The Ludologist

Following the Tetris lawsuit and the ongoing EA-Zynga lawsuit, Greg Lastowka comments on the ruling in the Triple Town / Yeti Town cloning case.

Here is what Greg says:

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.

And no, nothing is settled here, since it is not specified what “similar setting and theme” is. But it does give a little more protection for game designs (and we can continue to discuss whether or not that is a good thing).

With the Tetris lawsuit of the way, the action has moved to EA’s lawsuit against Zynga for copying the Sims in Zynga’s The Ville.

Like the Tetris case, it comes down partly to the idea-expression dichotomy. (Better explained here.) You cannot protect the core idea of the game (semi-controlling little people), but you can protect the details of how it is expressed:  protection is afforded to the combination of character looks, menus, etc… all the small design decisions that express this idea.

Xio Interactive lost to the Tetris company because a sufficient number of small design decisions such as size of the playfield and color changes were similar to the original Tetris. The judge said:

“I find the following elements are also protected expression and further support a finding of infringement: the dimensions of the playing field, the display of “garbage” lines, the appearance of “ghost” or shadow pieces, the display of the next piece to fall, the change in color of the pieces when they lock with the accumulated pieces, and the appearance of squares automatically filling in the game board when the game is over. None of these elements are part of the idea (or the rules or the functionality) of Tetris, but rather are means of expressing those ideas.”

I am sympathetic to the principle that you cannot copyright a game idea.

On the other hand, this creates a counter-intuitive reversal in which the core innovative idea of a game is unprotectable, and only the trivial design decisions that follow are afforded protection. I think this makes some sense, but isn’t there something strange about it too?

In practice you see something similar in patents, such as in the Apple-Samsung case, where each patent is just a list of obvious or near-obvious concepts combined, with some vague specifics added (a database! a heuristic! a mobile device!), but where it’s the staggeringly banal specifics that actually make it patentable. Patents and copyright are obviously not the same thing, but there are some parallels here. Or this Google patent for face unlocking of devices, which has already been done a million times, except now it’s on a mobile device, with user switching!

Patent law is clearly broken, but I am not sure I would change copyright law.

It’s just that our intuition of what constitutes the “core of a game” puts emphasis on what we could call “the idea”, whereas copyright puts emphasis on what seems to be the shallow surface.