Michele Ferri

Michele Ferri Intellectual Property Theory Professor Friedman October 20, 2014

When Copyright Covers For an Aging Patent: Does a Cloned Game Violate Copyright?

Introduction

This paper has three goals. First, it will analyze the current legal framework for protecting game mechanics through copyright1 and patent.2 Second, it will apply this framework to a current case where Wizards of the Coast, LLC,3 is suing a competitor, Cryptozoic Entertainment, LLC,4 for making what amounts to a clone of their popular trading card game, Magic: The Gathering, even though the patent on the game has expired.5 Finally, this paper will examine the economic implications of the current law regarding patent, copyright, and game mechanics.

Game Mechanics

First, in attempting to understand where game mechanics fall in the spectrum of intellectual property, game mechanics must be understood. However, this is a difficult task, because the older games, such as chess, are well outside the domain of intellectual property, and newer games, like video games, are a relatively new medium that straddle and synthesize many other forms of works. “Nevertheless, a number of scholars have tried their hand at defining games. Many of these efforts have occurred within the past two decades, as a burgeoning literature in the study of games has emerged, spurred in large part by the rise of video games as an entertainment medium.”6 However, despite scholars attempting to define “what it is that all games. . .video games, board games, and even simple games such as rock- paper-scissors. . share in common. . . [n]o single definition has achieved widespread acceptance.”7 There are, “[h]owever, a few common elements: rules, space, players, and goals.”8

First, “the rules of a game are sometimes thought of as instructions for playing the game, but they are not; rules do not tell players precisely what to do. . . they place broad constraints on what players can do and. . . define. . . actions as valid within the scope of the game.”9 In addition, “[t]he rules perform

1 The primary sources used for the analysis of game play copyrights are Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439 (2011), Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871 (2009), and 7 A.L.R. Fed. 2d 269 (Originally published in 2005). 2 The primary sources used for the analysis of game play patents are Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517 (2009), and Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871 (2009). 3 Wizards of the Coast is a hobby gaming company that owns well know brands such as Dungeons & Dragons and Magic: The Gathering. 4 Cryptozoic Entertainment (http://www.cryptozoic.com/) and Hex Entertainment (https://hextcg.com/) raised over $2 million dollars on Kickstarter in order to make Hex: Shards of Fate, a digital trading card game with many similarities to Magic: The Gathering. 5 US Patent 5662332, and the reissued US Patent RE37957 expired on September 2, 2014. 6 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 450 (2011) 7 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 450 (2011) 8 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 450 (2011) 9 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 450 (2011) two other functions: they establish initial conditions, and they define end conditions, including victory.”10

Second, the spaces in which “games [occur] are instantly recognizable by participants and spectators as occurring within some sort of separate domain.”11 This is play, which is defined as

“a stepping out of ‘real’ life into a temporary sphere of activity with a disposition all of its own.” The separation is both temporal and spatial:All play moves and has its being within a play-ground marked off beforehand either materially or ideally, deliberately or as a matter of course The arena, the card-table, the magic circle, the temple, the stage, the screen, the tennis court, the court of justice, etc., are all in form and function play-grounds, i.e. forbidden spots, isolated, hedged round, hallowed, within which special rules obtain. All are temporary worlds within the ordinary world, dedicated to the performance of an act apart.”12

This definition of play is important to consider in the context of copyright. Normally, play is used in the context of more traditional art forms, such as music and plays. “[B]oth music and plays require “players” for audiences to hear. . .even. . . mechanical players. . .” However, when it comes to games, “the relationship between players and games is more existential than that. Players are necessary for the full realization of games in a way that musicians, actors, DVD players, and MP3 players are not.”13 Much like a theater without an audience, “a game is an empty shell until it is played. . . the rules of a game and its equipment provide the boundaries and meaning of play, but not the play itself [which is] the most important aspect of a game. . .”14

Third, “games have goals. . .endpoints or victory conditions. . . something that the players strive to attain. This is another feature of games that makes them superficially similar to processes. However, there is an issue in conflating goals with processes.15

