Monday, January 14, 2013

Video Game and App Cloning Litigation Heats Up in 2013

The EA v. Zynga and Triple Town v. Yeti Town cases are ushering in a new wave of cutting edge copyright litigation in the games and apps space.  The video game space is notorious for copying or cloning of apps.  This has long been a criticism of Zynga - so much so that EA finally had enough and decided to test the limits of its copyrights in the expressive elements of Sims Social.

Copyright protects many things but it does not protect ideas or, in this instance, game concepts.  It may, however, protect the expression of certain game concepts such as character traits in Sims Social or the look and feel of the graphical interface of Triple Town.  Thus far, the Courts in both cases agree that EA and Triple Town have alleged legally sufficient claims.  The battle over expressive elements in video games and apps may go a long way to shaping the profitability of gaming intellectual property in the coming decade.  If app developers are granted expansive rights under the Copyright Act, licensing opportunities may exist or copyrights may be used offensively to keep competitors out of the lucrative apps marketplace.  Currently, this is common place with regard to patents where companies arm themselves with large portfolios of patents, often of dubious nature, in order to mount offensive attacks against competitors.  This has most famously been on display in the smart phone wars waged between Apple and its chief rival Samsung.

For these reasons, gaming infringement litigators will be paying close attention to the outcome of the EA and Triple Town app cloning lawsuits.

Monday, January 7, 2013

Scraping Lawsuits and Copyright Claims

Professor Eric Goldman had an interesting post recently recapping the growth of scraping lawsuits in the e-real estate industry.  Web scraping, in simplest terms, is the practice of harvesting data from a particular website.  Often, this data is copied and re-packaged on another website for the purpose of monetary gain - either through sales, clicks or links.

Real estate websites, as Goldman's post points out, are particularly susceptible to this practice.  Real estate internet listings usually consist  of photographs and text descriptions of the property.  Copyright law is the most obvious tool useful for protecting such information and prosecuting data scrapers.  Interesting analysis has appeared lately questioning whether or not the text descriptions of the properties contain enough creative expression to deserve protection under the Copyright Act.  Furthermore, scrapers may advance a broad defense under the Fair Use Doctrine.

Goldman points out, and I agree, that the photographic elements of such listings likely provide the strongest protection.  Photographs are generally unquestionably granted protection under the Copyright Act.  As such, multi-listing services should make sure not only to include photographs but to obtain proper ownership and submit copyright registrations.  Registrations entitle plaintiffs to statutory damages and attorney fees in the event of infringement.  This is important because often scraping infringements do not result in quantifiable or significant damages - rendering litigation an unprofitable option. 

Even if copyright infringement claims are not clear, there are usually a number of viable state law claims to combat scraping.  The most obvious is breach of contract - which can be accomplished by inserting a no scraping clause in a website's terms of service.  Some courts may have problem with assent if there is no affirmative click through agreement.  Secondly, depending on how scraping is accomplished (there are several methods), there may be claims under the CFAA for unauthorized server access.  Finally, many states, in particular, California, have unfair competition laws which offer broad protection for business practices deemed unfair.  As long as pecuniary damages can be shown or that the defendant profited from the scraping activity, such claims are likely to succeed. 

An experienced Internet copyright litigation attorney is able to advise both defendants and plaintiffs of their rights in web-scraping cases.