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Three Moves Ahead Episode 114 – Patents, Progress, and Rogue Puffins

April 28th, 2011 by Rob Zacny · 26 Comments · Podcast, Three Moves Ahead

Gamers With Jobs continues colonizing 3MA, but the natives still welcome Cory Banks because he brings whiskey and podcast topics. Fantasy Flight games is upset about an iOS game that bears a significant resemblance to Richard Borg’s Command & Colors system, and Bruce, Cory, and Rob wonder what it all means. Before they reveal themselves as ignoramuses yet again, William Flachsbart, intellectual property expert, arrives to tell them what it all means. How carefully must new products tread around the innovations of old ones? When does borrowing mechanics turn into theft? Is there any way we can send Troy to jail? What about the Vancouver Canucks?

Here is Bill Abner’s original No High Scores story, and the interview to which Wil is referring in this episode.

Big thanks to Michael Hermes for helping us sort out numerous audio problems this week.

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26 Comments so far ↓

  • Cornelius Cornflakius

    It would be nice if titles just displayed the topic. Simple. Boring. Classic.

  • kabutor

    There are more cases of these Knizia sued some US developer for the Battle line clone


    That is why I think GMT issued an email to all the customers looking for companies to port his games into iPad, so they can do it before some else rip off their games.

  • kabutor

    Here is the tweet, that last link is not vey informative


  • Rob Zacny

    Sorry you don’t like the titles, Cornelius, but writing and titling the posts is about the only enjoyable thing about publishing an episode. It’s the most tedious thing about doing 3MA (well, except for trying to wrangle schedules every week), so I try to have a little fun with it. Until I find a better way to gamify publication, I’ll probably play with the titles.

  • Happy Hour – April 29 | RobZacny.com

    […] the meantime, check out this week’s 3MA, in which we have a legal expert on the show to talk about how far copyrighting can extend to […]

  • Rez

    Cornelius, just do what _I_ do and listen to _every_ 3MA episode. That way it doesn’t matter what the topic is, because you’re going to listen to it anyway. :)

    I rather liked the “aha!” moment I had while listening to the podcast when I realized where the “rogue puffins” came from. Good on ya, Rob. Great episode.

  • Codicier

    I think it’s easy to feel that fantasy flight could be overreacting, When you see them suing some small no name studio who has only sold a few copies of their game.
    But there is certainly a historical precedent for a company to lose out in the long term by not doing so.
    There is a pretty well known story that Blizzard pitched Warcraft to Games Workshop as a direct adaptation of Warhammer, which GW chose not to take up. Blizzard the allegedly went ahead made just enough changes so that they wouldn’t be sued and published anyway, and we all know what happens after that.

    However we feel about the consequences of this to be development of games GW lost out on an opportunity to establish themselves in a emerging medium. From their corporate point of view this can pretty much only be seen as a disaster, and it shaped the way they operated as a business for many years (a lot of long term GW player felt there was a distinct change to the way GW dealt with its IP’s in the late 90’s early 00’s) and from which they have been playing catch-up in the digital sector ever since.

    Overall although you could say that players of strategy games benefited from de innovations brought to the genre by blizzard, I do not can feel the same could be said for core GW gamers.

    When a company has to worry about offending the commercial rights to its game it will often stifle non-commercial content produced by fans and certainly there was a feeling that this happened with GW.

    It is this pool of people with great enthusiasm and knowledge of products where innovation comes from for many products.
    Blizzard in fact have an excellent record of taking people from the community themselves, & whatever you think of Civilisation 5 the way that Firaxis took Jon Shafer and gave him the chance to try something brave seems a good way of doing business.

    So I guess my question to the panel would be:
    What about non-commercial use? From house rules, to custom maps, and more elaborate rewrites/mods, how do you feel about the way players interact with companies IP’s in the internet age?

  • rsm

    I disagree heartily with Cornelius, awesome title.

    W.r.t. the show. Excellent discussion overall, although I think the key point of the potential chilling effect on an industry which borrows as heavily as it does on the game mechanics side of things was possibly not given enough attention. Of course the chilling effect on iteration vs. stifling innovation by not guaranteeing innovators ROI was raised, and it was nice to get a solid legal take on it, rather than just random punditry.