“[T]he goal in a game stands in an odd relationship to the game—it, like much else about the game, is defined by the rules. That is, it is a part of the game, rather than something external to it. This is completely different from a patentable process, which is “an operation or series of steps leading to a useful result.” The “useful result” of a process is some need that preexisted the process—indeed, that unmet need is typically what spurred the creation of the process in the first place. Game rules, by contrast, define the games' objectives, which have meaning only within the “magic circle” [of the game]”16 Indeed, “[t]he game itself is supplied by the players.”17

10 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 450 (2011) 11 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 451-52 (2011) 12 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 451-52 (2011) 13Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 453 (2011) 14 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 454 (2011) 15 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 454 (2011) 16 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 454 (2011) 17 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 466 (2011) Another way to look at games is that they “are more than just systems. . .they are what computer scientists call a “state machine.”18 A game is a state machine because it

“has an initial state, accepts a specific amount of input events, changes state in response to inputs using a state transition function (i.e., rules), and produces specific outputs using an output function.” Games perform all of these functions, according to their rules. The initial state of the game is specified by the rules as a particular arrangement of board and pieces, players and field, or deck of cards. The rules also define a set of permissible inputs: moves or plays. The game changes state as a result of those inputs, again in ways defined by the rules. For example, when a player in tic-tac-toe moves by marking an “X,” the rules provide that the game state changes in a particular way: an “X” is placed on the grid, and it becomes the second player's turn. Finally, games provide outputs back to the players about how the game state is changed. In a simple game like tic-tac-toe, the state of the game is fully revealed to both players, but in other games, such as poker, the players may be given more limited information.”19

History of The Patentability of Games

The legal basis for both patent and copyright in the United States arises from the Constitution, which grants the Legislative branch the authority “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”20 Congress then “responded by enacting patent laws granting an exclusive yet limited private monopoly to the inventor in exchange for disclosure and ultimate dedication of the work to the public domain upon expiration of the patent.”21

However, there are stringent requirements that must be met for a patent. First, the subject matter must be patentable. Patentable subject matter consists of a “process, machine, manufacture, or composition of matter...”22 Furthermore, “[w]hile the Supreme Court has noted that Congress intended statutory subject matter to “include anything under the sun that is made by man,” the Court has limited statutory eligibility to exclude fundamental principles, such as the laws of nature, physical phenomena, and abstract ideas as not patentable.”23

Especially relevant to this paper are patentable processes. The United States Patent and Trademark Office (“USPTO”) defines process as “an act, or a series of acts or steps.”24 The USPTO further refers the reader to the case of Gottschalk v. Benson,25 which defines a process as "a mode of treatment of

18 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 457 (2011) 19 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 457 (2011) 20 US Const, http://www.law.cornell.edu/constitution/articlei 21 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 519-20 (2009) 22 USPTO website, http://www.uspto.gov/web/offices/pac/mpep/s2106.html 23 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 519-20 (2009) 24 USPTO website, http://www.uspto.gov/web/offices/pac/mpep/s2106.html 25 Gottschalk v. Benson, 409 U.S. 63, 70, 175 USPQ 673, 676 (1972) certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject- matter to be transformed and reduced to a different state or thing."26

Game play methods meet the definition of process.27 However, because “[a] “process” being a series of procedures or actions concluding in an end result that may entirely lack physicality, is more difficult to grasp,” courts have struggled in applying this issue.28 For instance, is something like first person perspective “a fundamental principle, and therefore not eligible for patent protection?”29 What about the rules of card game?

Historically, “[p]atents on toys and games date back to the nineteenth century in the United States. These patents include the famous Monopoly board game from 1935, as well as its predecessor, the Landlord game from 1904.”30 31 Oddly enough, despite this history, software patents had a more gradual adoption,32 exemplified in the case of Diamond v. Diehr.33

After “Diehr held software-enabled processes carrying out a physical function are patent eligible subject matter, the next step was to determine whether a process having no physical result, such as the gameplay method of a flight simulator, was also eligible.”34 In 1998, this issue was decided in State Street Bank & Trust Co. v. Signature Financial Group.35 The case considered “[w]hether computer software that essentially performs mathematical accounting functions and is configured to run on a [personal] computer is patentable.”36 State Street “held that the claims were statutory subject matter” and “business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method.”37 Therefore, a game play method, “like the business method in State Street, is a computer software-enabled process configured to run on a video game console which, while lacking a physical result, is nevertheless patent eligible subject matter.”38

