iOS Board Games

United States
Pleasant Grove
Utah

I am super excited for Ghost Stories. Any word on the anticipated pricepoint? It's also really cool to see publishers like VPG fully embrace iOS gaming.

Posted Fri Jul 22, 2011 7:55 pm
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Pete Hooper

United States
Machesney Park
Illinois

I was seriously underwhelmed by Scotland Yard. Glad I only paid a buck for it.

Posted Fri Jul 22, 2011 8:04 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

I still can't get iAdmiral onto my iPhone though I paid for it a month ago when it came out. soblue

Posted Fri Jul 22, 2011 8:12 pm
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Gabe Alvaro

(blindspot)

United States
Berkeley
California

domcrap wrote:

I still can't get iAdmiral onto my iPhone though I paid for it a month ago when it came out. soblue

Hey Dom. Did you try updating it in iTunes first and then sync it to your phone? Also, which phone do you have?

Posted Fri Jul 22, 2011 8:16 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

How do you update it? I was not given the option on the iAdmiral page. My iPhone is the second one that came out.

Posted Fri Jul 22, 2011 8:21 pm
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Simon Dunkley

(rhox)

United Kingdom
Chorley
Lancashire

Victory point games porting to iso is very exciting news I think there low production games will shine on this platform, really excellent move!
I am new to iPad and so far it's like Christmas every day

Ghost stories on the way! I can't contain myself I might actually explode!

Happy days.

Posted Fri Jul 22, 2011 8:29 pm
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(cannoneer)

United States
Danbury
Connecticut

nightglider1 wrote:

I was seriously underwhelmed by Scotland Yard. Glad I only paid a buck for it.

Yup.

Posted Fri Jul 22, 2011 8:54 pm
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Superhawk

(Superhawk2300)

United States
Milwaukee
Wisconsin

Quote:

The iPad version of Antoine Bauza's Ghost Stories has finally been submitted to the App Store and should be releasing soon.

So WTF does that mean? Soon compared to what?

Seriously, what is the turn-time once something is submitted to apple- anyone know?

Can't wait for this one!

Posted Fri Jul 22, 2011 9:04 pm
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Doug Herring

(Dougmysticeye)

United States
Pflugerville
Texas

Superhawk2300 wrote:

Quote:

The iPad version of Antoine Bauza's Ghost Stories has finally been submitted to the App Store and should be releasing soon.

So WTF does that mean? Soon compared to what?

Seriously, what is the turn-time once something is submitted to apple- anyone know?

Can't wait for this one!

It usually pops up in the app store about a week or so after submission assuming nothing is wrong with it.

Posted Fri Jul 22, 2011 9:21 pm
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Renaud Verlaque

(Renaud Verlaque)

United States
New York
New York

I'd be very surprised if FFG got anywhere with their lawsuit. The only similarities are that the board is divided in 3 zones and cards are used for actions. There is no attempt whatsoever to imply a connection to the C&C, Battlelore or BoW games.

Posted Fri Jul 22, 2011 9:49 pm
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Isaac Kerry

(line0042)

United States
Mankato
Minnesota

Instead of suing people FFG should get with the program and release an official app. If there was an official BattleLore app in the app store all interest in Viking Lords would die. Also, I bet it would cost a good deal less to develop an app than pursue legal action. This move seriously makes me think less of the company.

Posted Fri Jul 22, 2011 10:18 pm
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Samuel Hinz

(abodi)

Australia
Brisbane
Queensland

Yup very dirty move by FFG. Get of you ass and release battlelore and make it better. If you don't want people to play your competition.

The think that stinks most about this is not that they will win. But the will win by default as the app owner likely doesn't have the money to fight it in court.

Posted Fri Jul 22, 2011 10:36 pm
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Ralph T

(ralpher)

United States
Signal Hill
California

I feel sorry for Viking Lords' creator. They ought to have an organization for lawyers to volunteer to defend frivolous IP suits.

Posted Fri Jul 22, 2011 10:47 pm
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The Gray Dog Passes Go

United States
Reno
Nevada

Another excellent update, guys.

Quick thoughts:

1. Scotland Yard sucked. It was like an event horizon from which fun could not escape. I wish I would have the eaten that dollar instead; there has to be a few calories in currency, right?

2. I've never even played Ghost Stories, and I'll be getting it within the first hour.

(BTW, to answer the question above: a week usually covers it for submissions to Apple; sometimes longer during peak times [Christmas being the obvious one, but every year, there's a big rush during Halloween, too]).

3. Hey, FFG: feel free to do something digital and join the year 2008 any time now.

I'm not impressed at all by this lawsuit, nor do I think it's a slam-dunk they'll win it. Game mechanics are not protected by copyright (in the U.S. at least), as has been gone over 1,000 times at this site.

And same goes for you, Donald X. Whatever and Rio Grande. If you'd get off your asses and make a Dominion app, it would outsell that Gungagunga thing by a ratio of at least 100:1.

Simple lesson, emphatically proven when Steve Jobs/Apple got the music companies on board in 2000: most people want to own legitimate copies of their entertainment. And they are perfectly happy to pay a reasonable price to do so.

Posted Fri Jul 22, 2011 11:06 pm
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Mike Smith

(Mikeybb)

United Kingdom
Wimbledon Park
London

The FFG story reminded me of this article I read today -

http://www.guardian.co.uk/technology/2011/jul/22/angry-birds...

not that I am saying that FFG are patent trolls (just want to get that out the way) - just interesting to see that developers seem to have to tread carefully.

Edited Fri Jul 22, 2011 11:15 pm
Posted Fri Jul 22, 2011 11:15 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

I have not seen Viking Lords, so I cannot comment on that particular case as to how similar the game is to BattleLore. Where the boundaries should lie is complicated, but if we want to have a thriving board game industry, it is important that people are not able to steal other game designer's ideas.

line0042 wrote:

Instead of suing people FFG should get with the program and release an official app. If there was an official BattleLore app in the app store all interest in Viking Lords would die. Also, I bet it would cost a good deal less to develop an app than pursue legal action. This move seriously makes me think less of the company.

Someone posted that comment to me a few months ago. We're working long hours every day. I work every weekend and recently I've been getting up for several hours at 3am to get work done because I have so much on my plate that I can't sleep. Even so, I haven't had the time to find a suitable partner, raise the needed capital, and put out some apps of our games. It takes time to do these things, as well as everything else that is necessary to have a successful company.

Posted Fri Jul 22, 2011 11:17 pm
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Christian T. Petersen

(Flightmaster)

United States
Roseville
Minnesota

CaptainCosmic wrote:

Another excellent update, guys.

3. Hey, FFG: feel free to do something digital and join the year 2008 any time now.

Since 2010:

http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...
http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...
http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...

More coming.

cP
FFG

Posted Fri Jul 22, 2011 11:23 pm
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Neil Wehneman

United States
Grove City
Ohio

Here's the first draft of my open letter to Christian Petersen of Fantasy Flight Games. On Monday (when I'm back in my office), I'll add some case and statute cites and otherwise clean it up some more.

However, for getting banged out on a Friday afternoon (now evening), it's presentable enough for posting.

I'll likely start a new thread in General Gaming with my more-or-less final draft. I'll be out of town this weekend at a wedding, so don't be insulted if I'm slow to reply here.

- Neil Wehneman

******************

An Open Letter to Christian Petersen

Christian:

You don’t know me personally, but I’m a huge fan of your company. I’d estimate that about a fifth of the approximately one hundred board games on my shelf bear your company’s logo, more than any of your competitors. One of my highlights of GenCon 2010 was getting one of your lead designers, Corey Konieczka, to sign the Rules of Play for several of your games. I also admit that, if I could bear the Minnesota winters, working as in-house legal counsel for a board gaming company like yours is a bit of a fantasy of mine. Corny, but hey, we all have our dreams.

With this background in mind, I was disappointed (but not surprised) to see that you had filed suit against Puffin Software for their implementation of the BattleLore rules within a product called Viking Lords.

Now, I understand you have your own lawyers, and I’m sure they’ve cautioned you not to speak publicly on this matter. (If you were my client, I’d be telling you the same thing.) I don’t expect any sort of response, and I am not planning any boycott or other adverse action against your company. Indeed, if I bump into you at GenCon I’ll probably shake your hand and ask if (when?) you’ll be producing another Battlestar Galactica expansion. (My wife loves that game.)

But I feel compelled to write you, because I truly believe that your company is wrong on the law when it comes to this suit, and I also believe that being wrong is going to open your own company up to liability for Puffin Software’s attorney’s fees. Hopefully your own lawyers have discussed these topics with you, but in case they haven’t (and for the benefit of the un-lawyered masses) I’ll go ahead and lay out my perspective on this matter. Of course, in true lawyerly fashion, these are merely my perspectives, and not legal advice to you (or anyone else). I also have had no contact with Puffin Software, so I speak only for myself and not for them.

"Intellectual Property Rights"

“Intellectual property rights” are not absolutes. Indeed, they aren’t even a single monolithic source of law, but rather several overlapping sources. To avoid confusion, I will intentionally be avoiding the phrase “intellectual property rights” in the remainder of the text.

The most relevant sources of law we have for this matter are copyrights, trademarks (and unfair competition), and patent rights. These (potential) rights are exceptions to the default rule of free copying.

The Default Right to Copy

That’s right. The default under the law is that everything we can see, imagine, create, invent, etc. may be freely copied. It’s all in the public domain, at least by default. The public domain is not where bad, old, or un-useful ideas go to die, but rather it’s the intellectual fountain from which we all are able to drink, build upon, and (for a lucky and/or skilled few) profit from. Creative and inventive works are unique in that they are not only finished products in their own right, but also serve as the building blocks for later creativity and invention.

So that’s our default, a world where everything may be legally copied, without the need for permission, royalty, or any other compensation or tribute to the past. As the Supreme Court has repeatedly noted (often in unanimous decisions), this state of affairs is not only intended but a very good thing.

Copyrights, patents, and trademarks are exceptions to this default rule. They aren’t necessarily “bad” or “good” exceptions in the abstract, simply exceptions. The United States (your primary jurisdiction, and the jurisdiction in which you’ve sued Puffin Software) provides for copyrights and patents as an incentive on getting that first copy of the creative work or invention, while trademarks are provided to prevent consumer confusion when it comes to the source of works.

Let’s tackle these exceptions to the right to copy one at a time, starting with patents.

Patents

Patents cover inventions. Are board games inventions? They certainly contain potentially patentable subject matter, which are often co-mingled in with creative elements (i.e artwork) that are subject to copyright.

“Inventions” (for patent purposes) are generally defined as being one of four broad subject matters: machine, manufactures, compositions of matter, or processes (aka methods). The mechanics of a game are processes or methods of moving figures, rolling dice, drawing or playing cards, etc. The core of the game, once you strip away the artwork and other elements of theme, is a process.

Accordingly, patent rights are available to the mechanics of the game, assuming the mechanics are useful, novel, and non-obvious to one having ordinary skill in the art at the time of invention. As you might guess, these are all terms of art that your lawyers can define for you. (Although neither of your named litigation counsel is admitted to the Patent Bar, I suspect from his education and work history that Mr. Lewis knows a few things about patents.)

I won’t go further into the definitions and threshold requirements for a patent, except to say that there is a significant possibility that the mechanics for BattleLore were patentable at the time of their invention. Indeed, I’ve found at least one press release noting that a patent was pending on the “Banner Bearer” mechanic, although I’ve found no issued patents to Mr. Borg, or assigned to Fantasy Flight or Days of Wonder.

I also find it telling that in your suit, you have not listed patent infringement as a cause of action. I strongly suspect that there is no patent that covers the BattleLore mechanics, and that any patent application that was filed was rejected by the USPTO or abandoned by Mr. Borg (or Days of Wonder).

This brings us to the double-edged sword of patents: they are expensive to obtain. Copyrights and trademarks provide a basic level of rights without the need for any form or governmental fee, but patents require many hours of drafting and thousands of dollars up front before any rights will be granted.

The downside for inventors is that often potentially patentable inventions don’t get patented. There is a one-year deadline to file for a patent before the rights are irrevocably lost. I suspect that this is the case for any patent rights regarding BattleLore.

The upside for inventors is that many potentially patentable inventions don’t get patented. An invention that is not patented flows into the public domain, where it is available for anyone (including the original inventor) to build upon. Not every mechanic within BattleLore was new to Mr. Borg, and so in that way he was able to build upon the past. Similarly, the lack of patent enables Puffin Software to build upon the past work of Mr. Borg by re-creating the unpatented mechanics in a new medium and with new copyrightable elements.

So, patents are not a viable source of right to sue Puffin Software. Let’s look at copyrights next.

Copyrights

Copyrights apply to expressive works, such as art, books, movies, etc. Copyrights are granted automatically on any original work of authorship, fixed in a tangible medium of expression.

However, copyrights do not extend to ideas residing within expressive works. Such ideas can be the subject of a patent, but never a copyright. This distinction is called the idea-expression dichotomy, and the Library of Congress has expressly applied it to games in stating:

Quote:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

http://www.copyright.gov/fls/fl108.html

The method of playing the game is potentially subject to patent, but as discussed earlier there are likely no patent rights regarding BattleLore (and in any case you have not sued for patent infringement).

Puffin Software has apparently gone to great pains to avoid reproducing copyrighted elements of BattleLore. All of the artwork is original. Although both BattleLore and Viking Lords are set in medieval times, it often feels as if half of all wargames (used loosely to avoid offending the grognards) are set in medieval times, with the other half set during World War II. The mere use of medieval-era military is certainly in the public domain, and any copyrightable creativity within the types or descriptions of BattleLore military is simply not re-used by Puffin Software.

Your lawyers try to get around this (admirably I might add) by adding numerous adjectives to their descriptions of the methods, to wit (from ¶ 12 of the Complaint):

Quote:

Troops’ abilities are determined by color code with “green” troops being young, aggressive, and fast; “blue” troops being well versed regular army; and “red” troops being heavily armed shock troops

Of course, what your lawyers don’t point out (and I wouldn’t expect them to; they are your advocates, after all) is that these wonderful adjectives only find “expression” within the game mechanics. For example, being “heavily armed” only finds “expression” within that unit doing more damage than others in combat. Damage is a core aspect of the process by which the game is played (i.e. damage is just a number, not flavor text or other creative expression). Said another way, damage and the infliction thereof are mechanics, regardless of how creative your lawyers are in describing it.

Alternately, whatever minimal creative expression might be present in this example is inseparable from the ideas of movement speed and damage infliction. Merger doctrine holds that when idea and expression are inseparable, where it is impossible to re-use the idea without also re-using the expression, the tie goes to the idea, and the merged expression is considered within the public domain.

Your lawyers further attempt to avoid the idea-expression dichotomy by referring to the right to creative derivative works, with the computer implementation Viking Lords being a derivative work of BattleLore. However, the derivative work right, like all of the 17 U.S.C. § 106 rights, extends only to the copyrightable elements of original work. You can’t create a copyright in the mechanics by saying Puffin Software has created a derivative work of the un-copyrightable idea of how to play a wargame.

As copyright and patent appear to be non-starters, let’s examine trademarks and unfair competition.

Trademarks

Trademarks are not property rights per se, but rather a means of avoiding consumer confusion. Without a likelihood of consumer confusion, there is no trademark infringement. (As your lawyers might have told you, “famous marks” are an exception to this rule, but BattleLore has not achieved a high-level of recognition by the entire American public, and so it does not qualify as a famous mark.)

Your (well-drafted) Complaint goes to significant lengths to talk about the effort you’ve put into building up the BattleLore brand, and making it distinctive. These are certainly important elements for a trademark infringement claim, as a non-distinctive mark cannot acquire trademark rights.

However, the Complaint does not allege, in the factual overview, that actual consumer confusion is taking place. Indeed, although veteran BattleLore players immediately recognize Viking Lords as re-implementing the BattleLore mechanics, you do not allege in the factual overview that such players were confused as to source. People can recognize the (no longer patentable and public domain) ideas within a game as having originated with BattleLore, without being confused as to whether Viking Lords is associated with the producers of BattleLore.

Furthermore, unanimous precedent from the Supreme Court of the United States holds that once a copyrighted work moves into the public domain, anyone can do anything they want with the work, without any need to pay or attribute the original author. Dastar v. Twentieth Century Fox Film Corp. 539 U.S. 23 (2003). Said another way, copyright trumps trademark law. There is no reason Dastar’s holding wouldn’t apply to the mechanics of BattleLore, which have spent their entire life within the public domain.

