Stupid Legal Tricks, Chapter 2

(Note: I am an attorney, but I may or may not be licensed in the jurisdiction of any particular reader. Nothing in this post constitutes legal advice. Consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.)

Gather ’round, everybody: it’s time for another episode of Stupid Legal Tricks!

Today, we’ll be learning about design patents. They’re like if a copyright and a utility patent had a Science Baby, then used trademark DNA to augment it. The whole thing is then engineered to reflect the worst parts of its parents and unleash horror on an unsuspecting world! (Editor’s Note: So, like Deus Ex: Invisible War?)

Okay maybe not quite that bad, but bad enough, and for indie game developers, potentially nearly that bad. The fact that even if you’ve heard of copyrights (you probably have) and patents (ditto) you may never have heard of design patents should tell you what one problem is. Even for esoteric intellectual property, design patents have, historically, been pretty obscure. So, what are they? I’m glad you asked.

Design patents are a type of patent which protects the ornamental design of articles of manufacture. That is, the underlying thing has to be an article of manufacture, but what you’re getting protection on is the appearance of it, not the thing itself. Clear?

No? Can’t blame you.

In a modern law context design patents are stupid. Or, at least, largely redundant. However, they’ve been part of the patent law for over a hundred years, and the idea actually has a sort of reasonable basis. Namely, to help bridge the gap between copyright and patent in days gone by. Back then, copyrights were a lot weaker, as was trademark law, and often neither could be extended to the form of useful articles at all. So the idea was that if somebody went to the trouble of making a nice ornamental design for a useful article, we’d give them some commercial protection for it.

What Is a Design Patent?

It’s probably closest, in pure concept, to a copyright. But the term is much shorter than that of a copyright (currently, fifteen years from date of issue,) and it’s far harder to infringe a design patent: unlike a copyright, there is no such thing as a derivative work of a design patent. Either the alleged infringing article is confusingly similar to the patented design, or it isn’t. If it isn’t, no infringement can occur.

That confusion must take place in the mind of a hypothetical reasonable consumer, which is where the trademark DNA gets switched on, because of the Big Three (copyright, utility patent, trademark) the only one where we care about confusion at all, let alone marketplace confusion, is with trademarks.

To round it all out, it’s like a utility patent in that it’s issued by the Patent Office, only a patent lawyer can apply for one (any lawyer can apply for a trademark or a copyright) and it’s much more expensive – hundreds of dollars in application fees, plus costs more like prosecuting a utility patent. And there’s no parallel development defense, such as one might see with a copyright. Nor is there a fair use or nominative defense, such as one might see with either copyright or trademark. Design patent infringement, like regular patent infringement, is pretty much a “strict liability” sort of thing. That means your intent is irrelevant for the most part. We might care when it comes to calculating extra sanctions like attorney’s fees or statutory damages, but not in determining whether you’re liable in the first place.

Here’s what a design patent looks like:

Design Patents and Video Games

As you may have guessed – You’re very clever, have I mentioned that? – I didn’t pick this example at random. This was one of the two patents, both design patents, at issue in P.S. PRODUCTS, INC. v. ACTIVISION BLIZZARD, INC. (E.D. Arkansas, February 21, 2014.) The design patent is for a physical stun gun which you can wear like brass knuckles. (Don’t, though, because it’s probably illegal.)

realgun

The real stun gun.

Activision made an allegedly similar virtual stun gun and put it in their game Call of Duty: Black Ops II. The court dismissed the suit and told P.S. Products, the owner of the design patents, the following:

  1. The stun gun in the game didn’t look enough like the one in the design patent claims:
    virtualgun

    The virtual stun gun.

    so there was probably no infringement, which was irrelevant because…

  2. This is a design patent for a real thing a person can wear and Activision is selling a video game, you morons.

No reasonable consumer would buy the game thinking they would get the patented product, so therefore it is impossible for an infringement to occur. Big win for the game community. (If this had gone the other way, the consequences could have been disastrous for game developers and other people who create artificial realities, and I am completely serious.)  This is just a District Court decision and who knows what a Federal Appeals court or the Supreme Court (*shudder*) might do, but it appears to be solid legally at this time. Bottom line: Design patents for real things can’t be infringed by virtual things.

But…

You can get a design patent for a virtual thing. Kinda. If you are into gizmos and gadgets at all, you may have heard that two obscure hardware companies called Apple and Samsung have spent the GDP of a medium-sized state suing each other over patents the past few years. What you may not know is that the patents in question, at least the ones that produced the significant-fraction-of-a-billion-dollars in judgments, were design patents. Here’s one:

That’s right, tens of millions in legal fees, hundreds of millions in damages, and at least one trip to the Supreme Court (so far) and this is about a graphical user interface. Every game designer reading this, if they’re paying attention, just felt a cold, cold wind on the back of their necks.

