clones – Techdirt (original) (raw)

Deer Hunter Vs. Killshot: Why Specific Expression Matters More Than Similar Shooter-Genre Staples

from the not-like-the-other dept

I imagine it must be very, very annoying to be the creator of a video game and to feel as though some other company came along, cloned your work, and is now making money off of that clone. It’s this annoyance factor that likely leads to so many legal proceedings over game “clones”, even if so many of them fail because the it’s the expression that matters in copyright suits, not a general or generic idea. Unique expressions are what matter. Even in totally misguided legal attempts, those involved usually have the good sense to go after games that directly copy graphics and such, not the general ideas behind the games.

Which is simply not the case when it comes to Glu Mobile’s lawsuit against Hothead Games over the latter’s production of Kill Shot and its supposed straight cloning of Deer Hunter.

Glu Mobile is suing mobile game studio Hothead Games for copying it popular Deer Hunter 2014 mobile game. Hothead’s Kill Shot isn’t about hunting deer at all. Rather, you’re a sniper that hunts enemy soldiers. Nevertheless, Glu alleges in a federal lawsuit filed in San Francisco today that Hothead’s title violated copyright and trade infringement laws.

“Kill Shot is effectively a complete ripoff of our game Deer Hunter 2014,” said Chris Akhavan, the president of publishing at San Francisco-based Glu Mobile, in an interview with GamesBeat. “The only difference is that in Kill Shot, you are shooting humans. In our game, you are shooting deer and other animals.”

It’s not the only difference, though. Let’s get this started by saying that the games do indeed have similarities. They are both shooters undertaken from the first person perspective with realistic guns and aiming sights that are used to shoot living things. But those living things are different, the settings are different, the concepts and themes are different, and even the models of the guns, while both realistic, are different. This is straight copying only insofar as the copying is of common and generic shooter-game concepts. Even the image Glu Mobile hand-picked to include in their filing demonstrates this.

Yes, similar, but not the same, and even the similarities are of the basic shooter-game style variety. Yes, you can scope in on targets, but the scopes are different and scopes don’t equal copyright. Yes, there’s bullet time animations, but that doesn’t equal copyright either, or else everyone owes the Max Payne franchise a pretty penny. While similar, these games aren’t really any more similar than, say, Doom and Duke Nukem 3D. Or any other first person shooter from the 90’s, for that matter. And this is from the image in their filing. Videos of the games in action show the differences more starkly.

Again, similar, but they’re both shooters, so what did you expect? Generic genre similarities don’t rise to copyright or trademark claims. The trade dress claim in particular seems misguided, since the themes involved are quite different and none of the names of the games or companies even come close to being similar. This should end up as yet another lesson that similar generic concepts, such as sniping and zooming, don’t translate to cloning as far as copyright is concerned. And, while the filing accuses a lot of copying, the reader is left with the feeling that there isn’t a whole lot of weight there.

Glu alleges that Hothead Games, based in Vancouver, Canada, copied things like Deer Hunter 2014’s marketing, tutorial, user interface, controls, virtual economy, pricing of items, and even some of its flaws. Akhavan noted, for instance, that a miscategorized assault rifle in Deer Hunter 2014 was also miscategorized in Kill Shot. Glu’s tutorial has 21 steps, of which Glu says Hothead copied 18. Many player reviewers mistake Glu Mobile as the publisher of Kill Shot because of the similarities, Akhavan said.

Again, similar, but not the same. It seems clear that Kill Shot was inspired by the type of game genre of which Deer Hunter is a part, but basic interface and control schemes are not creative expression of a protected kind, and pointing to similar mistakes within the games when it comes to whether a weapon qualifies as an assault rifle is a stretch (trust me, it’s an easy mistake to make and get yelled at by gun activists for). I can see why Glu Mobile might be annoyed, but I think their time would be better spent building on the massive success of their gaming franchise than in court suing a competitor.

Filed Under: clones, copying, copyright, deer hunter, expression, first person shooter, idea, kill shot, mobile games, video games
Companies: glu mobile, hothead games

Psystar Loses Again: Appeals Court Says It Can't Install Legally Purchased OSX On Other Hardware

As you may recall, Psystar was a company that tried to make Apple Mac clones by legally purchasing Apple operating systems, and figuring out how to install them on other hardware. Apple sued the company in 2008 for violating its license. Psystar went through a variety of (often questionable) defenses before settling on the one I thought had the best chance: the first sale doctrine — basically claiming they legally purchased the software, and that they should be able to install it wherever they want. Psystar also claimed “copyright misuse,” against Apple, arguing that its EULA restricting installation to only Apple hardware was a form of copyright misuse to stifle competition. Two years ago, though, the court granted summary judgment to Apple, rejecting both arguments.

Psystar appealed, focusing on the copyright misuse argument and, while it took some time, the always slightly wacky 9th Circuit has upheld the ruling. The court, tragically in my opinion, buys Apple’s argument that its EULA does not unfairly restrict competition, because Psystar could go find a different operating system, rather than Apple’s. Here, the court relies on the awful Vernor v. Autodesk ruling that basically said, “as long as a software company claims it’s leasing the software to you, rather than selling it to you, your first sale rights disappear.” This is true even if the “sale” really is a sale rather than a lease. It all depends on what you call it.