Deceptive Trade Practices and Unjust Enrichment

Your state deceptive trade practices claim is quite similar to the trademark claim. Indeed, my initial review of the cited statute reveals wording that is predominately utilized in a trademark context, dealing with questions of likelihood of consumer confusion as to source of sponsorship.

As to unjust enrichment, your lawyers allege that Puffin Software “obtained the benefit of the Plaintiff’s property rights involving the BattleLore® game without paying just compensation to the Plaintiff.” However, this allegation assumes that you have a “property right[]” within BattleLore that Viking Lords infringes. As discussed above, the only re-used creativity or invention was in the public domain, which makes that creativity or invention just as much Puffin Software’s property as yours. Puffin Software can’t be unjustly enriched by using what they already own.

So, that’s my overview perspective on the substantive law. However, there’s a final legal point I believe needs to be raised.

Do You Really Want to Pay Puffin Software's Attorney's Fees?

As you are likely well aware, in the United States the general rule is that all sides of a legal controversy have to pay their own legal fees. Generally, attorney’s fees are not awarded to the prevailing party (whether plaintiff, defendant, or otherwise).

However, copyright is an exception to this rule. A copyright holder who timely registers the work can, in the judge’s discretion, be awarded their attorney’s fees. However, you admit that you did not register the copyright in BattleLore until June 15, 2011, which does not qualify as timely under 17 U.S.C. § 412. The Minnesota deceptive trade practices statute does provide attorney’s fees as a remedy in certain circumstances, but as I discussed earlier I do not believe that claim will be successful. You’ll likely be paying your own lawyers for this matter.

What concerns me is that there is an excellent chance you’ll also be paying Puffin Software’s lawyers when the smoke clears. Under Fantasy v. Fogerty (and its progeny), a successful copyright defendant who vindicates Fair Use, the idea-expression dichotomy, and other public-serving interests of copyrights, is eligible to have their fees paid by the plaintiff.

In other words, Puffin Software has rights here as well, specifically the rights to the public domain mechanics of BattleLore. If they win (and I do expect them to win, for the reasons discussed above), they have the right to ask for their attorney’s fees.

Conclusion

I hope you and the gaming public at large finds this open letter informative and worthwhile. As I said at the outset, I highly respect your company, and I’m not planning any boycott or other public action against Fantasy Flight. I think you make high quality games, which I look forward to continuing to purchase.

It’s just that with regards to the law on this matter, I strongly believe you’re wrong. Not only do I anticipate you losing this lawsuit (assuming Puffin Software doesn’t default or otherwise fail to defend themselves), but I also expect you to be liable for Puffin Software’s legal fees under Fantasy v. Fogerty.

Regardless, I wish you and your company the best outside the courtroom.

Sincerely,

Neil A. Wehneman
Attorney at Law
Registered Patent Attorney

Edited Sat Jul 23, 2011 12:50 am
Posted Fri Jul 22, 2011 11:24 pm
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kris gorham

United States
albuquerque
New Mexico

I wasn't born ! I sprang from the forhead of God , as he contemplated a particularly vile joke !

I wasn't born , I was hatched in the deepest darkest part of the ocean , and raised by sharks !

it surprises me that it took FFG so long to bring the suite , they seem to be uptight , and overly contractually letigious to me .

the first time i sent simple questions about a game scale and if all the figures would always be made of plastic to them , 3 weeks later i got a reply back that sounded like it was written by a lawyer and said it was against their policy to answer such questions , that i should refer to their product news feed (that didnt have any thing at the time ) or forums (that they dont participate in) for any answers .

i sent a request to the company that invented the game , asking if they might be willing to support a local charity event by supplying a model or 2 , and they said they cant , they are not allowed by contract to support any event , of any type that relates in any way to the game . that any and all promotions mst go through FFG . when i sent te requests to FFG , andasked my FLGS to do the same , we just got ignored .

after the game was released , the company that invented the game , apparently got in trouble for providing game stat cards with some of their models , and apparently was ordered by FFG to stop doing so , so they couldnt supply game stats for models for their own game , that they invented .

they definatly are not as customer friendly , or user helpful as any of the other companies i have dealt with .

while they may not be as willing to send in the lawyer brigade as say GW , they sound like a close second .

Posted Fri Jul 22, 2011 11:25 pm
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Scott B

(Landstander)

United States
San Diego
California

landaras wrote:

Here's the first draft of my open letter to Christian Petersen of Fantasy Flight Games.

You mean the guy that posted right above you? He's probably read it...

Posted Sat Jul 23, 2011 12:09 am
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Dan Gillette

(The Fallen)

United States
New Richmond
Wisconsin

GrandInquisitorKris wrote:

it surprises me that it took FFG so long to bring the suite , they seem to be uptight , and overly contractually letigious to me .

the first time i sent simple questions about a game scale and if all the figures would always be made of plastic to them , 3 weeks later i got a reply back that sounded like it was written by a lawyer and said it was against their policy to answer such questions , that i should refer to their product news feed (that didnt have any thing at the time ) or forums (that they dont participate in) for any answers .

i sent a request to the company that invented the game , asking if they might be willing to support a local charity event by supplying a model or 2 , and they said they cant , they are not allowed by contract to support any event , of any type that relates in any way to the game . that any and all promotions mst go through FFG . when i sent te requests to FFG , andasked my FLGS to do the same , we just got ignored .

after the game was released , the company that invented the game , apparently got in trouble for providing game stat cards with some of their models , and apparently was ordered by FFG to stop doing so , so they couldnt supply game stats for models for their own game , that they invented .

they definatly are not as customer friendly , or user helpful as any of the other companies i have dealt with .

while they may not be as willing to send in the lawyer brigade as say GW , they sound like a close second .

You're still upset about the recent changes to Dust aren't you?

Posted Sat Jul 23, 2011 12:16 am
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Neil Wehneman

United States
Grove City
Ohio

Landstander wrote:

landaras wrote:

Here's the first draft of my open letter to Christian Petersen of Fantasy Flight Games.

You mean the guy that posted right above you? He's probably read it...

Yeah, I got ninja'd by Christian while I was formatting the letter for the forums.

- Neil Wehneman

Posted Sat Jul 23, 2011 12:18 am
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The Gray Dog Passes Go

http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...
http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...
http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...

United States
Reno
Nevada

Flightmaster wrote:

Yes, I know. I own two of the three.

Still, out of your gigantic catalog, the only one of those anyone can actually play is the fish game. Which was nicely done and semi-fun and all that, but it's not exactly in the same league as TI or Arkham Horror. Or Minotaur Lords. Or Mag-Blast, even.

If "more coming" is, indeed the case, I'll be watching carefully -- and with great anticipation. I stopped buying your physical boardgames more than a year ago, so it's digital-or-bust for me.

Posted Sat Jul 23, 2011 12:23 am
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kris gorham

United States
albuquerque
New Mexico

I wasn't born ! I sprang from the forhead of God , as he contemplated a particularly vile joke !

I wasn't born , I was hatched in the deepest darkest part of the ocean , and raised by sharks !

domcrap wrote:

I have not seen Viking Lords, so I cannot comment on that particular case as to how similar the game is to BattleLore. Where the boundaries should lie is complicated, but if we want to have a thriving board game industry, it is important that people are not able to steal other game designer's ideas.

line0042 wrote:

Instead of suing people FFG should get with the program and release an official app. If there was an official BattleLore app in the app store all interest in Viking Lords would die. Also, I bet it would cost a good deal less to develop an app than pursue legal action. This move seriously makes me think less of the company.

Someone posted that comment to me a few months ago. We're working long hours every day. I work every weekend and recently I've been getting up for several hours at 3am to get work done because I have so much on my plate that I can't sleep. Even so, I haven't had the time to find a suitable partner, raise the needed capital, and put out some apps of our games. It takes time to do these things, as well as everything else that is necessary to have a successful company.

well FFG bills itself as a "leading publisher of boardgames , card games , and RPG's " . they have a ton of titles , and have a major presence in some game stores .

if its an issue of being to busy to do the extra effort , FFG needs to hire more people .

if FFG cant afford to hire more people then they are obviously not a "leading publisher of ..........." , but rather a much smaller fish in the pond .

the excuse of being to busy , given by larger companies like FFG , doesnt fly , because apps are products , and make money . if it wasnt worth doing , then the viking app creator wouldnt have bothered doing it , and FFG wouldnt be rooting around for cash .

FFG needs to step up and do their job , promote their games , serve their customers .

before DUST TACTICS came out , i had no real opinion of FFG , but with how they are dealing with DT , my impression of them has gone from neutral , to positive , to neutral , to negative , to absolute disdain .

as much as i dislike the new points system FFG imposed on the game , it is a bigger negative to me that FFG is associated with it , and from this point forward , i wont be buying any products that FFG produces/publishes .

as much as i dislike GW , i dislike FFG even more , and this issue of the lawsuite is a perfect example of what is wrong with them , they leave the customers wanting , and then get upset when some one else finally steps up and fills the customers want .

Posted Sat Jul 23, 2011 12:24 am
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Pete Hooper

United States
Machesney Park
Illinois

Flightmaster wrote:

CaptainCosmic wrote:

Another excellent update, guys.

3. Hey, FFG: feel free to do something digital and join the year 2008 any time now.

Since 2010:

http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...
http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...
http://click.linksynergy.com/fs-bin/stat?id=Smq3RC8yf5I&offe...

More coming.

cP
FFG

While toolkits are helpful, we want GAMES! (At least, I do.)

Posted Sat Jul 23, 2011 12:29 am
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Neil Wehneman

United States
Grove City
Ohio

I know I spent five pages on my open letter, but I really think this case can be summed up quite succinctly.

FFG has sued Puffin Software for patent infringement. Unfortunately (for FFG) FFG doesn't have a patent on BattleLore.

Accordingly, FFG has tried to come up with other theories of relief that they can argue with a straight face in a desperate attempt to stop Puffin Software from using mechanics that were allowed into the public domain.

FFG's legal problem is that Puffin is not exploiting some "loophole" in the IP laws. Puffin is doing exactly what the IP laws were set up to allow, so FFG should lose on the merits.

- Neil Wehneman

Posted Sat Jul 23, 2011 12:38 am
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The Gray Dog Passes Go

United States
Reno
Nevada

I'd love to add a comment on the VPG news item, which seems pretty cool.

But I'm worried it'll just get buried under all of this FFG/BattleLore crap.

Pro tip, guys: even if you manage to win in the court of public opinion (and right now, I wouldn't vote for either one of you), it's not a real court.

Posted Sat Jul 23, 2011 12:48 am
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kris gorham

United States
albuquerque
New Mexico

I wasn't born ! I sprang from the forhead of God , as he contemplated a particularly vile joke !

I wasn't born , I was hatched in the deepest darkest part of the ocean , and raised by sharks !

The Fallen wrote:

You're still upset about the recent changes to Dust aren't you?

for me the changes to DT are big , but it goes beyond just that .

how good can a game be when the company publishing it doesnt promote it , and by contract wont let DM promote it either ?

how good can it be when they have so few models available for it , and wont let DM provide game stats for the new models the produce , thus keeping the game smaller , not larger ?

they have a sticky on their forums site saying they are making an FAQ , that has been there since last year , but no FAQ .

A LOT of people have made the same complaint that they have sent an EMAIL to FFG , and got no response .

yes i do dislike the changes they made to DT , because i bought DT , not a WH40K ripoff , which is where it appears to be headed .

A LOT of players have made the same complaint , that FFG has not marketed or upsold DT to their FLGS , and that the players have had to do all the work of convincing FLGS to order a copy in .

the game was released at gencon LAST YEAR , and they have failed horribly to promote it in that time beyond just simple unrevealing banner ads , their website with limited information , and crappy looking ads in Game Trade Magazine (which few gamers read ) .

every one i have asked about FFG has said its handeled pretty much the same for all their games .

to me it speaks highly to the content of some of their games , that they can sell so well , despite FFG utter failure to really do anything to help promote their games , and get the community energized .

based on what i have seen , i attribute their success to luck , since they seem to not care enough to put any effort or enthusiasiam into their publishing and selling of games .

Posted Sat Jul 23, 2011 12:49 am
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Pete Hooper

United States
Machesney Park
Illinois

domcrap wrote:

I have not seen Viking Lords, so I cannot comment on that particular case as to how similar the game is to BattleLore. Where the boundaries should lie is complicated, but if we want to have a thriving board game industry, it is important that people are not able to steal other game designer's ideas.

Neil does a pretty good job explaining how nothing was stolen.

Posted Sat Jul 23, 2011 12:49 am
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J. Jefferson

United States
Columbus
Ohio

domcrap wrote:

I have not seen Viking Lords, so I cannot comment on that particular case as to how similar the game is to BattleLore. Where the boundaries should lie is complicated, but if we want to have a thriving board game industry, it is important that people are not able to steal other game designer's ideas.

line0042 wrote:

Instead of suing people FFG should get with the program and release an official app. If there was an official BattleLore app in the app store all interest in Viking Lords would die. Also, I bet it would cost a good deal less to develop an app than pursue legal action. This move seriously makes me think less of the company.

Someone posted that comment to me a few months ago. We're working long hours every day. I work every weekend and recently I've been getting up for several hours at 3am to get work done because I have so much on my plate that I can't sleep. Even so, I haven't had the time to find a suitable partner, raise the needed capital, and put out some apps of our games. It takes time to do these things, as well as everything else that is necessary to have a successful company.

This point is well taken Dom, but I think small game companies having overworked employees who don't have the time to bring an app to market is a convincing reason to let developers like Puffin make non-copyright-infringing versions.

There's a bunch of people who want to spend money to buy the app. The legal rules should lead to more spending, not less. If it's not violating copyrights, the legal system should make it as easy as possible for an unlicensed app to be sold. Sadly, that's probably not what's going to happen here.

Posted Sat Jul 23, 2011 12:57 am
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Jay Levy

(jayntampa)

United States

Florida

I really hope that Ghost Wars is relatively inexpensive. I'd love to buy it to see if I want to get the physical board game. There have been many games now that I've enjoyed so much on my iPad that I've bought the boxed versions.

Posted Sat Jul 23, 2011 12:59 am
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Pete Hooper

United States
Machesney Park
Illinois

I thought that now is probably a good time to buy Viking Lords. Even if Puffin comes out victorious, there's the possibility that the app may have to be pulled from the market, at least temporarily.

Posted Sat Jul 23, 2011 1:08 am
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Pete Hooper

United States
Machesney Park
Illinois

Full disclosure: I like most of FFG's titles. However, I'm not the biggest fan of the company. In 2001-02, I worked for a small games distributor. One of our best-selling items was Reiner Knizia's Lord of the Rings, which had been published by WotC/Hasbro. When FFG gained the publishing rights to the game, they made it exclusively available through a different distributor. In my eyes, this was a giant "F-you" to people who had distributed their entire line for years. Yeah, it's been nearly ten years, but it still sticks in my craw.

Posted Sat Jul 23, 2011 1:16 am
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Ben Stanley

United States
Pleasant Grove
Utah

I can't let you have all the fun of armchair quarterbacking this litigation, Neil. And I suspect FFG could care less what a couple of gamer IP lawyers have to say anyway, but let me challenge some of your assumptions.

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) established what should be obvious: lower courts have some discretion in awarding fees to prevailing defendants as well as prevailing plaintiffs. It still concludes that the more common outcome in America is not recovering attorney's fees, and that had Congress intended a sea change to the landscape, they could have written the statute differently. (Side note: I love Credence Clearwater Revival.)

FFG does not really have to worry (much) about paying attorney's fees, and if they get to that point, they are probably prepared to do so. People are happy to call litigation frivolous on the internet, but remember how generously we lawyers define a non-frivolous claim: "a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." (MRPC 3.1). That is broad. They could be explicitly and admittedly 100% wrong on the law and still not have a frivolous claim.

Further, I am not so convinced FFG has zero chance of winning. Finding a single reference to BattleLore in the unseen metadata of the game (so it shows up in iTunes searches for that name), or pointing to a few of the myriad posts here at BGG where gamers have called Vikings Lords a clear clone of BattleLore, and perhaps finding a single time that Puffin representatives have agreed to that assessment, and they may be able to persuade a sympathetic fact-finder that Puffin is profiting off of their goodwill.

