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OpenTTD infringes TTD



On 5/29/05, Nathanael Nerode <neroden@twcny.rr.com> wrote:
> US law discussion follows, though it ought to apply anywhere which recognizes
> a strong right to free speech.

What is so "free speech" about ripping off a video game publisher? 
Have you not looked closely enough to see that it's a rip-off even if
it's cool?  C'mon, folks, it's staring you in the face.

> There's a gobsmacking load of free-speech defenses against that type of "mise
> en scene" and "unauthorized sequel" copyright case.  First, you have to
> eliminate all the standard tropes.  At this point, the "God game" conventions
> pretty much uncopyrightable, and the "transport build & management game"
> conventions are too.  The fact that many different companies have made
> transport games with strong similarities to OpenTTD for years, without
> getting licenses from earlier ones or getting sued, pretty much clears that
> up.

Got case law?  "Other people have gotten away with it" makes a lousy
argument in court.  If you think OpenTTD and TTD merely share the
scenes a faire of the genre, you haven't looked much at the history. 
There are large swathes of decompiled code from the original.  There's
a patch to the original that's been merged into OpenTTD.  There isn't
a prayer (IANAL) of arguing in court that it only borrows ideas,
scenes a faire, and other uncopyrightable elements.

> Anyway, those arguments are usually construed quite narrowly.  If your
> characters have different names and backgrounds, the courts rarely accept
> claims that you've made an unauthorized sequel, even if they have the same
> "personalities".  Even quite small differences to a scene suffice to destroy
> a "mise en scene" claim about a book.

Got case law?  Check out Danjaq v. Sony.  The appellant (arguably the
co-creator of James Bond as we know him) lost his final lawsuit on
laches (delay of prosecution) grounds.  But the previous history shows
that even contributing "personality changes" to another novelist's
character (on whose name and background one has no claim whatsoever)
can lend substantial color to copyright infringement claims.

It's true that it's difficult to prove infringement of non-literal
elements when there is little evidence that the accused ever seriously
considered using the claimed original.  But once a history of
deliberate plagiarism has been established, it becomes very difficult
to argue that all infringing elements have been subsequently purged.

For a case right on the borderline, look at Pearl Systems v.
Competition Electronics as cited at
http://www.law.gwu.edu/facweb/claw/ch5a.htm .  The plaintiff convinced
the judge that the defendant had probably plagiarized its software
rather than implemented independently.  Do you really think the
OpenTTD folks could pass this test?

> Finally, you have to pass the usual tests that it isn't a legitimate parody;
> if it is, it's simply allowed, period.   Although that may be unlikely for
> most games.

No, it's not "simply allowed", even in the US.  The "parody" defense
is a subspecies of "fair use" and has to be evaluated using the 17 USC
107 factors.  See Suntrust v. Houghton Mifflin ("The Wind Done Gone")
for discussion of the limits of parody.

> The lack of a storyline -- the game simply opens up an arena and lets you play
> in it; or characters -- I don't think generic trucks and train stations
> qualify; would also make it rather harder to use those doctrines against this
> sort of game.  The fact that it's a model of something in the real world (and
> something fairly generic) renders it even less likely to have strong
> copyright protection on the "scenes", as long as the specific representations
> of them are different.  (The use of the TTD artwork is the one bad point
> here.)

How much storyline do you think Duke Nukem has?  And don't think Judge
Kozinski didn't know the genre -- I'm pretty sure he picked out Castle
Wolfenstein 3-D himself as the pioneer 3-D first-person shoot-em-up. 
"Tiles" are a bit weaker than "characters" as protectable non-literal
elements, but OpenTTD is absolutely shot through with TTD content,
artwork or no artwork.

> Game rules can't be copyrighted, so the detailed rules implemented (which are,
> in this case, very close to TTD) are OK.  Neither can the user interface.

It's not that simple.  Game rules can be copyrighted when their level
of detail rises to meet a standard of "expressiveness".  Do you think
TTD suffers from "doctrine of merger" as applied in Allen v. Academic
Games?  User interface can certainly also be protectable, especially
in a toy as opposed to a tool.  Borland got away with copying the
Lotus 1-2-3 interface -- barely -- but that had a lot to do with
interoperability and the preservation of user investment in macros. 
Most of the cases where copying is obvious settle out of court -- look
up Hasbro Interactive v. eGames, et al.

We're all so very pomo, we recycle cultural artifacts left and right,
we like to think we operate "under the radar" with our non-corporation
and our non-US plausible deniability.  But the truth is that all it
would take to shut Debian down is one good lawsuit.  Taking a stand on
MPEG patents and crypto laws is one thing; providing a distribution
channel for truckloads of e-toys of dubious provenance is another.

Cheers,
- Michael



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