- Over at sister site Gamasutra, we ran a slightly controversial Soapbox from John Andersen last week, named: 'Ripping Off Japan - Japanese Video Game Copyright Protection & Preservation (Or Lack Thereof)'. So we figured GSW was a good place to initially follow up some of the blog feedback.

Firstly, The Inbetween's Mike Nowak had a particularly interesting view on the article, since he was working alongside those who made some CBC Flash web games singled out by Andersen as being 'infringing' in some way (for example: "Sushi Samurai, a clever clone of Burgertime.") Nowak comments, among other things: "Now, I’m not here to argue that those CBC offerings are particularly original. They’re not. But they’re perfectly legal... Spending two thirds of an article attacking some small Flash games, while only giving a half a page mention to the more profitable, lucrative and recent clones by PopCap, hints at the author’s personal bias in the matter."

The 'personal bias' mentioned here is also referenced in some GayGamer.net comments on the same post, in which Raindog comments: "The real shame here isn’t that Flash designers are “ripping off” classic games, but that the classics haven’t become part of the cultural commons yet. Businesses like Andersen’s are really not much better than jackals coming late to the corpse."

Well, I commissioned the article, which we did present as 'Soapbox' rather than cold, hard fact, obviously. Now, I don't read John Andersen as someone who's interested in helping litigate and making scads of money. On the contrary, he comes across (at least to me!) as someone who genuinely cares about IP being respected - he's ended up advising people like G-Mode because he cares about people using their games without asking - and there are some much more egregious examples in the retro arcade game arena that he didn't directly address, I believe.

But one of the things that this controversy is already bringing up is - what really _is_ the law when it comes to IP and game ideas, exactly? For example, why does it feel like (in my mind, at least!) that Breakout is a 'genre' that can be cloned or elaborated on without so much guilt, but Puzzloop isn't? How do we encourage innovation without the innovators being immediately cloned, or is that cloning/deriving just a fact of life that actually helps the medium evolve? [This has come up before on Gamasutra, to much heated discussion.]

Anyhow, I've asked S. Gregory Boyd, who is a _nice_ game IP lawyer, to write a little piece for Gamasutra for later this week on a lawyer's view of how game concepts may or may not be protected - and I think he'll do a fairminded job. In the mean time, I asked Andersen to reply to Nowak's post, which he does after the cut - read on!

[Click through for more.]

Andersen says:

"First of all, I'd like to thank Mike Nowak for giving some constructive criticism regarding my Gamasutra piece, I really liked what he wrote, (despite the personal attacks) he brought up his own defense that I'd like to point out. He reveals the following behind the development of the CBC flash clones:

'When these games were being pitched and developed, I really wanted to create something new and fresh. Unfortunately, as always, time and money restricted that (these games were churned out, concept to live, in about a week) and we had to resort to tried and true formulas. Clones.'

Only a week to develop gaming content for the website of a national TV broadcaster? It was an insult to him and his creative ability, but like he said, the assignment had to be done. If Mr. Nowak and his fellow designers were given more time and some creative breathing room by the CBC, perhaps something new and original could have been developed. This new and original content could have been a hit, and CBC business affairs could have had a valuable property they could license out. Deadlines and pressure are nothing new in this business.

The point of my article is to get people talking, and I hope I've accomplished that. I never insulted or attacked Mr. Nowak personally, but unfortunately Mr. Nowak has attacked me, and I'll now defend myself. I want original and new content just as much as he does. I'm sure a whole room of people could debate for hours and bring up cases like Great Giana Sisters (a computer clone of Super Mario Bros. pulled from the market at the insistence of Nintendo) and pick apart the Data East cases as well.

I would like to bring forward my own reading material in this debate and that is the 1982 case of Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982), which states: The court, noting that a game is not protectible by copyright "as such," stated that video games are protectible "at least to a limited extent [insofar as] the particular form in which it is expressed provides something new or additional over the idea." Just take a look at the case and examine its court ruling.

Sushi Samurai came to my attention when a July 27th, 2006 Kotaku gaming blog began publicly exclaiming, "Burgertime with Sushi!" A Google search of Sushi Samurai and Burgertime turned up even further specific comparisons on other websites, all linking to the CBC website. Now we have a problem. G-mode sees that Burgertime, a property it owns and controls, is being devalued in public. I can assume that G-mode, a Japanese company, would like the CBC to respectfully recognize their concerns and take the game offline. This is about respect of ones work, plain and simple.

Why am I targeting flash clones developed four years ago by the CBC? To prove a point:

Mr. Nowak mentions I'm a marketer not a lawyer, he's correct, but I primarily focus on business development, and I prefer healthy business development. I do look out for my colleagues in Japan because they developed and published great games that have inspired us and continue to do so. I leave it to the legal consul of each company to work things out (hopefully to an amicable and peaceful conclusion) when matters like this arise.

From a moral standpoint I am deeply concerned about the corporate and personal animosity this clone activity creates within the industry. Public statements and litigation can ensue, resulting in ruined business development and reputations. If the CBC just happened to have an original gaming IP that was a hit, its business affairs division may encounter difficulty in finding a Japanese licensee because of its questionable clone work – it could happen. When you are not respected in Japan then you are ignored, plain and simple. Businesses can hold grudges against each other for a long time, I don't need to bring up examples or go any further. Just look at Roy Ozaki of Mitchell Corporation and the loss he's incurred with the Puzz Loop clones. That was the point I was trying to make.

In defense of my professional background, I'd like to politely correct Mr. Nowak's points:

I am quite aware of the company histories involving G-mode and Data East.

The cases involving Data East Vs. Epyx and Capcom Vs. Data East occurred around 1986 and 1993 respectively. It's unknown if each side brought forth the ruling of Atari Vs. Phillips case to the courts, but these were fighting games and the 1982 Atari Vs. Phillips decision revolved around Pac-Man versus KC Munchkin. Different genres, different styles in each case - it can all be debated back and forth.

G-mode and Data East are two completely separate business entities. Data East Corporation went bankrupt in 2003. G-mode, a mobile phone content provider established in 2000, only purchased a majority of the Data East gaming IP in 2004, while a small handful of games were acquired by Paon Corporation. I never had any business relationship with Data East and its former employees, nor have I had any business relationship with Taito. There was never a transfer of any employees, creative talent or management from Data East to G-mode. Aside from handling the Data East video game library, G-mode creates its own original game content and also licenses other gaming IP, such as Tetris, for distribution within Japan and select territories for mobile platforms.

G-mode and Taito are not releasing their own portable hardware, each company appears to have only separately licensed their games to Performance Designed Products (PDP) of Los Angeles, California. PDP is manufacturing the hardware, while G-mode and Taito are simply providing the content. I had no involvement in either deal as Mr. Nowak implies.

Finally, do others feel the current U.S. Copyright office stance on games appears vague? It appears its been written for board games rather than video games. Is a revision in order? Let's keep the discussion going. I think it's important to keep examining this issue with real history, facts, and business principles in mind, but let's keep the personal attacks to a minimum shall we?"