‘Only one thing is impossible for God: To find any sense in any copyright law on the planet.’
Update: Eric Martin has mentioned this post on BoardGameGeek News and this has generated are some interesting comments and reactions from fellow geeks. Do go check them out after you finish reading!
A couple of weeks ago a post by Yehuda Berlinger over at Purple Pawn caught my eye. It highlighted the recent legal move made by Catan GmbH to force Canadian developer Neil Isaac to remove his app ‘Island Settlers’ from the Android Market. Following an exchange of emails between the parties Neil complied, and so avoided further measures threatened by Catan’s lawyers. Yehuda’s commentary on Catan’s action was that it appeared to be ‘entirely bogus’, citing an article written by Michael Weinberg of the American digital rights advocacy group Public Knowledge.
In the article Michael analyses the case in light of US intellectual property law, and suggests that it was unlikely that Neil had genuinely violated Catan’s copyright, concluding that “…the email exchange between Catan and Neil is the worst kind of ignorant (let’s assume it was ignorance) legal bullying. It is full of patently incorrect or misleading statements of US law, punctuated by threats to pull the developer into court if he fails to submit. It is a shameful example of a company trying to control what the law does not allow it to control by relying on fear and an inability to afford to go to court.”
First, I have no axe to grind with either party and I, like Yehuda, am no lawyer. I am, however, very much interested in the new wave of digital board games being produced for Android and iOS devices, and so am simply curious about how intellectual property laws fashioned in simpler times are — or should be — applied to this new breed of board games.
Second, I am certainly no apologist for the bad behaviour of corporations. I haven’t seen the email exchanges between the developer and Catan’s German lawyers, so cannot speak of whether they are, as Michael somewhat militantly puts it, “ignorant legal bullying.” But there’s no excuse for bad manners; and, in the case of an indie app developer’s personal project, surely no need for them. However, no degree of legal heavy-handedness on the part of Catan GmbH forgives the developer his responsibilities when it comes to copyright law, so the manner in which Catan’s lawyers operated can hardly be part of the equation when attempting to determine right from wrong.
And third, and this is very important, I want to point out that there was absolutely no subterfuge or malice on the part of the developer. He didn’t pretend that his app was anything other than a faithful and direct implementation of ‘The Settlers of Catan’, and nor did he charge anyone to download it. ‘Island Settlers’ was a free app. As a fan of the board game he simply wanted to play it on his phone and so set out to write an app in his spare time which he then offered to other similarly equipped fans of the game. For free.
I hope I do not misrepresent anyone’s position when I say that the shared opinion of Neil, Michael and Yehuda appears to be “And there’s absolutely nothing wrong with any of that!”, while the view of Catan GmbH is “Oh yes there is!”
Well, to quote UK science pundit and defender of reason Ben Goldacre: “I think you’ll find it’s a bit more complicated than that.”
There are some obvious areas of intellectual property law that can easily be dismissed as irrelevant. Did Neil reproduce any of Catan’s original artwork or include facsimiles of any of their printed literature? No; hence he very obviously did not infringe on any of Catan’s mechanical copyright. Did Neil mis-use or otherwise violate any of Catan’s trademarks? Again, it seems not; their primary trademarks are for the word ‘Catan’ and the phrase ‘The Settlers of Catan’, not for the word ‘Settlers’ alone — and in any case ‘Island Settlers’ was a free app, and trademark law largely forgives any and all non-commercial use of protected marks. If you’re not selling anything, it’s difficult to breach trademark law — the clue’s in the name.
What about copyright protection of the game’s rules? Surely the developer must have breached that since ‘Island Settlers’ is played by exactly the same rules as ‘The Settlers of Catan’! Again, but perhaps surprisingly, the answer is no, since game rules — or, at least, the mechanistic concepts inherent within a set of game rules — cannot be protected by copyright. Why? Because copyright cannot protect ideas, be they the ideas behind a board game or those behind any other creative endeavour.
The central tenet of international copyright law is that it protects only the expression of ideas, not the ideas themselves. This is why, for example, Michael Baigent and Richard Leigh, the authors of ‘The Holy Blood and the Holy Grail’, failed in their high-profile attempt to sue Dan Brown for what they claimed was obvious infringement of their copyright in ‘The Da Vinci Code’. Dan Brown’s book undeniably borrowed multiple elements of its story from Baigent and Leigh’s book, but Dan Brown didn’t simply copy ‘The Holy Blood and the Holy Grail’ and re-publish it, he took specific ideas expressed within it and re-expressed them himself in a wholly different manner, within a work of fiction. No copyright lawyer in the world — indeed, no one with even a passing acquaintance with copyright law — could ever have believed Baigent and Leigh’s lawsuit had even the slightest chance of success. Not that they didn’t profit in the trying, of course; sales of their book sky-rocketed. A situation which, if somewhat obliquely, reminds me of parodic chat-show host Mrs Merton’s famous question to the lovely Debbie McGee: “So, what first attracted you to the millionaire Paul Daniels?”
