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Re: OpenTTD infringes TTD

Warning: way too long and full of digressions.  Skip if you aren't really

Michael K. Edwards wrote:
>What is so "free speech" about ripping off a video game publisher? 

Well, obviously the question is whether it's "ripping off", or a work
inspired by another one.  YMMV.  The facts seem to be against OpenTTD, if
you are right about them; I was not aware of them, since I had not
investigated as closely as you appear to have.  Thanks for doing so.

Concepts and ideas are not supposed to be copyrightable.  This is a
critically important restriction on copyright.  This is the fundamental
reason game rules are not supposed to be copyrightable.  As opposed to the
words describing the rules.  (Outside the computer realm, game designs are
routinely and successfully patented, which is worth watching out for.)

Exclusive sequel rights are a consistently difficult area, and fair use
defenses show up in essentially every such case; the "transformative"
business comes into it most of the time.

Now, if they really are using large (or indeed medium-size) swatches of
decompiled code, that is *certainly* copyright infringement and "ripping
off".  If this is true they should probably be warned by anyone who cares
about the project (which is not me), and certainly Debian shouldn't
distribute it.

>Have you not looked closely enough to see that it's a rip-off even if
>it's cool?
No, I certainly haven't looked closely enough at it.  It's not like they
advertised that they're using hunks of decompiled code.

I care less about OpenTTD in particular (I wouldn't touch it because of the
dependence anyway, even though I have TTD) than about the application of
the principles to other games.  That's why I gave the Transport Empire
example: do you think *it* has any chance of being copyright infringement?

> If you think OpenTTD and TTD merely share the
>scenes a faire of the genre, you haven't looked much at the history. 
Indeed not.

>There are large swathes of decompiled code from the original.
Yuck.  That's obviously outright copyright infringement, no doubt about it,
no defense, and if this is the case, Debian must not distribute it.
>a patch to the original that's been merged into OpenTTD.
Really?  I thought they'd just implemented all the "functionality" of the
patch.  Did they actually take the code?  If so, not good.
>There isn't  a prayer (IANAL) of arguing in court that it only borrows
>scenes a faire, and other uncopyrightable elements.

Well, given *that* history, no.  You've convinced me that Debian shouldn't
distribute it.

How about other similar projects with more legitimate history?

>Got case law?  "Other people have gotten away with it" makes a lousy
>argument in court.
>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.
....so failing to complain certainly does matter in court.  When I was
noting that nobody ever gets sued for "this", of course, I was thinking of
"clone" projects which had clean histories."Other people who were behaving
worse than us were ignored" does raise issues of implied waiver, and going
after a not-for-profit project while ignoring a for-profit project doing
the same level of "copying" would be looked on suspiciously.  "Other people
who were behaving better than us have gotten away with it" is obviously
completely unconvincing.

> 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.
Arguably the "movie Bond" is an entirely different character from the Bond
created by Ian Fleming in _Casino Royale_, albeit with a few similar
characteristics and the same name.  Those are not minor personality
changes, it's a total transplant.  It's an odd case.

>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.
And indeed it could be difficult in other circumstances.  I know authors who
have written books using licensed characters (retaining their own
copyright).  Upon losing the right to use the licensed character, and the
book going out of print, some of them have carefully removed all references
to the licensed character (including catchphrases and other distinctive
elements, but not general personality traits, as that would probably be
impossible without rewriting the plot) and published "license-free"
versions.  This doesn't appear to bother anyone, least of all the
licenseholders, who certainly know about it.  I was unable to find case law
(but I'm not good at searching for it :-( ), and at this time I am unaware
of anyone suing over such a situation.  Note that this is in the situation
where the licenseholder is not making the original book available.

> 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 .
Apparently they failed to assert a user interface defense.  Unlucky for
them.  The professor quoting the case clearly doesn't agree with the court
(and probably for that reason).

>  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?
Given the history you assert, no, certainly not.

How about FreeCiv, though?... that's a much more interesting case, since it
has no history of code copying and the internal implementation is certainly
completely different (given the client-server arrangement).  Some of the
elements are clearly subject to the doctrine of merger (cities, counting
how much food is produced, turns, squares, buildings, wonders, etc.),
others to scenes a faire (terrain, units, attack and defense ratings), and
yet others to being uncopyrightable user interface (interface for directing
units, city production list) -- but some of it is harder to defend.  For
instance, the use of "shields" to represent production (seemingly arbitrary
-- why not ingots?); the exact structure of the tech tree; and the name and
function corresponding of the technologies, buildings, and Wonders.  (Most
of this, interestingly, is implemented in *text files* which could be
completely replaced.)

