Game cloning: recent legal developments

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This presentation looks at the difficult issue of cloning in video games: what does the law actually say? Is it right that cloning can't be stopped legally? By Jas Purewal, games lawyer at Osborne Clarke

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Game cloning: recent legal developments

  1. 1. Game cloning and non-literal copying:recent developmentsJas PurewalInteractive Entertainment Legal Forum27 March 2012
  2. 2. osborneclarke.comOverview• Game cloning: an old problem, back with a vengeance• A quick guide to non-literal copying in the UK/EU• Recent UK/EU developments in non-literal copying• Is it correct that there is no legal recourse if your game is cloned or copied? 2
  3. 3. osborneclarke.comGame cloning: an old problem… 3
  4. 4. osborneclarke.comGame cloning: still a problem in the 80s 4
  5. 5. osborneclarke.comGame cloning: still a problem in the 90s,too… 5
  6. 6. osborneclarke.comGame cloning: nothing new now, then?• True- same fundamental cloning issues now as before: • Look and feel • Game mechanics • Graphics and audio • Characters • Names• But arguably much more widespread and large scale than before… 6
  7. 7. osborneclarke.comModern game cloning (Part 1)Fruit Ninja v Fruit Slayer 7
  8. 8. osborneclarke.comModern game cloning (Part 2)Radical Fishing v Ninja Fishing 8
  9. 9. osborneclarke.comModern game cloning (Part 3A)Tiny Tower v Dream Heights 9
  10. 10. osborneclarke.comModern game cloning (Part 3B)Sim Tower vs Tiny Tower? 10
  11. 11. osborneclarke.comModern game cloning (Part 4)Triple Town v Yeti TownNow known as Spry Fox LLC v Lolapps Inc (http://www.edery.org/uploaded_images/TripleTown_YetiTown_FullComplaint.pdf) 11
  12. 12. osborneclarke.comModern game cloning (Part 5)Why such a problem now?• New and hottest platforms (mobile and social) still fairly new• Still relatively quick to make a game• But rapidly increasing cost and difficulty of generating a successful game• One perceived solution: borrow from (or clone) someone else• Not sustainable in long-term, but maybe doomed to be repeated in future (after all, its already happened before) 12
  13. 13. osborneclarke.comModern game cloning (Part 6)Should we do something about it?"The ability to … draw inspiration from other peoples ideas is atthe heart of almost every single area of the media….Game cloning is not the bogeyman the market seems to think. Itforces developers to innovate, polish, reinvent existing styles andabove all, to be creative and think about the consumer." Opinion: Why Casual Game Cloning Makes Sense: http://www.gamasutra.com/php-bin/news_index.php?story=14990 by Colin Anderson of Denki Games (August 2007) 13
  14. 14. osborneclarke.comCopying 1.01: what constitutes copying ofa computer program?• Literal copying• "Literal" copying of abstract features• Non-literal copying (aka indirect copying or non- textual copying)Game cloning is built largely on non-literal cloning – which is also the hardest type of copying to prove or sue on. 14
  15. 15. osborneclarke.comWhat is non-literal copying?Copying the structure, appearance or manner ofoperation of program (aka its look and feel) or even itsdirect contents•John Richardson Computers v Flanders [1993]•Navitaire v Easyjet Airline [2004]•Nova Productions v Mazooma Games and Nova Productionsv Bell Fruit [2006-2007]•SAS Institute v World Programming [2010-2011] 15
  16. 16. osborneclarke.comNon-literal copyingJohn Richardson Computers v Flanders [1993]• Programmer creates a program for one business, then creates the same program for another – but using a different programming language.• Held: infringement can occur where the general scheme or features of a program have been copied, even though the code was completely different.• Or put it another way: whether there has been copyright infringement isnt limited to the text of the computer code. 16
  17. 17. osborneclarke.comNon-literal copyingNavitaire v Easyjet Airline [2004] (Part 1)• Defendants software copied the "look and feel" by accepting the same or similar inputs and gave similar results.• Claimant used the analogy of taking the plot of a novel and rewriting it. 17
