Tetris case "encouraging", but cloning not dead yet

An app developer has been found guilty of infringing copyright in a mobile game that adhered a little too closely to the design and mechanics of Tetris.

It's tempting to see the ruling, by a federal court in New Jersey, as the first significant breakthrough in the fight against videogame cloning. The defendant, Xio Interactive, raised no issue of fact in reponse to the charges, admitting that it chose to allocate its financial resources not to development of an original game, but the study of copyright law so it could rip off an existing one.

The resulting work, Mino, is no longer available from the App Store, but as the video below shows, the similarities aren't too hard to spot.

Jack C Schechter, of Boston legal firm Sunstein, Kann Murphy & Timbers, explains in a company newsletter that Xio raised no objection to the charges levied against it, instead arguing the technicalities of them - a common tactic that has worked in the past.

This time, it failed, with Xio's arguments relating to idea vs expression, merger and scenes à faire all leaving the court cold. We'll leave the minutiae to Schechter, whose breakdown of the case is intriguing - not least because it suggests that the fight against game cloning, which is especially prevalent on mobile, could have turned a corner.

Sadly, Greg Boyd of New York firm Davis & Gilbert LLP tells us, that isn't the case - at least, not yet. "This is only a district court case in New Jersey," he says, "[but] it is a federal case and that is encouraging. It's new, and hopefully a sign of which way the wind is blowing, but it is not binding on any other district and isn't high up enough in the federal system to have a wide effect."

It's worth pointing out, too, that the case concerned Tetris, a game that is more a quarter of a century old and instantly recognisable to millions. It would be easier for a judge to appraise the similarities between Tetris and Mino than, say, Spry Fox's Triple Town and 6waves' Yeti Town, a case currently ongoing in a Seattle district court.

"It likely had an effect, but probably not a strong one," Boyd says. "It isn't supposed to have an effect, but when a person is dealing with a well-known IP it's difficult for it not to have an effect."

So, while encouraging, we're no further forward than we were before: US copyright law remains as murky as ever, and a sole district court verdict isn't going to change things overnight - though it might in the years to come.

"It's always difficult to tell how a case will be interpreted within its own district and other districts within the first few years," Boyd explains. "It's usually three or more years after a case is decided before we are able to see the effects.

"But it's a minor federal case. It's not exactly ESA Vs Schwarzenegger."