Do Your Own Damn Work

There seems to be some confusion among developers as to what constitutes legal “inspiration” and actual copyright violation. Although it’s expensive to enforce and not very cut and dry, the concept of “look and feel”copyright infringement in software was recently upheld in court:

Simply because a work’s functional aspects could not be protected by copyright as with a patent, it did not follow “that any and all expression related to a game rule or game function is unprotectable.” Because “almost all expressive elements of a game are related in some way to the rules and functions of gameplay,” Xio’s argument would create “an exception to copyright [that] would likely swallow any protection one could possibly have.” Discussing a number of cases addressing the separation of idea and expression going back to Baker v. Selden, 101 U.S. 99 (1879), and focusing on Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995), the court extracted the principle that expression had been held unprotectable where an idea or concept would have been useless without it. For example, the hierarchical menu structure at issue in Lotus was very basic, and the ways in which it could be expressed were so limited that the expression of the menu merged with the idea of it.



With an identification of unprotectable elements out of the way, the court turned to what was protectable, beginning by showing almost indistinguishable screenshots of the two games side by side. The court noted that “if one has to squint to find distinctions only at a granular level, then the works are likely to be substantially similar.” Further, the court pointed to numerous elements of the games that were difficult to distinguish, such as the shape, color, and look of game bricks, the pieces formed from the bricks, the way the game pieces could be fitted together in a complete line, the pieces’ movement and rotation, the precise size of the playing field, the behavior of the display upon certain events, and other specific design choices that Xio had copied. Xio’s defenses to the copyright infringement claim therefore failed as a matter of law.

Charles Bieneman

If “look and feel” were to be broadly interpreted by the courts, it would stifle software development in ways similar to the current software patent mess. But I’d argue that a strict interpretation, very carefully applied, is good for the software industry in that it discourages blatant rippoffs and encourages developers to do their own damn work.

This is a disgrace and illegal:





For a more nuanced take:

Great Developers Steal Ideas, Not Products
Everything is a Remix

david