  18. 18. osborneclarke.comNon-literal copyingNavitaire v Easyjet Airline [2004] (Part 2)Claim failed and Pumfrey J said that the analogy withthe plot of a novel did not apply:• the defendant did not have access to the text• A program was more like an instruction bookNon-textual copying therefore meant "copying without access to the thing copied, directly or indirectly." 18
  19. 19. osborneclarke.comNon-literal copyingNova Productions v Mazooma Games [2006] (Part 1)• Claim that two arcade games infringed copyright in Novas Pocket Money game.• No direct copying of source code: claim was for copying the program by copying the outputs that appeared on the screen.• Nova also argued defendants had copied the look and feel and mechanics of its game. 19
  20. 20. osborneclarke.comNon-literal copyingNova Productions v Mazooma Games [2006] (Part 2) 20
  21. 21. osborneclarke.comNon-literal copyingNova Productions v Mazooma Games [2006] (Part 3)• First instance: claim failed • No copying of artistic skill and effort, program code or program architecture. • Similarities in output didnt mean similarities in software. • Copying of general ideas not enough. • Different visual appearance and rules. 21
  22. 22. osborneclarke.comNon-literal copyingNova Productions v Mazooma Games [2006] (Part 4)• Court of Appeal: upheld • Features involved were too general to amount to a substantial part of Novas game. • Merely making a program that emulated another but which in no way involved copying the program code of any of the programs graphics was legitimate (Navitaire). • Also failed thanks to the Software Directive. • But in principle (static) in-game visuals can be protected as copyright works (cf R v Gilham too). 22
  23. 23. osborneclarke.comNon-literal copyingSAS Institute v World Programming [2010] (Part 1)• WPL used the SAS manuals to create software that emulated the functionality of the SAS software, with accompanying manuals.• WPL software also recognised user scripts written in the same language, commands and syntax as the SAS software.• = indirect copyright infringement? 23
  24. 24. osborneclarke.comNon-literal copyingSAS Institute v World Programming [2010] (Part 2)• First instance: claim failed• Applied Navitaire: emulating program not © infringement.• Software and InfoSoc Directives state ideas underlying a computer program arent protected, but its expression is.• Unclear how that applies to programming languages and interfaces. Resolution depended on the correct interpretation of Articles 1(2) and 5(3) of Software Directive and Article 2(a) of the InfoSoc Directive.• Referred this to the ECJ. 24
  25. 25. osborneclarke.comNon-literal copyingSAS Institute v World Programming [2010] (Part 3)• ECJ Advocate-Generals opinion (November 2011):• A programming language and/or program functionality in abstract arent protected by copyright law.• But their "concrete expression" in a computer program can be protected by copyright law.• Does this really take us much further?• Formal judgment by ECJ still awaited. 25
  26. 26. osborneclarke.comNon-literal copyingWhere do we stand right now?• UK/ECJ case law seems opposed to non-literal copying.• BUT: • Cases nearly all focused on enterprise software, not interactive entertainment • Nova v Mazooma was a pretty basic game – could a more engaging game get further? Arguably yes. • Does SAS v WPL really help us? Arguably not.• IN OTHER WORDS, UNDER UK/EU LAW THERE IS AN ARGUMENT THAT THE APPROPRIATE KIND OF GAME CLONGING COULD CONSTITUTE COPYRIGHT INFRINGEMENT. 26
  27. 27. osborneclarke.comWhat to do about cloning? (Part 1)So, is it correct that there is no legal recourse if yourgame is cloned or copied?(1) Look for literal copying first: • Gameplay, mechanics (probably) arent protected • User interfaces (probably) arent protected • Screen displays (somehow) are protected • Graphics, audio, text, code are protected 27
  28. 28. osborneclarke.comWhat to do about cloning? (part 2)(2) Look for non-literal copying second: • Has the "concrete expression" of the computer program been infringed? • Can you refer to more than just indirect copying of the code (e.g. graphics)? • Get ready for a tough (but not impossible) legal argument(3) Other factors: trade mark infringement/passing off?Patent infringement?(4) Non-legal factors (get your fans and the press onside –and make an even better game) 28
  29. 29. osborneclarke.comQuestions? 29

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