36-Hour Lemmings Port Gets Sony Cease and Desist 268
Zerocool3001 writes "The recently featured 36-hour port of the original Palm version of Lemmings to the iPhone and Palm Pre has received a cease and desist letter from Sony. Only one day after submitting the app for approval on the two app stores, the developer has put up a post stating that he 'did this as a tribute to the game — we can only hope that Sony actually does a conversion for platforms like iPhone and Palm Pre in the near future.' The text of the cease and desist letter is available from the developer's website."
Lemmings (Score:4, Insightful)
Sony still sells Lemmings across various platforms. He had to see this coming.
Besides directly calling it Lemmings was even more stupid move. Sony has to defend the Lemmings name too, and if the port is low quality it hurts the whole Lemmings brand.
So what did he expect.. ? (Score:1, Insightful)
You create a copy of a game and release it via official platforms, and now you find it strange that the right holder objects ?
Let me create a iPhone version of the original Mario Brothers (even older then Lemmings) and see what Nintendo does..
Re:"Lemmings is a common word" (Score:5, Insightful)
No, their claim rests on the fact that they published the Lemmings games, or licenced out the ability to publish them, and this is a port of one such licenced product. The trademark is within that context of video games. Even if they couldn't trademark it within that narrow context, that still leaves the first part of "he's created a port of a licenced product." The trademark infringement is a separate part of it.
Re:May I be the first to say: (Score:4, Insightful)
Re:May I be the first to say: (Score:3, Insightful)
Re:Hands Up (Score:3, Insightful)
He used the trademarked name and copyrighted graphics. He wanted to sell it in official app stores. What else was going to happen?
As much as I dislike Sony for this step, I have no pity for the developer. Fan games are dead. Don't touch them or you will get sued and your time and effort will be wasted.
There's a similar story every other month on slashdot. By now it should be common knowledge that you don't talk about IP of big corps and don't try to generate free publicity for them. Just don't.
Re:May I be the first to say: (Score:3, Insightful)
Re:So what did he expect.. ? (Score:5, Insightful)
Much as I welcome any opportunity to highlight what a generally crappy corporation Sony is, and how little regard it has for its customers, I have to say there can't be anyone who didn't see this coming. But then if the point of the process was to get a little self promotion going then he's achieved that, he can comply with the cease and desist and for the sake of 36 hours of his time he's got the kind of publicity big companies pay big agencies big monies to attract, so depending on his motivation, maybe he fully expected this outcome but for him it's still a win.
And of course, once the code is in the wild it pretty much doesn't matter that it's removed from the original source, Sony's lawyers might be busy playing Whac-a-mole for years to come.
Re:"Lemmings is a common word" (Score:5, Insightful)
Not if you then try and sell it to a shit load of people in a shop, no.
Re:May I be the first to say: (Score:2, Insightful)
I was really looking forward to playing this port. Up yours Sony!
Re:"Lemmings is a common word" (Score:5, Insightful)
Perhaps for your own use and enjoyment, but making a port (copy of original gameplay) and then putting it in apps-stores? how is that not a trademark/copyright violation? If sony owns the rights to lemmings, they alone should be allowed to port it to the iphone for common distribution.
Now i realize in this case it kind of sucks since the intrepid geeky developer acting alone and (at least partially) out of passion and fanaticism for games/programming gets beaten back by the big soul-sucking mega-corp, but this works both ways, these laws also prevent sony from taken this guys' original games and shamelessly putting them on the PSP without paying him.
From a geek/nerd point of view, the whole '36 hours to port to several platforms' action was cool and all, but in all other aspects, pretty stupid, especially if the guy knew he was gonna violate sony's rights
Re:May I be the first to say: (Score:4, Insightful)
Yeah, exactly. We issue them with monopoly powers, so they can continue to enrich our culture. What do they do? They sit on them, let them stagnate, and when somebody actually does act in the interest of the public, and makes them available on platforms the original provider has never supported nor, it seems, ever intends to, they shut him down.
So yes, screw Sony. They obtained their "intellectual property" under false pretences, and are now using it for the exact opposite of what it was intended for.
Re:May I be the first to say: (Score:3, Insightful)
They said they'd give him 48 hours or they'd sue. How is that nice? They didn't mention that they understood he was not benefitting commercially, they didn't offer to negotiate in order to allow distribution under their auspirces, it was a completely stock-standard C&D. The only way it could have been less "nice" was if they announced they were starting legal action against him immediately.
Do what we say, or we sue. You have 48 hours.
Re:May I be the first to say: (Score:5, Insightful)
And this is why modern copyright is a complete failure. It is used today not as a tool to enrich both the copyright holder and the public through dissemination of ideas, but as a lock and key to prevent anyone else from using it by very intentionally not disseminating said idea..
