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

1. Game cloning and non-literal copying:
recent developments
Jas Purewal
Interactive Entertainment Legal Forum
27 March 2012

2. osborneclarke.com
Overview
• 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. osborneclarke.com
Game cloning: an old problem…
3

4. osborneclarke.com
Game cloning: still a problem in the '80s
4

5. osborneclarke.com
Game cloning: still a problem in the '90s,
too…
5

6. osborneclarke.com
Game 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. osborneclarke.com
Modern game cloning (Part 1)
Fruit Ninja v Fruit Slayer
7

8. osborneclarke.com
Modern game cloning (Part 2)
Radical Fishing v Ninja Fishing
8

9. osborneclarke.com
Modern game cloning (Part 3A)
Tiny Tower v Dream Heights
9

10. osborneclarke.com
Modern game cloning (Part 3B)
Sim Tower vs Tiny Tower?
10

11. osborneclarke.com
Modern game cloning (Part 4)
Triple Town v Yeti Town
Now known as Spry Fox LLC v Lolapps Inc (http://www.edery.org/uploaded_images/
TripleTown_YetiTown_FullComplaint.pdf)
11

12. osborneclarke.com
Modern 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, it's already happened before)
12

13. osborneclarke.com
Modern game cloning (Part 6)
Should we do something about it?
"The ability to … draw inspiration from other peoples' ideas is at
the heart of almost every single area of the media….
Game cloning is not the bogeyman the market seems to think. It
forces developers to innovate, polish, reinvent existing styles and
above 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. osborneclarke.com
Copying 1.01: what constitutes copying of
a 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. osborneclarke.com
What is non-literal copying?
Copying the structure, appearance or manner of
operation of program (aka its 'look and feel') or even its
direct contents
•John Richardson Computers v Flanders [1993]
•Navitaire v Easyjet Airline [2004]
•Nova Productions v Mazooma Games and Nova Productions
v Bell Fruit [2006-2007]
•SAS Institute v World Programming [2010-2011]
15

16. osborneclarke.com
Non-literal copying
John 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 isn't limited to the text of the computer code.
16

17. osborneclarke.com
Non-literal copying
Navitaire v Easyjet Airline [2004] (Part 1)
• Defendant's 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. osborneclarke.com
Non-literal copying
Navitaire v Easyjet Airline [2004] (Part 2)
Claim failed and Pumfrey J said that the analogy with
the plot of a novel did not apply:
• the defendant did not have access to the text
• A program was more like an instruction book
'Non-textual copying' therefore meant "copying without
access to the thing copied, directly or indirectly."
18

19. osborneclarke.com
Non-literal copying
Nova Productions v Mazooma Games [2006] (Part 1)
• Claim that two arcade games infringed copyright in Nova's
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. osborneclarke.com
Non-literal copying
Nova Productions v Mazooma Games [2006] (Part 2)
20

21. osborneclarke.com
Non-literal copying
Nova 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 didn't mean similarities in software.
• Copying of general ideas not enough.
• Different visual appearance and rules.
21

22. osborneclarke.com
Non-literal copying
Nova Productions v Mazooma Games [2006] (Part 4)
• Court of Appeal: upheld
• Features involved were too general to amount to a
substantial part of Nova's game.
• Merely making a program that emulated another but
which in no way involved copying the program code of
any of the program's 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. osborneclarke.com
Non-literal copying
SAS 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. osborneclarke.com
Non-literal copying
SAS 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 aren't 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. osborneclarke.com
Non-literal copying
SAS Institute v World Programming [2010] (Part 3)
• ECJ Advocate-General's opinion (November 2011):
• A programming language and/or program functionality in
abstract aren't 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. osborneclarke.com
Non-literal copying
Where 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. osborneclarke.com
What to do about cloning? (Part 1)
So, is it correct that there is no legal recourse if your
game is cloned or copied?
(1) Look for literal copying first:
• Gameplay, mechanics (probably) aren't protected
• User interfaces (probably) aren't protected
• Screen displays (somehow) are protected
• Graphics, audio, text, code are protected
27

28. osborneclarke.com
What 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. osborneclarke.com
Questions?
29