Two attorneys offer gaming companies advice on actions to take that may help them avoid becoming victims of cloning.
The mobile and social gaming industry is experiencing an invasion of clones. While cloning has a long and varied history, it has become more prevalent with the explosion of social and mobile games. As development times decrease and the useful lifetime of games diminishes, cloning has become more lucrative: games are easier to copy and there are more of them to clone.
Historically, developers have used copyrights and patents to protect video games. Copyright protection can extend to the expressive, non-functional elements of a game, such as audiovisual display and the underlying source code, but not the ideas behind the game itself. Patent protection extends to the functional aspects of games, such as gameplay mechanics. But both copyright and patent laws tend to favor would-be copiers, rather than game developers. While traditional game developers may have had the resources to engage in costly legal battles and reasonably expected a long stream of revenue from popular games that justified the expense, that is not the situation in which most game developers find themselves today. In addition, the costs of being the victim of cloning has increased as developers invest more and more into marketing their games, only to see knockoffs emerge after a game reaches threshold popularity.
The limitations of intellectual property rights to deter cloning are a sore spot for the industry. Indeed, even cases in which a defendant had access to a competitor's prototype and then created a game of striking similarity may not survive. For example, in 2011, Spry Fox sued LolApps for copyright infringement and false designation of origin over Spry Fox's copyrighted Triple Town game. LolApps had previously been in negotiations with Spry Fox to develop and launch TripleTown on Facebook. Spry Fox entered into a non-disclosure agreement with LolApps pursuant to which Spry Fox granted access to a closed, beta version of TripleTown to allow LolApps to evaluate the game for publication. But six months after signing the NDA, LolApps abruptly ended negotiations and launched its clone, Yeti Town. A motion to dismiss is currently pending before the court, and the arguments made in briefing go to the very scope of copyright protection in video games. If Spry Fox's complaint is dismissed, it will further signal that intellectual property rights alone are inadequate to completely remedy cloning.
So what is a gaming company to do? While it is important to maintain intellectual property rights where appropriate, there are other actions that can help avoid cloning short of costly litigation:
- Include more protections in your Nondisclosure Agreement (NDA). Before sharing source code, demos, or ideas with potential partners, consider executing an NDA that specifically prohibits cloning or the use of any derivation of the IP shown to the other party. The NDA should include a presumption regarding the developer's remedies in the event the game is ultimately cloned, and most importantly, copying should be defined more broadly than copyright protection allows. Because you will be negotiating a contractual right, you are not limited to the strictures of intellectual property law. While you may find this somewhat time consuming on the front end, it could avoid disputes later.
- Scramble the code. Oftentimes cloners simply reverse engineer a popular game in order to copy it. One way to avoid this is to obfuscate the source and machine code of your game so that it cannot be reverse engineered. Amazon has promoted this idea in its Appstore.
- If you do get cloned, launch a media offensive. One way to challenge a clone is not in the courtroom, but on the web. If your game is cloned, consider launching a media offensive on the blogosphere to draw attention to the cloned game. The backlash for the cloner could be significant and may deter other would-be cloners from following suit if they know you will bring attention to the copying.
This post was written by Benedict Y. Hur and Michelle Ybarra of the law firm Keker & Van Nest. As an intellectual property and complex commercial litigator with a deep understanding of the gaming and mobile application industries, Ben Hur helps those companies and developers protect their greatest assets - innovative ideas, products, and relationships. Michelle Ybarra has represented clients in commercial litigation and arbitration matters, including intellectual property, antitrust, securities, and appellate disputes.