Spry Fox Attacks the Clones

TT

This particular case has been talked up pretty extensively in the blogosphere over the last year.  For instance, James Grimmelmann had some thoughts about the early stages of the litigation and game cloning generally:

"if Triple Town flops on the iPhone because Yeti Town eats its lunch, at some point Dave and his colleagues won't be able to afford to spend their time writing games any more."

Eric Goldman weighed in yesterday on this new ruling, connecting it to the EA litigation:

"The Triple Town ruling suggests that Zynga probably can’t score a quick win."

And even Marty Schwimmer chimed in with some thoughts about an Alaskan verison of Gone With the Wind.

So, not to be left out, here are my two cents.

YT

At the heart of these cloning disputes is a simple question: how closely can you copy a video game?  In other words, how does copyright law apply to video games?  The cloning controversy is an old one, but there are many critics (and some defenders) of the common industry practice of copying game mechanics while essentially swapping in new art assets to make the clone not an exact copy.  But does that strategy always work as a matter of copyright law?

The big problem for copyright protection here is that copyright does not protect games as systems -- something that Bruce Boyden explains (excellently) at length in this paper.  Section 102(b) of the copyright statute codifies the so-called "idea/expression" dichotomy and expressly forbids copyright protection for ideas and systems.  But as applied to video games, where is the line between expression and system?

This case doesn't answer that question, but it contributes to the discussion.  The procedural posture in Triple Town is a ruling on a motion to dismiss, which puts a higher burden on the movant -- the defendant here.  The legal question is whether Spry Fox (the plaintiff) has alleged facts that, if proven at trial, could result in a favorable ruling.  So this opinion is no decision on the merits -- this is just about whether Spry Fox can make out its case in theory.  However, in a typical copyright case like this one, most of the facts are pretty obvious, so I think it's fair to say that this ruling does a little bit more than the typical ruling on a motion to dismiss. 

So it is worth paying attention when the court says interesting things about the nature of video games:

"...written description of the visual aspects of the games is not as effective as the side-by-side 'screen shots' that Spry Fox provided in its complaint, and that those screen shots are in turn less effective as a comparison between the two games than actually playing them. Neither Spry Fox nor 6Waves suggested that the court should compare Triple Town and Yeti Town by actually playing them."

In the past, many courts have analogized video games to films and other conventional media in order to perform an infringement analysis. But am I right to read this as the court saying that procedural similarity was not something briefed by the parties so it's waived (perhaps)?  The court makes a similar point later:

"It is as difficult to compare two video games by looking at a few screen shots and reading written descriptions of game play as it is to compare two movies by looking at posters and reading excerpts of screenplays"

So my impression is that the judge would welcome a comparison of game play in order to do a copyright infringement analysis, which is pretty interesting.  Not many courts have opened that door.

Further on:

"At this stage of the litigation, where the court has only the complaint, its description of Triple Town, and the accompanying screen shot images, the court concludes that the idea underlying Triple Town is that of a hierarchical matching game, one in which players create objects that are higher in the hierarchy by matching three objects that are lower in the hierarchy. Frustrating the player’s efforts are antagonist objects; aiding the player are objects that destroy unwanted or ill-placed objects. Spry Fox’s copyright gives it no monopoly over this idea. 6Waves (or anyone else) is free to create a video game based on the same idea...."

So there can be no copyright for game design at this level of game mechanics, because protecting that would amount to protecting an idea/system, which is barred by 102(b).  Pretty interesting. But then, in what some have called a "switcheroo," the court says:

"A video game, much like a screenplay expressed in a film, also has elements of plot, theme, dialogue, mood, setting, pace, and character. Spry Fox took the idea underlying Triple Town and expressed it with its own characters, its own setting, and more. These objective elements of expression are within the scope of Spry Fox’s copyright."