Re:May I be the first to say: (Score:5, Insightful)
The port also seemed to include a lot of the original artwork, which they definitely do have copyright on. This is much nicer than Sony needed to be - in the US they could claim massive statutory penalties for distributing the game knowing that it contained copyrighted materials that he did not have a license for.
Of course, now that he has complied, the best thing for Sony to do is offer to buy the code from him. He's demonstrated that there's a market for Lemmings on various mobile platforms and already done the hard work of making the code work on them. It would also give Sony some great PR, and they could treat the existing downloads as a promotional offer.
Re:"Lemmings is a common word" (Score:5, Insightful)
Also...seriously...how often do you use "lemmings" in everyday conversation? I honestly can't remember the last time I used it in the context of referring to the animal, or in the context of describing herd mentality. (Sheep fit much better once you know the truth about lemmings). In fact the last time I even heard the word "lemming" (outside of the context of the video-game) was on the show QI [wikipedia.org].
What I find most amusing is that he states:
DISCLAIMER: "iPhone" and "iPod Touch" are registered trademarks of Apple, Inc.
as if Apple are going to try and sue him for mentioning their products, yet all the while he flagrantly copies/reproduces SCEE's IP.
Re:"Lemmings is a common word" (Score:1, Insightful)
And even if you strike down trademark on the common word "Lemmings" (very doable if expensive),
Heh. Don't be so sure about that - the fact that something is a common word doesn't mean it can't be a trademark, too. Or why do you think we've still got things like Windows and Apple computers?
Truth is that a trademark, barring things like the registrant letting it fall into disuse etc., confusing similitary with an existing mark etc., can only be invalidated if it's already a common term in the field you're applying for the trademark in. So if you've developed a new car with improved steering, you can't call that "Steering Wheel(tm) technology" and then go after everyone else who uses the term "steering wheel", but that's only because the term "steering wheel" is already commonly used in the field.
"Lemmings" is not a term that is commonly used in the field of computer games, so it's a solid mark. Don't count on being able to get it invalidated, even with enough money.
Like Doom for Amiga - you still had to purchase the PC original for the .WAD file - actual content of the game, while the (platform-specific) game engine was purely 3rd party without ID Software involvement or license.
Actually, all Amiga DOOM ports were (ultimately) based on id's engine, which was released as open source in 1997 and re-released under the GPL in 1999.
This was intentional on id's part, too: they *wanted* people to port the engine and keep it up to date so that they could continue selling the actual game (i.e., the WADs). Sony could arguably do something similar, but the choice is up to them: even if it'd make good business sense, you can't force them to.
Re:my point of view (developer) (Score:4, Insightful)
Oh, and the original, copyrighted, artwork...
Re:Hands Up (Score:1, Insightful)
http://www.youtube.com/watch?v=sgzeqwhNTDk [youtube.com]
"This video contains content from EMI. It is no longer available in your country."
Fucking GEMA motherfuckers, fuck.
Re:Hands Up (Score:4, Insightful)
I'm willing to bet that doing what he did is extremely clearly illegal in every Scandinavian country. He used original artwork, apparently copied the game mechanics to a T and even used the same name.
The "port theory" falls flat when you think of a situation where apps are used as differentiators between platforms: What if iPhone had been hugely succesful because they included Lemmings with their OS -- would it have been ok for Palm to rip them off and do the same thing?
This isn't about "corporate America", it's about copyright and trademark law as it is applied pretty much everywhere in the world. Could you (or the people who think you are Insightful) please explain how this could be legal in Scandinavia?
Re:May I be the first to say: (Score:5, Insightful)
The popularity of the game led to development of numerous ports to other systems, including most recently ports to the PlayStation Portable, PlayStation 2, and PlayStation 3 in 2006 and 2007, and the creation of several sequels.
Source: Wikipedia [wikipedia.org]
How do you or Mobile1UP know that Sony wasn't planning on porting Lemmings to iPhone/iPad/Android? Firstly, you don't. Secondly, it's irrelevant! It's not a condition of copyright, patent or trademark law that you have to make your work available on all platforms past, present and future. The intended purpose of patent and copyright systems is indeed to provide incentive to produce, and therefore advance the state of the art, or enrich culture. However, Lemmings on the Amiga did that. Job done. They (now Sony) have copyright in the original game. That's what they get for developing the game (or rather..buying the developer of the game).
Besides which...you can buy a Lemmings game on a current generation console! How is that letting the property stagnate? And how in the name of Zeus' butthole did you get modded insightful? To have the bare-faced cheek to rip off a game, which, with the exception of a single-screen disclaimer that it's not authorised by SCEE, is indistinguishable from the original Lemmings, and then to try and distribute it through the Apple App-Store is possibly the most retarded thing I've ever seen since Sony tried to install rootkits on their customer's machines. We all love to support "the little guy" against "evil corporations" but this was the single most obvious outcome since that guy [darwinawards.com] tried to play Russian Roulette with a semi-automatic pistol.
