringement |
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314 | (7) |
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C Proposed Copyright Reform in Europe and China |
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321 | (3) |
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II International Trademark Issues |
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324 | (6) |
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A Ownership and Territoriality |
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325 | (2) |
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B Difficulty in Protecting Marks Subject to Global Exposure |
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327 | (2) |
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C Enforcement and the Special Case of Foreign Defendants |
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329 | (1) |
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III Comparative Patent Law Issues |
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330 | (10) |
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A Eligibility of Inventions Directed to Online Virtual Environments and Computer-Related Subject Matter |
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332 | (3) |
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B Filing Issues for Online Virtual Environments and Internet-Related Inventions |
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335 | (2) |
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C Some Issues Involving International Inventorship |
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337 | (1) |
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D Enforceability against Foreign Defendants |
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338 | (2) |
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IV Jurisdictional Issues in the International Enforcement of Intellectual Property Rights |
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340 | (5) |
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345 | (2) |
Table Of Cases |
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347 | (26) |
Index |
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373 | |
Chrissie Scelsi (@PunkLawyer)Chrissie Scelsi is U.S. general counsel for Wargaming, an award-winning online game developer and publisher that is a leader in the free-to-play MMO market across PC, console, and mobile platforms. She is responsible for legal and business matters for the companys operations in the United States, including copyright, trademark, advertising, privacy, compliance, e-sports, licensing, events, and answering basically any question related to what can be done with a tank. Prior to joining Wargaming, Chrissie practiced entertainment and new media law in private practice and was in-house counsel for game-based simulations company Bohemia Interactive Simulations, where she was responsible for advising on software licensing matters, government contracting and regulatory compliance, trademarks, copyright, and corporate issues.
Chrissie served as a co-editor for the first edition of this book, Computer Games and Virtual Worlds: A New Frontier in Intellectual Property Law, and is a chapter contributor to the ABAs Legal Guide to Video Game Development, Second Edition, both of which were published by the ABA Section of Intellectual Property Law. Chrissie is a former chair of the Entertainment, Arts, and Sports Law Section of the Florida Bar and is a member of the Video Game Bar Association and of the board of the Esports Bar Association. She is a member of Council for the ABA Section of Intellectual Property Law and serves on the sections Landslide® magazine board, as well as the CLE Board and Copyright Reform Task Force. She has been named as one of the top eight Central Florida attorneys with Twitterati status by the Orlando Business Journal based on the number of follows of her @PunkLawyer handle. Chrissie received her Bachelor of Business Administration in Marketing from Loyola University New Orleans, a Juris Doctor from Saint Louis University School of Law, and a Master of Laws in Entertainment and Media Law from Southwestern School of Law.
Ross Dannenberg is an attorney in the Washington, DC office of Banner & Witcoff Ltd., and handles a wide-range of intellectual property issues, with experience in Internet, e-commerce, telecommunications, computer software and video game-related issues. With a background in computer science, Mr. Dannenberg has prepared and prosecuted hundreds of patent applications in a variety of technical fields, including mobile and traditional telecommunications, computer software, video games, and Internet and business method inventions. He also has substantial experience with intellectual property protection of video games, including patent and copyright protection, copyright clearance and licensing, and has experience with entertainment, copyright, trademark and domain name related matters. In Addition, Mr. Dannenberg is an adjunct professor of copyright law at George Mason University School of Law. Mr. Dannenberg earned his Bachelor of Science degree in Computer Science from the Georgia Institute of Technology with concentrations in Telecommunications and Database Management and his Juris Doctor from The George Washington University Law School in 2000 where he was a member of the Environmental Lawyer legal journal. Between his undergraduate studies and law school, Mr. Dannenberg was an Information Systems Manager for Carnival Cruise Lines, where he was responsible for all facets of computer and network use, training, and administration aboard a cruise ship. Furthermore, Mr. Dannenberg earned his Private Pilot's license in 1999 and is a member of the Lawyer Pilots Bar Association. Mr. Dannenberg is also the Editor-in-Chief of the Patent Arcade website, a legal blog discussing intellectual property protection of video games.