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Sep 28, 2012

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1.

Hmm, I think that what the court is saying could be expressed by analogy.

Let's say that the clone involved dice on a checkerboard. The hierarchy was expressed by the number of pips that were face up. Get three threes together and they collapse to a four, and so on. The obstacles were represented by a poker chip. Same game... classic "dressing" versus "salad" example. But the expression is very different. No plant life. No animals.

In my reading of what the court is saying, the expression is substantially different in my hypothetical. The issue they are focusing on is that the *dressing* is quite similar in the two games in the suit.

As another hypothetical... let's say that someone cloned the game, with black and white pandas. They color-shifted the art, but everything was still bushes and houses. There the dressing is even MORE similar.

Now we have a spectrum... the dice version is almost certainly not copyright infringement. The one that is color shifted pandas almost certainly is. The question is whether any of the ones in between are.

I don't see how this is different from copyright cases in other media, which have also hinged on HOW similar things are.

2.

Raph,

Yeah, I think you're right, but it seems to me that what the court is doing is a little different that what you see in other media. If you read Marty Schwimmer's post, he seems to be saying that Gone With the Wind set in Alaska would be a totally different film, which I read as essentially: "What is this court saying? A snowfield is not a meadow and yetis are not bears." So, if that's true, I think it must be relevant that the yetis and bears peform a wandering/blocking function and the meadows and snowfields perform a blank title function, and there are certain similar steps in the chain of evolution as the scoring pieces move to higher value. So, to a certain extent, the function of the object in both games dicates the form. (E.g., yetis and bears are animals because they move and prevent placement -- a meadow stays still and works as a tile, but it doesn't move so it couldn't be used to skin the bear/yeti function in the game.)

Perhaps it is analogous to other media in that you can do something similar in a narrative analysis by, e.g., pointing out that certain characters appear at specific places in narrative structures to perform certain functions. E.g. sidekick rescues hero as means of introducing sidekick and sidekick is held captive later in the plot -- so stories have certain structural slots where elements can be fit. The progression up the hierarchy in Triple Town is kind of like that too -- it's a temporal progression from grass to bush to tree. But some parts of this -- e.g. bear/yeti vs. meadow/snow seem like a particular structural/functional pairing that you wouldn't see, at least in that form, in a standard narrative.

I admit, though, that if these games were reduced to bare formal elements -- poker chips and numbers, e.g. -- the court's copyright analysis wouldn't make sense. It couldn't say "bears are like poker chips." So I agree with you that there's still much about this that reads like a conventional copyright comparison. So I should be careful, I guess, not to suggest that the opinion would find completely formalistic game mechanics (bare rules) subject to copyright.

3.

Moving more away from the exact case here, and how the judge is handling it, and more towards answering your closing fears and questions:

I agree that mechanics are ideas and should not be copyrightable. However, is there room for the idea of copyrighting (or in some way having IP over) particular implementations of mechanics? I am not thinking here about "dressing" in Raph's terms - perhaps what I mean his closer to his definition of content as statistical variation on challenges.

As an example, you could describe the mechanics of chess as "players take it in turns to move pieces across a grid, aiming to capture their opponent's pieces". The thing that makes chess uniquely chess, amongst other turn-based capture games, is the different kinds of pieces and the ways in which they can move and capture, as well as the starting positions and the rules around checkmate (and more: castling, etc.).

Chequers uses the same core mechanic, but fleshes it out with very different content. It is not a "copycat" game. Whereas if I made a game that was exactly like chess, except I renamed and reskinned the pieces, and changed it so that pawns could move backwards, I would have changed the balance of chess, but the differences in design would be small, and it should probably be an IP violation - if chess weren't in the public domain!

Similarly if someone looks at Diablo 3 and says "that's a great skill progression system for an RPG" and then copies it wholesale, that could be IP infringement. Whereas if they take the basic idea (equip N abilities at a time whenever you want from the ones you have unlocked so far, each of which has M different sub-abilities that can be set) and choose a value for N and M, and create their own, different, abilities then it would not. Copyright similarity principles could be used in court to decide if the abilities that the new game has are too similar to the ones in D3.

