Piracy — Part One: Plagiarism
Clones, rip-offs, variants, derivatives — doesn't matter what you call 'em, they've been around for as long as the software industry itself. And while this kind of stealing (or 'borrowing', if you prefer) doesn't have quite the same air of criminality as yer dodgy software pirates selling their bootlegs out of car boots or on market stalls, plagiarism is, in a very real sense, piracy. It's taking somebody else's idea (or an idea for which they've paid good money); selling it; and making cash which the original creator/owner might otherwise have made. What's more, at least in this country, this kind of semi-respectable or at least acceptable, pilfering may well account for far more lost revenue for game creators and publishers than the more traditionally-defined pirates.
As Ocean Software's boss David Ward points out, "commercial piracy isn't a great problem in this country mainly because the retail structures can't be interfaced illegally — commercial piracy doesn't exist in the high street to any real extent."
Plagiarism, on the other hand, is rife. There have been literally dozens of Invaders clones, Pacman clones, Galaxian clones, Kong clones, Defender clones. You name it, somebody's cloned it.
It's not difficult to see why cloning is so popular: it certainly makes commercial sense to take the core ideas from an existing arcade hit, with proven popularity, than to develop a piece of original software from scratch. An official 64 conversion may not appear for many months, or years. Also, when developing a copycat-style game, you're under no legal obligation to stick rigidly to the original coin-op's features as there are no licence conditions to be met (there's no licence), so you can freely add to and enhance the original ideas. Which is why many clones are often actually superior games to the official conversions. Finally, of course, you don't have to pay a licence fee: the biggest coin-op companies can currently demand, and get, figures in excess of £100,000 for the conversion rights to their top products. No wonder the big licence-buying software houses — US Gold, Ocean/Imagine, Activision, and Firebird — get a bit peeved when near identical versions of licences they've forked out for appear in the shops, often well in advance of the official licence.
Of course, it isn't only arcade licences that get ripped off — any really hot originally - developed home computer software will spawn a host of copies. But — unless, as happened to one hapless programmer, you allow a mag to publish the graphics, scenario and other brilliant new features of your latest epic weeks before the official release date — the one great advantage of originally developed software is that the cloners can't usually rip you off until your game appears on sale, which means that you get a headstart on 'em. By the time the first Nausearius rip-off appears, you'll have made loadsamoney and will be lying on a beach in Barbados (at least, that's the theory).
Who's zooming who?
It certainly isn't difficult to find examples of well-known rip-offs. Activision's Super Sprint conversion was preceded by the rather similar Grand Prix Simulator from budget house Codemasters; so similar, in fact, that the clone was the subject of legal proceedings.
Threats of legal action, once again by Activision, resulted in CRL's Wonder Boy rip-off The Equaliser being withdrawn from the shops soon after it went on sale.
Atari's classic arcade Dungeons & Dragons-style smash Gauntlet — officially licensed to US Gold — has been ripped off so many times that we've lost count but certainly Firebird's Druid, Activision's Dandy and Rainbow Arts' Garrison are towards the top of the list.
Further back in time Elite's Capcom conversion of Commando was scooped by Alligata's near identical Who Dares Wins, which led to a well-publicised flurry of legal papers.
And, on the home front, First Star's Boulderdash and Hewson's Uridium have both been prime 'sources of inspiration' for later, less innovative programmers.
We could go on, but you get the idea. So it's going on, lots of it. But how does the software industry feel about it. And, more to the point what can they do about it?
David Ward is philosophical about the existence of plagiarism: "It exists in all art forms, and I suppose the extent to which it proliferates in any particular area is directly proportional to the related industry's ability to police it." But, of course, "if one feels that one is losing sales through others plagiarising a design, it has to be a bad thing. Ultimately that's taking away the money for innovation, and if that's happening, eventually you get less innovation."
Activision's Rod Cousens has strong feelings about the harmful effects of plagiarism on the industry. Activision have been one of the software houses worst affected by rip-offs, and have found themselves resorting to legal action more often than most — but usually in vain. He feels that plagiarism has definitely cost the company sales, and cites the Super Sprint/Grand Prix Simulator dispute as an example: "the Grand Prix Simulator release destroyed Super Sprint. However you judge the respective merits of the two products, there is no doubt that it was particularly damaging to the sales of Super Sprint, a game which had been very popular in the arcades and would normally have been expected to sell very well on conversion."