With a few more years of practicing IP litigation for leading firms and game publishers, you may start to suspect that the goals aren't always to win, anyway! The first thing they can find out in discovery is exactly how much money Puffin has made. They can run Puffin out of business, get a default judgment if Puffin has no means or interest in litigating in their chosen jurisdiction, or any number of other objectives. And I am sure they have done some preliminary research on the kind of defense Puffin can mount.

Further, IP holders often feel compelled to litigate for reasons other than profit on this one property. FFG seems to be waking to the role iOS gaming will play in the future (I am still waiting for the iOS version of Citadels they promised years ago, and would be in heaven if they produced Death Angel or some other Space Hulk property on the iOS; how awesome would that be?). They may be motivated by what I am sure drove Knizia in his suit against M Powers LLC: to show that they will defend their IP as best as they can in court, in hopes of discouraging other independent developers who have not licensed rights directly from them. If I were to speculate at their long term legal playbook, I suppose they want a reputation as a company that fights for its properties.

No, the real risk to FFG is not the slim possibility of paying Puffin's legal fees. The real risk is a PR one: that their fans don't like a litigious posture that crushes independent developers with little in the way of financial resources, and more so if there is a good chance those independent developers had a stronger legal position that they simply could not afford to advance.

But for FFG, that's obviously a calculated risk: they learn about their competitors, they establish a willingness to go to court and fight over their IP, may satisfy some of their shareholders who are of that mindset, and they are likely to gain a default judgment to send off to Apple in a request to have the Viking Lords app pulled down. We will see how long gamers remember the tactics and how much they really care. We are the hardcore, and we hardly care, we just want to see cool games on the iOS, and are happy to buy the clones GameLoft and others are constantly creating, and will buy great original or licensed properties when those are available, too.

Does anyone even know or care what happened in Knizia's suit? I don't think we ever saw the opinion issued out of that one, but people aren't clamoring for it, and the case probably achieved exactly what he needed (even though 3-card Brigade Poker is still available in iTunes to this day, and by searching under Knizia's name no less): he assuaged the concerns of developers who have licensed his games, that they are better served licensing (and paying him a share) than cloning (if for no other reason than to stay out of court!), and that he is willing to fight for his IP.

Edited Sat Jul 23, 2011 2:24 am
Posted Sat Jul 23, 2011 1:37 am
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William Reed

(wmreed)

United States
Galloway
Ohio

IMO, Fantasy Flight should hire Puffin to convert Vikings TO Battlelore and be done with the whole thing.

I know it's simplistic, but my friends call me simplistic-minded...or do they say simple-minded. hmmm.

WMReed

Posted Sat Jul 23, 2011 2:10 am
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

nightglider1 wrote:

domcrap wrote:

I have not seen Viking Lords, so I cannot comment on that particular case as to how similar the game is to BattleLore. Where the boundaries should lie is complicated, but if we want to have a thriving board game industry, it is important that people are not able to steal other game designer's ideas.

Neil does a pretty good job explaining how nothing was stolen.

He does a pretty good job at making a legal argument, but it rests upon his opinion that the mix of game mechanics chosen by a game designer is an idea. I think he is wrong. The mix of game mechanics chosen by a game designer is the expression of an idea, just like the mix of words chosen to write a story is the expression of an idea.

But the biggest flaw in his opinion is about what would be most beneficial to the board game industry. He thinks it should be ok for anyone to use a 100% exact replica of someone else's game mechanics, and sell it as they please. But game designers need to have their work protected if they are to make a living from their craft.

If his opinion holds in the court of law, then Hasbro can legally duplicate anybody's game, and sell it with a $2 million advertising budget. That's a scary prospect. FFG and Knizia are doing a service to our industry, by making others think twice before using someone else's hard work for their own profit.

Posted Sat Jul 23, 2011 2:10 am
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

Jefforama wrote:

domcrap wrote:

I have not seen Viking Lords, so I cannot comment on that particular case as to how similar the game is to BattleLore. Where the boundaries should lie is complicated, but if we want to have a thriving board game industry, it is important that people are not able to steal other game designer's ideas.

line0042 wrote:

Instead of suing people FFG should get with the program and release an official app. If there was an official BattleLore app in the app store all interest in Viking Lords would die. Also, I bet it would cost a good deal less to develop an app than pursue legal action. This move seriously makes me think less of the company.

Someone posted that comment to me a few months ago. We're working long hours every day. I work every weekend and recently I've been getting up for several hours at 3am to get work done because I have so much on my plate that I can't sleep. Even so, I haven't had the time to find a suitable partner, raise the needed capital, and put out some apps of our games. It takes time to do these things, as well as everything else that is necessary to have a successful company.

This point is well taken Dom, but I think small game companies having overworked employees who don't have the time to bring an app to market is a convincing reason to let developers like Puffin make non-copyright-infringing versions.

The key is whether it infringes on the intellectual property or not.

In the case of Wits & Wagers, I'd be happy to license it to any company that would put in the time and energy needed to create one of the best apps on the market. My concern is that the app increases the quality of our brand, as opposed to decreasing the quality of our brand.

Ahh... and there's the rub. It would take a lot of time to do the research needed to find the right partner.

Edited Sun Jul 24, 2011 5:08 pm
Posted Sat Jul 23, 2011 2:18 am
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David Culp

United States
Carrollton
Texas

I have no problem with FFG filing suit, it is their right. They believe they have been wronged, they have tried to deal with it out of court and do not feel they have reached a suitable agreement, therefore they are asking the courts to determine if they are right or not.

Having played Viking Lords, I can say it is an exact ripoff of the Battlelore system. Can you copyright/patent a game system? I don't know but the court will determine if Puffin Software is in the right or wrong.

If I was a game designer I would be angry if someone copied my boardgame and made it into a computer game without any sort of compensation.

Posted Sat Jul 23, 2011 2:58 am
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Kelsey Rinella

(rinelk)

United States
Rochester
New York

"I remember my own childhood vividly…I knew terrible things…

but I knew I mustn't let adults KNOW I knew…it would scare them." -Maurice Sendak

I'm amazed and delighted by the general tenor of goodwill, shared values, and reasonableness among those who disagree about the wisdom of the suit. I've no idea where I'd stand on the issue if I were informed enough to have a position rather than a mere visceral reaction, but I'm so pleased I read the comments to this piece!

Posted Sat Jul 23, 2011 3:25 am
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J. Jefferson

United States
Columbus
Ohio

domcrap wrote:

Jefforama wrote:

domcrap wrote:

I have not seen Viking Lords, so I cannot comment on that particular case as to how similar the game is to BattleLore. Where the boundaries should lie is complicated, but if we want to have a thriving board game industry, it is important that people are not able to steal other game designer's ideas.

line0042 wrote:

Instead of suing people FFG should get with the program and release an official app. If there was an official BattleLore app in the app store all interest in Viking Lords would die. Also, I bet it would cost a good deal less to develop an app than pursue legal action. This move seriously makes me think less of the company.

Someone posted that comment to me a few months ago. We're working long hours every day. I work every weekend and recently I've been getting up for several hours at 3am to get work done because I have so much on my plate that I can't sleep. Even so, I haven't had the time to find a suitable partner, raise the needed capital, and put out some apps of our games. It takes time to do these things, as well as everything else that is necessary to have a successful company.

This point is well taken Dom, but I think small game companies having overworked employees who don't have the time to bring an app to market is a convincing reason to let developers like Puffin make non-copyright-infringing versions.

The key is whether it infringes on the intellectual property or not.

In the case of Wits & Wagers, I'd be happy to license it to any company that would put in the time and energy needed to create one of the best apps on the market. My only concern is that the app increases the quality of our brand, and that we get a fair market royalty rate that compensates us for all of the hard work we have put into developing the game. Ahh... and there's the rub. It would take a lot of my time to do the research needed to find the right partner.

Fair enough. I totally agree that app designers should not be able to free ride off your brand's reputation and the goodwill and customer loyalty that you've built up. But I think both your broader and Neil's narrower interpretations of copyright would be sufficient.

I also think the best thing for the industry is to force you to either find the time to license or hire a developer you are happy with, or lose some portion of the market to faster, non-infringing competitors.

Posted Sat Jul 23, 2011 3:31 am
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Jay Levy

(jayntampa)

United States

Florida

Blue Steel wrote:

With a few more years of practicing IP litigation for leading firms and game publishers, you may start to suspect that the goals aren't always to win, anyway! The first thing they can find out in discovery is exactly how much money Puffin has made. They can run Puffin out of business, get a default judgment if Puffin has no means or interest in litigating in their chosen jurisdiction, or any number of other objectives. And I am sure they have done some preliminary research on the kind of defense Puffin can mount.

So, you think this is a good thing? That the massive company can always crush the small one simply because they have more money for lawyers? That's the reason the law has swung the way it has -- because if Puffin ISN'T in violation, FFG shouldn't be able to destroy them simply because they don't like what they're doing

Personally, just because of this fact, I hope Puffin prevails. I've seen nothing that indicates they've done anything illegal. We see video games with exactly the same mechanics released by different companies, and there is nothing there for litigation on that ... this is extraordinarily similar.

Edited Sat Jul 23, 2011 4:43 am
Posted Sat Jul 23, 2011 4:42 am
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Sean Westberg

(TheFlatline)

United States
Ventura
California

On the flip side, while concepts can't be copyrighted (you can't, say protect the idea of a card driven wargame in the same spirit as Battlelore & C&C), if it turns out Viking Lords uses a card deck that is laid out exactly the same (same ratio of left flank, right flank, etc...), that is an expression of the concept of a card driven wargame and there might be a case to be made.

If you build a CDG app from the ground up and use your own ideas and playtesting, you should absolutely be in the clear. If you crib entire sections of BL wholesale (like the command deck for instance), then you could get in trouble.

So I can see it going both ways. It depends on just how derivative Viking Lords is.

Posted Sat Jul 23, 2011 5:39 am
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Chaddyboy

(chaddyboy_2000)

United States
Olathe
Kansas

Bloooooop.

Bluuuuuurp.

domcrap wrote:

In the case of Wits & Wagers, I'd be happy to license it to any company that would put in the time and energy needed to create one of the best apps on the market. My only concern is that the app increases the quality of our brand, and that we get a fair market royalty rate that compensates us for all of the hard work we have put into developing the game. Ahh... and there's the rub. It would take a lot of my time to do the research needed to find the right partner.

Bwahahaha! Little does Dominic know I have both "Brains & Bets" and "Verbalize Whatever" ready to submit to the app store any day now!

Posted Sat Jul 23, 2011 5:39 am
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EXTRA AVOCADO!

(hanibalicious)

United States

California

chaddyboy_2000 wrote:

domcrap wrote:

In the case of Wits & Wagers, I'd be happy to license it to any company that would put in the time and energy needed to create one of the best apps on the market. My only concern is that the app increases the quality of our brand, and that we get a fair market royalty rate that compensates us for all of the hard work we have put into developing the game. Ahh... and there's the rub. It would take a lot of my time to do the research needed to find the right partner.

Bwahahaha! Little does Dominic know I have both "Brains & Bets" and "Verbalize Whatever" ready to submit to the app store any day now!

That sounds very close to my "Little Grey Cells and Little Flutters", and "Articulate unspecified event or object".

Posted Sat Jul 23, 2011 9:46 am
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Mika R.

(eikka)

Finland
Unspecified

TheFlatline wrote:

On the flip side, while concepts can't be copyrighted (you can't, say protect the idea of a card driven wargame in the same spirit as Battlelore & C&C), if it turns out Viking Lords uses a card deck that is laid out exactly the same (same ratio of left flank, right flank, etc...), that is an expression of the concept of a card driven wargame and there might be a case to be made.

If you build a CDG app from the ground up and use your own ideas and playtesting, you should absolutely be in the clear. If you crib entire sections of BL wholesale (like the command deck for instance), then you could get in trouble.

So I can see it going both ways. It depends on just how derivative Viking Lords is.

Yep, completely agree, this is the beef here. It all depends what is considered sufficiently different expression of a game mechanic idea.

Edited Sat Jul 23, 2011 10:13 am
Posted Sat Jul 23, 2011 10:10 am
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Alan Newman

United States
Wantagh
New York

Puerto Rico has finally been submitted to Apple. Tweet just received from Codito.

Posted Sat Jul 23, 2011 3:52 pm
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Richard Dewsbery

United Kingdom
Sutton Coldfield

I'll be watching the FFG suit with interest.

You see, unlike the received wisdom here on BGG, I struggle to see why designers and companies should not be free to decide how their intellectual property is exploited. And there are a LOT of examples of people exploiting somebody else's IP in the digital arena, excused on the grounds that it's not a breach of patent, trade mark or copyright. The latter in particular seems to completely ignore the situation where a new work is derived from an original, and therefore being a breach of copyright.

I hear the argument that nobody would be interested Viking Lords if there was an official Battlelore app - and hopefully FFG's attorneys have noticed it too. Because that would also imply that Viking Lords has only attracted any interest precisely *because* it is based on the Commands & Colors system and emulates Battlelore.

Frankly I'm a little fed up of app writers cashing in on other people's games designs - they don't want to licence the original game design or rules, but cannot create original works of their own that would carry the app. The app writers shortcut the design, development and play-testing process - that may have involved a considerable effort on the part of the game's original designers - yet frequently pay neither licensing fees nor credit.

Posted Sat Jul 23, 2011 5:48 pm
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The Gray Dog Passes Go

United States
Reno
Nevada

Al Newman wrote:

Puerto Rico has finally been submitted to Apple. Tweet just received from Codito.

You've come to the wrong place, it appears.

We don't talk about actual games here. That would be silly.

Instead, we engage in baseless debate about legal minutiae we are in no way qualified to discuss. It's one of the finest traditions at BGG.

Posted Sat Jul 23, 2011 5:54 pm
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Neil Wehneman

United States
Grove City
Ohio

RDewsbery wrote:

And there are a LOT of examples of people exploiting somebody else's IP in the digital arena, excused on the grounds that it's not a breach of patent, trade mark or copyright.

This sentence is where your entire argument falls apart.

If "it's not a breach of patent, trade mark or copyright," then it's not an infringement of an "intellectual property right." (Let's set aside concepts like the right of publicity or trade secret, which aren't at issue here.)

Said another way, if "it's not a breach of patent, trade mark or copyright," then it's not "exploiting somebody else's IP." You simply can't admit that they're not infringing a patent, trademark or copyright, but then label them as someone "exploiting someone else's IP."

I'll give a physical property example, as that's what most of these arguments devolve to eventually.

I own a house. (Well, actually, my wife owns a house, as she's had it longer than we've been together.) Behind my house is a lake. People in the neighborhood fish at that lake.

When I first moved in, I was bothered by this. People are fishing on our property! When I mentioned this to Laura, she told me that our property doesn't go all the way back to the lake, but actually ends a few yards from the shore. The last few yards are owned by the Homeowner's Association, and may be used by anyone in the neighborhood.

Now, these people were fishing NEAR my property. I could see them out my back window. But they weren't ON my property.

By your logic they'd be shunned as trespassers, even if they were excused on the grounds that they weren't actually trespassing on my property.

I'll bring this analogy back to FFG, and mix up the metaphors a bit. FFG's rights don't go all the way to the lake. They could have bought the last few yards of lakefront property, but they (well, their successors) chose not to pay the price to obtain a patent. Accordingly, the last few yards (the right to use the mechanics) went into the public domain.

Now, people are fishing next to their BattleLore property, making money via these third-party's own effort to digitize and add artwork upon public domain mechanics. FFG can see them from their back window, and is mad as hell! How dare they fish there!

My original point is that FFG doesn't have the right to stop them. FFG may want to, FFG may feel aggrieved, and FFG may be able to make emotional arguments that resonate on some level. But the bottom line is that FFG don't have the legal right to do so, and this fact is an intentional aspect of our legal system, not some loophole or flaw.

- Neil Wehneman

Edit: added last three paragraphs

Edited Sat Jul 23, 2011 6:48 pm
Posted Sat Jul 23, 2011 6:42 pm
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Justin

(astroglide)

United States
Creve Coeur
MO

RDewsbery wrote:

Frankly I'm a little fed up of app writers cashing in on other people's games designs - they don't want to licence the original game design or rules

"We even pitched our prototype to Fantasy Flight Games. They were mildly interested, but were slow to respond and didn't seem to be too much into it. So eventually we decided to take our game to a different direction."

