NY Times issues DMCA takedowns of Wordle clones
github.com
github.com
Full notice is here: https://enterprise.githubsupport.com/attachments/token/cx6V4...
> We have given the owner a chance to remove all references to Wordle and alter his code to not infringe The Times’s copyright, but he has doubled down on knocking off The Times’s copyrighted content.
This is just false. The owner of the original Reactle repo (now deleted) was never contacted previously.
Isn't Wordle effectively just a game UX pattern? How is that copyrightable?
Obviously, borrowing art or design could be a copyright problem, but I have to suspect they're just blindly searching for "wordle" and sending takedowns to anything they see.
> (vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
As for justifying the claim of infringement, the sender only needs to claim good faith (512(c)(3)(A)(v)) [1]:
> (v)A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
The person whose upload was taken down can file a counter notification, but must dispute the takedown under penalty of perjury (512(g)(3)(C)) [1]:
> (C)A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
In Lenz v. Universal Music Corp. (2015), the Ninth Circuit decided that the copyright holder (or at least the sender of the DMCA notification) must consider whether the user's uploaded material is fair use before filing the notice, but the user's burden to disprove the copyright holder's claim of good faith remains exactly the same as before the Lenz case. From the case text [2]:
> To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion.
Or as the Harvard Law Review put it [3]:
> In short, the fair use determination does not have to be correct or reasonable; it just has to have happened. The court in Rossi held that the jury therefore had to determine if Universal’s actions sufficiently approximated a fair use analysis (even if not labeled as such) on which it could have formed a subjective good faith belief regarding fair use.
[1] https://www.law.cornell.edu/uscode/text/17/512
[2] https://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/1...
[3] https://harvardlawreview.org/print/vol-129/lenz-v-universal-...
I still have mixed feelings about this one. Because if let's say someone is learning web dev and thinks of building such clone and open sources it on GitHub, isn't that stopping people from learning?
Edit: Seems like the author does not want to fight NYT and hence disabled the repo. I think that's ok and I'll do the same (they also want all forks to be gone)
https://web.archive.org/web/20240306171920/https://github.co...
Treating it as a case study how to protect the rights. One might say that it is against freedom etc., but in my opinion this makes intellectual capital a value. E.g. I now believe it is worth to invest in innovations and so on. (It does not mean I will do it as I lack the will and resources.) When I was younger I didn't know how to protect my code and capitalise it, therefore this case resonates with me in such way.
And you comply. But you're not sad about it - in your opinion it makes intellectual capital a value. E.g. you now believe it is worth to wear a particular color of a particular apparel first and so on.
The problem: it was never stated by some kind of an authority, that the bully was right. He might as well have been wrong, and you granted his wish to remove your shoes simply on the basis of, to put it lightly, not being assertive enough.
Type of Work: Computer File
Registration Number / Date: PA0002342355 / 2022-03-28
Application Title: Wordle.
Title: Wordle.
Description: Electronic file (eService)
Notes: Videogame.
Copyright Claimant: The New York Times, Transfer: By written agreement.
Date of Creation: 2021
Date of Publication: 2021-06-20
Nation of First Publication: United States
Authorship on Application: Josh Wardle; Domicile: United States; Citizenship: United Kingdom. Authorship: computer program code and text of instructions.
Rights and Permissions: William Patterson, Swanson, Martin & Bell, 330 North Wabash Avenue, Suite 3300, Chicago, IL, 60611, wpatterson@smbtrials.com
Copyright Note: C.O. correspondence.
Names: Wardle, Josh New York Times
===============================================================================
The relevant part seems to be the mention of "React Wordle" as well as:
> The Times owns U.S. Copyright Reg. No. PA0002342355 in Wordle as an electronic file and computer file for a videogame. The Times’s Wordle copyright includes the unique elements of its immensely popular game, such as the 5x6 grid, green tiles to indicate correct guesses, yellow tiles to indicate the correct letter but the wrong place within the word, and the keyboard directly beneath the grid.
https://publicrecords.copyright.gov/detailed-record/33738321
I've not found the submitted documents though, only confirmation that it exists.
