How Lawyers For Settlers Of Catan Abuse IP Law To Take Down Perfectly Legal Competitors
from the i'll-trade-you-some-wheat-for-a-clue dept
A few years back, some friends introduced me to the board game Settlers of Catan, which has become quite popular in Silicon Valley. I did eventually buy a copy of the game, and at one point my wife wondered if there was also a software version. After searching around, we discovered that the lawyers for the company that makes Catan seem incredibly aggressive, as there clearly had been some software versions around, but one by one, most of them had disappeared. There were some licensed versions, but they actually weren’t that good. It was unfortunate.
So I was interested a few weeks ago when Michael Weinberg, a lawyer at Public Knowledge, put up a discussion about whether or not there was an IP violation in doing 3D printings of Catan pieces. He explained why there actually was no actual violations there. In reading that, I realized that most of the same arguments would apply to software as well… and like magic, someone popped up in the comments to that post, noting that he had written an Android clone of Catan, and their lawyers had forced it down. Weinberg has now written a detailed explanation of why the lawyers for Catan are flat-out wrong and are abusing intellectual property law to stifle competition.
You should read the whole thing, but the key points are that only parts of the game are covered by copyright: the graphics, for example. But if you’re using different graphics, you should be fine. The Android app was using different graphics. Board game rules are also not copyrightable, as they’re like a recipe. Catan’s lawyers claim that their rules are covered by copyright because the rules “create a protectable fable.” Weinberg points out that this is “simply ridiculous.” He walks through the fable, and breaks it down piece by piece to show how it’s not copyrightable at all.
Although this assertion is highly questionable as a general principle, in this case it is simply ridiculous. As far as I can tell the “fable” in question is this:
Players are recent immigrants to the newly populated island of Catan. Expand your colony through the building of settlements, roads, and villages by harvesting commodities from the land around you. Trade sheep, lumber, bricks and grain for a settlement, bricks and wood for a road, or try to complete other combinations for more advanced buildings, services and specials.
Everything beyond the first sentence simply describes the gameplay. The first sentence “Players are recent immigrants to the newly populated island of Catan” is far from a wildly original piece of storytelling, and may not be able to be protected by copyright at all. Even if you could protect that one sentence with copyright, if that sentence allows Catan to protect its game then “Nations are at war, fighting to control the globe” would protect Go, Chess, Checkers, Risk, Connect Four, and just about any board game in the world. Maybe even Catan. There is very little by way of original work to protect in that “fable,” and certainly nothing to extend to the rules of Settlers of Catan. I am willing to bet that very few lawyers would be willing to make Catan’s assertion in front of a judge.
Then there’s the trademark claim. Clearly, “Settlers of Catan” is covered by trademark, so if you were offering a product by the same name, that’s in violation. But the Android app was called “Island Settlers” which is not infringing. Catan’s lawyers claimed that because the developer mentions Catan, that makes it trademark infringement, but that’s ludicrous. If you are accurately describing that a game is “like” Catan, there’s no trademark infringement. In fact, you’re specifically showing that there’s no likelihood of confusion, because you’re admitting that the games are not from the same source. As Weinberg notes, it’s perfectly legal, if you’re selling replacement parts for a Toyota Camry to mention that they work for a Camry, and thus it’s perfectly legal to say you’ve made a game like Catan, or which matches with Catan, and not violate the trademark.
Unfortunately, the lawyers toss out all sorts of otherwise incorrect information and claims about intellectual property law, and the developer admits that, even if they’re wrong, he feels he has no choice but to give up, because he can’t afford to fight any sort of lawsuit, no matter how bogus it might be.
As Weinberg points out, this is the worst kind of legal bullying:
The email exchange between Catan and Neil is the worst kind of ignorant (let’s assume it was ignorance) legal bullying. It is full of patently incorrect or misleading statements of US law, punctuated by threats to pull the developer into court if he fails to submit. It is a shameful example of a company trying to control what the law does not allow it to control by relying on fear and an inability to afford to go to court.
Tragically, this how much of the law works today.