So under this, Blizzard put effort into coming up with the core mechanic, and that can't be protected. However, the much greater effort of populating that mechanic with content and abilities that are fun to play and balanced is protected.

This was just me thinking aloud. Has someone else has already written about this sort of idea? What are the problems with it? Could this be a starting point for something workable?

(Obviously similarities in dressing would still be copyrightable in the usual way - if developer A steals the plot and graphics wholesale from developer B's game that's copyright infringement).

4.

Hi Martin,

I'm not sure I understand your idea. Are you saying that if we took chess (assuming it was copyrighted) and replaced the particular pieces with bears or fruit or elements from the periodic table, that would be infringing? So the mechanics would get a "thin" protection, but it wouldn't extend to the "core" mechanics?

If I'm getting that right, I think that's interesting, and maybe how this will evolve over time. For me, the conceptual problem is that I don't know how to draw a line between a "core" mechanic and protected particular embodiment of that core mechanic.

In a way, this calls to mind patent law, where you *do* have a protected core invention, spelled out explicitly in the drafted claims. Any use that falls within the claims is infringing, but any use that falls outside the claims is okay. What you're describing (I think) is the reverse. Anything that duplicates the core mechanic is fine, but particular embodiments of that core mechanics might be protected.

If I'm understanding you right, that's appealing, conceptually, to me, but again, drawing the line would be heard.

5.

Greglas: Yes, you have understood me. I realise that the complexity in my suggestion is in drawing that line - that is why I was saying my post was just a suggestion of an area to think about.

One of the reasons it occurred to me is that I have heard professional game designers repeatedly say that coming up with an idea is the easy bit - it's refining it into a polished, balanced, fun system that is the real effort. So protecting that effort, however you define it, seems to be a useful aim.

6.

There are two reasons for the blatant copying taking place. At first the two reasons might sound paradoxical, so bear with me.

1) Too much (stupid) money. 57% of all investment in games has been in mobile games. If you look at the appstore, you'll see a lot of cloning (e.g. Tiny Co's Monsters is a copy of Dragonvale). Same thing with Facebook.

2) (Relatively) cheap to develop a mobile/social game. Even companies not funded to the hilt can get away with copying a proven game by slightly changing the theme.

No one has bothered copying Ultima or Civilization in the 90s. You have to ask what changed.

7.

The key to this discussion is here:

"Spry Fox had sought to license the game to the defendants, but the defendants pursued a cloning strategy instead."

If you're a publisher who's been approached by a studio, you shouldn't be allowed to decline to publish their game and then make a blatant copy of that same game.

Now, there is room to argue that this sort of restriction doesn't belong in copyright law, but instead should be enforced by contract. If this is the case, then Spry Fox should have insisted on language to this effect in their contract with lolapps before they entered into negotiations over Triple Town.

If they didn't, and if they lose the case because of this fact, then the industry needs to just chalk this debacle up as a learning experience, adapt and move on.

Regardless of the outcome, though, informed consumers should not be ok with what lolapps did, and I hope that they'll choose to play Spry Foxes' Triple Town instead.

8.

Greg, thanks for the shout-out! To answer Riftstalker's question, I think what's changed is that we are, again, in a boom market. The boom this time is in smartphone gaming apps, but previously you saw similar disputes arise in the early '80s involving arcade games. In a 15-month period in 1981-82, there were 8 separate cases decided involving allegedly infringing arcade games, including 3 appeals, and two International Trade Commission proceedings to bar importation of certain arcade games. What gave rise to all this litigation was a combination of the sudden emergence of a lucrative market, combined with uncertainty about the underlying rights. Not only were video game copyrights uncertain, but the protectability of computer code itself was not fully established. So there were a lot of blatant knock-offs, and courts steered around the problems in determining what, exactly, was protected in the game play by classifying video games as audiovisual works, the same as cartoons or movies. The knockoff cases fade out after August 1982.

