Let’s face it – like it or not, as videogames become more and more mainstream, we’re going to see more and more instances of politics and gaming intersecting. Piki Politics is here to serve as both a history of political/gaming scandals (or collisions, if you prefer) and as a discussion on the political motivations and context behind them.
Contrary to promises made in last week’s article, I’ve chosen to forgo Norway’s Breivik trial in favor of detailing one much closer to home. This week I’ll be taking a quick look at the New Jersey District Court’s decision in the case of Tetris Holding, LLC v. Xio Interactive.
Earlier this week, the New Jersey District Court handed down what could be a game changing ruling in favor of Tetris Holding, the company that currently holds the trademark behind the Tetris series. They had been suing Xio Interactive for copyright infringement, claiming that their Tetris-clone Mino had directly imitated many elements which Tetris Holding owns the rights to. For their part, Xio Interactive did not deny accusations of copying the basics of Tetris, opting instead to argue on the technicalities of the charges levied against them.
When it comes to videogames, basic gameplay (mechanics, etc) and rules cannot be copyrighted. Xio Interactive’s defense was based around this idea, with the company asserting that the core ideas behind Tetris are essential to any game based on it, and as such, are fair game for use by other developers. In the course of their defense, the company would even go so far as to admit to allocating resources to the study of copyright law, rather than to the development of a new game.
At its core, Xio Interactive’s defense was rooted in the concept of “idea vs. expression”. Arising from the Supreme Court cases of Baker v. Selden (1879) and Mazer v. Stein (1954), this concept refers to the fact that copyright does not extend to the underlying ideas or concepts behind copyrighted works. Basically, the defense argued that their thievery of Tetris was okay, because the game’s basic gameplay of arranging falling blocks into rows to make them disappear was not eligible for protection under copyright law.
In her ruling, Judge Freda Wolfson agreed in part with the defense, asserting that basic gameplay and rules could indeed not be copyrighted. Specifically citing Dr. Mario, she made note of the fact that many games have been able to use the basic idea behind Tetris without violating the copyright behind it. Unfortunately for Xio, Judge Wolfson found that while Mino may not have been in violation of copyright law by imitating Tetris’ core gameplay, it was too similar in terms of aesthetics, copying Tetris’ color scheme, block shapes, and music (among other things) too closely. As a result, she found in favor of Tetris Holding, and Mino has been removed from all app stores.
It’s easy to see why Judge Wolfson’s decision is being looked upon favorably by those in the industry. On the surface, the ruling gives legitimate developers protection from intellectual property theft and copyright infringement, and sends a clear message to those developers who have made a living out of copying more popular titles and then selling the cloned result; in the very least, you have to change the game’s appearance in order to avoid running afoul of intellectual property and copyright law.
The ruling also adds a level of protection for derivative games that are more than merely copies of their source material. Think about the modern platformer, or first-person-shooter – many of them follow a core set of rules and gameplay, and could be said to be virtual “clones” of earlier games in their respective genres. Gaming history is littered with instances of games that started out as a derivative work, but eventually evolved into something more (the engine behind Wolfenstein 3D and Doom, for instance, was originally built to run a copied version of Super Mario 3). This ruling further reinforces the difference between these instances of developers “copying” other games and the more sinister examples of copyright infringement, such as Xio Interactive’s Mino.
I would be hard-pressed, however, to call Judge Wolfson’s ruling a win for the industry as a whole. Clone developers now know what they have to do to continue on with business as usual. From their standpoint, the only mistake Xio Interactive made with Mino was in the realm of graphic design. That is, this ruling has taught them that as long as they change the general appearance of their clone, they can go as far as they want in copying gameplay and other elements. It seems that, as always, there is little legitimate developers can do from preventing less-scrupulous developers from cloning their games for profit.
When it comes down to it, I’m not sure how much more could realistically be done to protect developers. Bolstering protection laws would almost surely involve changing the way the concept of “idea vs. expression” currently works. If we allow underlying concepts and ideas to be copyrighted, the arts and entertainment industry would be devastated. Imagine a world were every basic idea and underlying concept is owned by someone. We’d be left with very little in terms of media, with individuals and companies holding the rights to virtually every concept and idea. Good luck trying to get your novel about vampires published – the Stoker family holds that copyright (yeah yeah, I know Dracula is in the public domain, but you get my point).
Copying the Look and Feel of Tetris is Software Copyright Infringement by Charles A. Bieneman
Tetris Case “Encouraging”, but Cloning not Dead Yet by Nathan Brown