Posted Sat Jul 23, 2011 7:47 pm
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Neil Wehneman

United States
Grove City
Ohio

Blue Steel wrote:

I can't let you have all the fun of armchair quarterbacking this litigation, Neil. And I suspect FFG could care less what a couple of gamer IP lawyers have to say anyway, but let me challenge some of your assumptions.

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) established what should be obvious: lower courts have some discretion in awarding fees to prevailing defendants as well as prevailing plaintiffs. It still concludes that the more common outcome in America is not recovering attorney's fees, and that had Congress intended a sea change to the landscape, they could have written the statute differently. (Side note: I love Credence Clearwater Revival.)

FFG does not really have to worry (much) about paying attorney's fees, and if they get to that point, they are probably prepared to do so. People are happy to call litigation frivolous on the internet, but remember how generously we lawyers define a non-frivolous claim: "a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." (MRPC 3.1). That is broad. They could be explicitly and admittedly 100% wrong on the law and still not have a frivolous claim.

I wasn't arguing that FFG would be subject to Rule 11 sanctions for frivolous litigation. I agree with you that it's very difficult to prove or obtain Rule 11 sanctions.

My point is that under 17 U.S.C. § 505, as interpreted by Fantasy v. Fogerty, attorney's fees are available to a prevailing copyright defendant even if the litigation isn't frivolous.

Here's FN 18 of the SCOTUS opinion:

Quote:

That court concluded that "the considerations prompting an award of fees to a successful plaintiff must of necessity differ from those determining whether a prevailing defendant is entitled to such an award." Breffort, 271 F. Supp., at 627. As support, the court stated: "The purpose of an award of counsel fees to a plaintiff is to deter copyright infringement. . . . In the case of a prevailing defendant, however, prevention of infringement is obviously not a factor; and if an award is to be made at all, it represents a penalty imposed upon the plaintiff for institution of a baseless, frivolous, or unreasonable suit, or one instituted in bad faith." Ibid. As we have already explained, supra, at 9-10, such is too narrow a view of the purposes of the Copyright Act because it fails to adequately consider the important role played by copyright defendants. See also, Cohen v. Virginia Electric & Power Co., 617 F. Supp., at 621-622 (tracing the evolution of the Second Circuit's dual standard rule and concluding that earlier cases upon which it supposedly rests do not require bad faith or frivolousness--%[the dual standard rule] is the culmination of a long line of bootstrapping from nothing to something").

I'll grab the later opinions applying Fogerty later, but the bottom line is that the 9th Circuit required frivolousness for defendants to get their fees (i.e. your standard), and the Supreme Court said that standard was wrong. From memory, on remand the 9th Circuit imposed fees on the (losing) plaintiff, even though there was a good faith dispute as to the ownership of the works in question.

Blue Steel wrote:

Further, I am not so convinced FFG has zero chance of winning. Finding a single reference to BattleLore in the unseen metadata of the game (so it shows up in iTunes searches for that name), or pointing to a few of the myriad posts here at BGG where gamers have called Vikings Lords a clear clone of BattleLore, and perhaps finding a single time that Puffin representatives have agreed to that assessment, and they may be able to persuade a sympathetic fact-finder that Puffin is profiting off of their goodwill.

Those are facts we don't have in front of us, and given the factual overview FFG put into their Complaint, I suspect FFG would have mentioned such if they had it.

Edit: If such facts arise, then we can analyze and discuss such at that time. However, it is fair of you to note that there might be such facts, although I don't see how merely noting that Viking Lords implements the BattleLore mechanics ("is a clone" in your language) is damning if 1) it's true, and 2) such implementation is legal. I don't view that statement alone as rising to the level of suggesting sponsorship or endorsement that's actionable under trademark or unfair competition law. /Edit

Blue Steel wrote:

With a few more years of practicing IP litigation for leading firms and game publishers, you may start to suspect that the goals aren't always to win, anyway!

Why the condescension here, Ben? Just because you've been licensed longer than I have doesn't mean I don't understand the broader picture of commercial litigation.

For the record, my first job out of law school was commercial litigation, and I'm involved in a major commercial suit now. I'm familiar with the burdens of discovery, and how many lawyers use discovery and other procedural devices as weapons. My supervising partner at my first firm taught me well.

Quote:

The first thing they can find out in discovery is exactly how much money Puffin has made. They can run Puffin out of business, get a default judgment if Puffin has no means or interest in litigating in their chosen jurisdiction, or any number of other objectives. And I am sure they have done some preliminary research on the kind of defense Puffin can mount.

Agreed.

Quote:

Further, IP holders often feel compelled to litigate for reasons other than profit on this one property. FFG seems to be waking to the role iOS gaming will play in the future (I am still waiting for the iOS version of Citadels they promised years ago, and would be in heaven if they produced Death Angel or some other Space Hulk property on the iOS; how awesome would that be?). They may be motivated by what I am sure drove Knizia in his suit against M Powers LLC: to show that they will defend their IP as best as they can in court, in hopes of discouraging other independent developers who have not licensed rights directly from them. If I were to speculate at their long term legal playbook, I suppose they want a reputation as a company that fights for its properties.

Agreed. And perhaps certain lawyers that think FFG is wrong on the merits, and who take a broader view of the gaming industry (i.e. not just established players but those like Puffin who can come in and innovate on pre-existing mechanics) will get involved.

I'm weighing whether to get involved in this suit, and if so, in what capacity. I'm not admitted in D.Minn (Indiana, N.D.Ind., S.D.Ind. and USPTO for me), but I'd be interested in consulting on, or even litigating, this matter if I had a D.Minn lawyer signing the pleadings. If someone else litigates, I might draft and submit an amicus brief.

But Puffin hasn't contacted me, and there are rules that restrict how I could contact them. I'm still deliberating on this.

Quote:

No, the real risk to FFG is not the slim possibility of paying Puffin's legal fees.

The risk is more than slim, as you are simply looking to Rule 11 while the applicable standard is a more liberal one.

Quote:

The real risk is a PR one: that their fans don't like a litigious posture that crushes independent developers with little in the way of financial resources, and more so if there is a good chance those independent developers had a stronger legal position that they simply could not afford to advance.

And my goal is to educate people on the law, so we can move beyond words like "rip off" or "theft", and actually engage with words like "copyright infringement" and "idea-expression dichotomy."

Quote:

But for FFG, that's obviously a calculated risk: they learn about their competitors, they establish a willingness to go to court and fight over their IP, may satisfy some of their shareholders who are of that mindset, and they are likely to gain a default judgment to send off to Apple in a request to have the Viking Lords app pulled down. We will see how long gamers remember the tactics and how much they really care. We are the hardcore, and we hardly care, we just want to see cool games on the iOS, and are happy to buy the clones GameLoft and others are constantly creating, and will buy great original or licensed properties when those are available, too.

Agreed.

Quote:

Does anyone even know or care what happened in Knizia's suit? I don't think we ever saw the opinion issued out of that one, but people aren't clamoring for it, and the case probably achieved exactly what he needed (even though 3-card Brigade Poker is still available in iTunes to this day, and by searching under Knizia's name no less): he assuaged the concerns of developers who have licensed his games, that they are better served licensing (and paying him a share) than cloning (if for no other reason than to stay out of court!), and that he is willing to fight for his IP.

I believe Knizia's suit was filed overseas, so I don't have ready access to it and do not have information to share regarding it.

- Neil Wehneman

Edited Sat Jul 23, 2011 8:01 pm
Posted Sat Jul 23, 2011 7:49 pm
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Ben Stanley

United States
Pleasant Grove
Utah

Thanks for your reply, Neil.

I think we substantially agree, but I sensed some condescension in your initial post toward FFG, with implications that they have no rational reason for pursuing their claim. I find that conclusion premature.

Take for example your post to RDewsbery.

landaras wrote:

This sentence is where your entire argument falls apart.

* * *

My original point is that FFG doesn't have the right to stop them.

I think that sentence is where your entire argument falls apart.

The law is subtle and nuanced. With more assets and more creative and skilled counsel, I would not be surprised to see either party prevail in this litigation. On the merits, I might prefer to represent Puffin, but in terms of compensation, I suspect that neither party could pay my fees, but FFG could probably get a lot closer . . .

But are you in a position, without having undertaken discovery or being a judge, to conclude what FFG's rights are? They certainly have a right to sue, and some pretty compelling rational reasons to do so, win or lose. They surely don't want every developer to assume their cease and desist letters are empty threats.

If I were their counsel, I might hang my hat on that interview Puffin gave the iOS Board Game blog, where it seemed clear Puffin felt that fans of BattleLore would like everything Viking Lords had to offer because the games are built on the same system. I think, without deep analysis, that showing Puffin trying to profit on their good will and name recognition may be the sharpest arrow in FFG's quiver.

Afterall, does it change your perspective on what your HOA is doing if they start advertising fishing opportunities on their lake by showing pictures of it that include your charming home, with you and Laura visible through the windows doing who-knows-what? The law is a beautiful and complicated creature, with areas of jurisprudence intertwining others at every turn. While you have presented some valuable basics of IP for the uninitiated, I would recommend care when making ultimate conclusions of law, fact, or underlying motivations without more information.

Either way, I think it will be an interesting case, and admire you getting involved, both sharing your detailed thoughts in this thread, and considering filing an amicus brief. That doesn't happen often enough, in my opinion. Please pardon anything in my tone in either post that may have been offensive.

________________________

By the way, take a close look at footnote 19 from Fogerty.

I call the odds of an award of fees slim. You call it likely. I will simply note that the Supreme Court has said it would take much more statutory language to effectuate a switch of our American system to the British one, as you seem to fear has happened. Id. at 534. The factors they are looking for are things like frivolousness, unreasonableness, and need for deterrence. Fn. 19. It surely is not a given.

Edited Sat Jul 23, 2011 8:46 pm
Posted Sat Jul 23, 2011 8:45 pm
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justin easley

(gameInformant)

United States
Tremont
Illinois

Soooo....is Army of Frogs worth dropping 5 bones on?

Posted Sat Jul 23, 2011 8:57 pm
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Richard Dewsbery

United Kingdom
Sutton Coldfield

My argument doesn't fall apart, as you've not understood it (largely because I've no particular interest in making it, when nobody's paying my way).

When I said "excused on the grounds that it's not a breach of patent, trade mark or copyright" I did not mean "isn't a breach of patent, trade mark or copyright". Without thinking very hard, I can think of several ways in which Puffin's actions are likely to be treated as a breach of well-established IP rights were it to be litigated in the UK, but would be "excused as not being a breach of any of the principle IP rights here on BGG". For example, I can't copyright an idea, and in the US it seems that this is the end of it - we're regularly told here on BGG that if your game is based on my idea, I'm out of luck. Here in the UK, I'd be in a much stronger position, especially if I could show (for example) that the rule book for your game was derived from the rule book to my game to a substantial degree.

There may well be a gulf between US IP law and UK IP law, but if it was as clear cut as you make out on your side of the Atlantic, FFG will already have been told by their lawyers that they are on a hiding to nothing. Or maybe not, and things aren't as clear-cut as you say. If there's one thing that 20 years of practice has shown me, it's that in an awful lot of courtroom fights one side is convinced that they are right and the other side is convinced of the exact opposite, and someone is inevitably disappointed when the judgment is handed down.

It was interesting to read you talk about educating people to talk about copyright infringement instead of theft; the last (successful) prosecution I brought against someone for trade mark infringement had the judge summing the case up to the jury using the words "theft" and "stolen" to explain to the jury the way the TM holder's rights had been infringed; it wasn't technically the right language, but it was being used to explain to lay people concepts that they would not normally encounter in language that they would understand, and nobody thought it remotely inappropriate in the context.

Fascinating debate, all way off topic of course, but it will be interesting to see how various jurisdictions evolve 19th century concepts to deal with what will be a very 21st century issue. The last 20 years of trying to mold existing concepts to deal with modern situations has seen some spectacularly ham-fisted attempts.

Edited Sat Jul 23, 2011 9:56 pm
Posted Sat Jul 23, 2011 9:55 pm
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Richard Dewsbery

United Kingdom
Sutton Coldfield

astroglide wrote:

RDewsbery wrote:

Frankly I'm a little fed up of app writers cashing in on other people's games designs - they don't want to licence the original game design or rules

"We even pitched our prototype to Fantasy Flight Games. They were mildly interested, but were slow to respond and didn't seem to be too much into it. So eventually we decided to take our game to a different direction."

"We might have licensed the game properly, but we didn't like the way that the other party was doing things so we went ahead and published our game anyway." Yup - I can see how that is a sound basis for the software industry. Pitch an idea, and if it's not taken up with enthusiasm just go ahead and do it yourself. Why bother pitching to FFG in the first place?

Posted Sat Jul 23, 2011 10:00 pm
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Richard Dewsbery

United Kingdom
Sutton Coldfield

The board game of Army of Frogs is great - but two of the things I like about it are the tactile nature of the pieces and the ease with which you can get new players to give what is essentially a purely abstract game a go. I'm not sure about the second one, but the first isn't going to translate well to a digital version. But then, those things never do, but plenty of board game apps prove popular.

Posted Sat Jul 23, 2011 10:13 pm
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The Gray Dog Passes Go

United States
Reno
Nevada

gameInformant wrote:

Soooo....is Army of Frogs worth dropping 5 bones on?

We don't talk about actual iOS boardgames here; I'm not sure where you got that impression.

We just try to out-lawyer each other. There's also prizes awarded for longest post and most four-syallable words.

Posted Sat Jul 23, 2011 10:27 pm
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The Galaxy is Just Packed!

(bryanwinter)

United States
Madison
Wisconsin

FFG doesn't need to win or lose the lawsuit. They just need Penguin to not spend the money to fight it.

Posted Sat Jul 23, 2011 11:56 pm
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justin easley

(gameInformant)

United States
Tremont
Illinois

CaptainCosmic wrote:

gameInformant wrote:

Soooo....is Army of Frogs worth dropping 5 bones on?

We don't talk about actual iOS boardgames here; I'm not sure where you got that impression.

We just try to out-lawyer each other. There's also prizes awarded for longest post and most four-syallable words.

Ah, my apologies. Is the prize a code to purchase Viking Lords? Or "Litigation for Dummies"?

Posted Sun Jul 24, 2011 1:43 am
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Pete Hooper

United States
Machesney Park
Illinois

gameInformant wrote:

CaptainCosmic wrote:

gameInformant wrote:

Soooo....is Army of Frogs worth dropping 5 bones on?

We don't talk about actual iOS boardgames here; I'm not sure where you got that impression.

We just try to out-lawyer each other. There's also prizes awarded for longest post and most four-syallable words.

Ah, my apologies. Is the prize a code to purchase Viking Lords? Or "Litigation for Dummies"?

Pure winning, that is! thumbsup

Posted Sun Jul 24, 2011 1:56 am
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Tom Steynen

(Tekar)

Belgium
Mortsel
Antwerpen

IMHO both the viking lords and scotland yard apps are badly implemented. I own both but if someone (hint, hint) would come out with a better implementation I would probably buy it. Even if it would be more expensive.

Edited Sun Jul 24, 2011 10:13 am
Posted Sun Jul 24, 2011 10:13 am
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James Webster

(artadius)

United States
Corpus Christi
Texas

CaptainCosmic wrote:

gameInformant wrote:

Soooo....is Army of Frogs worth dropping 5 bones on?

We don't talk about actual iOS boardgames here; I'm not sure where you got that impression.

We just try to out-lawyer each other. There's also prizes awarded for longest post and most four-syallable words.

But they are talking about iOS boardgames...specifically one iOS boardgame and a legal issue surrounding it. The discussion is important and the result of the legal wrangling between the two parties could have far reaching implications not only for the two of them... but for the industry as a whole both on the electronic side AND the physical boardgame side.

It should not be just swept beneath the rug.

This is the second or third condescending comment like this you've posted. If you don't like the discussion taking place, perhaps you should hide / ignore the offending posts.

Posted Sun Jul 24, 2011 1:38 pm
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Superhawk

(Superhawk2300)

United States
Milwaukee
Wisconsin

artadius wrote:

CaptainCosmic wrote:

gameInformant wrote:

Soooo....is Army of Frogs worth dropping 5 bones on?

We don't talk about actual iOS boardgames here; I'm not sure where you got that impression.

We just try to out-lawyer each other. There's also prizes awarded for longest post and most four-syallable words.

It should not be just swept beneath the rug.