Because this now opens the door to patenting, not copyrighting, portions of a game’s interface. Or of any interface, and then claiming that a particular product – like, say, a video game – has a confusingly similar interface. Or significant element. Or who knows what? Nobody, that’s who.

Now What?

What can you, the well-meaning indie game developer, do about it?

In one sense, not a lot. For most indies, it’s prohibitively expensive to do a “freedom to operate” search for design patents. And without that, the risk is ultimately unknowable.

But in a practical sense, there are two things you can do that will help lower your odds of being accused of infringing. And this works sort of like being hit by lightning*. If you get hit by lightning, you are going to be in a world of hurt unless you do something completely ridiculous like walking around in a mobile Faraday cage; but to not get hit in the first place, you just need to not go where lightning is. You still might win (or lose?) the Lightning Lottery, like this poor bastard: https://en.wikipedia.org/wiki/Roy_Sullivan. But your odds will go way down.

Here are the two things:

  1. Don’t put confusingly similar copies of interfaces or significant game elements made by other people in your game. That’s the big one. Make. Your. Own. Stuff. The nice thing about this one is that it’s free. The bad thing about this one is you have nobody’s opinion but your own to go by.
  2. If you think your game might have a confusingly similar interface or significant game elements to another game, whether you meant to or not, ask a patent lawyer familiar with video games and design patents to look at your game and give you a general opinion. The bad thing about this one is it’s not free. The nice thing about this one is that it’s much more reliable than the first one. An “opinion of counsel” to lean on can sometimes help in arguing about certain kinds of damages and it’s always better than a sharp stick in the eye.

Patent lawyers can even provide “infringement opinions” on whether your game might infringe on any particular patent, which is much, much cheaper than a general “freedom to operate” opinion. There are lots of limitations in such opinions, but they are tremendously valuable, and much cheaper than defending even the simplest, lamest patent infringement case. Likewise, they can try to find out if there are any design patents on the game interface you *ahem* innocently and completely by accident made a near-perfect replica of. That’s harder, since there’s always a possibility of missing one or one issuing after you do your search (design patents, like utility patents, are secret until issued.) but it’s still doable.

Now that we’ve had our whirlwind tour of the world of design patents, I’ll let you in on why I bring this up in the first place.

The number of design patents being filed is increasing dramatically.

That Activision case is from 2014. The Apple/Samsung case was decided by the Supreme Court in December of 2016 (and is, technically, still ongoing as of this writing since the Supremes remanded it back down to the lower courts.) This area of the law, after decades of relative obscurity, has exploded onto the tech scene. And if there’s anything big companies like, it’s ways to keep smaller companies and independent developers from horning in on their territory. They’ve all seen the future, and it is design patents.

Speaking of, should you, the intrepid independent developer, consider filing design patents on your game elements? The answer, as always in law, is “it depends.” If you have the money, yes, you absolutely should think about it. Especially if you have come up with a new, nifty sort of interface for your game. If you don’t have the money – or if that money would be better spent making your game better – then you shouldn’t worry about it.

Also, if you don’t have the kind of budget it takes to enforce a design patent once you get one (Spoiler: Tens of thousands of dollars.) then realistically, there’s not much point in getting one unless you hope to sell your game to somebody with deeper pockets. Patents are a heck of a marketing feature, though, so if you are thinking along those lines, it might be worth your while to see if the budget can swing a patent application.

As always if you have questions, leave a comment here, email me or say hi on Twitter. Thanks for reading!


*Hat tip: Ryan Morrison, the Video Game Attorney, from whom I stole this metaphor before improving it dramatically.

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Pirate Pop Plus

Yarr, Pirate Pop Plus is an odd little game. You play as young salty dog, Pete Jr., who discovers his mates have been abducted by the notorious Bubble Pirate. Not that you go on a quest or anything, there be no treasure to claim, no wench to swoon. Pirate Pop Plus doesn’t give One-eyed Bill’s bollocks about being an epic tale, it just wants to be arcade-y and cute.

Yer primary means of defense is hefting that there giant anchor into the air, which pops the bubbles spawned by Bubble Pirate. Have the misfortune of bouncing into the bubbles enough times, and you walk the plank. Pop ’em, and you may earn enough points to unlock extras, as well as a handful of power-ups. Plus with his scientific sorcery of “magnets”, the Bubble Pirate changes the gravity on you every so often. This honestly works more to your benefit though, because you can goombastomp any bubbles into sea water.

