Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m O c t O b e r 2 0 1 4 29 Canada is behind the U.S. in terms of mobile wallet adoption from prrovid- ers such as Visa, MasterCard, PayPal, and Google. A bank pre-paid card can be load- ed into the wallet, which can also contain loyalty program cards, and store your tran- sit pass and drivers licence. "That's where people want this to go," says Shinfield. Regulatory legislation like CASL will apply to mobile wallets in 2015. Every player will have to make sure what they are doing complies. There may also be privacy and disclosure requirements depending on what is being downloaded to the wallet. For example, if you are loading a pre-paid card to your wallet that is from a federally or pro- vincially regulated entity, the specific dis- closure requirements need to be evaluated. "What's challenging now is that there is no specific law dealing with mobile," says Shinfield. "So you have to take the law that is here now — it's a round-hole, square-peg approach — and try and fit it to work in the mobile world. The thing most challenging is when you have a piece of legislation that dictates font size requirements and making sure they are met on a mobile screen. The issue in Canada right now is there isn't a lot of regulation and there isn't a lot of guid- ance on what is compliant in the mobile space. You have to answer some hard ques- tions when there is no law pointing you to the right place. You have to be creative in how you interpret the law and stay on top of all the developments — things are com- ing out on app development and privacy all the time." ENTERTAINMENT • GAMING LAW O riginally a freedom of expression law- yer who started out acting for news- rooms, Jon Festinger of Festinger Law & Strategy LLP teaches video game law at the Faculty of Law at the University of British Columbia. He says there is a com- ponent of hardcore gamers in his classes and many are entrepreneurial by nature, creating a new breed of lawyer who wants to leverage their love of gaming into busi- ness. "In entertainment law courses these days, largely because of digital media, you will find students who have actually been part of a media company or write blogs or have written a pilot for television because the barriers to entry have gone down in the last 10 to 15 years," he says. "Video games were the basis for all of these things we think of as giant changes in the world today — social media, 3D, smartphones — all of these things had their first betas in video games because there was money in video games," he says. Festinger says the lawyers who know video game law best right now are almost exclusively in-house. "You have to have such an intimate understanding of what the clients want and paying an outside law firm to come up to speed on the particularly specialized issues of gaming law is not cost effective," he says. "There are some outside counsel who do this but it's not a file you just land on some lawyer's desk. It matters whether they play games nor not — it mat- ters that they grasp the issues." What doesn't matter, however, is how small a video game company is because once launched it becomes part of a world- wide business. "That's the huge paradigm shift in this business," says Festinger. Finnish video game maker Rovio Entertainment Ltd. and its hit franchise Angry Birds is a perfect example. "Suddenly as soon as you launch that game in the app store you are a worldwide business," he says. When it comes to intellectual prop- erty in the gaming world, things get real- ly interesting for lawyers. "We've sort of moved into a contract world that deals with intellectual property rights but in the world of contract law. We've converted it," says Festinger. "It's created a ton of work for lawyers. There's huge criticism around 40-page terms-of-use documents and so now companies like Microsoft are trying to simplify it, which is not bad for lawyers because guess who is doing it? It's still us." The other part of the boom are the deals going down — digital media gener- ally remains a healthy part of the economy. SOCIAL MEDIA • DEFAMATION • INTELLECTUAL PROPERTY C onsider this the area of law where IP lawyers try and apply existing copyright, trademark, and contest law to new media and make it work, says Daniel Cole, an associate with Gowling Lafleur Henderson LLP. Cole's practice is focused on advertising and marketing law. He saw social media as a good extension when five years ago the firm started getting questions from clients about using Facebook to do contests and promotions. "The real trick is you have to look at the contract with the social media site through their terms of use and at the same time follow all the old rules," he says. Today, up to 60 per cent of what Cole does is related to social media including writ- ing policies for corporations on managing social media from the perspective of both clients and their employees. "The funda- mental tenet I try to explain to people is that the media has changed but the law hasn't changed," he says. From a business development perspec- tive, Cole initiated meetings with clients and has done more than 100 visits where he spends an hour with a company's mar- keting department going over the ins and outs of social media. That led to a one-day conference exploring its marketing, pri- vacy, and employment-side issues. Cole's colleague Eric Macramalla, a partner with the IP group at Gowlings, is focused on trademark litigation specific to the Internet including social media and domain name disputes — an area he has dubbed "trademarks 2.0." He deals with parties who are infringing on client intel- lectual property online — sometimes fake versions of well-known brands. "I can get a hosting company to take down a site for infringement — in North America it's pretty easy to do," he says, noting there is a huge amount of work in this area relating to the fashion industry. Of course cyberlibel or Internet defa- mation also present opportunities for lawyers who have managed tradition- al forms of libel in print media. Brian Radnoff, a partner with Lerners LLP in Toronto, has been working in the area for about 10 years. "It's an evolution in defa- mation, because just as we have moved away from traditional media, a lot more cases and claims involve things that hap- pen on the Internet, or some aspect of them involves Internet publication." Material online has the potential to reach more people than a print publica- tion and once online it's difficult to get it removed. "At a minimum it's becoming a component in almost every libel case and, to some extent, it's becoming the main or primary component of libel cases," says Radnoff. "It's definitely more pernicious in that it is very difficult to track it down. A LITIGATION • INVESTIGATIONS ELECTRONIC COMMERCE • ENTERTAINMENT • GAMING LAW INTELLECTUAL PROPERTY • SOCIAL MEDIA • DEFAMATION LAW

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