Atari abuses copyright to kick competitors out of the iOS app store | Hacker News Reader

Atari abuses copyright to kick competitors out of the iOS app store

kickstarter.com

112 pointsextension40 comments

I don't know the copyright claims process Atari uses, but the review[0] of Vector Tank the Kickstarter page links to says:

  First, let's step back a moment and take a look at the overall 
  Vector Tanks situation. Peter's original Vector Tanks appeared 
  in the App Store, published by Chillingo, just over one year ago. 
  It delivered a stylized iPhone take on Ed Rotberg's 1980 arcade 
  classic Battlezone, with a large helping of modern-day retro, 
  thanks to the lovely glowing vector effects that make the iPhone's 
  screen feel more like an Atari Quadrascan display than a 3.5-inch 
  LCD.

That's fairly telling. Additionally, if I were to come up with a generic name to describe Battlezone, Vector Tanks would be a top pick. I'm not experienced with copyright with respect to clones of games, but Atari might be the victim here.

EDIT: Even more damning, the original Vector Tanks review details how the creator loved Battlezone so much he wanted an iPhone version[1]. So he created one. The original app's description:

  Vector Tanks is a Battlezone remake with a "future retro" feel. 
  It's great fun and is perhaps the most enjoyable retro offering
  to be found in the App Store.

EDIT 2: The VentureBeat article[2] puts the nail in the coffin:

  Vector Tanks programmer Peter Hirschberg commented to VentureBeat: 
  “The cruel irony here is that I tried for years to get ahold of 
  Atari to license their IP but they seemed to have fallen off the 
  planet. Now this. It’s very depressing.”

The developer originally recognized the need for a license but, unable to contact Atari, decides to clone the game anyways.

[0] http://toucharcade.com/2010/03/01/a-closer-look-at-vector-ta...

[1] http://toucharcade.com/2009/02/16/a-look-at-retro-3d-shooter...

[2] http://venturebeat.com/2011/12/30/ataris-latest-legal-action...

Copyright is supposed to cover the actual code written and not the inspiration, if the original code base and images where not used and no trademarked assets where used then there should be no infringement. It is the reason that I can go out and write a spreadsheet application even though there are other spreadsheet applications. I can even draw my feature inspirations from other offerings. So long as I do not use their code and write it myself, I have not violated copyright. Now I am sure Atari has a trademark on Battlezone, but I think the tanks themselves would be too liberal of an icon to actually constitute a trademark, they probably have a trademark on the font lettering and the name Battlezone as applied to games. They would have a hard time wining this case in court, on either copyright or trademark grounds, which should be the bar that Apple is applying. If I where Apple, I would make all parties agree to arbitration and then comply with the outcome of that arbitration, even if Apple has to pay for such arbitration, it is a known cost, they are a third party with legal liability and I am surprised that they are comfortable in that position with such a loose process.

Someone else mentioned the Atari and Munchkin case. The facts were similar. North American developed K.C.Munchkin and originally wanted to obtain a PAC-MAN license. When they were unable to do so, they came up with the K.C.Munchkin name and changed a number of features.

The appeals court ruled in favor of Atari and granted an injunction against North American:

http://www.patentarcade.com/2005/04/case-atari-v-north-ameri...

Actual ruling:

http://scholar.google.com/scholar_case?case=1643313902072203...

I think your arbitration idea has merit, though the DMCA's claim/counterclaim process was designed to handle this type of situation.

Yeah i tried to disclaim it with "it is supposed" because the rulings have been all over the board. I agree that the claim/counterclaim should be used properly but, for me personally if I where Apple I would arbitrate to CYA alone. It's a small price to pay, to be able to prove you exhausted all means to arbitrate the dispute as a third party. I think most would rule out liability on Apples part if they did so.

Exactly. Here's what the US copyright office says[1]...

"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."

[1] http://www.copyright.gov/fls/fl108.html

Copyright is supposed to cover the actual code written

True

if the original code base and images where not used... then there should be no infringement.

Not so true anymore. Copying a work doesn't mean Xeroxing it. You can do 100% of the work, draw all the images yourself etc. As long as the output is, shall we say, unreasonably similar then it is copyright infringement. In this case all he had to do is not directly copy the artwork and everything would have been free and clear. Look at the images of the tanks in both games it is pretty open and shut to me.

Copyright covers the creative work, not the output of the creative work. So code, images protected. The pretty glowy lines produced when work is "executed", not protected.

Of course, everything (in U.S. legal system) is debatable and usually the party with most $$ (for lawyers) wins the debate.

I agree, but the author attempted to work with Atari to license Battlezone. Also, the game has been out for a while without complaint from Atari. These both seem to make Atari seem less of a victim.