Gameplay itself is slow enough at first to get a handle on, but is devilishly quick to turn the tables on you like that lying cheat Captain Kidd when playing cards! Game Over comes upon you fast as a demon if you aren’t careful, but it’s a satisfying chase to play in quick bursts. Chaining a high combo with your anchor requires genuine restraint and skill. Tis’ worthy of note, this little scallywag of a game.

In a rare show of a developer actually understanding what the term means, your power-ups give you a genuine edge rather just making you mildly more competent than a bilge rat. One anchor creates permanent lines that only vanish after a bubble collides, letting you box them in. Another power-up gives you a semi-automatic pair of cannons that can fire off shots rapidly. It all works rather nicely, and is very pleasant to pop out  when you’re waiting like a landlubber at a cafe or sailing in the passenger seat of a car. (Editor’s Note: Bear with me here, it’s so rare I get to make pirate jokes AND puns in one review.)

Ye’ see, the main issue with Pirate Pop Plus is not that it’s bad, just that it’s not really the sort of game you play at home on a console or at your PC. It’s something you’re going to play when you’re waiting on your latest video to upload on YouTube or when a bigger game is installing. I can totally see this working on a handheld, but even with a number of extras, it’s a hard sell for bigger platforms.

If you do dig into it, Pirate Pop Plus has four playable characters with different stats for health, fire rate, etc. in addition to the ability to fully customize your visual and auditory experience. Taking a note from nightmarish descent simulator Downwell, you can change the backlight color of the virtual handheld you play the game on. Going a step further, you can also customize the music, the buttons, the front plate, and even stickers to display proudly on the fictional handheld. It’s interesting, and a nice reward for people who dig it, but won’t do much for those who aren’t.

Whatchya see is whatchya get, for better or worse.

Pirate Pop Plus is the sort of title you’d typically expect available for free on the app store. It’s got simple yet deep gameplay, a cute pixel art aesthetic, and a strong emphasis on quick play sessions. It’s definitely an odd game to release at a premium price point, but it does offer a unique argument.

There are critics of mobile apps who insist they’d rather pay a few bucks for an experience like this rather than have their game nickle and dime them to unlock things quickly. Well, here you go! Pirate Pop Plus is happy to oblige you on three platforms. Not only does it offer a satisfying core experience, it has a lot of cute little extras for those who really get hooked. Just know these are shallow waters if you’re hoping for a truly deep experience.

Pirate Pop Plus was developed by dadako

Point of Sale: Steam,eShop (3DS), eShop (Wii-U)

$4.99; Your mileage will vary heavily based on your feelings on repetition.

A commercial copy of Pirate Pop Plus was received by Elijah via a Twitter giveaway that he used for this review.

Elijah has awarded Pirate Pop Plus the Indie Gamer Team Seal of Approval.

 

Elijah would like to note he got through this review without making a parrot joke, matey.

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What’s the Deal With Steam Trading Cards?

So what’s the deal with Steam Trading Cards?

Steam Trading Cards are becoming everything wrong with Steam and Valve as a whole these days.

…?

Oh, you were serious? Since launching in 2005, Valve, Steam’s development company, have been making a lot of changes to try encouraging their community to interact with each other, all while spending more money.  Steam’s trading card system is the accumulation of these attempts to create a community-driven storefront for games. Basically the trading card system is a meta-game people engage in to fill their wallets, up their ego, or sometimes to support their favorite developers.

The premise of the system is fairly straightforward – There are thousands of games on Steam, and many of them support trading cards. Each one that does comes with a set of digital/imaginary cards that might unlock for the player while that game is being played. The goal is to complete sets of these cards to unlock a badge on their account’s profile page, visible for all to see and appreciate.

Players can’t just immediately unlock badges after playing their game. Each account can only receive roughly half the number of cards for each game’s badge requirement, leading us to the community market to find the rest. Participants intending to craft a badge can buy the rest of their set from other players, usually for about ten cents per card.

So I can sell my extra cards to other players for Steam credit? Sounds great!

It does, doesn’t it? Steam implemented this system with the pitch that gamers could wear badges of support on their profiles for their favorite developers. While I don’t have specific numbers, I imagine that’s how most Steam users interact with trading cards. It really is a great idea – developers and Valve both get a cut of whatever you sell your cards for. Some people can have a fun economic activity that doesn’t involve internet spaceships, and people have a small source of Steam credit to buy games.