Help! Rape! Police!
"The trouble with plagiarism," Cousens adds, "is that it doesn't allow the business to develop — you can't develop the industry without Research and Development costs."
He finds the attitude of the budget houses towards plagiarism particularly galling: "It disappoints me a lot that budget houses are quite prepared to take the fruits of the major labels' developments and then slag the majors off for being overpriced. That seems to me to smack of hypocrisy."
Silverbird's Colin Fuidge doesn't agree: "People never really lose sales. Joe Public's probably still going to pick up the official licence anyway."
Besides, in Fuidge's opinion, "nothing's new; not really. Full price software houses usually sign up commercial product which is a known seller. It's quite obvious that if a programmer produces a game that's good and people want more of it, we'll be catering for that demand. We very rarely commission a game — it's usually members of the public who come up with the games and bring them to us. People often bring us games that are in a similar vein to another game. If the vein is dissimilar enough, we'd consider taking it.
Interestingly, most of the industry would agree with Fuidge's statement as regards originality in games, at least to some extent.
US Gold's Tim Chaney admits that "there are very few original concepts in the market place. Anybody who takes a puritanical view about plagiarism is being slightly hypocritical. There are really only about half-a-dozen truly original ideas, games like Pacman, Space Invaders and so on, the early Atari products which came out in the late '70s. I mean, Gauntlet is more or less a Pacman clone — you're in a maze and you're being followed, the difference in Gauntlet being you can fight back. The real question is what is original and what isn't."
"It can be very complex," says Audiogenic's Peter Calver. "Take Arkanoid. We, amongst other companies, produced a game of a similar nature, Impact. We subsequently had threats made to us in relation to that game from Taito. But we understand that what has now transpired is that Atari, who own the rights to BreakOut, have taken the view that Arkanoid infringes their copyright in BreakOut, and I believe proceedings have now been issued."
The question at the core of plagiarism disputes does, therefore, seem to be not whether or not somebody has copied Pacman in their game, but, as David Ward put it, "how closely do you have to copy Pacman for inspiration to become plagiarism?"
And, as several industry figures will ruefully tell you, this is a tough question to answer.
Look and feel
The law with regards to the ripping off of computer games in this country is still in a fairly undeveloped state. It has long been accepted that those who can be proven to have pinched lines of somebody else's source code are liable for breach of copyright. (This applies even when the code taken is a relatively minor part of the whole program. A court recently decided a programmer who nicked 30 lines of code out of a total of 15,000 lines in a program had infringed the owner's copyright in the program).
However, if you want to try to prevent someone from bringing out a game concept similar to yours, you're in much trickier territory. In America a doctrine known as Look And Feel (originally laid down in a case which concerned the similarities between a character in a TV programme 'HR Puffinstuff' and Mayor McCheese from 'McDonaldland'!) means that you can get a court decision in your favour if you prove that somebody else's game substantially reproduces the look and feel of yours. Over here, unless the similarities are overwhelming, you're unlikely to succeed.
Mind you, comparatively few cases get to court in the first place, due, according to System 3's Mark Cale, to the co-operative atmosphere amongst British software houses: "America's a big ruthless commercial market. If somebody can put you out of business by whatever means, they will. Over here we all tend to work together." Hence, many disputes are solved here over the phone; a case of 'jaw-jaw' rather than 'war-war'.
Nevertheless, with the price of licences rocketing, and so many smaller companies getting pushed out of the market, chances are that more companies are going to be talking to their lawyers when they see a rival's product which seems a bit too close to theirs for comfort.
Get some protection
One company who'd like to see the Look And Feel rule in operation here is Activision. While they have had some successful forays into the courts (notably when they managed to prove in court that their copyright in Pitfall had been infringed by Microdeal's Cuthbert In The Jungle) their experience in the Super Sprint/Grand Prix Simulator case was far less happy: "the hearing was before an elderly judge, not familiar with computer games, and he basically said 'you can't copyright a driving track'. He didn't pay any attention to the fact that they'd also copied spanners, oil, car colours, and the car spinning feature, so we weren't successful. If we'd fought the case in America we'd unquestionably have won."