Nothing is stopping Mobile1UP from making their own version of a "Lemmings" game [wikipedia.org], with their own graphics resources/levels and their own music etc. Do you think they'd be happy if someone came along and made such an exact copy of one of their original games [mobile1up.com] and started distributing it through the App-Store?
Re:my point of view (developer) (Score:5, Insightful)
Word to the wise: your first words to SCEE should be "Sorry", followed by "Thank you".
It sounds like you think you didn't really do anything wrong. Uh, no. No, sir. You are guilty as original sin.
SCEE could have bitch-slapped you from here to breakfast, and they really should have done so in order to protect their trademark. Sure, all you have to do is to change the name and the graphics slightly to be fine, but you chose not to do so. As they noted, you chose wilfully to infringe on their trademarks (name, distinctive images) and their copyrights (the EGA graphics).
Don't get me wrong: as hobbyist game developer myself, I admire what you've done and I wish you the best of luck in getting it licensed. But as an ex-professional game developer, I can assure you that I won't view SCEE as being in the least bit evil for defending their rights.
Re:"Lemmings is a common word" (Score:4, Insightful)
Doom is a common word. So is quake, and civilisation. Half life is a common scientific phrase.
But when they are used as the name of a computer game, they become distinctive in the context of computer games.
Do you really think you could release computer games called Doom, Quake, Civilisation, and Half Life, without being accused (correctly) of trying to "pass off" your work as being related to the original, simply because the words are common? Really? Trademarks Do Not Work That Way.
Re:my point of view (developer) (Score:4, Insightful)
as orkysoft says, this comment directly conflicts your earlier one. If you use the original "EGA" graphics files, even modified, it's a pretty clear copright violation.
You can't claim with a straight face that you didn't use the original files when your copy looks exactly like the original.
Re:What are the damages? (Score:4, Insightful)
The value of their trademark is being diluted. If these ports crash, or contain rootkits, or brick your handset, that harms Sony. They enjoy the right to be protected from that possibility.
They also enjoy the right to bring their own ports to those platforms at a time of their choosing. What makes you think they're not "planning" to do so?
The punitive damages in this case don't have to be huge, they just need to be large enough to punish the wilful infringement that's occurred here.
For once, I'm entirely with Sony. They've been quite restrained in their actions, but if they choose to bitch slap the developer into the poor house, I'll cheer them on, and anyone who produces (or "plans" to produce) anything themselves should too.
Re:my point of view (developer) (Score:4, Insightful)
The relevant rule is ASK FIRST, though, as always. The rights holders may be separated (i.e. one owns the graphics, one owns the name, one owns the historical versions of the software, one owns a certain port, one owns the sound, etc.) and impossible to trace - that doesn't give you the right to use anything at all. "Look and feel" is only relevant to similar but non-identical works, in general. You say yourself that you used the original EGA graphics - even if this meant you printed them out on paper, then traced the same pixels onto graph paper and then "digitised" them to pixel-values in your head, it's still a large, gaping legal hole to fall through. Check out the history on certain typefaces. Otherwise, I could scan in a photo, print it out enlarged on graph paper, hand-digitise it by guessing colour values and if I end up with a pixel-by-pixel identical file claim that it's now "my" copyright / right to distribute and not the original photographer's.
You were using the original works as reference, and your works are virtually pixel-for-pixel identical to the original graphics. You *definitely* infringed on any trademarks/brands/etc on the name Lemmings (would it have been difficult to call it something like "Gophers" or similar?) - that's clear-cut "passing-off" on its own. Someone owns the name. Someone owns the graphics. Someone owns each piece of that software/concept, and you have *no* idea who that was. Sometimes those things revert back to the original artists after a while, sometimes they stay with the company forever, sometimes they got lost in a legal limbo and nobody's quite sure who owns them.
It doesn't give you the right to basically rip them off. I appreciate that the original project was fun, entertaining, a good proof-of-concept, etc. but you went *too* close to the wire - calling the damn thing Lemmings and referring to it as that at all times (to be honest, I assumed you were part of the original development team / some sort of official coder when I first saw the article yesterday, and at least one person who posted a comment on here actually WAS), using substantially identical graphics that by your own admission are derived from the original data files (however that may have happened), and then trying to distribute your work (maybe for a fee, maybe not, I don't know).