But why do people want so many badges?

After crafting a badge for a game, the player will unlock an emoticon that can be used in Steam chats and forums, a background for their profile page, a game coupon, and one hundred experience points. Earning experience points will level a player up, and after ten levels new content can be displayed on their profiles. People who have invested in the trading card scene will often use their upgraded Steam pages as portfolios for their trading activities, by linking to sites like SteamRep and SteamTrades. Some people are so deep into the trading card world their badge levels are in triple digits.

How do people get to that point?

Have you noticed all those bundle sites that sell half a dozen games for like, a dollar? People will buy those cheap games and farm the trading cards from them. They’ll do this using Steam farming tools like Steam Achievement Manager, or most popular, Archi’s Steam Farm. The latter actually allows players to plug their Steam account into a program that will trick Valve into thinking the eligible games are running in order to unlock cards.

Steam has frankly spent a strange amount of energy on how they limit the usage of these sorts of tools. We can obviously assume that Valve wants us to be spending money on trading cards – they do get their cut after all. Things get tricky once players start farming on secondary accounts created specifically for farming though. With limits on how many trades you can make, especially in the first few months of your account’s creation, it seems like Valve doesn’t want players to be buying extra copies of games just to farm them.

Though to be fair, this may be partly because of their efforts to stop scammers who take advantage of the lucrative loot drops in games like Counter Strike Global Offensive and Dota 2. One thing Valve has made clear is that farming games that use their anti cheat system VAC, will earn you negative marks on your VAC account.

It sounds like trading cards are a niche community that’s only effect is profit to developers and Valve. So what’s the problem?

The trading card system does look great on paper. But as you give people a means of profit, you also give them motive to cheat and scam the system. Valve recently published a statement, claiming that a growing number of developers were releasing raw or unfinished games with trading card support, in effort to farm and profit from these half-games and the trading card community. This is done through a series of sketchy business practices that really epitomize what sort of place Steam has become.

For example, a publisher of these fake games might promise keys for their games to people in exchange for a vote on Steam’s Greenlight game submission platform. The publisher will put their cheaply made game on Steam with trading card support with literally no attempts to sell the game. Then they will put the game in a game bundle for a crazy cheap price with a dozen other games. People interested in making a small amount of easy Steam credit will subsequently farm those games and sell them to people who want to craft them into badges, or convert them to gems that can be used to craft specific cards. The gems can be sold, of course, so there’s a decent profit to be made all around from the fake publisher.

In the recent blog post Valve made on the trading card situation, Valve also accused these kinda-publishers of making hundreds of accounts and farming their own cards for themselves. This is, of course, entirely possible with how lightweight ASF is. Valve announced plans to implement a system that will help stop these scammers, by adding a system that will decide if a game is popular enough to be eligible for trading cards, despite a developer adding support for the now common function. This is problematic for a number of reasons.

It seems Valve want to do the minimal amount of work possible on Steam, always encouraging their users to create content. This is understandable given the massive growth the storefront has undergone since its launch in 2004. However,I doubt anyone will be happy with this solution. People have been criticizing Steam for allowing too many games to be on Steam, or that it’s too restrictive to small or newer game developers. This decision fails to appease either side, seemingly saying both “We don’t care what you add to the store,” and “You need to be successful before you can be successful,” all while screwing over indie games with small player bases.

The reasoning for Valve’s announcement makes some sense; these card farmers must certainly affect the metric for if a game’s popular. If forty-eight of fifty people playing Bad Rats are letting it run idle for trading cards, it must be hard to figure out if it’s recommendable to players. Valve needs to figure out an alternate solution to this issue, or at least communicate with their community on ways to solve it.

It really would be a bummer if this weird and obsessive and cool community of trading card people was to fracture because less popular game developers had no incentive to even add support for the feature.

Sam Adonis is passionate about a number of things, including MMO’s, Theodore Roosevelt, indie games and disability advocacy. You can find him on Twitter at IndieSamAdonis

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The Franz Kafka Videogame

It’s been ages since I’ve played a good puzzle game. I had hopes that The Franz Kafka Videogame would break this trend, but instead, it left me disinterested and annoyed. Developed by one man (Dennis Galanin), it manages to both be a beautiful, whimsical journey and completely insubstantial. Every time the game would start to pull me in, it would turn about face and proceed down an irritating or dull path. I kept waiting for things to stay good, and sadly, they never do with The Franz Kafka Videogame.

Can we all agree “The Franz Kafka Videogame” is a serious mouthful? What is it with developers having to make the most awkward, long winded names possible?