Tim Chaney is even more forthright: "our protection, legally, when we buy an arcade licence is negligible." Their Gauntlet experience gives an interesting insight into the way software houses in this country see plagiarism. Of the three products mentioned which seemed to contravene US Gold's conversion rights, they only contemplated taking legal action against one, Druid (their lawyers advised them ultimately, that under existing law success couldn't be certain, so the matter ended there). Due to some undisclosed situation between US Gold and Activision, the latter's Dandy was not pursued.
And as for Rainbow Arts' Garrison, Chaney says that a combination of the fact that US Gold represent RA in this country, and that there wasn't an Amiga Gauntlet meant that no action was taken against Garrison either. "We took the view that it was so close — and so good — that it probably filled a gap in the market on the Amiga."
In the absence of a legal answer, Tim Chaney feels that it's often possible to use other means, such as contacting retailers and distributors in relation to an obvious clone, or even approaching the original arcade company and suggesting that, in view of their behaviour, the company in question should be denied coin-op conversion licences in the future.
Up before the beak
There may soon, however, be some more law on the matter. The recent release, by Firebird, of a game called IO, looks like it may well result in a major court battle. The game bears a resemblance to the brilliant, horizontally-scrolling shoot 'em up, R-Type, a hit in the arcades for Irem and whose conversion rights were signed up by Activision for a reputed six-figure sum. Given that Activision, in particular, have suffered from the absence of the Look And Feel rule in this country's law, and taking into consideration the huge sum paid out for the licence, it seems as good a time as any for a case to be taken by them, with all the expensive trappings of expert witnesses, to try and establish such a concept in a court action. Certainly, Activision's Rod Cousens feels strongly about the issue: "Everyone out there knows IO's a clone of R-Type. I feel particularly disappointed that Firebird should have released this game, because they're also in the business of acquiring arcade licences. We're not interested in competing with anybody by copying their products, and we feel particularly aggrieved that they feel able to resort to such actions. Obviously, in the best interests of our company, we'll be trying to minimise our exposure, but I would not see us as willing to stand down on this one very easily."
As Cousens himself puts it, the outcome of this dispute will be "very interesting".
But, leaving pride and principles aside, is there any point, financially speaking, in taking a court action to attempt to remove a rip-off from the shop shelves? Do clones actually cost the original licensees/developers anything?
Elite's Steve Wilcox feels from personal experience that they do. Having gone through a court case with Alligata, gained an injunction against Who Dares Wins on the grounds that it infringed their rights in their product Commando, and then being faced with the prospect of a further court case to injunct Alligata's subsequent modification of the first banned game, Elite decided it was best to drop any further legal action.
"Our feeling was that it did have some effect on the sales of Commando, but I'd find it difficult to quantify this effect."
Undoubtedly Activision's Rod Cousens would go along with this view.
Electronic Arts' Mark Lewis, however, disagrees. When Melbourne House brought out Gyroscope before EA's conversion of Atari's Marble Madness, the only action that they took was "to go and tell our programmers to hurry up with our conversion". Lewis doesn't feel that the presence in the marketplace of the Melbourne House game had any adverse effect on their sales. "I don't think it did us any commercial harm whatsoever. I think people were waiting for a conversion of the arcade game. They were waiting for Marble Madness. In some ways the appearance of Gyroscope may actually have helped us, in that it resulted in people hearing about Marble Madness."
This feeling is echoed by both US Gold's Tim Chaney, and by System 3's Mark Cale. As Chaney puts it: "When you're advertising you assume that people know the game, so you're marketing the name. That's really your only protection — the fact that you have the exclusive rights over the name." Cale similarly notes: "if a game's got Out Run, say, on the package, people will go out and buy it, it's guaranteed."
But in the absence of any comprehensive research on the effects of cloning, adverse or otherwise, it is at present, as Silverbird's Colin Fuidge notes, "perhaps absolutely impossible to say" whether the rip-offs take money out of the pockets of the licence holders and game originators.
