Counterfeit Game Sold on Apple's App Store | Hacker News Reader

Counterfeit Game Sold on Apple's App Store

blog.wolfire.com

143 pointsangrycoder37 comments

tl;dr: the art/sound/etc. assets may have been accidentally released under the GPL because of a file omission in the .zip version of the source release.

From the article: "According to Kotaku, they are talking about the GPL release of the source code for a number of the Humble Indie Bundle games, namely this post. However, the license made it very clear that the authors retained all rights to the assets, characters, and everything else aside from the code itself."

Disclaimer: I'm not a lawyer, I might be wrong here about some things, so please step in and correct me if anyone knows better.

So, here's the thing. Looking at the source .zip linked at http://blog.wolfire.com/2010/05/Lugaru-goes-open-source (the .zip file itself is at http://akamai.wolfire.com/humble/src/lugaru-srcs-final.zip, so that's an official release), I see COPYING.txt, the generic GPLv2 statement, sitting at the root of the project .zip. By custom, I would naturally assume that unless that license is overridden somewhere, it's the license in effect for all copyrightable materials included in nested directories.

I'm not positive about this legally speaking, but I'm pretty sure that if the code is distributed in such a fashion, and most people familiar with code would interpret the license to apply in such a manner (to everything in the subdirectories, unless overridden somewhere within the released code), I can safely assume I've been granted that license.

Now, I fully believe that Wolfire never intended to release the art/sound/character assets under the GPL. But - and I encourage people to check for themselves to make sure I'm not missing something, I could definitely be wrong - there appears to be no license statement anywhere inside that particular source distribution (http://akamai.wolfire.com/humble/src/lugaru-srcs-final.zip) that puts any of those assets under another license.

I suspect the file at http://hg.icculus.org/icculus/lugaru/file/97b303e79826/CONTE..., the one that sets the license terms on that data, is what the author of the post was referring to when mentioning the clear license terms.

But someone forgot to copy it from the hg repo into the .zip file before they released it.

Unfortunately, they didn't forget to put COPYING.txt in at the root, which means GPL2 for the whole shebang (the default license would have been none at all, but for the presence of that file). If I'm right, and no other license is hiding somewhere, then as far as I can tell (not a lawyer) those assets are under GPL. It doesn't matter if comments elsewhere clearly prove that the GPL was only supposed to cover the code, a release was made and linked by the original copyright holder with a license statement whose clearest reading grants the user a license to everything under the GPL. Prevailing wisdom seems to be that you can't take back a GPL license, so yes, that means that all the assets in this game have been accidentally open sourced.

There's still a trademark claim, of course, this joker can't legally call his game Lugaru, but if he renames it, he's within his rights to try to sell it as long as he branched from the .zip release (though the GPL issue might keep it off the App Store).

I did a quick search if the USPTO database and the name Lugaru isn't trademarked yet. So iCoder may have a case. Best defense might be to complain that the GPL is incompatible like the VLC coder did.

Right, the GPL is not compatible with the App store as you are hindered in your redistribution of the application.

Additionally, it seems that iCoder (intentionally or unintentionally) doesn't have his code out there anywhere and has yet to respond to #2 requests for the code.

That's not the end-all, be-all of trademark law though. If Wolfire had a registered trademark, it would make things easier for them.

But, they have been conducting trade using the Lugaru mark so they have an implicit trademark on the term Lugaru as it applies to video games. It's the difference between the TM symbol and the R with a circle around it.

Wolfire can still hit them up with some trademark violation lawsuits and should probably do so soon to avoid problems down the line.

Note that the source distribution only includes enough of the game assets to run a demo version of the game. Even if the demo assets were inadvertently licensed under the GPL, iCoder is still in violation of Wolfire's copyright by distributing the full game.

I still don't understand why they don't send a DMCA takedown request to Apple and call it a day. Have they already done this yet Apple is refusing to takedown the offending app? I highly doubt Apple would take on that sort of liability.

I don't think Apple is refusing to do anything. The corporate wheels must turn. The spice must flow.

I think the probable outcome is "Wolfire -> Apple: DMCA", "Apple -> Pirate: You've been DMCAed.", "Pirate -> Apple: Counter-notification. We believe we have a valid license. The DMCA says that they have to sue us to prove otherwise.", "Apple -> Wolfire: Well crikey, they're right."