So... to the extent that a game idea is embodied in "objective elements of expression" that resemble "plot, theme, dialogue, mood, setting, pace, and character," those things are not an "idea" and may be within the scope of copyright.  But how do we distinguish between "objective elements of expression" and the "idea" in Triple Town?  The idea part of Triple Town seems to be set forth above, but what are the "objective elements" of Triple Town?  The court doesn't spell this out in the abstract so much as it demonstrates its understanding by applying it to the facts:

"Spry Fox’s allegations are more than adequate to illustrate plausibly the objectively similar expression embodied in Yeti Town. The object hierarchy is similar. Progressing from grass to bush to tree to hut is similar to progressing from sapling to tree to tent to cabin. Perhaps more importantly, the object hierarchy coupled with the depiction of the field of play comprise a setting and theme that is similar to Triple Town’s. A snowfield is not so different from a meadow, bears and yetis are both wild creatures, and the construction of a “plain” is not plausibly similar to the construction of a “patch,” at least as the two games depict those terms. Whether 6Waves’s choice of language in its dialog boxes is similar enough to Spry Fox’s is a closer question, but it is a least plausibly similar. There are apparent differences between games (for example, yetis are not bears and “bots” are not campfires), but a court must focus on what is similar, not what is different, when comparing two works."

Did you follow that analysis?  The court has said that "hierarchical matching" is an idea above.  But here the court seems to place the particular "object hierarchy" within the scope of copyright. Bears are not yetis -- but Yeti Town resembles Triple Town in that it mirrors a "wild creature" object within the hierarchy.  Snowfields are not meadows, but again, this is just swapping out one object for a similar object that can fit in the same slot in the hierarchy.  And the end result creates a similar "setting and theme." I think I get what the court is doing here, but Eric says it "isn't entirely clear" and Marty concurs about the ambiguity.

But in my opinion, if you borrow some basic concepts from object-oriented programming, it isn't that hard to understand.  E.g., meadows and snowfields are part of a terrain class, yetis and bears are a mob class, etc.  Class similarity within a game structure can count for something in copyright law.  Just as narratives can deploy certain characters (the sidekick, the snitch, the brute) in certain patterns, so video games can be formally mapped as particular sorts of object relationships with a skin of narrative. 

This analysis, I think, resonates with Jesper Juul's notion in Half Real that games are merger of rules and fiction.  It also ties in with Ian Bogost's forthcoming Game-O-Matic -- a piece of software that takes certain relationships embodied in a formal game structure and allows the user to insert the objects that the game "verbs" animate.

Again, it's important to note that this decision contributes to a conversation about game copyright -- it does not settle the issue.  But it nudges copyright a little bit further toward protecting game mechanics.  Even if you don't follow what the court is doing, I think that, based the court's analysis, if this were EA v. Zynga (instead of Spry Fox v. Lolapps), EA would win.

But the more important question is: What should the rule be here?  Game design as an art deserve some form of protection, surely.  Bruce is right that 102(b) is tilted against the protection of games, but what is really behind the idea/expression dichotomy?  The way I explain the idea/expression line to my students is to say that the copyright monopoly should end when copyright threatens private control over things that are truly important.  Facts, for instance, must be available to all.  Important ideas (discoveries, theories, laws of nature) must also be available to all.  Basic plot structures and genres must be available to all, because they serve as platforms for new creativity.  So the idea/expression line is really about, imho, keeping certain things outside the sphere of private ownership as a matter of optimal policy.

I admit that I am not happy about companies that clone innovative game mechanics.  It does not seem fair or likely to produce a better marketplace in game titles. When a game is essentially cloned, there's a danger that the production of genuinely creative games will go unrewarded and that companies making quick clones will be more profitable than those that spend money on new ideas. That does not seem like a fair or healthy way to set up the games industry.

But there are serious dangers in letting copyright be the solution to this unfairness. If the protection of game mechanics expands too far, the cure could be worse than the disease.  Game companies could end up owning specific video game genres for over a century due to the crazy duration of contemporary copyright law.  The creation of new independent games could be chilled by fear that the mechanics too closely resembled those in a game by EA, for instance. That result would be as bad-- or worse-- than the attack of the clones.  

Hopefully the courts can find some kind of happy balance, shutting down the most egregious clones without creating monopolies in new genres.  But I'm a bit worried, given the trends we've seen in other realms of intellectual property law.  Awarding copyright protection in plot-like game mechanics in a way that maximizes the prospect of future creativity will be a tough thing to do.  Courts pushing out the boundaries of copyright in games should do so very carefully.

(Cross-posted from Terra Nova.)