All you had to do was call it a "Lemmings-clone", make the graphics yourself (come on - Lemmings was EGA resolution with about 5-10 pixel high graphics - you could do that in MS Paint), and then nobody would have cared. You really have no defence here and I'd be surprised if, now, anyone wants to negotiate with you at all in terms of licensing. If you'd asked *FIRST* they might have. Now they know it's possibly popular, and they have damning evidence against you, they'll be setting their licensing fees for you at the top end of the scale - if you can port Lemmings in 36 hours, they can do it in a lot less and take you to the cleaners too.
Re:Hands Up (Score:5, Insightful)
You seem to miss the fact that he submitted it to an App Store! That's totally illegal in all countries which recognize copyright - even Scandinavian countries (where it might be permitted for personal use). You also don't take into account the fact that Sony might be intending to release it for that platform and that's the entire point of copyright - to allow you to do that without another company doing it before you and taking all your revenue.
Re:May I be the first to say: (Score:3, Insightful)
May I suggest some form of "Use it or Lose it" clause. I know this is probably wishful thinking, but it seems if you're not using your copyright to protect your financial interests, you should not be permitted to use it as a lock-down control like this.
Would Sony be losing money by allowing this to continue? No, not at all.
They don't use their copyright on the product on a regular basis to protect a version they have out there, and so they should no longer be allowed said copyright. Now if they had a version actively for sale or under development for sale soon, I could see how this would be in the interest of protecting their revenue.
This can be said about a lot of old-school media franchises. We could put an arbitrary limit of - say - 2 years on it. If you haven't had a product for sale covered under the copyright in two years, then you should lose it.
This should be sufficient for allowing any copyright holders time for profit recap from their material, while at the same time allowing the general public to continue their interest beyond what is provided by a single content creator.
If you're not selling anything, what are you protecting with it, precisely?
Re:Hands Up (Score:3, Insightful)
By the way, I disagree on the point of copyright. The point of copyright is (was?) to help give a financial incentive to creative and cultural productions and to help the dissemination of cultural works, not to protect anyone's "reserved" revenue. Lemmings has been released two decades ago. Porting it is shown to be a straightforward 36-hours work that is not done probably for political or revenue reasons. Having it ported to as many platform as possible should be seen like a masterwork novel being translated in as many languages as possible. People preventing it by using their copyrights in order to preserve their revenues are a blatant proof that copyright sometimes work opposite to its original intent and needs a lot of revision.
Re:May I be the first to say: (Score:5, Insightful)
Yes there is. Copyright is not intended as an incentive to create, it is intended as an incentive to publish. Society does not gain anything if you create the best ever novel but never let anyone read it. Society benefits greatly if you create this novel and then circulate it widely. Copyright is a bargain struck between creators and consumers - the consumers agree to grant a time-limited (in theory) monopoly to the creator, in exchange for the creator, in turn, publishing the work.
Re:May I be the first to say: (Score:3, Insightful)
I'd guess though that the trademark, art, and sound assets were certainly in violation.
Re:May I be the first to say: (Score:4, Insightful)
The fact of the matter is that none of that stuff matters. Maybe they're restricting the platforms that they release it on because they think it will drive sales of the particular platforms where the game is available? That's their right.
It's interesting how Nintendo hasn't released any Mario games on the Xbox360. They most certainly could do it, they've easily got the resources to hire people to do the port, and they've had years and years of time in which they could have done it. And heck, they probably would've sold millions of copies that way. And yet they've chosen not to, because they'd rather use the games to drive sales of their hardware.
While you can certainly argue whether or not Sony restricting lemmings to their hardware is a good business move, it doesn't give you the authority to decide that their IP rights are suddenly irrelevant.
Re:May I be the first to say: (Score:2, Insightful)
Gamedata consists of more than just the executable and he just copied the rest of the gamedata. Gameplay is an abstract concept and thus not eligible for a patent or copyright but the data is a concrete implementation.
Re:May I be the first to say: (Score:1, Insightful)
They sit on them, let them stagnate
You can buy Lemmings from Sony right now, for both of their current systems. Research not your strong point?
when somebody actually does act in the interest of the public,
How is selling an unlicensed version of Lemmings for profit, "in the interest of the public"? How does it benefit anyone except the guy selling it?
and makes them available on platforms the original provider has never supported nor, it seems, ever intends to
Yeah, I can't imagine why Sony don't want to see their games on a competitor's platform. Better take Zelda away from Nintendo since they haven't ported it to the 360.
They obtained their "intellectual property" under false pretences, and are now using it for the exact opposite of what it was intended for.
Oh look, another e-lawyer with an JD from Slashdot U. Please tell us more about your deluded beliefs on IP law. I'm simply dying.
Re:ONLY if the work falls out of copyright (Score:3, Insightful)
Wrong. The public is enriched by having seen the work. It is enriched further when it falls into the public domain, after the creator has had a chance to profit from his labors.