I can relate to his posts. And this isn't being swept under the rug; it sounds like there are actually actual lawyers the companies hired that are discussing this between each other and it also sounds like some actual judges might get involved as well.

I think the good Captain is getting at is he is not sure how many people reading this thread care that much about IP case law and what others think they know about it. They probably are more interested in what others think about the games themselves but for some reason that doesn't seem to be getting the same about of play.

So how is Army of Frogs?

Posted Sun Jul 24, 2011 7:06 pm
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フィル

(sbszine)

Australia
Newtown
NSW

Odd that FFG doesn't complain to Apple rather than the courts. Apple regularly remove apps from iTunes based on legally groundless complaints (e.g. the VLC app).

Posted Mon Jul 25, 2011 12:38 am
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WAN CHIU

(chooche)

United States
SUNNYVALE
94089

I would believe by sending in the legals, FFG is clearing the way for their own inquest of the mobile game arena.

i am pretty behind on whats happening in the (board)game-dev scene but from what i have seen FFG isn't the kind of company who announce the product until close to releasing date.

Posted Mon Jul 25, 2011 12:41 am
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Freelance Police

(Sam and Max)

United States
Palo Alto
California

Jefforama wrote:

I also think the best thing for the industry is to force you to either find the time to license or hire a developer you are happy with, or lose some portion of the market to faster, non-infringing competitors.

I'm voting the latter. Heck, I'm sure many BGG'ers who made up their own games would be *thrilled* if an iOS developer offered to make an app for them for *free*. Myself, I have a few party game ideas I'd be *very* happy to have developed into an iOS game.

BRING ON THE FASTER NON-INFRINGING COMPETITORS!!! laugh

Edited Mon Jul 25, 2011 1:23 am
Posted Mon Jul 25, 2011 1:14 am
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David Culp

United States
Carrollton
Texas

Jefforama wrote:

I also think the best thing for the industry is to force you to either find the time to license or hire a developer you are happy with, or lose some portion of the market to faster, non-infringing competitors.

I have to disagree, if you spend the time, money and energy to develop a boardgame that becomes popular, I should not be forced in to finding a developer for a computerized version of it or lose the rights to make that computer version in the future.

Posted Mon Jul 25, 2011 2:35 am
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Pete Hooper

United States
Machesney Park
Illinois

dwculp wrote:

Jefforama wrote:

I also think the best thing for the industry is to force you to either find the time to license or hire a developer you are happy with, or lose some portion of the market to faster, non-infringing competitors.

I have to disagree, if you spend the time, money and energy to develop a boardgame that becomes popular, I should not be forced in to finding a developer for a computerized version of it or lose the rights to make that computer version in the future.

I understand your point, but this is the 21st century. Multichannel/multi-platform is where it's at.

I'm not saying it's right, but if you don't move on something NOW, someone else will.

Posted Mon Jul 25, 2011 3:04 am
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Sean Westberg

(TheFlatline)

United States
Ventura
California

sbszine wrote:

Odd that FFG doesn't complain to Apple rather than the courts. Apple regularly remove apps from iTunes based on legally groundless complaints (e.g. the VLC app).

They also ignore complaints until there's a large public stink. Apple basically does whatever the f*ck Apple wants to do at that moment. Going through them is like abandoning a baby in a garbage can. Maybe it'll work out, but it's not exactly a good solution.

Posted Mon Jul 25, 2011 4:13 am
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kris gorham

United States
albuquerque
New Mexico

I wasn't born ! I sprang from the forhead of God , as he contemplated a particularly vile joke !

I wasn't born , I was hatched in the deepest darkest part of the ocean , and raised by sharks !

TheFlatline wrote:

sbszine wrote:

Odd that FFG doesn't complain to Apple rather than the courts. Apple regularly remove apps from iTunes based on legally groundless complaints (e.g. the VLC app).

They also ignore complaints until there's a large public stink. Apple basically does whatever the f*ck Apple wants to do at that moment. Going through them is like abandoning a baby in a garbage can. Maybe it'll work out, but it's not exactly a good solution.

so you are saying FFG is just like apple then ?

Posted Mon Jul 25, 2011 8:48 am
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Neil Wehneman

United States
Grove City
Ohio

Ben:

I happily cede the final word to you on this subject, at least as far as the discussion between lawyers is concerned.

I've said my peace, and I hope and trust we are both the better for the exchange (both private and public).

I'll be taking a (public) step back from this matter as I figure out if I'll be getting involved, and if so, in what capacity.

- Neil Wehneman

Posted Mon Jul 25, 2011 1:12 pm
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Ben Stanley

United States
Pleasant Grove
Utah

I have enjoyed the conversation, too, Neil, and I expect this will be my last post in this thread about the litigation as well. After all, it seems like a few readers are not as fascinated by these issues as we are!

Again, I admire your perspective and approach. I wonder if your long time support of the EFF is influencing your analysis. If you want a sounding board in the future, feel free to ask, but it is clear to me you have a brilliant mind and have given these topics a lot of deep thought and probably have more to teach me than the reverse.

I have to tell you, though, and for any other readers still following along, the part of your analysis where I am least convinced (and where I might as judge issue a tentative in favor of FFG, with each party bearing their own costs, and ask you to brief the issue more deeply to persuade me to your way of thinking before ruling) is the merger doctrine.

If you brought me a game design to publish, played on a hexagonal modular board where players collect sheep, wood, brick, wheat, and ore to buy roads, settlements, cities, and development cards, I would give Klaus Teuber a call and say, "Is this new game copying just your idea (a hexagonal modular board, island settling theme with euro efficiency resource gathering, management, and trading), or is it copying the very expression of your idea by duplicating the same resources? After all, couldn't they have chosen five different resources (gold, oil, mud, reeds, and seashells) to avoid mimicking the very expression of the idea as well as the unprotected idea itself? How do you feel about it?" (You may have seen an app called "Kolonists" that was once, but is no longer, in the app store . . .)

It seems to me like FFG could make a strong argument (indeed, is making the argument) that Puffin did not need to copy the very same three color system for troop designations. Maybe the idea of strong versus balanced versus mobile units is unprotected, but could they have made the different troops different sizes, or totally different colors, or used some other expression than the red/blue/green to implement the idea? You make the bare assertion that the idea and the expression are inseparable in that case. I am not so confident on that point. Maybe the inseparability of theme, idea, and expression is true with terms like Battleback and Bold, but couldn't Puffin have simply used three different colors?

Edited Mon Jul 25, 2011 2:53 pm
Posted Mon Jul 25, 2011 2:45 pm
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Rob Corn

(Haggis)

United States
Columbus
Ohio

How appropriate. You fight like a cow.

Thank you Ben and Neil for adding the lawyer's perspectives, I found it very interesting.

Maybe one of you can shed some light on the different publishers handling the same systems.

Battlelore uses the Commands & Colors system as I understand it (I've never played Battlelore but I'm a big fan of C&C: Ancients). GMT publishes the C&C line, FFG currently publishes Battlelore, and Richard Borg is the designer for both.

Would an agreement have to be in place to allow the two publishers to use the same system, or does Mr. Borg own the system and allow it to be published as he sees fit? What makes this situation different (and obviously it is, I haven't heard of any lawsuits between FFG and GMT) than the iOS Viking Lords game vs. Battlelore?

And to stay on topic, Ghost Stories was submitted one week ago, which means it could be any minute that it is released to the app store. It also means it could be a few more days... but I'm keeping my fingers crossed.

Posted Mon Jul 25, 2011 4:49 pm
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P. M.

(funambulist)

Netherlands
Unspecified
Unspecified

Haggis wrote:

And to stay on topic, Ghost Stories was submitted one week ago, which means it could be any minute that it is released to the app store. It also means it could be a few more days... but I'm keeping my fingers crossed.

I was wondering earlier what the current (average) appstore turn-around-time is. I thought I read somewhere that this information was available to iOS developers (through the dev center?) but perhaps I'm mistaken.

Posted Mon Jul 25, 2011 5:09 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

Haggis wrote:

Thank you Ben and Neil for adding the lawyer's perspectives, I found it very interesting.

Maybe one of you can shed some light on the different publishers handling the same systems.

Battlelore uses the Commands & Colors system as I understand it (I've never played Battlelore but I'm a big fan of C&C: Ancients). GMT publishes the C&C line, FFG currently publishes Battlelore, and Richard Borg is the designer for both.

Would an agreement have to be in place to allow the two publishers to use the same system, or does Mr. Borg own the system and allow it to be published as he sees fit? What makes this situation different (and obviously it is, I haven't heard of any lawsuits between FFG and GMT) than the iOS Viking Lords game vs. Battlelore?

And to stay on topic, Ghost Stories was submitted one week ago, which means it could be any minute that it is released to the app store. It also means it could be a few more days... but I'm keeping my fingers crossed.

Rob,

You should know when you ask for this type of advice from Neil, you are getting his opinion about how he would like the board game industry to operate, not how it actual operates. Neil thinks the mix of game mechanics from every game are in the public domain and free for anybody to use. But every publisher in the industry (both in the US and over-seas) operates as if the mix of game mechanics chosen by a game designer are protected.

If game companies operated with Neil's assumptions, we would not need to pay game designers for their work. We would simply use their mechanics for free, since we would own them just as much as the creator.

Dominic

Posted Mon Jul 25, 2011 5:17 pm
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Ben Stanley

United States
Pleasant Grove
Utah

Well, I was going to stop, but if the questions keep coming . . .

I'm not sure your post is entirely fair to Neil's position, though, Dominic. He is well educated and exactly right on the basics: ideas need patent protection, expressions have copyright protection when they are fixed in a specific form (automatically, with some legal presumptions available when they are registered), and names (sometimes colors and other things) can have some trademark protection when various conditions are met to protect the goodwill and brand recognition. Unpatented game mechanics can be freely copied, and lots of "clone" games are perfectly legal.

So, Neil could be right on the money with the outcome here, and a lot of people assume theft has occurred when absolutely none has. My point throughout this entire thread has been that the law is murky, tricky, and driven by an interplay of facts and law and various common law, contract, state, federal, and international rules, so it is tough to make ultimate conclusions.

In answer to your question, Rob, it is because of the complexities and vagaries of the law that parties are smart to get an agreement. I assume Borg, FFG, GMT, DoW, and perhaps many other companies have agreements in place: sales, licensing, etc. They may not legally need them, even, but as a practical matter, often better to get an agreement than run the risk of being hauled into court. There is an old proverb that the worst curse you can get is a lawsuit in which you know you are right!

Some people wonder why FFG doesn't complain to Apple. I am sure they have. Apple is not in the business of adjudicating IP disputes. If someone complains, they send notice to the developer and plan to pull the app down. They don't want to be sued for contributory infringement. But if the developer responds and disputes the allegations, Apple lets the rights holder know and stays out of it, leaving the app up so they don't get sued for lost profits, letting the two parties get a court involved.

Why don't Puffin and FFG make an agreement and publish the game together, adding in Lore and some cool elements we gamers want to see? They very well might one day, but as Dominic points out, publishers want some creative control, protection of their brand, and decisions in how and when it gets done and by whom. They want quality and a consistent look and feel.

FFG may well be using a lawsuit to get Puffin between a rock and a hard place to improve their negotiation position before working out a licensing agreement! I don't know their intentions, but there are lots of reasons things went down this path, and with the state law claims and some tough issues in the mix, I am not ready to call this one or second guess why the parties have done what they have.

It sure is fun to watch and talk about, though!

Posted Mon Jul 25, 2011 6:07 pm
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J. Jefferson

United States
Columbus
Ohio

Heads up, what follows is long and boring. If you aren't that interested in this discussion, for Pete's sake please stop reading!

domcrap wrote:

If game companies operated with Neil's assumptions, we would not need to pay game designers for their work. We would simply use their mechanics for free, since we would own them just as much as the creator.

This is an interesting question. I haven't done the research to add anything to the debate about what the law is, but I am not sure your idea of what would happen under Neil's version of the law holds up.

What would the world really look like if the law were crystal clear that game mechanics were totally unprotected and all publishers and designers accepted this fact and acted accordingly? I suggest it wouldn't be that different from the world we live in.

You say that in that world "We [publishers] would simply use their [designers'] mechanics for free, since we would own them just as much as the creator." Would you really use them for free? There are many many public domain games, many games where the copyright owner has explicitly given up that right, and many games that designers would happily give away for free, just to get published. Some of these games, that would be free to you, are pretty good, some of them are as good or better than games that are published.

So why don't you just take those games that are free? Why do you pay designers? I'm going to speculate on several possible reasons, all of which would be equally true whether game mechanics were given copyright protection or not:

1) Operating a publishing company that scoops up free designs is a losing proposition. A publisher paying the designer for a game is a signal to me, the consumer, that the publisher has confidence in that game. A publisher that is not willing to pay a designer appears to be taking less of a risk, and appears simply to be taking the leftovers. As a publisher, you are an editor of game ideas, and your payment of designers is a sign to me as a customer that you take that role seriously and intend to get the best games available to deliver to me.

2) There are PR costs to copying games published by other publishers. Notably, Puffin faced that here--they made a lot less money because people wanted an official app, not a copycat. Even when larger companies steal your games, they change things around a bit to make it a game that is heavily influenced by Wits & Wagers, not a direct copy of it. The PR costs of simple and direct copying would remain, even if the ambiguity about the legal rule were absent. (Tangentially, I see allowing one publisher to publish a game that is heavily influenced by another publisher's game to be necessary to allow future game designers to build upon the designs of designers today.)

3) Game designers who wanted to be paid would not let a publisher who did not pay see their in-progress designs. This would make it impossible for a game publisher who sometimes took games for free without designers' consent to later pay for top quality designers' work. If there is, in fact, a quality difference between games by designers who want to be paid and those who do not, a publisher can only have access to the higher quality pool if they decline to take games without paying.

4) Some paid designers create sales simply by having their name on the game. A publisher can't get that advantage without paying the designer.

Ultimately, I believe that neither publishers' nor designers' income is at risk based on the debate between these two interpretations of copyright. Further, I think the situation in this news item demonstrates that a narrower copyright is the better rule.

I see game ideas as a resource. The law should be structured to encourage maximum use of that resource. I am ambivalent as to how the revenue from that resource is divided between designers, publishers, distributors, stores, etc., as long as the division results in the most games available to me, and the most games sold by the industry as a whole.

To bring it, at long last, back to iOS games and to my earlier position. Game ideas as a resource are used to their maximum economic potential if they are sold. The legal rules should encourage the sale. In some areas (including one that I actually do know something about, pharmaceuticals) the law achieves this by giving the person who comes up with the idea strong exclusive rights for a time--this is appropriate where the exclusive ability to sell is an important incentive to enter the very expensive business of coming up with the idea in the first place. But for games, an industry where the general rule is that designers don't get paid enough to quit their day jobs, but they do it anyways (in droves!) I don't see a strong need for the law to provide further incentives for designers, beyond the incentives they are able to negotiate with publishers.

These are my off the cuff thoughts. Apologies to anybody who read this far, I can't give you your five minutes back.

Posted Mon Jul 25, 2011 6:16 pm
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Sean Turner

(Saltone)

United States
Columbus
Ohio

I hope Disc Driving finally added the pull down refresh, Exiting and restarting is just annoying.

Posted Mon Jul 25, 2011 8:40 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

Jefforama wrote:

2) There are PR costs to copying games published by other publishers.

Based upon the posts here, there is a PR cost to FFG for trying to protect their game! This is quite puzzling since Puffin is not paying royalties to the game designer.

Jefforama wrote:

3) Game designers who wanted to be paid would not let a publisher who did not pay see their in-progress designs. This would make it impossible for a game publisher who sometimes took games for free without designers' consent to later pay for top quality designers' work.

I don't understand. If every game is in the public domain, then anyone could publish any game without paying royalties to the designer. You could publish Dominion tomorrow as long as you changed the name and some of the key words.

In fact, if game designers do not own the rights to their games (meaning, the mix of game mechanics they chose for their game), then all of the contracts publishers have with game designers are null and void and every publisher could stop paying royalties right now.

Jefforama wrote:

4) Some paid designers create sales simply by having their name on the game. A publisher can't get that advantage without paying the designer.

Do you really think Hasbro paid $800,000 to the designers of Trivial Pursuit because of the name brand recognition of the designer!

Posted Mon Jul 25, 2011 8:42 pm
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Pete Hooper

United States
Machesney Park
Illinois

domcrap wrote:

Haggis wrote:

Thank you Ben and Neil for adding the lawyer's perspectives, I found it very interesting.