As an aside, Atari is really Infogrames. The real Atari is no more.

This is astoundingly incorrect. At least where I live (int he US) copyright protects the game binary code, the game assets, the game's manual, etc. but doesn't protect the overall game concept or the game's general look and feel. Those things are in the realm of patent protections.

The OP is confusing a moral right (rather, a moral wrong, i.e. he clearly was making a Battlezone clone) with a legal wrong. The game breaks no copyright laws.

I was involved in a very similar situation, where a publisher made a copyright claim against a game of mine in the app store. But you can't copyright a game idea, or the way the tanks generally look. You can only copyright the actual game, or game assets. We pushed back and Apple accepted our arguments and the game went back into the store.

This is abuse of copyright for the sole purpose of eliminating a competitor in the app store, and it's got to be fought, or we're all going to be spending huge portions of our lives as developers fighting incorrect and spurious copyright claims.

You can only copyright ... game assets.

What do you think the tanks are? He made his game's tank assets identical to their tank assets. It doesn't matter if he ripped them from a rom or modeled them up himself he copied their assets.

Atari has been little more than a brand name and an IP catalogue since the late 90's. They and Hasbro Interactive sued a bunch of shareware developers in 2000 before releasing a slew of truly awful Windows "reboots" of Asteroids, etc.

The scary part is that copyright law is not yet decided on the "look-and-feel" infringement issue, yet Atari/Infogrames seems to be getting their way without touching the courts. This is a chilling trend and has definite parallels with SOPA.

The letter I received from Atari was:

I am general counsel for Atari Interactive, Inc. (“Atari”), the owner of the copyrights and trademarks in the United States for the REDACTED computer and video games. We have recently become aware of REDACTED app “REDACTED” currently accessible on the iTunes games website at http://itunes.apple.com/us/am;REDACTED.

This unauthorized use of the REDACTED game constitutes copyright infringement in violation of 17 U.S.C. § 501. This unauthorized use of the REDACTED® mark also violates the trademark laws, including l5 U.S.C. lll4(1) and ll25(a), by creating a likelihood of confusion with respect to Atari’s authorization or sponsorship of this iTunes game.

We therefore demand that you immediately remove the “REDACTED" game from the iTunes website listed above.

Please acknowledge receipt of our letter. This letter does not purport to be a complete statement of the facts or the law and is without prejudice to Atari's legal and equitable rights.

------

It was later confirmed that the percieved copyright/trademark infringement was in the app name. The name was the same as an older Atari game. The copyright on the name had expired, so I thought I was ok, but I didn't check trademarks.

For what it's worth Atari was quite reasonable once the communication channel was open.

This is a different situation though? Or are you talking about the article?

I'd like to know too. I'd like to hear from other people that received notices like the Vector Tank people.

While I'm not for this action, Vector Tanks (not the Extreme sequel) bears more than a "vague resemblance" to Battlezone. It's a vector-for-vector clone as far as I could tell.

There is legal precedent for outright clones being banned, and it seems to be Atari's longstanding specialty. See for example http://en.wikipedia.org/wiki/Munchkin_(video_game) from 1982. I don't know of a more current case that's gone to court though. And the real problem here is that the developer didn't even get the chance to present their arguments in court or anywhere else, Apple just decided the "case" for them.

The Munchkin case was a travesty. It had significant differences from Pac-Man, both cosmetic and functional. By the same standard, almost all current video games would be illegal, as would most works in any creative medium that fell into an existing genre. But I suspect the court, at the time, didn't appreciate video games as a medium that could have genres. Atari initially lost the case but then won on appeal, apparently to everyone's great surprise.

EDIT: I read the appellate court decision and discovered some things.

First, this only got as far as a preliminary injunction, as far as I can tell. I haven't found anything about an actual trial happening. So, the legal decision was simply that Atari had a decent chance of winning at trial, and the potential harm to them justified an injunction, not that there was definitely any infringement.

The potential for infringement was based not on similar game mechanics, but rather on the more superficial similarities between the characters and aesthetics. In other words, it would be ok to make a maze-eating-chasing game that played just like Pac-Man, but featured squirrels eating nuts and being chased by dogs. It was decided that K.C. Munchkin needlessly copied some small details from Pac-man, like the ghosts and the "gobbler". This was compared to a playwrite copying specific characters and settings rather than re-telling a story in an original way. (That playwrites are not limited to 8x8 pixels and two colors when creating their characters is not touched upon in the decision.)

I found the ruling to be an interesting read which went to lengths to distinguish idea from expression. It even referenced an older case of Atari vs. Amusement World (Asteroids vs. Meteors) which Atari lost:

http://scholar.google.com/scholar_case?case=6441518363892064...