26 USPTO website, http://www.uspto.gov/web/offices/pac/mpep/s2106.html, citing Gottschalk v. Benson, 409 U.S. 63, 70, 175 USPQ 673, 676 (1972) 27 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 519-20 (2009) 28 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 519-20 (2009) 29 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 519-20 (2009) 30 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 876-77 (2009) 31 BOARD GAME APPARATUS, US PAT 2026082 32Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 522 (2009) 33 Diamond v. Diehr, 450 U.S. 175 (1981) 34 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 522 (2009) 35 State St. Bank & Trust Co. v. Signature Fin. Grp., Inc, 149 F.3d 1368, 1370 (Fed. Cir. 1998) abrogated by In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) 36 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 522 (2009) 37 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 522 (2009) 38 Thomas Connors, High Score? Subject Matter Patentability of Video Gameplay Methods After in Re Bilski, 30 U. La Verne L. Rev. 517, 522 (2009) The Current Rule on Patentability of Games

Patents on toys and games “typically cover the gaming apparatus itself--the board, the dice, and other items that facilitated the game play--as well as the rules of the game. . .Modern U.S. patents in the gaming area have continued the pattern of covering both apparatus and game rules.”39 In addition, “as gaming technology made it possible to simulate real performance of a game, U.S. patents expanded to cover methods for simulating real-time play as well as gaming moves.”40

A good example of patentable subject matter for a game can be found in the terms of the Monopoly patent.41

“The board as a whole is indicated at I in Fig. 1. Inasmuch as the game is known upon the market as Monopoly, that name is indicated at 2 on the board in the central space, whereon at 3 and are Indicated the places where the set of Chance cards and the set of Community Chest cards are respectively piled, preferably face down. Any player who is compelled by the rules of the game to draw a Chance or Community Chest card takes the top card from the pack indicated and after following the instructions printed thereon returns the card face down to the bottom of the pack or set of such cards.”42

As is shown in the term above, “patentable subject matter does not include expressive activity that is non-functional or aesthetic.”43 Instead, “patents are limited to functional aspects of the game, such as the hardware, or to processes that are independent of play, such as scoring.”44

History of Systems and Copyright

For nearly a century, courts have uniformly held that [the mechanics of] games are not copyrightable. Courts have been considerably less forthcoming, however, with reasons for this doctrine, and “[t]he cases on games and rules are quite spare in analysis.”45 This occurred because “[t]he rule emerged fully formed, without explanation, in the 1920s and 1930s, an era when opinions tended to be terse.”46 Furthermore, “[m]any cases involved simple games without their own boards, playing pieces, or other equipment. . . roller derbies, promotional contests, basketball tournaments, or bridge strategies. . .[and] plaintiffs [were] attempting to protect against use of a similar idea by a competitor.”47 This lack of attention even extended to more modern board games.48 Because of this lack of detail, an examination of one of the foundational cases for establishing that systems are not copyrightable is helpful.

39 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 876-77 (2009) 40 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 876-77 (2009) 41 BOARD GAME APPARATUS, US PAT 2026082 42 BOARD GAME APPARATUS, US PAT 2026082 43 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 894-95 (2009) 44 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 894-95 (2009) 45 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 442-43 (2011) 46 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 442-43 (2011) 47 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 442-43 (2011) 48 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 442-43 (2011) That case is Baker v. Selden.49 It concerned “Selden's attempt to obtain copyright protection for his system for double-entry bookkeeping. He wrote a book in 1859 explaining his system, which contained in it a number of blank forms to be used in conjunction with the system. Baker. . . published his own book in 1867, setting forth a similar, but not exactly identical, system, using similar forms.”50 When faced with this question, “[t]he Supreme Court held that Selden's copyright in his book did not extend to his system. . . [it] gave him the exclusive right to his explanation of his system, but he could not prevent anyone from using the system itself. . .” The use of the system “was the exclusive domain of patent law. . . [and] to the extent that forms similar to Selden's were needed in order to use his system, Selden could not prevent the copying of those either.”51

The Baker v. Selden “decision sets out fundamental policies in copyright law, policies that are also relevant in patent law. . . [c]opyright, the Court states, protects expressive elements of a work, while patent law protects functional or useful elements.”52 It is also important to note that