Maybe one of you can shed some light on the different publishers handling the same systems.

Battlelore uses the Commands & Colors system as I understand it (I've never played Battlelore but I'm a big fan of C&C: Ancients). GMT publishes the C&C line, FFG currently publishes Battlelore, and Richard Borg is the designer for both.

Would an agreement have to be in place to allow the two publishers to use the same system, or does Mr. Borg own the system and allow it to be published as he sees fit? What makes this situation different (and obviously it is, I haven't heard of any lawsuits between FFG and GMT) than the iOS Viking Lords game vs. Battlelore?

And to stay on topic, Ghost Stories was submitted one week ago, which means it could be any minute that it is released to the app store. It also means it could be a few more days... but I'm keeping my fingers crossed.

Rob,

You should know when you ask for this type of advice from Neil, you are getting his opinion about how he would like the board game industry to operate, not how it actual operates. Neil thinks the mix of game mechanics from every game are in the public domain and free for anybody to use. But every publisher in the industry (both in the US and over-seas) operates as if the mix of game mechanics chosen by a game designer are protected.

If game companies operated with Neil's assumptions, we would not need to pay game designers for their work. We would simply use their mechanics for free, since we would own them just as much as the creator.

Dominic

Neil may or may not be right, but you seem to ascribe to him some sort of theory that he has pulled out of thin air. In fact, he is basing his opinions on how he (as an attorney) understands the law.

Posted Mon Jul 25, 2011 8:51 pm
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J. Jefferson

United States
Columbus
Ohio

domcrap wrote:

Based upon the posts here, there is a PR cost to FFG for trying to protect their game! This is quite puzzling since Puffin is not paying royalties to the game designer.

Yeah, I see how that could be frustrating. I think some people see it as a big fish going after a little fish, when the little fish is providing a valuable service that the big one is not. But what's good for PR is always going to be different from what is legal.

domcrap wrote:

I don't understand. If every game is in the public domain, then anyone could publish any game without paying royalties to the designer. You could publish Dominion tomorrow as long as you changed the name and some of the key words.

Yes, that is exactly the world I'm describing. Whether that is the real or hypothetical world is the crux of your disagreement with Neil. I don't know who is right.

domcrap wrote:

In fact, if game designers do not own the rights to their games (meaning, the mix of game mechanics they chose for their game), then all of the contracts publishers have with game designers are null and void and every publisher could stop paying royalties right now.

Well, I don't think that's true. Even if everyone agreed that there was no protection at all for game mechanics, if you contract to pay me for giving you an idea, you can't get out of that contract just because I do not have exclusive rights to that idea. For example, I am sure that Donald X Vaccarino's contract with Rio Grande specifies the royalties he gets for Dominion. I give reasons in my previous post why that contract would probably be basically the same if everyone agreed that there were no copyright for the mix of game mechanisms that a particular game uses. Who knows if DXV gets anything for other Dominion-inspired games that RG publishes. But even DXV has no copyright over those games (say, Tanto Curoe), RG and DXV could contract to give him something for those games.

domcrap wrote:

Do you really think Hasbro paid $800,000 to the designers of Trivial Pursuit because of the name brand recognition of the designer!

Ha, certainly not, nobody knows who they are. But I give a bunch of reasons why designers get paid, that was the last one! I don't know the specifics of that situation, but there are a lot of other things going on. There could be different copyright issues based on the text of the cards. Trivial Pursuit is also huge money. It was probably worth it to Hasbro to pay that much just to get them to agree and not have to fight it out in court. Maybe they did it so that if the next guy to invent a HUGE game decides to sell out, they will go to Hasbro first? If W&W goes uber viral and every american home wants a copy, maybe you wouldn't sell at all, but if you decided to, wouldn't you contact Hasbro before some other game company that has never paid designers squat?

I've been further mulling my previous post. You are in a somewhat unique position as both designer and publisher of Wits & Wagers. It's a great game that started with a great idea, and then you did tons and tons of work over many years and great personal risk to make it the huge hit it is today. If Dominic the designer had to negotiate royalties with Dominic the Publisher, I'd favor legal rules that give most of the money to Dominic the Publisher--he's done all the real work. Game ideas, even really good ones, are abundant, it's the will to make something of them that is rare.

Posted Mon Jul 25, 2011 9:48 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

Jefforama wrote:

domcrap wrote:

In fact, if game designers do not own the rights to their games (meaning, the mix of game mechanics they chose for their game), then all of the contracts publishers have with game designers are null and void and every publisher could stop paying royalties right now.

Well, I don't think that's true. Even if everyone agreed that there was no protection at all for game mechanics, if you contract to pay me for giving you an idea, you can't get out of that contract just because I do not have exclusive rights to that idea.

I don't think this is true. I talked to two lawyers about this issue today. If Donald does not own the rights to Dominion, then the contract is void. Let's say you signed a contract saying you would pay me royalties for using the street in front of your house which I claimed to own. That contract would not hold up in court, because I do not own the public street in front of your house. The same holds true for Dominion if the game mechanics are actually in the public domain.

domcrap wrote:

Do you really think Hasbro paid $800,000 to the designers of Trivial Pursuit because of the name brand recognition of the designer!

Jefforama wrote:

I don't know the specifics of that situation, but there are a lot of other things going on. There could be different copyright issues based on the text of the cards.

The designers did not come up with the questions for very many of the 100 editions of Trivial Pursuit, but they were paid royalties on every edition (until they sold the rights to Hasbro).

Jefforama wrote:

Trivial Pursuit is also huge money. It was probably worth it to Hasbro to pay that much just to get them to agree and not have to fight it out in court.

If the game designers do not own the game design, then the fight in court would have been pretty short. It certainly would not have cost anywhere near the $80+ million that Hasbro has paid in royalties.

(I did the math wrong above when I said $800 thousand... oops!)

Posted Tue Jul 26, 2011 3:25 am
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

nightglider1 wrote:

Neil may or may not be right, but you seem to ascribe to him some sort of theory that he has pulled out of thin air. In fact, he is basing his opinions on how he (as an attorney) understands the law.

I don't think Neil pulled his theory out of thin air. I think he has spent a good deal of time thinking about these issues from a legal point of view. I respect his legal mind and his ability to make legal arguments.

But I disagree with the foundational premises upon which his logical arguments rest. I think Neil's poor understanding of economics and business has allowed him to misapply copyright law to the board game industry. He is looking at the letter of the law as applied to the written word, and translating that literally (and I think inappropriately) to the board game industry. He should be looking at the purpose which copyright law serves for the book industry, and making sure the same purpose is being applied to the board game industry.

Copyright laws were created to protect the work of authors, allowing them to profit from their own labor, and enabling the industry to flourish. The application of copyrights to the board game industry should work in a similar fashion.

Posted Tue Jul 26, 2011 3:46 am
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Ralph T

(ralpher)

United States
Signal Hill
California

Dominic, keep in mind that the purpose of copyright law is to protect expression, not ideas, and in many ways we cannot have innovation if people are prevented from copying ideas. If copyright extended to ideas, Monopoly would have the idea of money in games copyrighted, as well as auctions, and copy rights last 75 years past the death of their creator. Copyright lasts the length it does because it protects only expression.

We would also not have Windows, Linux, or the Mac OS, because the Lotus Notes case would have held that "the feel" of a system is protected.

As a former IP attorney, FFG is completely in the wrong. If I lived in the jurisdiction it might be tempting to take that case on pro bono because I think an attorneys fees award is likely to go the way of Puffin Games, so long as it can afford to defend itself.

Edited Tue Jul 26, 2011 5:20 am
Posted Tue Jul 26, 2011 5:20 am
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Rick Vinyard

(rvinyard)

United States
Las Cruces
New Mexico

domcrap wrote:

But I disagree with the foundational premises upon which his logical arguments rest. I think Neil's poor understanding of economics and business has allowed him to misapply copyright law to the board game industry.

The quote Neil has above is the Library of Congress official position on board games.

U.S. Copyright Office wrote:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game or the pictorial matter appearing on the gameboard or container may be registrable.

http://www.copyright.gov/fls/fl108.html

That isn't a hypothetical application of copyright law to the board game industry... that's straight from the U.S. Copyright Office.

Edited Tue Jul 26, 2011 6:01 am
Posted Tue Jul 26, 2011 5:24 am
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Lee Fisher

(lfisher)

United States
Downingtown
Pennsylvania

Doesn't there need to be a way to protect game designs? How else can it be changed/fixed other than legally challenging?

(This should probably have all gone to a new thread a long time ago)

Edited Tue Jul 26, 2011 5:26 am
Posted Tue Jul 26, 2011 5:25 am
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Rick Vinyard

(rvinyard)

United States
Las Cruces
New Mexico

ralpher wrote:

We would also not have Windows, Linux, or the Mac OS, because the Lotus Notes case would have held that "the feel" of a system is protected.

Xerox Alto & Star: GUI, windows, icons, folders, mouse, ethernet, object-oriented design, email, Model-View-Controller design, WYSIWYG document processing

Amazing work at PARC to which we are all indebted...

Posted Tue Jul 26, 2011 5:43 am
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Giles Pritchard

(caradoc)

Australia
Shepparton
Victoria

I'm with Dominic on this one - and I might add, completely uneducated when it comes to the law in this matter.

While I can agree with what you're saying Ralph - I think the it is important to maintain a balance between innovation and direct copying. Surely the authors of these games deserve some protection? Money in games is, I don't think a particularly good example - but the careful consideration and balance achieved in the blending of the various game mechanisms in any particular game is worth some protection - for all the effort and work the designer, playtesters and companies do.

I think it is a difficult thing to nail down, because while a mechanism (rondels, action points, card driven systems etc) should be available for others to use (innovation in blending ideas in novel ways), the balance and interplay between the various mechanisms in a game that give rise to the game system of any single game does, I think, deserve some protection - to allow for game designers to actually make money off their work, and have a sense of protection and security in what they are creating.

It's a balancing act to my uneducated mind, between a) protecting the freedom to innovate, drive change and inspire experimentation, and b) the protection of the rights of an author to receive fair compensation for the use of his/her work - to allow for a vibrant and inspired group of people who want to and are encouraged to follow this as a hobby or career.

I don't have any answers, but I really feel that while Puffin may be legally in the clear, this sort of thing has the potential to really undermine the industry by eating away at the rights of the designers to have some ownership and control over the work they put in. Games are not books, nor are they mechanical or technical devices, and I don't feel that the law, as it stands, appropriately deals with them.

I am, however, not educated in this field.

Cheers,

Giles.

Posted Tue Jul 26, 2011 5:47 am
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Freelance Police

(Sam and Max)

United States
Palo Alto
California

lfisher wrote:

Doesn't there need to be a way to protect game designs? How else can it be changed/fixed other than legally challenging?

Good question.

This issue isn't new. Hasbro had a similar situation with Scrabble. Right now, you can play "Words with Friend" for the iPod -- and I can't, for the life of me, distinguish Words from Scrabble. If anyone has more info about the Scrablulous lawsuit, I'd appreciate it. Note tha the litigation is about copyright.

Wiki: The social networking site Facebook had offered an online variation of Scrabble called Scrabulous as a third-party application add-on. On January 15, 2008, it was reported that Hasbro and Mattel were in the process of suing the creators of Scrabulous for copyright infringement. On July 24, 2008, Hasbro filed a copyright infringement lawsuit against the creators of Scrabulous.[16] On July 28, 2008 the Scrabulous Facebook application was disabled for users in North America,[17] eventually re-appearing as "Lexulous" in September 2008, with changes made to distinguish it from Scrabble. On December 20, 2008 Hasbro withdrew their lawsuit against RJ Softwares.[18] There is also a version in Turkish as a Facebook application named "SKRABL Turkce" which offers only 2 player game.

Edited Tue Jul 26, 2011 6:02 am
Posted Tue Jul 26, 2011 5:57 am
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Laughing Cow Cheese

(Laughing Cow Cheese)

Spokane
Washington

I am interested in what Neil has to say about patents in the casino game industry. Card games, variations on existing card games, even specific side bets are patented routinely in the US. These are less complicated by far than most board games. Does the fact that they are games as a business method make a difference? Slot machine and video poker variants are also patented. These patents have been upheld in many cases.

Posted Tue Jul 26, 2011 8:50 am
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Rob Corn

(Haggis)

United States
Columbus
Ohio

How appropriate. You fight like a cow.

domcrap wrote:

Jefforama wrote:

2) There are PR costs to copying games published by other publishers.

Based upon the posts here, there is a PR cost to FFG for trying to protect their game! This is quite puzzling since Puffin is not paying royalties to the game designer.

My issue is that FFG is the one bringing the lawsuit. I'm no law talking guy but it seems that Richard Borg is the one suffering damages here. If he's not involved in the suit then I'm scratching my head over why FFG is going after Puffin and not Days of Wonder and GMT.

If I were Puffin I would just point to Memoir 44, Battlelore, and C&C: Ancients as similar systems from three different publishers that all seem to be doing very well. Puffin should be paying Mr. Borg royalties, not FFG, in my non-legal opinion.

Posted Tue Jul 26, 2011 2:18 pm
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Justin

(astroglide)

United States
Creve Coeur
MO

http://www.everythingisaremix.info/watch-the-series/

Just watch the first one and see where it goes. Trust me

Posted Tue Jul 26, 2011 2:51 pm
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David Culp

United States
Carrollton
Texas

Sam and Max wrote:

lfisher wrote:

Doesn't there need to be a way to protect game designs? How else can it be changed/fixed other than legally challenging?

Good question.

This issue isn't new. Hasbro had a similar situation with Scrabble. Right now, you can play "Words with Friend" for the iPod -- and I can't, for the life of me, distinguish Words from Scrabble. If anyone has more info about the Scrablulous lawsuit, I'd appreciate it. Note tha the litigation is about copyright.

I believe the issue was with the arrangement of the board and the name of the game. The Scrabulous board was an exact copy of the Scrabble board and Hasbro argued the name was a derivative of Scrabble. Words with Friends suffered neither of those problems as the board has a different layout of bonus tiles than Scrabble and a totally different game.

Posted Tue Jul 26, 2011 3:10 pm
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Neil Wehneman

United States
Grove City
Ohio

domcrap wrote:

nightglider1 wrote:

Neil may or may not be right, but you seem to ascribe to him some sort of theory that he has pulled out of thin air. In fact, he is basing his opinions on how he (as an attorney) understands the law.

I don't think Neil pulled his theory out of thin air. I think he has spent a good deal of time thinking about these issues from a legal point of view. I respect his legal mind and his ability to make legal arguments.

But I disagree with the foundational premises upon which his logical arguments rest. I think Neil's poor understanding of economics and business has allowed him to misapply copyright law to the board game industry.

I've been staying out of this for the most part, but this point needs to be addressed.

You're trying to argue, based on your experience and business interests, how you believe the law should be set up if you were writing the law from scratch. (You're also saying I have a poor understand of economics and business, which I feel is inappropriate.)

I'm explaining how the law is right now, based upon the text of the law and how it has been applied by courts and explained by treatises and other secondary sources. Economics and business interest don't play a very large role in explaining what the pre-existing law is.

You're being normative ("how the law should be to create the best outcome"), and I'm being descriptive ("how the law is, regardless of outcome").

Your personal designs (from what I've played thus far) are focused upon systems and methods. You have elegant designs that are low on theme.

I'm sorry that you get minimal protection for your hard mechanical work if you fail to pursue a patent. Patents are expensive and a pain in the butt to get. I'm sorry. I have never once minimized your hard work, or the benefits to society from that work.

But copyrights and patents are not set up to reward hard work or the "sweat of the brow." Go read Feist, where a unanimous Supreme Court unequivocally rejected the idea that copyrights are a reward for hard work. Hard work does not get you a copyright, and I think this is the point that really bothers you.

Maybe hard work should result in a copyright on a normative basis. I disagree on that point (what's hard for you might be easy for someone else, and we need to determine what raw materials we are making available for the next generation of creators and inventors), but that's an argument for another day. We can talk economics and business in that discussion, should we ever have it, but I'm not going to wade into in this particular forum discussion.

Today's argument is what the law is (which is the whole thrust of the FFG v. Puffin suit), and in all of our discussions you are yet to cite a single legal source to back up your perspective.