On the opinion itself, I'll have to find time to write up a full post, but the "switcheroo" you identify Greg seems to me to be flat-out contradictory. The court bows to precedent that says that game structure is not copyrightable, but then holds that game structure is analogous to the plot of a novel and thus copyrightable. I think this is a mistake for the reasons I argue in my article, but when it comes to video games I think courts have been apt to conflate the rules and structure of the game with nonliteral protected aspects of other works, such as movie or novel plots. Games may have plots, but games are not plots.

9.

Thanks, Bruce -- yes, just because I think I understand what the court is saying doesn't mean I think it fits with precedent or the copyright statute. But contradictions like this are how things change sometimes -- but it helps a lot if the Supreme Court performs the contradiction. :-)

I don't know if either of these parties has the energy to pursue an appeal, but it will be interesting to see if the district court in the EA case is influenced by this.

Matt -- Triple Town is really much better. I played them both before writing this and I admit that I've come back to Triple Town more than once since... :-)

10.

I'd like to see what the 9th Circuit does with the issue, although a final decision here is probably a year away. I like the Allen v. Academic Games League opinion, with its somewhat delphic "Games are meant to be played" pronouncement (i.e., playing a board game in public is not a public performance), but I'd be skeptical a panel would straightforwardly apply the game rules cases to videogames. Even apart from the tricky question of what constitutes videogame "rules," and whether game rules are only noncopyrightable because they are instructions to humans (I argue no, but I suspect the 9th Circuit would just stop at "videogames are audiovisual works").

11.

I think it's probably a mistake to read too much law into the settlement here.

6waves is a company in trouble. They might well have defended this effectively, but it was easier and cheaper for them to settle, giving up a game that hasn't been a big hit for them, and getting out of a situation that makes them look like assholes.

Mind you, my sympathies are entirely with SpryFox, almost regardless of what the law is; but this isn't really a precedent. It's a company with financial troubles shedding one of them.

12.

Greg --

Well, the opinion on the motion to dismiss means something, but it's pretty weak precedent.

But you're right re the settlement -- and it's usually very hard to read anything into a settlement if the terms are not disclosed, which they usually are not. Most cases settle, and it's hard to tell who "won" given that it could be for a token sum or a substantial amount of money. Cases often tend to settle after rulings like this, though, where the court tips its hand to where it may be heading with a ruling. Easier to save the costs of litigation and reach an agreement based on the signals in the opinion.

13.

Hi Greglas,

When comparing the Triple Town and Tetris analyses, I noticed that the two judges seem to contradict each other, or at least offer quite different perspectives, on the difficult question of the protectibility of core game mechanics that you discussed. For one specific comparison, look at how they both deal with the question of copying a game's playfield dimensions.

Here's the Tetris opinion on Xio's use of Tetris Company's 20x10 playfield:

"Xio copied a field that was the exact same dimensions as Tetris. Even assuming it is a rule to have a field higher than it is wide, which the Court does not necessarily find, it is not a rule to have the playfield be exactly 20 units by 10 units. Xio was free to program a puzzle game with the playing field designed “in an almost unlimited number of ways” as admitted by Xio’s expert. Xio was not limited to those precise dimensions and was free to take the general idea of having a long game board and express it in its own unique way. For example, it could have had a field three times as high as it is wide or 15 units high by 8 units wide, without copying the exact game dimensions and infringing the look and feel of Tetris’s expression. Thus, I find this to be protectible expression that Xio infringed."

Now, here's the Triple Town order's analysis of Lolapps's use of Spry Fox's 6x6 playfield:

"Although the court need not decide the issue in this motion, it appears that some elements of Triple Town are not protectable because they are functional. Much as copyright does not protect ideas, it does not protect the “functional process[es]” that are “indispensable to the idea” inherent in a game. For example, Spry Fox’s choice of a six-by-six game grid is not likely an expressive choice. A grid that is too small would make the game trivial; a grid that is too large would make it pointless. There is perhaps a range of functionally appropriate choices for the dimensions of the game grid; perhaps a seven-by-seven grid, or a six-by-seven grid, would serve the game’s purposes just as well. But it would extend copyright protection beyond its proper scope to afford protection to a functionally-dictated choice like this one."