“[t]his distinction goes beyond subject matter like software. Baker stands for the proposition that there is a difference between the subject matter of copyright and that of patent, and that this difference, very broadly, rests on the difference between aesthetics and functionality. Copyright law. . . has used this distinction to remove certain types of functional expression from the domain of copyright protection.”53

Furthermore, the “legacy of Baker is in the principle [that] copyright allows the owner to prevent unauthorized uses of the expression, but not any uses described in the work.”54 For instance, the copyright on a book about origami does not extend to act of folding the paper.55 “The book is intended to teach readers how to practice origami, and therefore. . .[readers are] allowed to practice the art taught without violating copyright law.”56 Similarly, a copyright on a rules book for a game does not extend the playing of the game itself.57

This rule is further reinforced by examining “the Rules and Regulations for the Registration of Claims to Copyright, adopted by the Copyright Office in 1910, the year after Congress substantially revised the Copyright Act.”58 This revision, “[t]he Copyright Act of 1909, unlike the 1976 Act, limited copyright to particular forms of works: books, maps, musical compositions, and so forth. The regulations expressly excluded games from registration as books, as works of art, or as pictorial works.”59

“The reasoning appears to have been that games are functional. For example, section 16(k) of the regulations, excluding games from registration as pictures, stated that “[a]rticles of

49 Baker v. Selden, 101 U.S. 99 (1879) 50 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 462 (2011) 51 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 462 (2011) 52 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 892-93 (2009) 53 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 892-93 (2009) 54 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 893 (2009) 55 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 893 (2009) 56 Shubha Ghosh, Patenting Games: Baker v. Selden Revisited, 11 Vand. J. Ent. & Tech. L. 871, 893 (2009) 57 58 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 444 (2011) 59 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 444 (2011) utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyrightable, e.g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles.” The Corpus Juris entry on copyrights, published just a few years later, similarly grouped games with cases involving index systems as uncopyrightable “articles designed for physical use rather than to convey information or intellectual conceptions.””60

However, despite this, issues arise because “[w]hile a game itself may not be copyrightable, all of its constituent elements are.”61 For instance, “[t]he board, box, or cards may be protected as graphic or pictorial works, or even maps; game pieces may be protected sculptural works; even a particular statement of the rules of a game can be given limited protection against verbatim copying.” This leads to an odd distinction.62 “Imagine there were a rule that “novels are not copyrightable,” but that a novel's plot, characters, setting, dialog, and cover art all were.”63

As the case law progressed, “several courts. . . decided to simplify their interpretive task by reading § 102(b) [of the Copyright Act] as simply codifying the idea/expression dichotomy. . . For example. . Toro Co. v. R & R Products Co. rejected a claim of copyright over the numbering system for lawnmower parts.”64 However, the court did not “exclude the parts numbers as a system.”65

“Such a “literal application of the section's language,” the court held, “cannot stand.” Instead, the Toro court read § 102(b) as “nothing more than a codification of the idea/expression dichotomy.” A sufficiently creative system would be copyrightable, the court concluded. The problem with the Toro parts numbers. . . was that they were randomly assigned and thus lacked the necessary creativity.”66

Subsequently, “[s]everal courts have followed Toro's holding that § 102(b) does nothing other than codify the idea/expression dichotomy.”67 However, even though those courts approach the the result differently, the end result is the same.68 While they “[do not] invoke the system, method, or process exclusions from copyright, [the holdings are] consistent with these exclusions.”69

Part of the problem is that “the term “ideas” is also often used as shorthand for matter excluded from copyrightability under a variety of doctrines, including not only ideas, but also facts, scènes à faire, and functional expression that might qualify as patentable subject matter.”70 Therefore, when courts

60 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 444 (2011) 61 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 445 (2011) 62 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 445 (2011) 63 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 445 (2011) 64 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 459 (2011) 65 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 459 (2011) 66 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 459 (2011) 67 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 459 (2011) 68 Pamela Samuelson, Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection, 85 Tex. L. Rev. 1921, 1942-44 (2007) 69 Pamela Samuelson, Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection, 85 Tex. L. Rev. 1921, 1942-44 (2007) 70 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 446 (2011) “[designate] game rules as unprotectable “ideas,” many of the cases may have actually been using that term more broadly to claim that games impermissibly cross over from copyrightable territory to patentable subject matter: procedures, processes, systems, methods of operation, and discoveries.”71

This hodgepodge of holdings makes determining the copyrightable aspects of a game difficult. “Since Congress intended only to codify existing law in § 102(b), it is worthwhile to revisit older cases involving systems to determine what it was that was being excluded and to compare those systems to games.”72 In this was, a rule can be approximated.

