Avary's case is of particular interest to me because it falls so closely on the heels of the Grosso v. Miramax case that I recently reported on in October. In that case, Grosso's copyright claim was barred. However, the Ninth Circuit allowed his claim for breach of an "implied contract" to survive pre-emption under the Copyright Act on the ground that there was a "bilateral expectation of compensation" that acted as an additional "element" beyond the scope of copyright law. It is, of course, interesting to note both that Avary does not claim that Microsoft infringed any copyright interest he may have in the video game, including its concept, and that his action was filed in state court, not federal court, which has exclusive jurisdiction over copyright claims.
This is precisely the kind of case that one would expect following the Ninth Circuit's decision. And while one case certainly does not mean the proverbial floodgates have opened in state courts, to the extent anyone read my prior blog article, I told you so.