I’m a little late in writing this because other topics came up but I wanted to address but since King was on a rampage at the end of the summer and a series of settlements were announced recently, let’s hop right into the Clone Wars. No, not the Star Wars reference, exactly, although I’m sure SuperCell is loving that the now Disney owned franchise cloned their Clash of Clans mechanics and slapped a new skin on it.
Clones are copycats in most simple terms. Imagine they exist on a spectrum with some borrowing a few key attributes while integrating their own spin on things all the way out to others who directly ride the coat-tails of another’s intellectual property creating a nearly exacting replica of the original with a whole variety inbetween the two.
It can quite controversial, as you might imagine. There’s a fine line between improving on a given idea to eventually make it your own and stealing someone else’s hard work to profit on it without any of the up front expense. Generally, we think of this in terms of patents which are a set of rights granted for an invention, which in legal terms is a solution to a technological problem in the form of a product or a process. Unfortunately for a lot of computer technology patents don’t quite cover the underlying code in many cases since the code isn’t necessarily novel or solving a particular problem (at points this has really been semantics).
In the past, this left many code writers with two alternate avenues of protection since despite being new and out of the classic definitions everyone recognized their works probably deserved protection too. Copyrights protect the expression of the idea, which was the underlying code to their product with the logic being code, is both rigid and expressive making its expression similar to that of being a novelist or musical composer who manipulates their symbols in a unique and novel way. And, Trademarks which protect the recognizable attributes of the product such as the name, colors and/or iconography no different than that of any other business or product mark.
Technology, like literature and music and other forms of copyrighted works are not immune to infringement. Microsoft spent decades litigating against possible infringement of their programming and today the big headlines are coming out of the high risk, high reward world of mobile gaming. Exercising those rights requires self-policing of your rights and marks to mitigate possible infringement. It’s up to the possible infringer and the rights owner to come to a resolution and if they cannot than a jury of their peers will determine the level of infringement and restitution based on the law. This premise is why there’s been a spat of cease and desists followed by lawsuits making headlines by newly IPO’d game companies seeking to protect their bottom line (not just from infringers to protect their IP but salvage their bottom lines for wavering investors).
What constitutes actual infringement is always a serious debate among both novices and IP lawyers alike. Most clones being sued right now appear to be pretty blatant ripoffs but that’s not always the case and the grey area for gaming comes from a long, distinguished line of controversial court decisions regarding everything from parallel plot lines and harmonic structures to similar song lyrics or novel excerpts including the amount being potentially pilfered to the exposure of one writer to the other to the date of fixation to the definition of what the average joe might find as confusing.
This isn’t a problem that’s going to go away anytime soon either. Bandwagon jumping isn’t just for the content creators, it’s for the consumers as well, as so long as consumers will react positively (intentionally or not) to clones in gaming and their equivalents in music and movies and print there will be programmers, as well as composers, directors and authors all willing to satiate the demand.
What’s to be learned from this though, particularly for gaming, is how to navigate the exposure to clones without it becoming a PR nightmare. Musicians and writers accusing one another of plagiarism have ended up with black marks on both careers because fans or the media take sides or the story line gets away from the original infringement to become more dramaticly about arrogance and greed. There’s no love lost between the pro-and-anti Apple camps in the range of Apple vs. the world patent disputes that highlight a level of anti-corporateness again highlighting greed.
So far, most gaming companies have come away unscathed in their desire to combat game cloning. Although some of the tactics are humorously aggressive in nature there’s still a significant lack of brand identity among casual gamers so the backlash is mild at best. Should it come down to a bigger, more household type name (think where names like Activision, EA and Nintendo have gone branding wise with their franchises) getting into a spitting match though the tables could turn very quickly.
This is especially true of the accused infringer actually happens to be doing something progressively novel with the game and contributing to healthy competition rather than money-driven infringement. These rare cases this occurs it stifles ingenuity which is bad for everyone.
On the other hand overcloning simply dilutes the experience for everyone, particularly the end consumer who, until this point, is completely overlooked in the clone wars. There comes a point within the app stores where too many entries actually hurts discoverability for the end-consumer as they get lost in the repetitiveness of long tail. Customer confusion diminishes the user experience which then lowers consumption and future expectation of a positive experience perpetuating the cycle. And, moreso than maybe the protections to the content creators these consumer protections are vital in the longer run, which is why you see the app retailers like Apple, Google and Amazon making strides to help alleviate some of that negative experience caused by over cloning.