The Franz Kafka Videogame, in essence, is a mixture of Myst, an interactive piece of literature, and a moving piece of art. This works great for its visuals and sound design. The charming art aesthetic and softly whispering audio design brings to mind a children’s book, but don’t let that deceive you. If anything, The Franz Kafka Videogame is built for adults who enjoy extremely esoteric puzzles. Except, even then, you aren’t going to get what you want.

Difficulty can be hard to gauge with a puzzle game, and it’s clear that was the case here. The difficulty curve in The Franz Kafka Videogame is about as sporadic as a cantankerous car that backfires every time you take a left turn. One sequence almost plays itself, outside of a timing-based mini-puzzle within. Another gives you a circle of alchemist symbols around a circle as a hint for how to solve a slide-puzzle. Then there’s one with a train that I literally beat while simply testing the various mechanisms to make sense of it.

I solved this by randomly pressing switches. I guess years of playing Lionel’s Train Town as a kid paid off!

This is just how The Franz Kafka Videogame rolls. As the protagonist K. points out, a lot of what’s going on is rather absurd. While there’s an obvious reason for some of the more unusual and sometimes downright nihilistic moments, that doesn’t make the game’s inconsistencies any more bearable.

I’m all for message through mechanics, but the deep metaphors being thrown around also came off as either blatantly obvious or vague as possible. There’s no middle ground here, no fine balance. I’d love to be challenged to reassess a puzzle, but this is less Portal and more The Witness. Rules and themes across the game’s acts change on a whim, and even the game’s story is indifferent to your frustrations.

What broke my patience with the game though, was a puzzle that literally involves a false game crash. I was at the end of Act 3, and I finally had neared my goal of seeing the entire game through. Then the in-game level went all green and pink and I just… I have better uses of my time than this. This game is so pretentiously in love with itself that clearing Act 2 gets you the achievement “Competent”.

Competent. Really The Franz Kafka Videogame? You want to start talking down to me? Even though most of what you convey through your puzzles and writing is basic existentialism, nihilism, or just outright absurdism for the sake of absurdism? Even though you can’t stay on a single train of thought for longer than two puzzles? Even though some of your puzzles are actually so simple that randomly pressing buttons elicits the solution in moments?  Even though some of your other puzzles are so opaque that your final hints are literally just the solutions to the puzzles?

Which is, itself, a very interesting thing. I mean, is this to indicate that the real focus of the game is its underwhelming yet fantastical story? Is it about conveying Kafka’s philosophy to the player? I have to wonder, because the achievements and gameplay suggest it’s all about the puzzles and making players think as abstractly as possible. What is the goal here? What is the point?

Someone get me off this crazy train…

The entire storyline itself starts at a fairly understandable beginning, K. is a hypnotist therapist treating patients but not making ends meet in order to afford a wedding for his fiance. Except, then The Franz Kafka Videogame throws science fiction and fantasy in faster than a blink of an eye. Astronauts with rayguns making job offers, Slender Man and Daffy Duck’s lovechild maintaining an airship – it gets really bloody weird. Sometimes this serves a point, but other times it just sort of feels like random ideas were tossed in.

There were individual moments that were clever and enjoyable quirky, like having to do paperwork opposite a man in a diving suit or using a newborn eagle to tuck a cow out of the way of a train, and yet I never really got much from the narrative. Which is really weird, because I’m the sort of guy who digs Walden and Herodotus’ Histories. Books rambling about philosophy, human nature, and the point of life are my bag. So why does The Franz Kafka Videogame leave me feeling like I learned nothing? It nails a Monty Python level of silliness with its humor, but that’s all. Either I misread things, or the subtext is as buried as some of the harder puzzle solutions.

This is why people like Bugs Bunny better than you, Daffy Jr.

The one thing I can thank The Franz Kafka Videogame for is that it does make me want to play puzzle games again. That yearning for brain teasers is back, and I cannot thank its developer enough for that. However, with this game in question, I’m done. I am so done. There’s a level of art house gaming I’ll abide if you’re going somewhere interesting, but The Franz Kafka Videogame pushes its luck too bloody far. If there’s a marvelous revelation at the end of K.’s story, it certainly didn’t feel worth it to find out. Perhaps that was the developer’s aim. “Loneliness brings nothing but pain”? Well, you certainly nailed that part at least.

The Franz Kafka Videogame was developed by Dennis Galanin

Point of Sale: Steam,

$9.99; Two hours of philosophy and inconsistent execution. There are film rentals that will give you the same experience for less.

A review copy of The Franz Kafka Videogame was supplied in this review.

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