Cloning is Ok? Absolutely!

GameSetWatch reposted an article by Dr. Colin Anderson of Denki, creator of Denki Blocks. The article appeared on Gamasutra first. Opinion: Denki’s Anderson On Why Casual Game Cloning Makes Sense argues exactly the opposite of what many indie developers would claim: that allowing games to be legally cloned actually fosters innovation and is good for the industry.

And after reading his arguments, I agree.

I have yet to publish my own game, so if you think that my opinion doesn’t matter, then feel free to ignore the rest of this post. Considering that I will be publishing a game (hopefully soon) and probably many more afterwards, I am planning on entering a business environment in which you may already sit. I also know that I am not alone in thinking this way.

Anyway, I want you to think back to 2000 when Hasbro was going crazy with lawsuits. GameDev.net had posted news item after news item about lawsuits by Hasbro against game developers. Diana Gruber wrote an article titled Why the Hasbro Lawsuit Should Terrify Game Developers And what we can do about it. It’s a short read, but a good one. Unfortunately the news item it links to is down, but good ol’ Archive.org saves us again.

Filed this morning at the US District Court in Boston, MA, the complaint seeks to require the defendants to cease production and distribution of, and to recall and destroy, the following games: Intergalactic Exterminator, 3D Astro Blaster, TetriMania, TetriMania Master, 3D Maze Man, Tunnel Blaster, UnderWorld, XTRIS, Patriot Command, HemiRoids, Bricklayer, 3D TetriMadness, Mac-Man, 3D Munch Man and 3D Munch Man II. Hasbro Interactive is also seeking damages.

So Hasbro, having obtained the rights to a number of classic games from Atari, decided to protect their copyrights. No biggie, right? How dare companies try to make games based off of Pac-man, Tetris, and other licensed properties. “Consumers should be aware that the companies named in this suit are making games based on properties they don’t own or control.”

What was the first game you created? Was it a clone of Tetris? Pac-man? Space Invaders? It was a learning experience, right? Did you know that it was copyright infringement? Did you know that even if you didn’t try to sell it like the defendants in the lawsuit, who were definitely making games for commercial gain, that you were still committing copyright infringement? If you need a refresher course on copyright (and considering how complicated it is, who doesn’t?), you can read through my article on copyright law and come back to this article. Now think about how copyright law, if enforced the way Hasbro wanted it enforced, would harm the game industry in terms of educating new developers.

When someone learns how to paint, they usually start with still lives of fruit in bowls. Writers learn how to write doing standard creative writing assignments. Musicians play standard pieces of music. Most everyone in the game industry understands that new game developers will need to work with simple, basic games before moving up to more complicated, original games. Almost everyone suggests that you start out by trying to make Tetris, Pong, or some similarly simple and classic game.

I remember reading the news about Hasbro’s lawsuits and becoming afraid. I made a Pac-man clone once. Will Hasbro come after me next? Maybe I shouldn’t work in the games industry if I don’t have the means to defend myself against a lawsuit.

If Hasbro had its way, the game industry would be made up of a handful of unique games, games in which there isn’t any overlap in gameplay and mechanics…or an industry in which only the owner of existing works can innovate off of those works. Imagine Capcom needing to license the rights to a side-scrolling platformer from Nintendo. Would MegaMan have been made?

Frankly, we don’t need any companies like Hasbro suing developers for copyright infringement simply because their games have the same game mechanics. Musicians don’t sue other musicians for making use of the same chords. Software patents are scary enough. Learning about those made me once again think that I should get out of the game industry. Software patents CAN and HAVE been used to legally prevent games with similar play mechanics from being made or published. Patent lawsuits, however, are expensive, and so they aren’t nearly as scary. Microsoft or IBM might sue someone for patent infringement, but it is unlikely that they will use their patents against indie game developers.

However, more than a few indie game developers hate clones enough that I can see them owning patents on their own games simply so that they can sue a supposed infringer to next Tuesday. Again, patent lawsuits are expensive, so they’ll need to be careful.

Another reason why I think that the ability to clone games isn’t a bad thing: I think copyright lasts too long. Again, see my copyright article. The life of the author plus 70 years? Do you know how many generations of video game consoles you’ll go through before someone can make a derivative work on an existing game? Being able to innovate based on existing games today means we’ll see more innovative games, and sooner.

And yes, that’s right. I think the ability to clone games will lead to innovation. Does it sound contradictory? How can cloning a game lead to innovative gameplay? Wouldn’t everyone be copying everyone else, leading to stagnation? Of course not! If you were making games, would you rather create another me-too product on the Internet shelf space, or would you try to create something that stood out and has a better opportunity of being noticed by customers? And if you’re worried about others cloning your game and stealing any potential sales, you’ll notice that Bejeweled isn’t suffering from having millions of clones available. Everyone knows Bejeweled. No one really knows the name of any of its clones.

If the judgement had gone the other way and the judges had decided that ideas could not be copied, then we’d be in trouble. The floodgates would have been opened for developers, publishers and patent trolls would end up mired in endless lawsuits, fighting over who created what first and what core mechanics, controls or ideas are at the heart of their games.

Instead we can all go out and innovate, polish and create, without having to worry that someone will land a lawsuit on us for using blocks, bricks, colours, tiles, or a similar control method to an existing title.

The comments following the article seem to indicate that people believe innovation will die simply because it is now easier to copy someone else’s successful work. And then there was the developer of Jewel Quest:

Without allowing for clones, the genre may not have had the fertile ground to produced a Puzzle Quest. I think the ruling was the correct decision despite the fact that I personally would never want to make a straight clone of another game and strongly dislike others that do.

Jewel Quest wasn’t simply a clone of Bejeweled, although it may look like it. It uses similar mechanics, but then, my car uses similar mechanics found in other cars. No one will claim that my Ford Contour is a clone of a Mustang or a Ferrari. There is plenty of room for innovation without having to fight over simple game mechanics.

Cloning will be a problem for some individuals, as it always has, but others will find ways to prosper BECAUSE they can innovate off of what came before. I don’t think a single company should be in charge of platformers, but if the ruling went the other way, that situation would be exactly what would happen. I’m sure a lot of people will whine about these rulings, but if they want to succeed, they’ll have to deal with reality. You can’t expect to do well by cloning someone else’s success. Legally barring someone from doing so is silly and dangerous because it adds unnecessary barriers to entry for people doing things slightly (yet significantly) differently from existing games. Imagine if your Sims-with-a-twist or Space Invaders-with-better-AI would land you in court simply because they were similar enough that the owner of the original game could bring about a lawsuit.

Now look back on the history of video games and tell me what it would look like if cloning was completely banned.