Another Copyright Defeat for Clones (Triple Town/Yeti Town)

[Kurth]

I wrote about a copyright decision slamming a Tetris clone earlier this year and posted about it here for anyone who might be interested.

Now, in a case I've been watching for some time, there's been a pretty significant decision, again going against a clone. The case is Spry Fox, LLC v. LOLApps, Inc., and it involves the innovative Spry Fox game, Triple Town, and the clone by the defendants, Yeti Town. You can find a link to my new article on the decision here, along with links to the court's order and the prior Tetris case. Again, I'd be interested in knowing your thoughts.

Three aspects of the new decision really caught my eye: (1) that the court found that games today are much more like movies and deserve similar protection; (2) that we may need to recalibrate our view of copyright protection of games due to the incredible leaps in technology that now offer developers so much greater creative freedom; and (3) that the court actually listened and appeared to care what the gaming community thought about the games at issue (Triple Town and Yeti Town).

It will be very interesting to see how this bears on the big battle looming between EA and Zynga over the Sims and Zynga's Sims knock-off. Stay tuned!

[GreenGoo]

As I've said a few times, I'm opposed to this level of IP protection, and I'm absolutely opposed to having core game mechanics protected under IP. This has led to rulings such as rounded corners being proprietary in other areas of IP.

Do I like slimey companies that copy a game, element by element? Not really, but I don't see them as detrimental to the market as a whole, or my choice as a consumer. This "I had an idea, I should have a government awarded and enforced monopoly on it" is getting out of hand.

What if I liked Yeti Town better than Triple Town, for whatever reason? I'm S.O.L. Since these laws are in place ostensibly for the benefit of the public, not specifically for the creator of IP, results such as this seem counter to the driving spirit behind the law.

Anyway, carry on.

[Kurth]

As I've said a few times, I'm opposed to this level of IP protection, and I'm absolutely opposed to having core game mechanics protected under IP. This has led to rulings such as rounded corners being proprietary in other areas of IP.

Do I like slimey companies that copy a game, element by element? Not really, but I don't see them as detrimental to the market as a whole, or my choice as a consumer. This "I had an idea, I should have a government awarded and enforced monopoly on it" is getting out of hand.

What if I liked Yeti Town better than Triple Town, for whatever reason? I'm S.O.L. Since these laws are in place ostensibly for the benefit of the public, not specifically for the creator of IP, results such as this seem counter to the driving spirit behind the law.

Anyway, carry on.

I appreciate those sentiments, GreenGoo, but I wouldn't be too worried about IP protection for "rounded corners" in the gaming industry (not that IP protection for "rounded corners" isn't entirely appropriate in some circumstances).

To be clear, no judge is going to say that "the basic idea" of a game is protected by copyright. That would be copyright heresy.

What we are seeing, though, from this decision and also the Tetris case, is that courts seem to be taking a more video game-friendly view when defining what constitutes "the basic idea" of a game. Copyists often argue that "the basic idea" of a game swallows nearly everything but the artwork and actual code. Assuming they haven't copied the artwork and code, that lets them argue that whatever they have copied is not protected. When a court -- like the Spry Fox court -- takes a more curtailed view of "the basic idea" of a game, it allows innovative game developers to argue that their copyright has been infringed by a copyist's misappropriation of other elements of their game, things like plot, theme, mood, pacing, etc. Overall, I think these additional elements are a bit more "fuzzy," and I think they'll force game developers to focus more on whether or not they've come too close to the overall "look and feel" of a preexisting game.

Where does that leave the state of gaming copyright law going forward? I think we're seeing the beginnings of an evolution in judicial thought on video games. By and large, these judges don't have a lot of experience playing games. As gaming has become more mainstream and as the courts see more of these cases, I think they're starting to get more comfortable with the current technology and are starting to develop a feel for the state of gaming today. No disrespect to my old TRS-80 Color Computer (aka, the "trash 80"), but we're pretty far from games running on 64K machines.

Again, this isn't a seismic shift in the legal landscape. We're not going to see the basic tenets of copyright law rewritten. But I do think we're seeing a subtle but important shift in the way the courts are applying those basic tenets to video games.

If I were looking in my crystal ball, I think any uptick in litigation in the gaming space is going to be relatively short-lived. Once the courts provide some better guidance about what’s protectable and what’s not, I think developers are going to be a little more careful about knocking-off someone else’s game. Like I said, it’s not like these new decisions do away with the idea/expression dichotomy. Copyright still doesn’t extend to a game’s underlying ideas. But game developers need to know that it’s not the Wild West, either. They can’t take big shortcuts, shortchanging the creative side of things, by simply copying an already successful game.

As a gamer, my hope is that the pendulum continues its swing back a bit in favor of greater protection for games and settles at a nice happy medium that discourages outright copyists while preserving more than enough room for innovative game developers to build upon preexisting ideas.

[Kurth]

Just a quick update: Not surprisingly, it appears the case has settled!

10/10/2012 The Court has been notified that the parties have reached a settlement in this matter. If the parties have not submitted a stipulation and proposed order of dismissal or a voluntary dismissal by 10/26/2012, the Court may enter its standard order of dismissal. Should additional time be needed to perfect settlement, the parties are directed to contact the in-court deputy. (VE) (Entered: 10/10/2012)