For instance, “[i]n Atari, Inc. v. North American Philips Consumer Electronics Corp,73 the Seventh Circuit Court of Appeals held that even though the video game "Pac-Man" was primarily unprotectable, there were certain copyrightable expressions in the game that were infringed by the substantially similar competing "K.C. Munchkin" game.”74 There “[t]he defendant's game adopted the same basic characters as the plaintiff's version and portrayed them in a substantially similar way,”75 This included elements “such as the choice of shapes, sizes, colors, sequences, arrangements, and sounds, constituted copyrightable expressions of the game's basic idea.”76

Similarly, “[i]n Midway Mfg. Co. v. Bandai-America, Inc.,77 the court held that the insect-like shapes of the aliens in the video game "Galaxian" were protectable. . . [a]fter comparing the two games "ad nauseam," the court found such overwhelming similarity that no reasonable fact-finder could find that the defendant had independently created its game rather than copying the plaintiff's game.”78 The court pointed out “[s]ome of the more pronounced examples. . . the games' fundamentally identical musical themes, insectile alien characters, and very similar play and sequence of images.”79 Furthermore, it “rejected as a matter of law the defendant's assertion that these features were essentially ideas rather than expressions. . .”80

In contrast, “In Atari, Inc. v. Amusement World, Inc.,81 the court held that the copyright for a video game was not infringed where only the idea of the game was copied.”82 In this case, “[t]he plaintiff, which held the copyright on the electronic video game "Asteroids," sought to enjoin the defendant electronics firm from manufacturing or distributing its "Meteors" game.”83 Even though “[t]he court acknowledged that a video game was copyrightable as an audiovisual work regardless of whether the underlying computer program was copyrighted,”84 and “found a number of similarities in the design

71 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 447 (2011) 72 Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 Geo. Mason L. Rev. 439, 461 (2011) 73 In Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 214 U.S.P.Q. (BNA) 33 (7th Cir. 1982) 74 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 75 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 76 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 77 Midway Mfg. Co. v. Bandai-America, Inc., 546 F. Supp. 125, 216 U.S.P.Q. (BNA) 812 (D.N.J. 1982), 78 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 79 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 80 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 81 Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222, 215 U.S.P.Q. (BNA) 929 (D. Md. 1981) 82 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 83 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 84 7 A.L.R. Fed. 2d 269 (Originally published in 2005) features of the two games. . . most of them were inevitably required either by the idea of a game involving a spaceship fighting space rocks or by the technical demands of the video game medium. . . [and] an ordinary player would regard the overall feel and aesthetic appeal of the games as quite different.”85

However, “golf-related imagery and standard video game menu screens contained in a video arcade golf game's video display were scenes a faire entitled to protection only from virtually identical copying” in Incredible Technologies, Inc. v. Virtual Technologies, Inc.86 “[T]he court concluded, the minimal creativity embodied in the text and instructional graphics on the control panel of the game warranted limited protection against only virtually identical copying,”87 because “there was no evidence that the manufacturer considered anything other than how best to explain its trackball system when it designed the instructions.”88

Additionally, simple game play features such as

“(1) a shooting challenge in which targets float out of a cylindrical opening in the floor; (2) a shooting challenge in which targets are randomly arranged, and a player must remember which are which and only shoot certain targets; (3) a shooting challenge in which targets randomly "pop" out of cylindrical openings for the player to shoot; and (4) silver iconic objects that appear next to each completed challenge as a progress indicator”89 were held to be “the embodiments of uncopyrightable ideas, scenes a faire, or both, and thus were subject to copyright protection only as against virtually identical copying in Team Play, Inc. v. Boyer.”90 91