Both judges make sure to review the video game case law, but the ambiguity in where exactly to draw the idea/expression line when analyzing game mechanics, or which of the rules in a game are to be considered 'functional process[es]' that are 'indispensable to the idea', allowed the judges to form completely different arguments and conclusions from very similar circumstances. Both judges even specifically consider the possibility of differently-sized playfields to support their argument. However, the Tetris judge decides that it's self-evident that changing the game board's dimensions wouldn't affect the game's 'function', while the Triple Town judge decides that it would (or at least that it might).

Maybe one way of understanding this ambiguity is uncertainty in the precise 'function' a video game (as entertainment-producing device) dictates, and whether game mechanics form any part of this function. One may take a utilitarian perspective (as did the Tetris judge), where a game is understood to 'function' only insofar as it creates an audiovisual work as its output. In this view, any particular game mechanics would 'function' as well as any other, disregarding any qualitative differences in the resulting gameplay, and thus extending copyright protection to 'core' game mechanics. Or one may take a more performative perspective (as did the Triple Town judge), where the function or purpose of a game also incorporates the possibilities for the player's own action and engagement. In this view, the specific affordances and constraints produced by the game mechanics would also serve a function in the overall 'cybertextual' system, and would thus not be covered by copyright (or trade dress, as in the Tetris case).

Whether this latter, performative perspective on game copyright could be linked back to any supporting case law distinct from the standard idea-expression ambiguity, I'm not sure. As I understood it, this is something like the history Bruce Boyden traced out in his "Games and Other Uncopyrightable Systems" paper (which was cited by Xio in its defense brief), but the judge's opinion ignored this claim: "Xio argues that some independent principle protects game rules rather than it being the natural extension of the idea-expression dichotomy applied to games. I find no case law or support for such a premise."

In general though, the lack of any analytical method other than 'common sense' being applied in the US courts to resolve this ambiguity makes the the question of copyright (and trade dress) infringement in computer games quite unpredictable (arbitrary, even).

14.

Hi Will,

Great observations -- thanks. I hadn't zeroed in on the grid comparisons between those two cases and it's an excellent point of entry for the question of functionality.

What's interesting to me is that from a game analysis perspective, there really is a difference (I think) between the grid dimensions in Tetris and in Triple Town. 20X10 in Tetris works in a way that is somewhat different than 6x6 in Tripletown. It's sort of analogous to copying the use of one ball for a game versus copying the use of 57 balls in a game. The latter choice seems more arbitrary, hence more subject to protection as an expressive choice of the game creator. By comparison if Tetris were a 22X10 grid, where the blocks fell one more step, I don't think it would change the game play so much, but if TT were 6x8, it would change the game substantially.

Also, it's interesting that the TT court is ultimately leaning in favor of protecting game play (in my opinion) and, for that reason, as use say, realizes that the grid size *functions* in terms of its influence on player performance. But despite finding that functionality, the opinion seems to be reaching for ways to view game mechanics as protected to the extent they can mirror narrative progression. So to the extent the TT court takes away the game field size as functional, its recognition of the role of that element in structuring performance leads to a greater solicitude for that form of creativity.

To the extent the Tetris court focuses on the expressive choices in the pre-player text as controlling the infringement analysis (the non-performative text), this favors protection, but protection of Tetris as a template primarily, not as a system. And that's more consistent with what Bruce says in this paper.

Re "lack of an analytical method" -- that's true, but it's pretty common with respect to the law and new technologies. Especially with substantial similarity analysis, courts do make things up when they encounter new sorts of problems. Over time, this creates common law precedent, which ultimately gains some stability and works to order investments. The video game case law is "only" 30 years old and I don't think the problem is quite solved at this point. So for the moment, the line does seem arbitrary, but as these and other opinions trickle down, we might get some more definite lines to offer guidance to the Zyngas and 6waves of the world. However, it seems that with copyright law, there is always going to be indeterminacy about the exact scope of the right to prevent similar works.

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