    Also: More Bruce!

  • bill abner

    Bill Abner: 3MA Topic Starter. Woo.

    Good show Rob. I’ll link this back from NHS as it’s definitely worth a listen.

  • Andrew Doull

    Hi Rob,

    Great show, but I kept thinking you were missing the one central question: Are the rules to a game copyrightable at all? Or is it like a recipe, or fashion, which cannot be copyrighted? See e.g. http://www.copyright.gov/fls/fl122.html

    As a game designer, I’d prefer the situation where a ‘game’ is not copyrightable, because the level of protection is already sufficient for the art, computer code and fiction incorporated into the game, and trade mark protection for the name and mark on the game.

    The total economic contribution by movies, literature and music is dwarfed by contribution by food and fashion. http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture.html

  • Michael A.

    This was an interesting episode, since I have (at the moment) two games released on mobile (Android), and both have parallels in the board games (and computer games) world. The most popular, Pirates and Traders, is constantly being compared to Sid Meier’s Pirates! (understandable, though my games is a simple turn-based thing, and not the least bit arcady), Tradewinds (a game I’ve never actually played and didn’t even knew existed prior to reading such comments), a number of other mobile games (including one that was published half a year after mine), as well as a couple of board games. If some of the comments weren’t abusive, it would actually be quite amusing.

    Most recently, I had one user claim that the game was basically a clone of a boardgame, to the point where “most of the mechanics” were the same as in that boardgame. Now I am happy to acknowledge that boardgame as an inspiration (which I do on my website), but in practice there is not a single interesting game mechanic in common between the two games (unless one wants to discuss game mechanics at the level of “uses random numbers” or “area movement” level). My point, in any case, being that people sometimes have a very weird perception of what is a copy.

    Being a game designer usually implies that one is a gamer, and as such one will always be aware of what else exists. I think many game ideas come about when people look at another game that they like but then think – hey, wouldn’t it be cool if we could do “this” instead of “that”? But is the game thus created by those rules then a new game? Or a plagiarized work? At what point do we go from one situation to the other? It’s easy to play “name a derivative work” with pretty much any popular game (and most popular games are in turn derivative of other, usually far less popular ones).

    I agree with Andrew – one of the central questions here is: can game rules (i.e., the mechanics) be copyrighted? My basic understanding has always been that you can’t copyright an idea, and game rules/mechanics are basically just that – an idea. I am pretty sure there have already been a couple of cases where this has been given. An implementation can be copyrighted, of course, so one might argue that the specific set of rules that Borg has created are copyrightable. But if Puffin has – as they state – changed the rules in their games (and why wouldn’t they), then I can’t see that FFG has a leg to stand on if this were to come to court.

    I can definitely understand Borg/FFG’s frustration about the situation – especially considering the brazen statements in that interview – but I can’t see that they’ve got anything to win here. I am not convinced that “intent to copy” makes any difference – but of course, I am not a lawyer (and haven’t played the IOS game either).

    Anyone knows how Knizia’s lawsuit went?

  • Bruce

    I thought Wil answered the question about whether rules or mechanics were copyrightable, and his answer was “no” – you can only copyright works, not the elements of works.

  • Matt

    I think the interesting point about Borg’s re-use of the basic C&C system over the years and the way it pertains to the lawsuit is more about perception. If Borg now says, sure, you tweaked my game a little, but it’s the same game, then that means he’s been trying to sell us the same game 4 times over the last 10 years or so. It has no legal relevance, and I think everyone’s pretty aware that Borg has been doing this, but it’s still sort of amusing to me to hear him claim it in court….

  • Michael A.

    Perhaps I need to relisten to the podcast, then, because I didn’t feel that Wil’s answer was quite that clearcut. And clearly, he seems to feel that FFG might have a case. If only a “work” can be copyrighted, that should not be the case – Viking Lords is clearly a distinct “work” from Battlelore, inasmuch as Puffin have clearly not copied the visuals or implementation from that game. The open question is whether the collected set of game rules – i.e., the game design – can also be considered a copyrightable “work”.