Yellow to indicate the partial correctness of a correct letter in the wrong position? Probably the most valid part by far of the notification. Still stupid though, since yellow in the green-yellow-red traffic light color trinity can mean "between completely good (green) and completely bad (red)". Is the clone's use of yellow merely copying of NY Times' expression? Or is it an agreement to follow a "yellow is half-good" cultural norm too/instead?
Having an on-screen keyboard directly below the grid? The merger doctrine protects copying of the positioning [1]:
> A broader but related concept is the merger doctrine. Some ideas can be expressed intelligibly only in one or a limited number of ways. The rules of a game provide an example.[14] In such cases the expression merges with the idea and is therefore not protected.[15]
...
> The merger doctrine has been applied to the user interface design of computer software, where similarity between icons used by two different programs is acceptable if only a very limited number of icons would be recognizable by users, such as an image looking like a page to represent a document.[17]
There are only so few ways to reasonably orient/position an on-screen keyboard relative to the rest of the game elements without confusing the user. Top, bottom, left, right. Some of those four are less reasonable on different screen dimensions. (Sanity check: you're not gonna gonna force everyone else to put the on-screen keyboard off-center, are you?) Check out the case of the banana taped to a wall for an analogous merger doctrine case about angles rather than positions [2].
The existence of an onscreen keyboard is a functional element, and functional elements are ideas. The idea–expression distinction makes ideas uncopyrightable. My knowledge of copyright is US-centric, but I think the following argument from the Europe Union would fly in the US [1]:
> As stated by the European Court of Justice in SAS Institute Inc. v World Programming Ltd., "to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development."[7]
An onscreen keyboard is more accessible to people without working physical keyboards (phone users? broken keys?) or who don't want to use a physical keyboard because of their own functional preferences (or personal challenges, which are obviously not the game developer's expression. think "no A button" challenges). Additionally, having the keyboard's colors match the board's colors reduces the cognitive burden on the user of remembering which letters can't be used when the user looks at the onscreen keyboard.
The 5 wide grid is an uncopyrightable game rule. 5 is the length of a valid word. Changing the width of the game significantly changes the validity of the player's options. More substantially, the merger doctrine (only a small number of reasonable, distinct options = not copyrightable) applies to word lengths.
The 6 height grid is an uncopyrightable rule. You get 6 chances. Fewer chances means harder game. A particular game difficulty should not be exclusive to one party and therefore should not be copyrightable.
References to Wordle are a trademark issue. Does nominative use [3] in trademark law allow people to say "my word game is based off of <existing word game's name>?" Not sure. But I doubt that the clones' uses of the name "Wordle" cause market-changing customer confusion about which games are and aren't affiliated with NY Times.
[1] https://en.wikipedia.org/wiki/Idea%E2%80%93expression_distin...
[2] https://www.techdirt.com/2023/06/20/court-finally-dismisses-...
Good point, and potentially a fatal flaw to my arguments. I don't know how to analyze the whole of Wordle without getting caught up in the parts. For what it's worth, I think that the whole of Wordle is only slightly thicker than the sum of the uncopyrightable parts. Wordle has no in-game story. There are no creative visual assets; a colored square with a letter in it is not creative. The game elements (the letters, the game board, and the on-screen keyboard) are so few in number as to have their positional and orientational arrangements be uncopyrightable according to the merger doctrine [1].
The way the game instructions and other game messages (when winning and when losing, for example) were written might be copyrightable (unless recipes are very similar [2]), but I don't think that the clones copied the wording of the Wordle game instructions or other game messages any more than would be permissible under the merger doctrine.
So what's left is color choices. Green for correct is a cultural norm and is uncreative. Black text on white and white text on black (or one particular dark grey, with the caveat that a change to a different shade of grey could be a creative choice) is uncreative. The rest of the color choices are individually creative to a degree, so the entire color scheme as a whole could be creative.
What matters is not the whole of the original Wordle but the whole of what each clone copies from the original Wordle. If a clone were to use a different colors to indicate incorrect letters and correct letters in the wrong positions, differently worded instructions (which likely already was the case), and different code files (which likely already was the case), then such a clone would not be a valid DMCA target. The whole of Wordle without the original colors, without the original instructions, and without the original files would fall under the merger doctrine. In practice, for most of these clones, I think that the only valid basis for the DMCA notices was that the clones copied Wordle's color scheme.