I've previously cited the Library of Congress, the Copyright Act, multiple Supreme Court opinions (almost all of them unanimous on the relevant points), federal appellate opinions, and scholarly articles.

For those new to this discussion, here's my penultimate post on the matter, complete with citations:

http://www.boardgamegeek.com/blogpost/2700?commentid=2161796...

Quote:

He is looking at the letter of the law as applied to the written word, and translating that literally (and I think inappropriately) to the board game industry.

Odd. Many of the sources I cited directly and specifically applied to games, such as the Library of Congress circular, the Academy Games opinion, and a scholarly article entitled "Games and other Noncopyrightable Systems," which included numerous other citations to court opinions.

Quote:

He should be looking at the purpose which copyright law serves for the book industry, and making sure the same purpose is being applied to the board game industry.

Copyright laws were created to protect the work of authors, allowing them to profit from their own labor, and enabling the industry to flourish.

We disagree on this point, but I'm not going to engage you on the historical question of the purpose of copyright. I will say simply that that question comes down to whether copyright is a means to an end, or an end in itself.

Ultimately, you are making a policy argument ("we should adopt this interpretation because it leads to a result we will like"). Courts generally only listen to policy arguments when the law itself is unclear.

I've been explaining why the law is relatively clear on these points, which makes policy irrelevant or minimally relevant. Congress is free to enact bad policy, and the courts will generally apply that bad policy. See the last few paragraphs of Eldred v. Ashcroft, 537 U.S. 186 (2003), where the Supreme Court explicitly noted this point in the copyright context.

You are so focused on policy that you miss the legal points. The most you've given in legal "rebuttal" is that "the mechanics are the expression of the designer's idea."

That phrase is non-sensical semantics that could be used to justify copyright on a plunger designer's expression of his idea for a well-functioning plunger. You can paint a picture on the plunger and get a copyright on that element, or you could put a sculpture on the end of the handle and have a copyright there. But the mechanical aspects of the plunger are covered by a patent, or not at all.

A well-designed game is functional, and plays in the land of patents as far as the functions and mechanics go. A well-themed game is aesthetic, and plays in the land of copyright as far as the thematic elements go.

You can't bridge that gap with semantics.

- Neil Wehneman

Edit: And this is my last word in this thread. I have too much work piling up on my desk, and unfortunately I'm not getting paid for this discussion. Although it's contrary to my general practice of giving others the last word, I'm unsubscribing from this thread. However, I will read (and possibly respond in time) to GeekMails.

If I get involved (as co-counsel or amicus), I'll forward a copy of any documents I file to Gabe (which will contain my legal arguments), and he can do with them as he pleases.

Edited Tue Jul 26, 2011 3:23 pm
Posted Tue Jul 26, 2011 3:14 pm
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J. Jefferson

United States
Columbus
Ohio

Neil, I don't think you've addressed Dom's strongest arguments. He hasn't met you in arguing legal doctrine via cases, statutes, etc., and I don't blame him for that. Instead, his arguments follow the following logic: You say the law is X, but in my industry experience, all of the parties are behaving like the law is Y. If it were clear and established that the law were X, people would behave differently. He points to the following examples (among others):

--Game designers generally get royalties, which they would not if the publishers felt confident that the law allowed them simply to steal a mechanism-mix and use different art and text

--Hasbro has paid a lot of money to the Trivial Pursuit designers, which they would not have done if the law were as clear as you suggest.

But here is my question for Dom. Dom, if everyone agreed that the law was exactly as Neil says, would you, as a publisher, stop paying designers?

Posted Tue Jul 26, 2011 3:35 pm
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Ben Stanley

United States
Pleasant Grove
Utah

Publishers live or die by their reputation in this niche industry. No one wants the headaches that come with even being accused in public that they have appropriated other people’s ideas, even if those ideas are unprotected. And there is some room for debate when it comes to mixes of idea and expression: will a court apply the merger doctrine or not? Who wants to spend even five minutes in court besides the lawyers? The margins are generally not good enough to support it. They call litigation the sport of kings because of how much it costs! Even when you win you often lose. There are pragmatic reasons why publishers are much more careful than the law might require.

I fear by challenging Neil on a couple of minor points of application, I may have undermined some of the exceptional educational value of his posts. He has explained the law with extensive citation and done so very admirably. It is not the sort of information you can ignore. He is absolutely right on the law, and you cannot wish that away simply because you don’t like the objectives of the law. His last post was fantastic with great analogies and tons of support.

The law brilliantly balances competing needs, policies, and perspectives. Both old and new inventors get protection, and have arguments, have different tools (patents, copyrights, trademarks, etc.) they can seek, and have their needs balanced against each other. The system works -- extremely well in fact -- and applies even in new digital frontiers with true genius. When I refer to the "complexities and vagaries" of the law, I mean there are risks any time you set foot in a courtroom; I do not mean to suggest the law is broken, arbitrary, or unpredictable in the abstract.

In my view, FFG v. Puffin will come down to (1) does Puffin even defend? (2) does a court apply the merger doctrine (could Puffin have used three different colors, or letters, or some other indicator than the red/blue/green system; is that system protected expression or unprotected idea)? (3) How viable are some of the state law claims (and can FFG show any efforts to trade on their good will and name recognition)? (4) Does a court exercise its discretion authorized under the copyright law to do any attorney fee shifting?

While Neil and I may disagree on the possibilities or likelihoods in some of those questions of application of law to facts, he is right about the law, and the law itself is not subjective.

Posted Tue Jul 26, 2011 4:10 pm
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Rob Corn

(Haggis)

United States
Columbus
Ohio

How appropriate. You fight like a cow.

And back to iOS Ghost Stories... It's out in the New Zealand app store and ImNoSuperman says it should be in the US stores at 11 PM.

Posted Tue Jul 26, 2011 5:33 pm
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Jason Preu

(jdoublep)

United States
Kansas City
Kansas

Haggis wrote:

And back to iOS Ghost Stories... It's out in the New Zealand app store and ImNoSuperman says it should be in the US stores at 11 PM.

Was just about to drop that link, Rob. Can't wait.

Posted Tue Jul 26, 2011 5:37 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

Jefforama wrote:

But here is my question for Dom. Dom, if everyone agreed that the law was exactly as Neil says, would you, as a publisher, stop paying designers?

The sad answer is that at some point I would have to stop paying royalties or go out of business.

Let me explain. Companies who love this industry (like myself) will continue to pay royalties as long as possible. Other companies that are either greedy, or do not understand the ramifications of their actions (since they care only about following the letter of the law), will start publishing other people's games. To better compete, these other companies will reduce their price, since they will not have the overhead of royalties. Companies that pay royalties will start to lose market share.

This will be hard on me. I have thrown my passion and love into North Star Games for over a decade, and watching it suffer will break my heart. At some point, I will have to follow suit or get run out of business. This will happen more quickly if exact copies of our games are made and sold bu other companies.

I watched a simalr phenomenon happen as a captain of a Alaskan salmon fishing boat for 12 seasons. Without active enforcement, fishermen would slowly creep past the line of the legal fishing district. If others did not follow suit, the fish would get caught by the boldest fishermen before the fish entered the district. In the end, everyone started disregarding the line including myself, even though we all knew it was bad for the industry.

Posted Tue Jul 26, 2011 5:40 pm
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David Culp

United States
Carrollton
Texas

Business is not only dependent upon the law but also upon agreed upon fair business practices and mutual trust and respect. In this industry the publishers depend upon the designers and the designers depend upon the publishers.

If a publisher gets the reputation of stealing designers games they will not be in business long as designers will stop submitting new games to them. If this became a widespread industry practice where publishers steal designers ideas and change them enough to be non-infringing there is no longer an incentive for designers to design new games and the publishers suffer. What would happen is designers would have to also become publishers to keep their original designs from being stolen by the publisher.

Posted Tue Jul 26, 2011 5:49 pm
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J. Jefferson

United States
Columbus
Ohio

domcrap wrote:

Jefforama wrote:

But here is my question for Dom. Dom, if everyone agreed that the law was exactly as Neil says, would you, as a publisher, stop paying designers?

The sad answer is that at some point I would have to stop paying royalties or go out of business.

Let me explain. Companies who love this industry (like myself) will continue to pay royalties as long as possible. Other companies that are either greedy, or do not understand the ramifications of their actions (since they care only about following the letter of the law), will start publishing other people's games. To better compete, these other companies will reduce their price, since they will not have the overhead of royalties. Companies that pay royalties will start to lose market share.

This will be hard on me. I have thrown my passion and love into North Star Games for over a decade, and watching it suffer will break my heart. At some point, I will have to follow suit or get run out of business. This will happen more quickly if exact copies of our games are made and sold bu other companies.

I watched a simalr phenomenon happen as a captain of a Alaskan salmon fishing boat for 12 seasons. Without active enforcement, fishermen would slowly creep past the line of the legal fishing district. If others did not follow suit, the fish would get caught by the boldest fishermen before the fish entered the district. In the end, everyone started disregarding the line including myself, even though we all knew it was bad for the industry.

Thanks for the candid response. I think you may be underselling the value to consumers of your love for the industry, the goodwill you've built up, your marketing efforts, and consumers' distaste for businesses acting in ways that seem underhanded. Also, under any copyright system, the "exact copies" that you envision can only be copies of your mechanisms, not your artwork, text, etc. These things make up a good part of the value that you provide as a publisher.

Edited Tue Jul 26, 2011 6:05 pm
Posted Tue Jul 26, 2011 6:03 pm
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The Gray Dog Passes Go

United States
Reno
Nevada

Haggis wrote:

And back to iOS Ghost Stories...

Well, you tried.

Posted Tue Jul 26, 2011 6:03 pm
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Ryan Johnson

(Ryno8)

United States
Independence
Missouri

I find it most obvious that the people who are Ok with these iOS license-clones are the people who have never created anything that's been stolen.

Trust me, even in the smallest case, it doesn't feel right.

I also find a lot of the vocal crowd that clamors for games are also the first to complain about them not being perfect.

I'm not saying you shouldn't be vocal about what you want, but this new consumer base really needs to mitigate their expectations to their price points. I pay more for a bottle of water than most the games I have on my apple devices.

Hey FFG, take your time, do it right and give me a game that will have more than a 2 day shelf life like Viking Lords.

Posted Tue Jul 26, 2011 6:41 pm
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Adam Brant

(GamerAtom)

Canada
Kanata
Ontario

jdoublep wrote:

Haggis wrote:

And back to iOS Ghost Stories... It's out in the New Zealand app store and ImNoSuperman says it should be in the US stores at 11 PM.

Was just about to drop that link, Rob. Can't wait.

thanks.. I've been checking every couple of hours since this thread was posted.

Posted Tue Jul 26, 2011 8:35 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

dwculp wrote:

If a publisher gets the reputation of stealing designers games they will not be in business long as designers will stop submitting new games to them. If this became a widespread industry practice where publishers steal designers ideas and change them enough to be non-infringing there is no longer an incentive for designers to design new games and the publishers suffer. What would happen is designers would have to also become publishers to keep their original designs from being stolen by the publisher.

If game mechanics are not protected by law, then reputation would not matter. Game companies would not need games to be submitted to them. They could duplicate games as soon as they are released (just like Puffin has done). It would not matter if a designer published their own games. A large publisher could duplicate their game and sell it, backed by a larger marketing budget and pre-existing sales relationships. Self-published games would not stand a chance.

Edited Tue Jul 26, 2011 8:59 pm
Posted Tue Jul 26, 2011 8:58 pm
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

Blue Steel wrote:

While Neil and I may disagree on the possibilities or likelihoods in some of those questions of application of law to facts, he is right about the law, and the law itself is not subjective.

I disagree. The law is subjective. How else would you explain the Supreme Court over-turning rulings by other courts?

Posted Tue Jul 26, 2011 9:09 pm
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David Culp

United States
Carrollton
Texas

domcrap wrote:

dwculp wrote:

If a publisher gets the reputation of stealing designers games they will not be in business long as designers will stop submitting new games to them. If this became a widespread industry practice where publishers steal designers ideas and change them enough to be non-infringing there is no longer an incentive for designers to design new games and the publishers suffer. What would happen is designers would have to also become publishers to keep their original designs from being stolen by the publisher.

If game mechanics are not protected by law, then reputation would not matter. Game companies would not need games to be submitted to them. They could duplicate games as soon as they are released (just like Puffin has done). It would not matter if a designer published their own games. A large publisher could duplicate their game and sell it, backed by a larger marketing budget and pre-existing sales relationships. Self-published games would not stand a chance.

I am talking purely designer boardgames not boardgames to computer games. Duplicating a game on the market with an exact copy with artwork and text changed would not be a healthy business model in the designer board game world. Designer board games is a fairly niche market and small enough as it is, spamming the market with clone board games would not work well and lead to market saturation and the downfall of many publishers.

In addition, once the designers figure out they are putting work into designing games and then making no money at all and watching their work get stolen they will quit designing games.

Posted Tue Jul 26, 2011 9:26 pm
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J. Jefferson

United States
Columbus
Ohio

domcrap wrote:

Blue Steel wrote:

While Neil and I may disagree on the possibilities or likelihoods in some of those questions of application of law to facts, he is right about the law, and the law itself is not subjective.

I disagree. The law is subjective. How else would you explain the Supreme Court over-turning rulings by other courts?

A judge who thinks that justice requires holding for FFG will certainly be able to do so.

I found an interesting blog post speculating on how FFG could prevail under the Lanham Act (dealing with trademark) rather than on its copyright claims: http://www.duetsblog.com/tags/fantasy-flight-publishing/

Here's an excerpt:

Quote:

To prevail on its federal Lanham Act unfair competition claim, Fantasy Flight will need to prove that it owns distinctive common law trademark rights that have been infringed. Since Fantasy Flight has not alleged infringement of the Battlelore trademark, perhaps it intends to rely on non-traditional trademark rights, such as trade dress or the look and feel of the BattleLore® game.

I for one don't have the expertise to know how plausible such a claim is.

Posted Tue Jul 26, 2011 9:30 pm
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Alan Newman

United States
Wantagh
New York

Does anyone know if Ghost Stories ipad is solitaire?

Posted Tue Jul 26, 2011 9:31 pm
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Dale Stephenson

United States
Buford
Georgia

domcrap wrote:

Let me explain. Companies who love this industry (like myself) will continue to pay royalties as long as possible. Other companies that are either greedy, or do not understand the ramifications of their actions (since they care only about following the letter of the law), will start publishing other people's games. To better compete, these other companies will reduce their price, since they will not have the overhead of royalties. Companies that pay royalties will start to lose market share.

Companies that pay no royalties will have no original designs. To avoid copyright/trademark entanglements, they will have to avoid the original rules, original artwork, and mention of the original game. Given that the clone will be later to market than the original, will not immediately be associated with the original, and will be cheaper to produce only in the matter of royalties, I don't see how it is going to capture a lot of marketshare, or even necessarily be more profitable than a royalty-paying company.

To use an example, I see that Jenga-clone Timberrr sells for $8.50 at Amazon.com (from a third party seller) and has seller rank 550,583 in the Toys and Games section. Jenga itself sells for $16.99 and has rank 153. I doubt royalty paying has anything to do with the large disparity in price and sales (I have no idea what the makers of Timberrr did with respect to licensing or royalties), but even in a case where it's *much* cheaper, and visually obvious that it's the same game, the market impact appears minimal.

Are royalties such a costly part of game costs that a company could really make a lot of money by re-using mechanics and trying to undercut the original art/rules/recognition on price alone?

Posted Tue Jul 26, 2011 9:35 pm
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Lee Fisher

(lfisher)

United States
Downingtown
Pennsylvania

dalestephenson wrote:

To use an example, I see that Jenga-clone Timberrr sells for $8.50 at Amazon.com (from a third party seller) and has seller rank 550,583 in the Toys and Games section. Jenga itself sells for $16.99 and has rank 153. I doubt royalty paying has anything to do with the large disparity in price and sales (I have no idea what the makers of Timberrr did with respect to licensing or royalties), but even in a case where it's *much* cheaper, and visually obvious that it's the same game, the market impact appears minimal.

That may not be the best example. In this case, Timberrr could have also come first from a small publisher, but then Hasbro theoretically could have grabbed it and marketed it as Jenga for the big sales.

Posted Tue Jul 26, 2011 9:54 pm
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Dale Stephenson

United States
Buford
Georgia

domcrap wrote:

Do you really think Hasbro paid $800,000 to the designers of Trivial Pursuit because of the name brand recognition of the designer!