How about the putative Transport Empire?  That's certainly not a ripoff in
any way.

> 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.
Reminder: the author won.  I did say "legitimate" parody, and I meant by
that that it was, among other things, a commentary on the original work. 
(When it's a commentary on something else, the author may be in trouble.) 
Perhaps you could find some cases where the author of such a parody lost,
since I haven't  (but again, I'm really not good at doing the searches).

Anyway, this sort of argument would rarely apply to computer games. 
Although if someone made a "Duke Nukem 3-D" "knockoff" designed to comment
on the negatively on the violence in the game and the nature of the "hero",
they'd presumably be safe.

>From the Microstar vs. Formgen case, footnote 5:
> We note that the N/I MAP files can only be used with D/N-3D. If another 
>could use the MAP files to tell the story of a mousy fellow who travels 
>through a beige maze, killing vicious saltshakers with paperclips, then the  
>MAP files would not incorporate the protected expression of D/N-3D because 
>they would not be telling a D/N-3D story.   
Interestingly, this is somewhat analagous to the often-stated-here idea that
"if it works with multiple libraries, it's not a derivative of any one of
them, but if it only works with one, it may be a derivative of it".

Hmm.  Will have to remember that.  :-)

>How much storyline do you think Duke Nukem has?
Way more than TTD.  Oh, and it's less generic.  The judge specifically notes
that it's clearly a fantasy, and apparently the lack of realism contributes
to its strength as a protectable story.
>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,
Well, depending on what's on the tiles, they may be a lot weaker or not. 
Generic tiles for grass are presumably pretty weak (because they're not
really distinctive), while building and station designs presumably are
stronger, particularly if they're not based on reality.  (Of course the
generic building tile and station tile concepts aren't protected.)

>but OpenTTD is absolutely shot through with TTD 
>content, artwork or no artwork.
Well, assuming you're right about the decompiled code and lifted TTDPatch
material, yes, and in that case it shouldn't be distributed.

>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
Definitely, in regard to the vehicle-station-track-world model which
constitutes nearly the whole game design; there's really no other
reasonable way to do it.  (Certain technical details could be different, as
for instance Transport Empire is planning freeform track laying as opposed
to tile-based track laying; Traffic Giant used an unusual method of
inputting routing, and modal windows; but these are tiny differences.)  The
user-exposed portion of the economic model likewise.  These are models of
the real world, and any significantly different implementation would be
less realistic, and therefore unsatisfactory. (Consider that SimCity uses a
very similar model for those aspects of its game.  While mentioning that,
Transport Tycoon can't be said to have originated much of anything present
in it; Railroad Tycoon and SimCity are the pioneers of the genre.)  The
only major deliberate unrealism, the scale violation, is unavoidable and
present in every game in the genre.  And that's what I was thinking of. 
(To contrast, close Alpha Centauri clones, for instance, might be copying a
storyline, since there the model is certainly *not* of the real world, and
is mostly imaginative.)

I know nothing about the code, and if it features decompiled code from a
copyrighted source, clearly it is infringing, of course.

>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.
User investment in keystroke patterns is just as important.  It's possible
that courts will rule the wrong way on future cases similar to the Lotus
case, but if they do so consistently, we will have problems on the order of
the software patent problems.  Apple didn't do too well with its
extravagant "look and feel" claims either.  User interfaces -- not counting
the nonfunctional decorations and artwork -- really need to be freely
implementable, due to the "used to it" effect, and in fact they are
routinely treated this way by *all* computer software companies,
proprietary or not, because otherwise it would be impossible to make any
usable user interfaces without a license.

> 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.
Indeed, Debian should not provide anything of dubious provenance.  If you're
right about the decompiled code, then it is clearly infringing.

At this point, I'm convinced that it's probably unsafe to distribute
something which depends on proprietary artwork, either.

My main argument was against giving excessive credence to broad claims of
"non-literal copying", which are not only hard to prove, but consistently
hit the limits of copyright, and routinely involve free speech issues. 
(Broad claims, as opposed to "non-literal copying" cases where the copy is
essentially a translation into another format.)

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