[1] https://en.wikipedia.org/wiki/Idea%E2%80%93expression_distin...
[2] https://en.wikipedia.org/wiki/Copyright#Limitations_and_exce...
If a clone makes the game board and the on-screen keyboard use the same colors for a functional purpose, such as helping the user be less likely to use an incorrect letter on accident, then there should be no copyright issue with the matching of the colors between the game board and the keyboard.
The only copyright issue should be with the actual colors. A clone should not use the same colors that NY Times used. A clone should've used a different color than yellow for "right letter, wrong position" and a different color than "darker grey" (in dark mode, not sure about light mode) for "wrong letter". (Green for for "right letter" should always be fair game.) Simultaneously, the clone should be allowed to make the clone's keyboard use the same colors that the clone's game board uses.
A lot of the elements of Wordle fall under at least one of the following uncopyrightable categories:
1. Accessibility and user input methods. Can you press keys on your actual keyboard? Can you use a mouse? Can you tap buttons on a screen? An on-screen keyboard is non-novel for mobile phones and provides extra accessibility for desktop computers. (Bennett Foddy's QWOP [1] game has a creative input combination, but with respect to accessibility the choice of obeying someone else's key bindings should be as valid as using different key bindings: copyright should not override accessibility. I also think that the merger doctrine applies to just about every user input method.)
2. Cultural norms. Green usually means something good in the US. In a game, correct is good.
3. Software norms or game norms (tech-related subsets of cultural norms). The on-screen keyboard should be centered in the top, bottom, left, or right of the game board. You wouldn't make the keyboard and the game board off-center, since that would be abnormal.
4. Efficiency. Centering the keyboard in the top, bottom, left, or right is a more efficient use of screen space than putting the keyboard at in the bottom-right corner of the game board.
5. Quality of life feature. The keys on the on-screen keyboard change color to match the colors of the submitted letters on the game board. My memory lapse when I context switch my eyeballs from the game board to the on-screen keyboard matters much less than if the on-screen keyboard were to stay one uniform color the entire time. Putting the same information in multiple places (correct letters vs incorrect letters, etc.) is just better in a way that shouldn't be exclusive behavior to the original Wordle.
6. Game difficulty determined by simple parameters. I can't quantify simple, but changing the number of chances in Wordle (the height of the board) will almost never be creative. In comparison, adding enemies to a platformer game level might be creative depending on where the enemies get added and what kinds of enemies get added.
7. Simple or obvious choice variations. I can't quantify simple or obvious, but surely NY Times can't have a monopoly over 5-letter Wordle-like games. You shouldn't have to change the number of letters to make a clone. The same applies to the shapes of the letter containers. Square corners vs. round corners is simple, and also falls under the merger doctrine [2] (relatively few choices => the idea of the choice merges with the expression of making a particular choice => making a particular choice is not copyrightable because of the idea–expression distinction).
What's left after taking away all of those? Not much. The way the game messages (instructions, win messages, lose messages, etc.) were written are creative, so I admit that clones shouldn't copy the wording. The choice of color for "right place, wrong position" is creative (insofar as my "yellow is [a culturally normed color meaning] half-good" is unconvincing), so clones shouldn't use yellow for the same meaning either. The code? I speculate that the FOSS clones didn't copy NYT's code. The word list? Thank goodness the US doesn't have database copyright [3] (skim Feist Publications, Inc., v. Rural Telephone Service Co. (1991) [4]).
Wordle is like Hangman. Yes, there is creativity in the way people draw the body parts of the to-be-hanged man, but most of the game elements are uncreative, should not be exclusive to anyone, are ideas rather than expression, and/or are expression too closely tied to ideas (merger doctrine).
[1] https://en.wikipedia.org/wiki/QWOP
[2] https://en.wikipedia.org/wiki/Idea%E2%80%93expression_distin...
[3] https://en.wikipedia.org/wiki/Database_right#United_States
[4] https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R....
And, I mean, it's really too bad it's archived... https://web.archive.org/web/20240306172335/https://github.co...