What's the timeline of this event? Per Wikipedia, the designers of Trivial Pursuit licensed to Selchow & Righter in 1982, then to Parker Bros (now Hasbro) in 1988, with Hasbro buying out the "rights in full" for $80M in 2008. I think it's safe to say the brand recognition of the inventors is low, but the brand recognition of "Trivial Pursuit" is immense. I doubt a mechanically-same trivia game without the name "Trivial Pursuit" attached to it would generate a fraction of the sales of the same game with the name attached.

It also seems that Haney *did* have patent protection for Trivial Pursuit, as google found "Pat. No. Des. 270,741 to C. Haney et al is drawn to a game board of circular design and segmental path." So *aside* from the normal protection of the rules, artwork, and name, there was actual patent protection of Trivial Pursuit's board at some point. I don't know when it was granted or when it expired.

Interestingly, the inventors of Trivial Pursuit were themselves sued by Fred Worth (per Wikipedia) for ripping off trivia questions from his trivia books (include typographical errors and deliberate misinformation). The inventors acknowledged the books as a source, but argued that facts aren't copyrightable. They won.

Posted Tue Jul 26, 2011 10:27 pm
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J. Jefferson

United States
Columbus
Ohio

lfisher wrote:

dalestephenson wrote:

To use an example, I see that Jenga-clone Timberrr sells for $8.50 at Amazon.com (from a third party seller) and has seller rank 550,583 in the Toys and Games section. Jenga itself sells for $16.99 and has rank 153. I doubt royalty paying has anything to do with the large disparity in price and sales (I have no idea what the makers of Timberrr did with respect to licensing or royalties), but even in a case where it's *much* cheaper, and visually obvious that it's the same game, the market impact appears minimal.

That may not be the best example. In this case, Timberrr could have also come first from a small publisher, but then Hasbro theoretically could have grabbed it and marketed it as Jenga for the big sales.

A good point, but here it seems like even if that happened, we only would have ever heard of Timberr because Hasbro marketed Jenga so hard--so basically the publisher and designer of Timberr could make more money because their design was stolen and marketed.

Posted Tue Jul 26, 2011 10:43 pm
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Dale Stephenson

United States
Buford
Georgia

lfisher wrote:

dalestephenson wrote:

To use an example, I see that Jenga-clone Timberrr sells for $8.50 at Amazon.com (from a third party seller) and has seller rank 550,583 in the Toys and Games section. Jenga itself sells for $16.99 and has rank 153. I doubt royalty paying has anything to do with the large disparity in price and sales (I have no idea what the makers of Timberrr did with respect to licensing or royalties), but even in a case where it's *much* cheaper, and visually obvious that it's the same game, the market impact appears minimal.

That may not be the best example. In this case, Timberrr could have also come first from a small publisher, but then Hasbro theoretically could have grabbed it and marketed it as Jenga for the big sales.

The example merely shows that apparent identity and a price discount doesn't necessarily translate into taking over market share.

In practice, Jenga was first published by the designers' own small company, and Hasbro got hold of it when they purchased a small company that already had the license to publish it in the USA. I have the impression that Jenga didn't get big before Milton Bradley promoted it. Once Jenga became a hit, and therefore had proven that it was worth imitating, the name Jenga was worth something in the marketplace.

Now, could Hasbro have made *even more* money by not buying the company that had the Jenga rights, but instead just ripping off the mechanics? Even if we attribute the success of Jenga entirely to Hasbro, assume the purchase of the company had no other benefits, and therefore assume they would've been slightly better off in this case, such a course of action would've reduced Hasbro's attraction to small companies and/or inventors to zero. I'm not sure that is in their best financial long-term interest.

Posted Tue Jul 26, 2011 10:52 pm
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Alan Newman

United States
Wantagh
New York

Al Newman wrote:

Does anyone know if Ghost Stories ipad is solitaire?

CAN I HIJACK THIS THREAD LONG ENOUGH TO GET A REPLY? THANK YOU IN ADVANCE.

Posted Tue Jul 26, 2011 11:22 pm
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Ben Stanley

United States
Pleasant Grove
Utah

domcrap wrote:

Blue Steel wrote:

While Neil and I may disagree on the possibilities or likelihoods in some of those questions of application of law to facts, he is right about the law, and the law itself is not subjective.

I disagree. The law is subjective. How else would you explain the Supreme Court over-turning rulings by other courts?

Dom, your question validates my point. The fact that lower courts and federal judges get the law wrong is precisely why they need to be overturned! It illustrates that the law is not subjective (hard to get right sometimes, but there is a right answer).

Posted Wed Jul 27, 2011 12:28 am
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Gabe Alvaro

(blindspot)

United States
Berkeley
California

Al Newman wrote:

Does anyone know if Ghost Stories ipad is solitaire?

CAN I HIJACK THIS THREAD LONG ENOUGH TO GET A REPLY? THANK YOU IN ADVANCE.

Hey Al. No need to yell. I don't think many people really knew yet because Repos has not really publicly given out a lot of detailed info in that regard. I myself found out just now. Ghost Stories can be played Face to Face by one or two players.

Posted Wed Jul 27, 2011 12:41 am
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Pete Hooper

United States
Machesney Park
Illinois

Al Newman wrote:

Does anyone know if Ghost Stories ipad is solitaire?

CAN I HIJACK THIS THREAD LONG ENOUGH TO GET A REPLY? THANK YOU IN ADVANCE.

You could try contacting Repos Production.

Posted Wed Jul 27, 2011 12:47 am
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Alan Newman

United States
Wantagh
New York

It was a joke. The legal arguments should have gone to a different thread.

Posted Wed Jul 27, 2011 1:42 am
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Freelance Police

(Sam and Max)

United States
Palo Alto
California

Blue Steel wrote:

In my view, FFG v. Puffin will come down to (1) does Puffin even defend? (2) does a court apply the merger doctrine (could Puffin have used three different colors, or letters, or some other indicator than the red/blue/green system; is that system protected expression or unprotected idea)? (3) How viable are some of the state law claims (and can FFG show any efforts to trade on their good will and name recognition)? (4) Does a court exercise its discretion authorized under the copyright law to do any attorney fee shifting?

And it's also possible FFG is doing this because *they have to*. Sometimes, a party will have to protect their IP because *their* lawyers will tell them that they're taking a risk if the *don't* do anything. Frex, readers of the indie comic Cerebus will remember that Marvel toss a drafted letter against the author's parody use of their character on the indie comic's cover X number of times (or something equally inoccuous). Turns out that the letter was sent to prevent said character from becoming, by law, *public domain*.

So rather than ascribing evil to FGG, perhaps we should ask about the incompetancy of the law.

Posted Wed Jul 27, 2011 1:52 am
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Pete Hooper

United States
Machesney Park
Illinois

Sam and Max wrote:

And it's also possible FFG is doing this because *they have to*. Sometimes, a party will have to protect their IP because *their* lawyers will tell them that they're taking a risk if the *don't* do anything. Frex, readers of the indie comic Cerebus will remember that Marvel toss a drafted letter against the author's parody use of their character on the indie comic's cover X number of times (or something equally inoccuous). Turns out that the letter was sent to prevent said character from becoming, by law, *public domain*.

So rather than ascribing evil to FGG, perhaps we should ask about the incompetancy of the law.

Disclaimer: I'm no lawyer.

Isn't parody use protected use? I thought such use wouldn't endanger a trademark/copyright.

Do you have a link to a story about the Marvel letter to Dave Sim? I'd like to read more.

Posted Wed Jul 27, 2011 2:24 am
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Dominic Crapuchettes

United States
Bethesda
MD

This overtext is brought to you by the abstract strategy game Battle of LITS and the number 20.

dalestephenson wrote:

Are royalties such a costly part of game costs that a company could really make a lot of money by re-using mechanics and trying to undercut the original art/rules/recognition on price alone?

Puffin seems to think so.

dalestephenson wrote:

Now, could Hasbro have made *even more* money by not buying the company that had the Jenga rights, but instead just ripping off the mechanics?

Yes. Except if Neil is correct, Hasbro would not have been "ripping off" anything. It is not called trespassing when someone takes a stroll in a public park.

dalestephenson wrote:

Even if we attribute the success of Jenga entirely to Hasbro, assume the purchase of the company had no other benefits, and therefore assume they would've been slightly better off in this case, such a course of action would've reduced Hasbro's attraction to small companies and/or inventors to zero.

In Trivial Pursuit's case, they would have been "slightly better off" by $80 million plus the original $80+ million paid out in royalties over 26 years. Not too shabby when you're talking about profit (not revenue).

And why would Hasbro need to care about future game designers? They could bring a copied game to market faster than most companies could market the original game. Hardly anyone has heard of Wits & Wagers, yet we've been marketing the heck out of it for 6 years! Due to each game's $2 million television advertising campaign, Pictureka, Scribblish, and Partini were more well-known in their first year's release than Wits & Wagers is after 6 years.

Posted Wed Jul 27, 2011 2:42 am
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Pete Hooper

United States
Machesney Park
Illinois

Al Newman wrote:

It was a joke. The legal arguments should have gone to a different thread.

I understand your frustration, but since the legal arguments are related to the blog post, they have as much right to be here as questions about Ghost Stories.

Posted Wed Jul 27, 2011 2:51 am
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Pete Hooper

United States
Machesney Park
Illinois

Jefforama wrote:

domcrap wrote:

Blue Steel wrote:

While Neil and I may disagree on the possibilities or likelihoods in some of those questions of application of law to facts, he is right about the law, and the law itself is not subjective.

I disagree. The law is subjective. How else would you explain the Supreme Court over-turning rulings by other courts?

A judge who thinks that justice requires holding for FFG will certainly be able to do so.

I found an interesting blog post speculating on how FFG could prevail under the Lanham Act (dealing with trademark) rather than on its copyright claims: http://www.duetsblog.com/tags/fantasy-flight-publishing/

Here's an excerpt:

Quote:

To prevail on its federal Lanham Act unfair competition claim, Fantasy Flight will need to prove that it owns distinctive common law trademark rights that have been infringed. Since Fantasy Flight has not alleged infringement of the Battlelore trademark, perhaps it intends to rely on non-traditional trademark rights, such as trade dress or the look and feel of the BattleLore® game.

I for one don't have the expertise to know how plausible such a claim is.

I read the blog post, and I have to say the author doesn't seem very impressed with FFG's filing.

Posted Wed Jul 27, 2011 3:04 am
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(drstein2004)

Spain

Hello all,

I just wanted to let you know that ghost stories is finally available on the app store at 4.99 (euros in the belgian store)

Posted Wed Jul 27, 2011 8:20 am
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Dale Stephenson

United States
Buford
Georgia

domcrap wrote:

dalestephenson wrote:

Are royalties such a costly part of game costs that a company could really make a lot of money by re-using mechanics and trying to undercut the original art/rules/recognition on price alone?

Puffin seems to think so.

Do they? I rather get the impression that Puffin implemented Viking Lords the way they did not because they *preferred* not to have to pay royalties, but because they didn't think they would *get* permission to release it as an official Battlelore game. Frankly, I think it's pretty clear that an official Battlelore game would sell more copies in the App Store than a knock-off would, all else being equal. I also think there's not a lot of evidence that Puffin is making "a lot of money" off their knock-off, or that making a lot of money was their goal in creating Viking Lords in the first place.

Quote:

dalestephenson wrote:

Now, could Hasbro have made *even more* money by not buying the company that had the Jenga rights, but instead just ripping off the mechanics?

Yes. Except if Neil is correct, Hasbro would not have been "ripping off" anything. It is not called trespassing when someone takes a stroll in a public park.

"Ripping off" is not a legal term. It's quite legal for a company to sell a lousy boardgame, but if I buy one I'm perfectly entitled to feel ripped off. I think Neil was quite convincing about what is legal (in the United States, anyway), but being legal doesn't make an action necessarily moral, polite, or profitable.

Quote:

dalestephenson wrote:

Even if we attribute the success of Jenga entirely to Hasbro, assume the purchase of the company had no other benefits, and therefore assume they would've been slightly better off in this case, such a course of action would've reduced Hasbro's attraction to small companies and/or inventors to zero.

In Trivial Pursuit's case, they would have been "slightly better off" by $80 million plus the original $80+ million paid out in royalties over 26 years. Not too shabby when you're talking about profit (not revenue).

A reduction in expense is only profit if revenue is unchanged. Trivial Pursuit hit the big time *before* Hasbro got the rights to it. Hasbro isn't going to sell exactly the same number of trivia games at exactly the same price without the label "Trivial Pursuit" slapped on it, especially since they'd be competing with a company selling trivia games *with* the label "Trivial Pursuit" on it.

Borrowing the mechanics from Trivial Pursuit isn't going to make a trivia game outsell Trivial Pursuit, or even make a dent against it. The mechanics aren't even particularly interesting, IMO. Hasbro was in no way legally obliged to buy out the Trivial Pursuit rights for $80M. They did so because they think they're going to *make more money* by having complete rights to slap Trivial Pursuit on whatever lame trivia game they produce. They very well could be right.

Quote:

And why would Hasbro need to care about future game designers? They could bring a copied game to market faster than most companies could market the original game. Hardly anyone has heard of Wits & Wagers, yet we've been marketing the heck out of it for 6 years! Due to each game's $2 million television advertising campaign, Pictureka, Scribblish, and Partini were more well-known in their first year's release than Wits & Wagers is after 6 years.

Meanwhile, Hasbro properties like Trivial Pursuit and Cranium achieved mass consciousness *before* Hasbro got them, and by purchasing/licensing them Hasbro puts themselves in the position of acquiring the market position already established by another company--without putting themselves in the position of *competing* with another company. Hasbro's made a lot of money selling boardgames that someone else invented, and the royalties from those only get big when Hasbro's selling a whole lot of boardgames. Why would they want to alienate that source of games?
I don't believe Hasbro sells as many games if they make themselves a non-partner for designers and smaller companies, while simultaneously ceding the first mover advantage to absolutely everyone.

Neil has IMO done a convincing job of explaining what the law is in the United States (this may not be the same as the law in other countries, which would certainly be of interest to a big multinational like Hasbro). I'm not at all convinced board game companies could make a lot more money--or even more money at all--by borrowing the mechanics (but not name, artwork, or rule text) just to avoid paying royalties to the original game designer.

Edited Wed Jul 27, 2011 10:41 am
Posted Wed Jul 27, 2011 10:41 am
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The Gray Dog Passes Go

United States
Reno
Nevada

Al Newman wrote:

The legal arguments should have gone to a different thread.

+10,000 ... and a GG tip for you.

(Although "legal arguments" lends the whole thing an undeserved dignity. The vast majority is "completely uninformed speculation" or "the way I wish the world was.")

I really hope the blog authors consider posting legal items as separate posts in the future. That way, all of the BGG Armchair Lawyers can go crazy with it, and the stuff that really matters — news, new games, upcoming releases, silly things like that — won't get buried by this complete crap.

Posted Wed Jul 27, 2011 6:02 pm
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Robin

(Peepser)

Canada
Vancouver
B.C

Is there a thread where we can discuss the Ghost stories app? This obviously isn't it.

Posted Thu Jul 28, 2011 5:20 am
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Pete Hooper

United States
Machesney Park
Illinois

Peepser wrote:

Is there a thread where we can discuss the Ghost stories app? This obviously isn't it.

http://www.boardgamegeek.com/thread/679545/now-available-on-...

Knock yourself out.

Posted Thu Jul 28, 2011 2:29 pm
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Alan Newman

United States
Wantagh
New York

You are quite wrong. Take a look at the threat title; IOS News Bits. This is supposed to be general info about IOS games.

Despite my own personal interest in the legal aspects, the thread has been entirely hijacked. A new thread about legal matters could easily have been started.

By your logic, any thread could be similarly hijacked and be utterly useless for those who wished to follow the original intent of the thread.

If 100 viewers were involved in this conversation, it might be a different story but that is hardly the case.

Posted Thu Jul 28, 2011 3:36 pm
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David Culp

United States
Carrollton
Texas

I disagree, one of the news items listed and reported on in the original article was that FFG was suing Puffin Software. People commented on and discussed that item in the blog post in which it was reported.

If the original intent of the thread was NOT to allow people to discuss something brought up in the blog post, it should never have been reported in the first place.

Posted Thu Jul 28, 2011 3:40 pm
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Dominic Crapuchettes