    It’s an interesting discussion, and I’d almost wish that the case went to court, just to see what verdict was returned. I do think the boardgames design world – and perhaps also the computer game design world – has been somewhat inured from this issue in the past due to its small size (everyone knows everyone else). Now that a commercially successful “game designer” can be basically anyone with a mobile phone and a computer, that is no longer the case – and obviously simply ripping off someone else’s idea is a lot easier than doing the actual hard work of developing an idea oneself.

  • Bruce

    As I understood it, I don’t think that is the open question. My understanding is that only the work itself can be copyrighted. The question is whether the similarities (including the mechanics and rules) constitute a violation of this copyright. But I don’t think the question was left open whether the rules can be copyrightable themselves, separate from the game they are a part of. I will ask Wil to clarify.

  • Rob Zacny

    That’s a good idea, but what I got from Wil was that the accretion of similarities is what matters. It’s not the individual elements can be copyrighted, but the closer the derivative work is to the original, the closer it treads to infringement.

    So a game might employ card-based orders and a board divided into the three sections and there’s nothing Borg can say. If that game, however, is using near identical card decks, and identical movement rules and unit types in addition to those other similarities, it may well be infringing. Because it is now effectively identical to the original, copyrighted work.

    Which is why I think we ended up in a bit of “I know it when I see it” territory. In this case, the similarities may be enough to get Puffin into trouble. But it’s not that the rules themselves are copyrightable.

  • Jon Gad

    Something which was only briefly mentioned that I think bears further examination is the prevalence of nuisance lawsuits. In particular, I’m thinking of the Edge Games debacle. Granted, they eventually got curb stomped by EA’s lawyers when they finally overreached, but until then their constant attacks on anyone using “Edge” in their title did in fact produce a chilling effect on the indy side of the business, not to mention all the wasted money and lawyer time the lawsuits involved.


    Arguably, Fantasy Flight may well have a point, but I’m with Cory in worrying about what happens if this kind of lawsuit becomes too common, regardless of the merit of any individual case.

  • Wil F

    I’d like to reiterate something I said in the podcast, which is that I do not have a relationship with any of FFG, Puffin, or any of the people at either company. Any commentary I’ve made here is strictly my own, and is only from the view of an interested observer. It’s not meant to be a detailed legal opinion, as it were.

    In copyright, the work as a whole is what is copyrighted. In the case of a game, that includes all of the elements. The question of ‘do you copyright a game mechanic’ is difficult to answer because we keep our eye on the fact that the work as a whole is the subject of the copyright, not the individual subparts, or the idea underlying the work. In other words the idea ‘a game about guys with swords, played with cards’ is not copyrighted, but a game as a whole could be.

    When we’re talking about works and elements of the work, we can obviously get caught up in another abstraction level. We can start talking about “what is the work?” and are there more than one “work” subject to copyright. Here, we could argue that Borg’s basic movement system and card mechanic (the command and colors mechanic) is one work and that each game he creates using it is a new derivative work.

    Take a motion picture as an example. The screenplay is a work, the score may be a standalone work, the video and audio-visual presentation itself is, in turn, a new work. All of the ‘elements’ of the picture might then, themselves, be works or derivative works.

    The question then, which is what I think Michael and Bruce are alluding to, is, “Are the game mechanics which are embodied in the rules themselves subject to the copyright?” I would rephrase that question and state it as, “Are the game mechanics which are embodied in the rules protectable elements of the copyrighted work?” It seems to me that something as simple as “We use cards for movement” or “We use zones to move in” are not, standing by themselves, likely to be found to be protectable elements of the work.

    Once we start putting those things together, though, into a form that starts to become recognizable, then we start to move into the direction of deriving the new work from the old — and not merely using elements in common.

    In other words, somewhere between one extreme and the other; between using one element, like zoned movement or card-based movement, and outright literally copying the work, we cross into the creation of a derivative work or even a copy, and what a lawyer would refer to as non-literal copyright infringement.

    So there’s your definite maybe. Where is that line? This goes back to what Rob referred to when he said “I know it when I see it.” (Rob’s legal scholarship is strong, as he is making a reference to Supreme Court Justice Potter Stewart’s concurrence in the Jacobellis v. Ohio pornography case. It’s worth noting that Justice Stewart later recanted this position.)