So, in this case, the court ruled that the copyright misuse claim must fail, because it’s really an attempt to create a “right of first sale” for software — and because Apple pretends its software sales are licenses, there is no right of first sale. So, without that… no copyright misuse. If you think this logic is circular, you should see if you can become a judge on the 9th Circuit, since they appear to need help. Furthermore, it argues that since Psystar could just go write its own operating system there is no copyright misuse:

Apple?s SLA does not restrict competitor?s ability to develop their own software, nor does it preclude customers from using non-Apple components with Apple computers. Instead, Apple’s SLA merely restricts the use of Apple?s own software to its own hardware. As the district court properly concluded, Apple’s SLA has “not prohibited others from independently developing and using their own operating systems.” Apple I, 673 F. Supp. 2d at 939. Psystar produces its own computer hardware and it is free to develop its own computer software.

As with the Vernor case, the reasoning here is convoluted. It’s really just another court decision that chips away at first sale rights, which are (were?) an important part of copyright law.

Filed Under: clones, copyright, copyright misuse, first sale, license, mac clones, sale, software
Companies: apple, psystar

DailyDirt: Attack Of The Bioengineered Organisms And Clones

from the urls-we-dig-up dept

We’re getting closer and closer to creating designer life forms. People can almost build a single-celled organism from scratch, so we’re not too far away (in terms of logical steps, not time) from intelligently designing our own little creatures someday. Instead of a “grey goo” nightmare, maybe we should be more worried about a “green goo” disaster. Here are some quick links to research that might lead to this unexpected biotech revolution:

Filed Under: bacteria, biotech, clones, dolly

Judge Rejects Psystar's Antitrust Claims Against Apple

from the not-looking-good-for-psystar dept

Back when Apple first sued Psystar, we were afraid that the smaller company wouldn’t have much of a legal leg to stand on, even if it claimed antitrust violations by Apple — which it did. However, the judge in the case is apparently unconvinced, dismissing Psystar’s counterclaims, noting that Psystar did not do a very good job establishing that Apple has a monopoly, noting that the relevant market is not just the Macintosh operating system. Psystar can file an amended complaint, but it seems unlikely that the judge is going to buy any antitrust claims. That means the lawsuit, assuming it continues, will probably focus on the enforceability of certain end user license agreements, which could be more interesting anyway.

Filed Under: antitrust, clones, eula
Companies: apple, psystar

Psystar Apple Case Goes To Arbitration; Results May Be Secret

from the hopefully-not dept

As we noted before there even was a lawsuit, a legal battle between Apple and Mac-clone maker Psystar could represent a key legal battle in determining the enforceability of certain provisions in an end user license agreement (EULA). And, indeed, the case was looking interesting, as Apple sued and Psystar hit back with antitrust charges. However, as a bunch of readers have sent in, it appears that the case has moved to “Alternative Dispute Resolution” (ADR). Basically, rather than going through a lawsuit, the two sides have agreed to first take it to an arbitrator, who may be able to work out a settlement. There are many, many good reasons to go this route (many of them have to do with saving money on the lawsuit), but the fear is that any settlement then isn’t a binding legal precedent at all, and the actual results may even be kept secret. I can understand why both sides would do this, but it may deprive the world of a useful precedent.

Filed Under: arbitration, clones, eula, settlement
Companies: apple, psystar

Psystar Looking To Charge Apple With Antitrust Violations

from the this-will-get-interesting dept

Once “unauthorized” Apple clone maker, Psystar, was sued by Apple, we fully expected it to challenge the legality of Apple’s EULA (end user license agreement) which forbade putting the software on non-Apple hardware (a provision that even Apple has been known to ignore). The comments to our post suggested that a more likely option would be for Psystar to claim that Apple was violating antitrust laws in requiring the software and hardware be bundled that way.

Indeed, it looks like both of those predictions were correct. Psystar’s response is likely to focus on both the legality of the EULA and whether or not Apple violated antitrust law. As predicted, this case may be very interesting to watch — and the end result could be very important for many other companies in the tech space.

Filed Under: antitrust, clones, eula
Companies: apple, psystar

Apple Finally Sues Psystar For Selling Mac Clones

from the bring-up-the-eula dept

Apple has finally sued clone maker Psystar. This was widely expected, so the most surprising part is that it took so long. Psystar, of course, is the company that came on the scene a few months back claiming to sell Apple’s operating system on non-Apple hardware. At first, many people thought it was a hoax, but then Psystar actually started showing machines. Then the question turned to whether or not this is legal. While some say that this is almost certainly the end for Psystar, the company has insisted that what it’s doing is perfectly legal. That may be quite debatable, but if this does go to court, it could put to the test the question of just how enforceable end user license agreements (EULAs) really are. Apple’s EULA prevents buyers from putting its OS on a non-Apple machine — but as we’ve pointed out, even Apple has been known to ignore this provision. While chances are Apple will prevail, if Psystar is willing to put up the fight, it has the potential to limit the power of click-through agreements. Update: This just gets better and better. Not only is Apple suing, but it’s demanding that all Psystar machines that have already been sold need to be recalled.

Filed Under: clones, eula, macos
Companies: apple, psystar