The fight against app clones

Experts explain difficulties in policing mobile marketplaces
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Swing Copters. Swinging Copters. Swing Bird. Swingy Copter Pro. Swing Chopper. Copter Bird Swinging.

The threat of copycats was best demonstrated in recent weeks by the wave of titles mimicking Flappy Bird creator Dong Nguyen’s new game.

His indie hit Flappy Bird was pulled from mobile marketplaces earlier this year – and an army of replicas and clones were released in the days that followed.

And just a few weeks ago, the same thing occurred to Nguyen’s new game Swing Copters. On the eve of its official release, more than 30 clones were made available on Google Play, with others appearing on the Apple App Store and Windows Phone Store.

Nguyen isn’t the first developer to suffer from other studios copying their work, and few believe he will be the last. So what can devs do to protect their creations?

COPYRIGHT PROBLEMS

Nicolas Murfett, associate for interactive entertainment and sport at legal firm Harbottle & Lewis, says that copyright may not protect developers in the way they think it does.

“Copyright does not protect ideas – it only protects the expression of those ideas,” he told Develop. “This may seem to offer studios a useful sword with which to attack clone games. However, there is a significant body of case law that suggests this sword is more of an inflatable kid’s toy.

“Absent of any direct copying of an existing game’s source code or of any of the other copyrightable works in that game – such as the artistic or musical works – it is unlikely that a title looking or feeling very similar will infringe the copyright in that existing game.

“Neither a game’s ‘look and feel’ nor its mechanics are protectable in the UK.”

Daithi Mac Sithigh, reader in law at Newcastle University, added: “The English courts turned away a case of copyright infringement in arcade games because there wasn’t any copying of code and the similarity was in gameplay and mechanics, which are harder to define as protected by copyright. European courts are still grappling with this – particularly on whether an interface is an original work.”

Murfett instead suggests that developers look to other forms of intellectual property for protection. Some studios, for example, register trademarks for words in the titles of their games or company name.

“This can be easier as you don’t need to show that anything has been copied,” he said. “A registered trademark grants the owner the right to prevent third parties from using that trademark in relation to the goods and services for which it is registered, and can be used to remove clone games with similar titles from the marketplace.

“However, studios pursuing such a course of action may need to bear in mind the certain parts of the gaming community’s strong views on such strategies and get the balance right between good law and good business.”

PLATFORM DUTIES

As the Swing Copters clones emerged, attention inevitably turned to the platform holders. Google was quick to clear dozens of blatant copies from its marketplace, although at the time of writing several are still available. The same is true for the Windows Phone Store, although the Apple App Store appears to be clone-free.

Both Apple and Google declined to comment, but a Microsoft spokesperson offered the following assurance to Develop readers: “Microsoft takes the intellectual property of our app partners seriously and we use several layers of deterrence and response to help protect them.

“First, all apps are encrypted to help prevent piracy and we encourage developers to take advantage of obfuscation tools for an added layer of protection. Because the Windows Phone Store is the only authorised source of apps and games, developers can more easily police infringement of their apps by monitoring the store and notifying Microsoft if infringement occurs.

“Finally, we educate every developer from the very start – before apps are even submitted – reminding them in our developer agreements and policies that Microsoft does not permit infringement of intellectual property of others.”

Murfett stresses that there are limitations to what platform holders can do against such a force of cloned titles.
“While Apple and Google have no legal obligation to actively police cloning on their platforms, they may have an interest in helping studios to combat it as a plethora of cloned games only serves to make it harder for users to find the games they actually want to play and spend money on,” he said.

“However, it is unlikely that platform owners will agree to include clone detection as part of their certification processes, as to do so would extend certification times significantly and result in an additional administrative burden.

“That’s not to say platform owners are unwilling to do anything. All of the big three are willing to investigate complaints and some have even recently taken steps to streamline this process.”

PREVENTATIVE MEASURES

The consensus is that cloning – as distressing as it may be for developers – is highly difficult to curtail. Sithigh and his colleague Tom Phillips, senior research associate at the University of East Anglia, suggest that the best defence against copycats is more vigilant reactions from infringed developers.

“It’s difficult to say what preventative measures can be taken by developers themselves – if a clone of your game appears the most effective action is more likely to be reactive than proactive,” said Phillips. “The best action a developer can take is to make sure the value of their own game property is maximised.”

Sithigh added: “There’s a legal argument that overprotection ends up hurting the community in the long run because it fosters a risk-averse development culture. Markets tend to stabilise as time goes on – what’s happening at the moment is classic gold-rush behaviour and we already see talk of cleaning up the space.”

Harbottle & Lewis’ Murfett adds that cloning is unlikely to diminish over the next few years. In fact, as it becomes harder for new games to be discovered on app stores, developers “looking for a quick buck” will see cloning as the more attractive option.

However, if platforms, studios and users pro-actively take action against copycats, the industry has a better chance of stopping them.

“Until the issue of game cloning is properly addressed by the industry, the courts or new legislation, it will continue to be very difficult, for the reasons set out above, to prevent cloning,” he said.

“The best way to combat cloning may be for studios to look to more practical solutions such as publicising their games so that they get the credit they deserve and that users know which studios are responsible for the games they love. Similarly, users should be educated to remember to rate and review the games they love – to help with the search result prominence of those games – and to report any games they suspect of being clones to the relevant platform owners.”

Sithigh and Phillips will discuss this issue at next month’s Develop Live, in a session entitled ‘From pocket money to Flappy Bird and beyond: Things to know about copyright and games’.

www.develop-live.com

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