That leaves Apple legally covered, although I would bet they terminate the pirates under the It's Our System And You're Causing Us Negative PR So Eff Off provision.

This is a throw away account.

I am familiar with this process.

After the filing of the DMCA counter notification, the original developer has 10 days to file suit.

Then apple will take the offending material off the store.

So you've setup a throw away account, just so you can answer a question related to the DMCA counter notification?

Do you work for iCoder or something?

No, that's not correct at all.

Under OCILLA/DMCA, counter-notification cannot be accepted by your provider and is not legally usable unless access to the alleged offending material has been completely prevented. 17 USC 512(d)(3). The material must stay removed completely for at minimum 10 (ten) business days and at most 14 (fourteen) business days to allow the complainant to file suit or otherwise obtain an injunction if they so desire. 17 USC 512(g)(2)(B) and (C). That's with a counter notice; without one, the material can never be restored.

So, your scenario then becomes:

    - Wolfire > Apple: DMCA
    - Apple > Pirate: We have received a DMCA and removed it
    - Pirate > Apple: Counter notice
    - Apple > Wolfire: Here's a counter, we will restore in 10 days unless you sue
    - (10 business days)
    - Apple > Pirate: OK, it's back

After the waiting period, you or the provider can restore access with the DMCA's blessing. DMCA only requires providers to "act expeditiously" to remove access to material, so what "expeditiously" means is left to interpretation. I doubt Apple would leave anything up for long, though.

When you get a serious DMCA complaint -- meaning, not one of the automatic-fire BitTorrent ones from MediaSentry or whatever -- try a counter-notice without removing the content and see what your provider does. If they abide by the law, they'll immediately reject it and ask you politely to remove the content, or they will for you.

But wait, you say, doesn't that encourage frivolous DMCA complaints to remove content from the Internet that I do not agree with? All I have to do is file a well-prepared DMCA complaint that asserts copyright and the content is federally required to disappear?

Answer: Yes.

(IANAL, but I have researched it extensively to draft policy.)

I checked the statute. You're right about a DMCA notice / counternotice exchange essentially requiring a minimum of 10 days of the disputed content being offline. Thanks, I like learning things.

Actually, i think that Wolfire would have considerably more success if they pointed out that iCoder's version of Lugaru was distributed via GPL (http://blog.wolfire.com/2010/05/Lugaru-goes-open-source ), and as a result iCoder's app is incompatible with App Store licensing requirements.

I initially thought this would be a problem for Wolfire too, but since it's their IP they can relicense it (well, dual-license) for distribution through the AppStore however they wish, dodging the sorts of conflicts that VLC had (over which it was rejected from the iOS app store: http://news.ycombinator.com/item?id=2082505 ).

I find this interesting -- yours is the second reply I saw to mention GPL being incompatible with App Store licensing requirements.

Did I miss something? ID Software released Castle Wolfenstein to the IPhone with it being GPL licensed, and I thought Carmack was actually encouraging people to use the engine to create other games for the iPhone. Obviously folks other than Id Software can't relicense the engine under something other than the GPL, so if GPL licenses won't work on the App Store, how could he expect them to use the engine for iPhone apps?

How is it that the GPL is incompatible with the App Store's licensing requirements? This is the first I've heard of that.

This explains the FSF's position pretty well: http://arstechnica.com/apple/news/2010/05/fsf-apples-itunes-...

More recently, this line of argumentation was used by a VLC contributor to pull a VLC port off the App Store by citing copyright infringement: http://www.readwriteweb.com/archives/as_vlc_for_iphone_ipad_...

Thank you particularly for the arstechnica.com link. The way I read the discussion before, I was expecting the conflict to be originating with Apple (like something in their agreement forbidding the use of GPL'd software or something). But after reading that article I see that it is the FSF that has pointed out how Apple's App Store restrictions make apps using GPL licensed software out of compliance with the GPL. That makes more sense.

I doubt that ID Software GPL'd the version of Castle of Wolfenstein that they submitted to the AppStore. ID Software owns the copyright on Castle of Wolfenstein, so they can release it under whatever license they want. They can even release it under multiple licenses.

The GPL 'issue' is that, if I fork a popular project under the GPL, I don't own the copyright so I can only ever continue to release it under the GPL, I can't change the license because I don't have the legal right to. If I wanted to publish said GPL'd project to the AppStore, my only option would be to release it under the GPL, which is incompatible with App Store licensing requirements.

