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.
And so, for Mino, it’s game over.