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Desiree Golden, a recent college graduate, wanted to aim at the
big money that can be made in app development. She decided to
replicate the popular "Tetris" videogame that has been
around since the late 1980s. After researching intellectual
property law, she says, she set out to copy only those elements of
the Tetris game that she believed were not protected by copyright
– game rules and functionality.
If this general strategy sounds familiar, perhaps you have read
our
recent post on the Oracle v. Google dispute over Google's
use of Oracle's Java technology in the Android operating
system. In that case, the court ruled that Google had done it
right, and that the rules and functionality of the Java technology
that Google copied were not subject to copyright.
But in Tetris Holding, LLC v. Xio Interactive, Inc.,
2012 U.S. Dist. LEXIS 74463 (D.N.J. May 30, 2012), Judge Freda
Wolfson ruled that Xio, Ms. Golden's development company, got
it wrong. By wholesale copying not only the rules and functionality
of the original Tetris game but also its copyrightable expression,
Xio's"Mino" app crossed the line into copyright
infringement.
The key to the ruling in Tetris Holding v. Xio is the
court's deconstruction of the elements of the Tetris game into
protectable and non-protectable elements. In doing so, Judge
Wolfson referenced the same universe of software copyright rulings
relied upon by Judge Alsup in Oracle v. Google.
Based upon these precedents, Xio argued in its moving papers
that: "where a feature of a videogame is dictated by
functional considerations, regardless of whether there may be a
number of different ways to implement that feature's
functionality, copyright does not protect that feature." Judge
Wolfson rejected that theory as incorrect as a matter of law and
logic:
"If an expressive feature is
dictated by functional considerations then there cannot be a number
of ways to implement it. Rather, one's original expression is
protected by copyright—even if that expression concerns
an idea, rule, function, or something similar—unless it
is so inseparable from the underlying idea that there are no or
very few other ways of expressing it."
The court also rejected Xio's argument that the Mino
game's visual elements fell under the doctrines of merger and
scenes a faire. The court pointed to testimony of Xio's own
expert, that, due to the fanciful nature of the game, there are an
almost unlimited number of ways to design the game's boards,
pieces, movement and rotation.
Summary judgment was granted in favor of Tetris on its copyright
infringement and trade dress claims.
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