Anyway, in addition to all the other things not done by Neil, I think we can also assume that he did not simply copy the words and spaces of Catan’s ruleset and reproduce them in his app. If he had, copyright infringement of the text would have been automatic, but also easily avoided. Neil could simply have pointed his users at the freely available rulesets on the Catan website.
So with all of that said — with all the ways in which Neil’s app did not infringe on Catan GmbH’s intellectual property clearly identified — what was the claim that Neil, Michael and Yehuda took exception to? Here we come to the core of Catan GmbH’s argument and to the weak spot, in my opinion, of Michael’s rebuttal. In his article Michael writes:
Catan’s lawyer … goes on to suggest that adding a story to the rules create a protectable ‘fable’ that will then extend to the rules of the game that derive from the fable.
Although this assertion is highly questionable as a general principle, in this case it is simply ridiculous. As far as I can tell the ‘fable’ in question is this:
Players are recent immigrants to the newly populated island of Catan. Expand your colony through the building of settlements, roads, and villages by harvesting commodities from the land around you. Trade sheep, lumber, bricks and grain for a settlement, bricks and wood for a road, or try to complete other combinations for more advanced buildings, services and specials.
I assume that this interpretation of Catan’s so-called ‘fable’ is taken from the emails sent by Catan’s lawyers, rather than being Michael’s own. Either way, Michael then goes on to make this key statement:
Everything beyond the first sentence simply describes the gameplay.
I suggest that this is simply false, and misunderstands what games are, how they are designed and played, and what it is about their individual narratives that distinguish them. Consider the quoted ‘fable’ again and look at the specific set of nouns and verbs that exist ‘beyond the first sentence’: colony, build, settlement, road, village, harvest, commodity, trade, sheep, lumber, brick, grain.
No author, no creator, can expect copyright to protect their individual words, but what copyright can protect — indeed, what copyright is designed to protect — is the order in which those words are put and the care with which they are chosen. Those words I just listed quite plainly do not ‘simply describe the gameplay’: they are part of a deliberately devised and constructed narrative, and are the true expression of the game designer’s creative will.
Helpfully, Michael then goes on to compound his error:
The first sentence “Players are recent immigrants to the newly populated island of Catan” is far from a wildly original piece of storytelling, and may not be able to be protected by copyright at all. Even if you could protect that one sentence with copyright, if that sentence allows Catan to protect its game then “Nations are at war, fighting to control the globe” would protect Go, Chess, Checkers, Risk, Connect Four, and just about any board game in the world.
Does anyone playing Checkers or Connect 4 imagine that they are ‘nations at wars, fighting to control the globe’? No, of course not. Not only does this new narrative patently fail to describe ‘just about any board game in the world’, it doesn’t even describe all of the examples Michael chose to illustrate his point.
The tone of Michael’s article suggests he believes this is another case of thuggish corporate behaviour in which the ‘little guy’ doesn’t stand a chance because his rights are being deliberately — maliciously, even — trampled by the overwhelming resources and black-hat legal tactics of some corporate behemoth. Klaus Teuber and Catan GmbH may be many things, but I think we can all agree that any such characterisation is misplaced. They design and license board games, after all. Board games.
But with all of that said, am I suggesting that the issue is necessarily black and white and wholly in Catan’s favour? No: I rather think that the matter of the copyright of Catan is — like the island itself — not so easily settled. But I do want to speak up for the rights of creators to defend and protect their creations, and to seek to legitimately profit from their work in whatever market they choose. I believe the law should be on the side of the writer, the artist, the designer, the artisan — and in this case I believe that it is.
For his part, the developer of ‘Island Settlers’ seems circumspect about the affair:
I’m sorry to let down those of you who have been following this project and have enjoyed playing it.
Thanks for all the feedback and support! This has been an amazing experience.
Moving forward, I have plenty of ideas. I’ve been chatting with the gSettlers developer, and we’re considering working together on an original game concept in the new year.
And you know what? That may sound crazy, but it might just work.