So just how serious a problem is this cloning/plagiarism/rip-off business?
As regards the home market, a top original programmer like Graftgold's Andrew Braybrook feels that "it floods the market with a certain type of game, and destroys the need for it because there are already so many games like that out there". This means that, in his opinion, there's "a detrimental effect on the original — if I wanted to do Uridium II I think I'd have great difficulty because there's been so many copies of the original Uridium."
Against this, Braybrook also admits that the presence of so many copiers out there actually spurs him on: "With Morpheus I went all out to really pack it into the machine. It makes copying it a lot more difficult. My reaction to being copied is that I become even more determined to make things as good as I can, so that even if people try and copy me, they might actually decide to give up."
Even more telling was the opinion of Audiogenic's Peter Calver, whose company released one of the best known Uridium clones, Psycastria: "I think in this particular case, Psycastria was closer than it need have been, with the result that when it came out it was out of date and didn't add anything. People just won't buy cheap imitations. There are commercial forces which mean that just doing a copy is a pointless exercise — nobody wants yesterday's papers."
Obviously, though, it's in the big bucks licensing market that plagiarism is potentially more damaging.
"Licences generally do have a value," says Steve Wilcox, "and we are certainly still interested in acquiring them. But our experience in the Commando case was a salutary one. I think without a doubt that the possibility of being copied would now be a factor we'd look at when considering whether or not to acquire a particular licence." He also notes that, with the players in the market becoming fewer and more responsible, he'd expect the instances of copying to decrease.
"I think what clouds a lot of people's attitudes is that people pay a lot of money for a licence, and it's not usually worth it," says Audiogenic's Peter Calver. "Very few games are that original."
This view is one that Colin Fuidge would go along with: "I think people make a mistake by paying out so much for arcade licences — perhaps they should try to originate themselves more."
Everyone hates flares
Having seen his company's product, International Karate, taken off the market in the States by Data East who successfully alleged that it infringed their rights in their Karate Champ, System 3's Mark Cale is sceptical about the way in which the Look And Feel law operates in practice across the pond: "karate is karate. In this case our game had different moves, the men were different, the backgrounds were different. Our product was a better product and it was unique — there shouldn't have been a problem. But basically Data East and our distributors Epyx don't like each other, so this was their way of getting at each other. This Look And Feel rule is very dangerous. It wouldn't be needed over here. At the end of the day, I'd always talk to the other software houses here if there was a problem. I'd never rip off anybody totally."
He also notes, like Peter Calver, that the reality is that, like the music industry, the software industry goes through fashions, and that the software producers have to work in the area that's currently popular: "if there's an 'in' game, we'll be doing it too. It's like fashion: you're not going to produce flares when everybody else is wearing drainpipes."
Whatever anybody feels on the issues, one way or the other, there's no doubt that cloning seems to be as prevalent as ever. Tim Chaney says that "we get presented with knockoffs at least twice or three times a week. And I can only imagine, as I'm turning down these games, that they're going to crop up elsewhere. I mean, I've already seen a game where the aircraft flips over on its back while it's flying along, explodes as it hits the ground, and it moves really fast. I'd imagine we will see an Afterburner rip-off soon."
Ultimately, while Electronic Arts' Mark Lewis feels that plagiarism probably does have some negative effects on the industry, there's not too much to be done about it, and, in the end it's not as serious as other forms of piracy.
"I think there are two very different types of piracy. The commercial pirates, the guys who run off copies of original programs and sell them on the side of the road, they deny the copyright owner his basic rights, they're in every sense criminals, and they'll put companies out of business. People who make clone-like games are much less harmful. They may be copying an idea that's already there, but they're having to re-invent the technology, to put it into their own code. It's too bad that everybody doesn't go out and create great original artistic works. But you're always going to get that. I mean, how many pictures of Big Ben do you see when you're walking along Green Park? They're obviously not original, but they are artistic and they execute their ideas artistically."
Next Month: CU talks to the hackers and demo crews around Europe and asks: Is the 16-bit market under threat?
This article was originally published in Commodore User issue 56 from May 1988 on pages 78-83.
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