However, in Tetris v. Xio,92 the court pointed out that “[i]t is the wholesale copying of the Tetris look that the Court finds troubling more than the individual similarities each considered in isolation.”93 The court was troubled by the idea that “the dimensions of the playing field, the display of “garbage” lines, the appearance of “ghost” or shadow pieces, the display of the next piece to fall, the change in color of the pieces when they lock with the accumulated pieces. . .” were overwhelming similar.94 This was despite the fact “that standing alone, these discrete elements might not amount to a finding of infringement.”95 This displays a court's tendency to find copyright infringement where wholesale copying takes place, regardless of whether the copying is technically in the realm of patent

85 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 86 Incredible Technologies, Inc. v. Virtual Technologies, Inc. 400 F.3d 1007, 74 U.S.P.Q.2d (BNA) 1031 (7th Cir. 2005) 87 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 88 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 89 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 90 Team Play, Inc. v. Boyer, 391 F. Supp. 2d 695, 76 U.S.P.Q.2d (BNA) 1174 (N.D. Ill. 2005) 91 7 A.L.R. Fed. 2d 269 (Originally published in 2005) 92 http://www.quietspeculation.com/2014/05/understanding-the-wizards-v-hex-lawsuit-in-plain-english/, citing Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394 (D.N.J. 2012) 93 Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394, 412-13 (D.N.J. 2012) 94 Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394, 412-13 (D.N.J. 2012) 95 Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394, 412-13 (D.N.J. 2012) infringement.96

Magic vs. Hex

An excellent example of the current issues plaguing patent and copyright in games can be found in the ongoing lawsuit Wizards of the Coast v. Cryptozoic Entertainment, Hex Entertainment (“Wizards” and “Cryptozoic” respectively), filed on May 14, 2014. The lawsuit arises out of the similarities between Wizards' game, Magic: The Gathering (“Magic”),97 and Cryptozoic's game, Hex: Shards of Fate (“Hex”).98

Magic was first published by Wizards in 1993, and was one of the first “trading card games.”99 In 1997, Wizards was granted a utility patent for Magic: U.S. Patent 5662332, TRADING CARD GAME METHOD OF PLAY (“the '332 patent”).100 The '332 Patent was reissued in 2003, as U.S. Patent RE37957 (“the '957 patent”).101 Both patents had an expiration date of September 2, 2014, and have since expired.

Hex is a relative newcomer to the trading card game market. In 2012, Cryptozoic began a Kickstarter campaign102 to fund the creation of Hex, which concluded on June 7, 2013. The campaign raised over $2.2 million dollars.103 It was described as the first MMO/TCG.104

However, there are a tremendous number of similarities between Hex and Magic. One blogger reviewed the game, comparing the card types in Magic and Hex: “Troops are just like creatures, they act the same way [as in Magic]. In this example they both have the equivalent ability of dealing damage and gaining that much life, [named] Lifelink [in Magic] vs Lifedrain [in Hex]. There are other abilities creatures can share from Magic. . . Artifacts work the exact same way as they do in Magic. You can only cast them during your main phases. It wouldn’t surprise me to see cast-able equipment come along in the game at some point.”105 This pattern repeats across most of the mechanical elements of Hex. The similarity is close enough that the reviewer suggested playing Wizards' computer game version of Magic, “Duels of the Planeswalkers” if people wanted to practice playing Hex.106

This prompted Wizards to sue for patent, copyright, trademark, and trade dress infringement.107 Of

96 http://www.quietspeculation.com/2014/05/understanding-the-wizards-v-hex-lawsuit-in-plain-english/ 97 http://en.wikipedia.org/wiki/Magic:_The_Gathering 98 http://hextcg.com/ 99 http://en.wikipedia.org/wiki/Magic:_The_Gathering 100TRADING CARD GAME METHOD OF PLAY, US PAT 5662332 101TRADING CARD GAME METHOD OF PLAY, US PAT RE37957 102https://www.kickstarter.com/projects/cze/hex-mmo-trading-card-game/ 103https://www.kickstarter.com/projects/cze/hex-mmo-trading-card-game/ 104Massively Multiplayer Online Trading Card Game 105 http://www.thresholdpodcast.com/magic-hex-mix/ 106 http://www.thresholdpodcast.com/magic-hex-mix/ 107 WIZARDS OF THE COAST LLC, Plaintiff, v. CRYPTOZOIC ENTERTAINMENT, LLC, and Hex Entertainment, particular interest to this paper is Wizards' claims for patent and copyright infringement.108 After all, Wizard's patent expired only a few months after they filed the lawsuit, while copyright will last quite some time longer. Therefore, while any damages or injuctions Wizards might receive from patent infringement will be limited, copyright infringement has no such issue.