A notable quote from that case:

  It seems clear that defendants based their game on plaintiff's 
  copyrighted game; to put it bluntly, defendants took plaintiff's 
  idea. However, the copyright laws do not prohibit this. Copyright 
  protection is available only for expression of ideas, not for ideas 
  themselves. Defendants used plaintiff's idea and those portions of 
  plaintiff's expression that were inextricably linked to that idea. 
  The remainder of defendants' expression is different from plaintiff's 
  expression. Therefore, the Court finds that defendants' "Meteors" 
  game is not substantially similar to and is not an infringing 
  copy of plaintiff's "Asteroids" game.

The Munchkin ruling also references an older case and quotes:

  Thus, "if the only similarity between plaintiff's and defendant's 
  works is that of the abstract idea, there is an absence of substantial 
  similarity and hence no infringement results."

It later goes on to say:

  Plaintiffs' audiovisual work is primarily an unprotectible game, but 
  unlike the bee pin, to at least a limited extent the particular
  form in which it is expressed (shapes, sizes, colors, sequences,
  arrangements, and sounds) provides something "new or additional 
  over the idea."

This was to be North American's downfall:

  North American not only adopted the same basic characters but also 
  portrayed them in a manner which made K. C. Munchkin appear 
  substantially similar to PAC-MAN. The K. C. Munchkin gobbler 
  has several blatantly similar features, including the relative 
  size and shape of the "body," the V-shaped "mouth," its distinctive 
  gobbling action (with appropriate sounds), and especially the way in 
  which it disappears upon being captured. An examination of the K. C. 
  Munchkin ghost monsters reveals even more significant visual 
  similarities. In size, shape, and manner of movement, they are virtually 
  identical to their PAC-MAN counterparts. K. C. Munchkin's monsters, 
  for example, exhibit the same peculiar "eye" and "leg" movement. 
  Both games, moreover, express the role reversal and "regeneration" 
  process with such great similarity that an ordinary observer 
  could conclude only that North American copied plaintiffs' PAC-MAN.

Had they only copied the idea the case would have gone the way of the Asteroids vs. Meteors case. Where they went wrong is that they copied the expressions used to such a degree that it was found to be infringing their copyright.

Yep. And in the case of Battlezone, a game that is about its appearance, I would argue that the expression can't be separated from the abstract idea. But I doubt we'll ever see a court's opinion on that.

To me, the abstract idea is a 3D wireframe world where you accumulate points and avoid being shot by wireframe enemies, much in the same way that the Munchkin ruling says:

  Other games, such as "Rally-X" (described in Dirkschneider)
  and North American's own "Take the Money and Run," illustrate 
  different ways in which a basic maze-chase game can be expressed.

The idea could still have been a 3D wireframe world where things try and shoot you, but it didn't have to be tanks. Atari's own Star Wars: Empire Strikes Back from 1985 shows how the idea can have a radically different expression.

    So - thanks to their special relationship with Apple - 
    Atari has successfully scrubbed the app store of their 
    perceived competition. It looks as though Apple complied
    without so much as a rebuttal or independent evaluation.

"it looks like" it's not enough to claim there is a "special relationship". It pisses me off that everyone having legal trouble with a third party claims wrongdoing by Apple for spurious reasons.

Apple is taking action based on "the best of their knowledge". That is, they comply when someone files a claim, but they reinstate the game when someone else files a reasoned legal rebuttal. It's not up to them to take the case to court or seek independent evaluation.

I'd like to see a list of all the games that were part of this claim by Atari, because this is a pretty slippery slope. One for one knockoffs (same game art & design) I can see, but games that were inspired by something else should in no way be victim here. Otherwise, how long before Nintendo lays claim that Sonic is a infringing on their copyright?

is this copyright infringement claim posted anywhere? It'd be interesting to read. I've seen other vector-based tank games on iOS.

What does this mean for classics like Spectre? http://en.wikipedia.org/wiki/Spectre_(video_game) It's been around for a long time on multiple Apple platforms. Will Atari start attacking not only recent entrants, but also ones who were there far more than a year ago?

One word: Laches

(IANL, but they probably lost their opportunity for a suit a /long/ time ago)

Spectre VR was the business back in the day. Not sure how many hours I lost playing that game.

We also used to play that and Bolo all of the time back in school (92-93'ish).

http://en.wikipedia.org/wiki/Bolo_(video_game)

But, to your point, Spectre is way different than Battlezone. IIRC, you collected flags and other stuff, with some RPG stat leveling business.

God, now I'm all nostalgic.

(Apologies for being off topic)

In the list specifying the rewards for investment on the Kickstarter page, the author specifies investors receive free copies of the iOS game. I was under the impression that Apple didn't allow developers to sell copies of games outside of the app store?