    The images on chits, cover art, and the like, the text of the rules, those would fairly clearly be protectable elements of the work. Not “copyrighted” per se, but protectable based on the copyright of the work as a whole.

    The individual pieces of the game mechanic, I think, are less likely to be protectable elements until they are aggregated into recognizable forms. A card-based movement mechanic? Likely not protectable. Zoned movement? Ditto. A complete mechanic incorporating all of the elements of a Borg game? Much more likely to infringe the copyright as either non-literal copying or non-literal infringement.

    In some ways we can shortcut the analysis down to what makes copyright infringement. It’s what is called actionable copying of the elements of a work that are original and are the subject of a valid copyright. For actionable copying we look for a “substantial similarity” between the copied work and the alleged infringement. So, in our gaming case, we look for a substantial similarity between the two games. Obviously we could go down this rabbit hole for thousands of words, but that is the basic analysis.

    One of the reasons that I said in the podcast that this is an interesting case is that it is one where I can see arguments on both sides, and am interested in discussing it. Close cases are the interesting ones – not the dead bang winners or losers. While I am sure my natural desire to protect rights holders shows through, I certainly think a case can be made on either side, in the abstract, without reference to the history of the development. It’s when we start adding in the facts surrounding the development that I think the scales start to tip.

  • Michael A.

    Thanks for the clarifications.

    I also think this is a very interesting case, and in general I would say that my sympathies are fairly strongly on Borg’s side. I find it difficult to see that he really has a case, though, unless the Puffin guys have been really incompetent in their cloning.

    There are many superficially similar cases, of course; Tetris clones are frequently knocked off app stores and facebook by DMCA notices, Boulder Dash clones have also been targets on occasion, and probably many others that I don’t recall. From what I recall, though, these cases are rather different – for one, the gameplay is a lot simpler (little scope for innovation in a Tetris clone), in addition to which the games involved almost always open themselves up to trademark infringement charges. C&D notices for these kind of games are almost always on charges of infringing on a game’s trade dress rather than copyright.

    There is also the case with Cyanide’s Chaos League and Games Workshop’s Blood Bowl, which eventually ended with Cyanide licensing the rights to Blood Bowl. I don’t think GW ever succeeded in shutting down sales of Chaos League, though.

    Another case was with the Android game Flying Aces, which was issued a C&D order by the developers of the iPhone game Flight Control. Flying Aces is dead now (was released as an open source game), but in this particular case there were pretty egregious cloning issues: levels in FA were clearly lifted from FC, and the visuals were similar enough that the defendants were charged with having lifted assets from the other game.

    In most cases, though, changing the trademarked names (usually the most useful asset of a clone – people looking for tetris will search for names with tetris in it, after all) and modifying the visuals seem to be more than enough for clones to survive unscathed and unchallenged, even though the gameplay of the clone is a carbon copy of the other game. I can’t think of a single popular game for which there is not at least 2 or 3 clones on iPhone/Android. If bigger companies cannot put a stop to this type of cloning, I don’t see how FFG stand a chance – unless, as I said, the Puffin guys have been truly incompetent.

  • Aslak

    Very interesting episode and discussion.
    I am a game developer in a situation close to this.
    Basically I wanted two of my favourite boardgames on my iPad so that I could play it more easily, more often, and faster (by cutting down on setup time, rules lawyering etc). I’ve gone down two routes with these projects.
    The first one is not a rip-off, but rather a downright copy, even with artwork (scans of the cardboard maps etc) – simply a digital implementation of the physical game. I simply want that exact game on my iPad – I don’t want to change anything, as the game is already the one I want to play, and pretty much a perfect game already. So doing any “transformation into a different game” is not a viable route. Clearly, in this case, it’s copyrighted, so I’ve been in touch with the publisher and offered it to them for free. So far it’s been a year since I finished my implementation. It’s extremely slow and that’s a bit frustrating, except that, since I coded the thing, at least it’s running on my iPad already.
    So in my second project, not wanting it to end up dead as well I’ve been taking a different approach. Changing rules, making my own artwork, basically ending up with a different game. The only problem? It’s inferior to the original product. The original is very well balanced, having been tweaked over years of iterations, and every change I make renders it less fun, also because it’s less recognizable by the fans of the boardgame. And of course Fantasy Flights threats here makes me very reluctant to continue working on it, since it is still very close to the original (cause that’s the game I like).