In their copyright claims, Wizards stated that

“Cryptozoic copied the cards, plot, elements, circumstances, play sequence, and flow of Magic. Players in both games are confined to the same parameters based on an initial dealing of seven cards and play progresses in a substantially identical manner. Players must efficiently use their skill and calculation to assemble their initial decks and then in suitable selection and play of the various cards.”109

However, Wizards describes “play sequence” and “flow of Magic” by explaining that players are “confined to the same paramenters,” are dealt seven cards, and play progresses similarly.110 These elements closely resemble the game mechanics discussed above. In fact, being confined to the same parameters, such as initial hand size, and patterns of play, seem to fit the very definition of “state machine.”

Furthermore, as established above, the subject matter of copyright and patent is, to a certain degree, mutually exclusive. Therefore, when parts of Wizards' '957 patent read as “A method of playing card games, the method being suitable for card games having rules of play and multiple copies of a plurality of cards, the rules of play including instructions on execution turns, a predetermined number of cards in the players library and hand of cards. . .” Wizards' patent claim sounds substantially similar to what they claim as copyright infringement. In essence, “[t]hat’s trying to sneak in patent law into a copyright claim.” 111

Rationales of Intellectual Property

There are many rationales for why we have intellectual property laws, from utilitarian philosophies, to concepts of natural rights. In order to understand the current and future economic impacts of such policies, it is vital to start with the foundational rationales of intellectual property.

For instance, when the U.S. Constitution was being adopted, the Federalist papers took the utility of intellectual property as self evident, stating that regarding Congress's power

LLC, Defendants., 2014 WL 2197935 (W.D.Wash.) 108 WIZARDS OF THE COAST LLC, Plaintiff, v. CRYPTOZOIC ENTERTAINMENT, LLC, and Hex Entertainment, LLC, Defendants., 2014 WL 2197935 (W.D.Wash.) 109 WIZARDS OF THE COAST LLC, Plaintiff, v. CRYPTOZOIC ENTERTAINMENT, LLC, and Hex Entertainment, LLC, Defendants., 2014 WL 2197935 (W.D.Wash.) 110 WIZARDS OF THE COAST LLC, Plaintiff, v. CRYPTOZOIC ENTERTAINMENT, LLC, and Hex Entertainment, LLC, Defendants., 2014 WL 2197935 (W.D.Wash.) 111 http://www.quietspeculation.com/2014/05/understanding-the-wizards-v-hex-lawsuit-in-plain-english/ "to promote the progress of science and useful arts. . . [t]he utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”112

The laws governing intellectual property attempt to strike a balance between providing property rights “to creators and the retention of a vigorous public domain. Thus, the property rights granted in intellectual property are limited and conditional.”113

For instance, patents grant monopolies over the application of useful ideas. The broader the scope of the property right granted by a patent, “The larger the number of competing products and processes that will infringe the patent.”114 This scope extends in two dimensions: one of time, and one of breadth. The longer the duration, the longer the patent will prevent competition. Likewise, the broader the terms of the patent, the more processes the patent will prohibit during it's lifetime. Therefore, “utility patents are available only for those inventions that are worth the inconvenience of a strong property right from the public's standpoint. . .”115

On the other hand, copyright law “grants authors a number of exclusive rights in their works of authorship”116 but “no rights in the underlying ideas or facts being expressed.”117 The duration and breadth of a copyright is lesser than a patent, and so the duration is much longer.

The Economic Impact of Broad Patents in Games

112 Federalist Papers 43, http://www.constitution.org/fed/federa43.htm 113 Margreth Barret, Intellectual Property: Cases and Materials, pages 16-18 114 Robert P. Merges, Richard R. Nelson, On the Complex Economics of Patent Scope, Foundations of Intellectual Property 115 Margreth Barret, Intellectual Property: Cases and Materials, page 17 116 Margreth Barret, Intellectual Property: Cases and Materials, page 17 117 Margreth Barret, Intellectual Property: Cases and Materials, page 17