It's 'free' so it's not selling. Developers are allowed to 'give away' copies of their apps with promo codes. Obviously this is super-gray area, but it's 'technically' not disallowed.

Well, giving out product in exchange for microinvestments with no return sounds an awful lot like "selling" to me.

Developers get a limited number of promotional codes that an be redeemed on the app store to get the app for free.

The supporters will still d/l the app from the app store, but for free.

Each app has 50 promotional codes but I don't think they're supposed to be used in that way. It's also possible to 'gift' an app to another user using iTunes so the author would be able to use that mechanism to buy copies for the contributors.

Worse than anything, I just learned that Luna City Arcade is no more...and I never had a chance to go check it out.

http://www.thinkgeek.com/blog/2008/07/thinkgeek-travels-to-l...

Yep, I had a game pulled from the Android app store for using the word 'Pong' in the title. The game was ping pong. "Easy Custom Pong" was pulled about October I believe, so they've been prepping this for a while.

I don't really understand the app development Kickstarters.

Especially if there is already two apps in the store and this is a sequel to a long series. If you're making more, isn't the economic incentive of having the app in the store enough for you to invest? Did you not make enough from the first two to get started on this?

I just seems to be a case where they'd like the money up front AND the money from the store. But Kickstarter page is a good way to get a bunch of cash at a premium (or even kicked in donations that don't want anything in return).

If you needed the money to fund development AND gave the funders a free copy/coupon code, then it could make sense. In this case, you're spreading the risk among the early customers, instead of taking it all yourself or needing investors.

Kickstarter can also be a good way to get visibility for your app.

To be fair Steve Jobs got his start at Atari, so they sort of owe them one... ; )

[EDIT: how silly of me. I pointed out how a summary was partisan and linked to a biased source on HN. I forgot how consensual this place was. Forget the argument I was trying to make then]

"[Atari] thanks to their special relationship with Apple"

Of course. Apple is famous for how well it gets along with every other hardware- or software-making companies.

Atari claims the game is so nearly identical as to invoke copyright infringement. Atari is biased, but so is Vector Tanks' developer. I haven't seen the game, so I can't judge, but here is what one random review says:

"[...] Battlezone.

Yes, Atari's first-person, vector-based tank shooter all wrapped up in a wonderfully imposing up-right cabinet. Battlezone. I feel like it's part of my DNA.

And so does Retro Overlord Peter Hirschberg. This is why Battlezone is proudly represented in his amazing Luna City Arcade located in Northern Virginia.

Now, one would think that a man with such a magical cave of retro delight in which to daily dwell would be satisfied with the arcade goodness found within. But not Peter. Peter got greedy. He wanted the goodness of Battlezone in his pocket--with him at all times. What's more, he has attempted to one-up the legendary green-and-black tank shooter and inject a bit of modern vitality into the tried and true formula.

Well, there was no stopping him. Peter Hirschberg has just released Vector Tanks [App Store] for the iPhone and iPod touch through the iTunes App Store (published by Chillingo).

Vector Tanks feels like Battlezone 2.0. It's a first-person 3D tank shooter with a vector-based battlefield display akin to the classic we know so well, but [...]"

This is a review of Vector Tanks, in case you were confused by the 4 mentions of Battlezone.

Well, I would still have to see both games, but it doesn't seem as clear-cut to me as the title of this HN entry implies.

Well, the issue probably isn't as clear-cut as the title implies. Very little is clear-cut when it comes to copyright. This iOS game might or might not infringe, but nobody knows, not Atari, not the game writer, until a court gives a verdict, and the appeals settle. There aren't any real rules, just court judgements. This might qualify as fair use, or maybe even just "not infringing". The latter might be the case under a very strict "idea vs implementation" dichotomy.

This vagueness makes copyright claims into the ideal weapon for "rightsholders" like Atari. Copyright claims are also a bonanza for specialist lawyers, as they get paid either way the judgement turns out.

You are right. Life is easier for large companies. I was only focusing on what I perceived as a slight bias in the reporting (both summary and link to what is one side's presentation of the facts).

Put it differently: everyone is a rightsholder. Imagine an hypothetical HN story about a California-based indie developer who witnesses his iOS game ripped off and cloned to the point of consumer confusion by Chinese development workshops as soon as he has a little bit of success. I may assume that the HN consensus would be that Apple shouldn't force him to go to court before removing the offending copycats from the app store, and that Apple would not be removing them quickly enough.

Justice is not about rooting for the guy that most resembles you.

Personally I'd apply the same logic in that case: copyright covers specific expressions/implementations of an idea, not the idea itself. I agree with you that the law (or in this case vague approximations to the law as implemented by random and capricious App Store policies) should remain the same no matter who you apply it to.

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