  • Joe

    I’d think it’s relevant to point out that even though Scrabulous was an exact ripoff of the Scrabble boardgame, the lawsuit hinged only on the similarity of the names. Once Scrabulous was renamed as Lexulous Hasbro let it go. Which makes it sound like trademark infringement was the only legal problem they could find.

    I think you would have an extremely difficult time proving that your particular set of game mechanics should be protected.

  • Andrew Doull

    Thanks for the clarifications. I guess I was expecting a little more discussion around the history of copyright & games – luckily, one of the commenters on my blog pointed me towards Googling for monopoly copyright, whose whole sordid detail is told at http://en.wikipedia.org/wiki/History_of_the_board_game_Monopoly

    It’s not pretty. And that same commenter also mentioned the infamous tap patent that Wizards of the Coast got for Magic: the Gathering at http://en.wikipedia.org/wiki/Collectible_card_game#Patent

    To those of you who don’t believe IP in games can have a chilling effect, it’s my understanding that the patent awarded to Eternal Darkness: Sanity’s Requiem basically limits how you can portray losing your grip on reality in a computer game.

  • Andrew Doull

    PS: I realize that patent and copyright are two distinct IP issues – just drawing a parallel between them…

  • R Simmon

    I’m about halfway through the episode and finding it fascinating so far. For what it’s worth, Viking Lords is still available in the app store, so it doesn’t look like Fantasy Flight has gotten serious yet. I hope they don’t. If they can claim copyright on game mechanics (and defend it in court), I don’t think we would have first person shooters made by anyone but Id, or RTSs from anyone but Westwood.

  • Josh Hall

    Solid episode, though I had a lot of difficulty with Cory’s argument. He seemed focused on “how much harm” it was doing to Borg, when the question is completely irrelevant. As to chilling innovation, strong IP protection is required and proven to help encourage and foster innovation (it’s something that is causing issues in China right now) by allowing people to profit off of their ideas rather than having them stolen/copied by others.

    While the gaming industry is fairly iterative as opposed to innovative, the general impression I got from Will’s discussion is that taking parts of others games and using those elements in your game is rarely, if ever the problem. It’s when taken in aggregate or exact clones that things become problematic.

    So while a tech tree may not be sufficient to be a copyright violation of Civ, having a 4X game using a tech tree with a number of historical leaders (one of whom you’ve named Montezuma who you’ve also made a complete warring assmunch) with a series of victory conditions consisting of a Military Victory, Diplomatic Victory (via a UN vote), Cultural Victory, and Science Victory (which consists of building a space ship to colonize another planet – say Alpha Centauri), is probably going to get you in a bit of trouble.

  • Vendolis

    It was again a very nice episode that I really listen to way too late. but I want to throw in one article I read about some time ago (http://www.spiegel.de/international/zeitgeist/0,1518,710976,00.html)

    I know this is a very touchy subject for many people, but I feel in many ways that Mr. Höffner is correct with his assumptions. Don’t understand me wrong, I think a certain level of protection is needed for a work. But if it is not a carbon copy of the work, the copyright holder should only be entitled a portion of the earnings of the product and not the possibility to stop the product.

    I doubt a bad product (in the copyright area, not talking about patents) will in general not hurt the original. A very good translation will hurt the original far more, if its done better than the original. But isn’t that what innovation is about, to become better at doing things? And isn’t that what the “people” want, better products?

    What would I do with the guys in Sweden? I would first check what the copyright law in Sweden is, before I try to sue them. Yes you will kick it out of the AppStore, but you will only look bad from it. — Then I would try to shoot them a deal: some percent of their net gain as licensing costs.
    I think this would be viewed positive on all sides, since you look less conflict oriented and more result oriented. Because, isn’t earning money not something all companies should want to do. And by refusing some one to get money, you still did not get money yourself.

    Granted.. your product needs to be better than theirs…