I know that if you fork a GPL licensed project, you have to release your version under GPL also. That's why I said "Obviously folks other than Id Software can't relicense the engine under something other than the GPL"

My question was, how is the GPL incompatible with App Store licensing requirements? I haven't seen that spelled out before. The reason I brought up Wolfenstein was because an article I read back when it was released for the iPhone led me to believe that Carmack was almost expecting (perhaps even looking forward to) people forking it and making their own games for the iPhone with it. That is why I was surprised to hear that the App Store wouldn't allow a GPL licensed application -- since that would make such an outcome impossible.

The GPL concerns how other people can use your code - if you release something under the GPL, you're not personally bound to it.

The trouble comes when you accept patches written by other people, because while you are still free to release 'non-free' versions of your code, you are bound by the GPL with your use of theirs. A good example is Linux - they can't really move to GPL 3, even if Linus wanted to. They would have to get 10s of thousands of people to agree to the change.

This is why some projects want you to give them copyright ownership in order to accept your patches.

The App Store is a distribution mechanism, and it imposes restrictions on distribution that the GPL does not have.

One such restriction is that any binary downloaded from the App Store is only licensed for usage by the user downloading it. You are legally forbidden to take that binary and copy it on another iPhone of another user (we aren't talking about technical details and how users could do that, but about what the iTunes App Store EULA says).

Bottom line is that the GPL doesn't allow the extra restrictions that the App Store is adding.

Contacting Apple though the blogosphere is a much better way to generate publicity for yourself and your software. This kind of story is always picked up everywhere.

The title on the post is "Counterfeit Lugaru on Apple's App Store", which is slightly less inflammatory, and much more correct.

Hang on, if the claim is that the source is under the GPL (and I'm not that convinced saying the characters are excluded is sufficient - a trademark violation would be more sensible) surely all they need to claim is a GPL violation (no source distribution) and cite the previous incompatibilities between the GPL and App Store.

As copyright holders they can later resubmit the game under a different license.

I wish Apple had a 'flag application' button in the App Store to flag things that seem amiss and report them. If so, I'd have flagged this for being GPL software on the app store.

> If so, I'd have flagged this for being GPL software on the app store.

Which is probably why they don't have a flag application button.

Perhaps, but it seems to be a pretty legit reason to pull something.

edit: instead of downvotes, i'd love a response to understand why someone should be allowed to put a GPL application on the app store and not distribute their code (and that you can't copy the application and send it to others, etc). Seems to be a pretty clear GPL violation.

I wonder how many people visiting their site are going to take this opportunity to get the game at a discount... hopefully not many.

Apple's response when they decide to take it down will be the interesting part. We'll find out if there is a kill switch or blacklist in the mac app store.

not really. stuff gets taken down off the App Store all the time due to legal issues and obvious copyright infringement.

the apps get removed (you can't download them anymore), but anyone who has downloaded it can still use their copy.

http://news.cnet.com/8301-13579_3-10013322-37.html

Supposedly there is some sort of kill switch functionality in the iOS app store, and I haven't heard about copyright infringement to the level of taking someone else's game and redistributing it before. In my mind, the best case scenario is to refund everyone's money and take the game off the market, uninstalling from computers. The only backlash you receive is the press about the kill switch functionality and the whole "dude, where's my game" moments that people will have.

Oh, there's certainly a kill switch. Jobs admitted to it during an interview, but it hasn't been used. The closest App Store comparison is probably Abuse (source code released into public domain, http://en.wikipedia.org/wiki/Abuse_(video_game) ):

http://appshopper.com/games/alien-abuse (pulled from app store)

http://appshopper.com/games/abuse-classic (official version)

reason: http://forums.toucharcade.com/showpost.php?p=426791&post...

Long story short, Eurocenter did not have the right to use the sound effects, registered levels (levels 5 and up), or the Abuse trademark in their game "Alien Abuse".

So very similar circumstances. And the original app was never killswitched.

I grabbed VLC before they got it removed, and it still runs for me. It has survived several iTunes syncs, too, and even a restore.

The bad news is when you lose or break your computer. You can't re-download or transfer the app files from one iTunes repository to the other.

Or, at least, I couldn't find a way.

I'd imagine that a good portion of the people who would buy the counterfeit copy after reading this article already have their iPod jailbroken and would just pirate the app.

Reply on news.ycombinator.com