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.

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Comments on “How Lawyers For Settlers Of Catan Abuse IP Law To Take Down Perfectly Legal Competitors”

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43 Comments
Steven (profile) says:

This is extremely interesting to me. On several occasions I’ve wanted to make software games based on physical games that I enjoy playing (of which no good software version exists) but I’ve never really pursued it.

Maybe someday I’ll just have to write a software clone of Catan.

However I’m conflicted now. I’ve never played Catan, and it sounds interesting, but I don’t think I can send money to such a company.

MrMagoo says:

“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.”

Similarly, when you look at the generic OTC medication at WalMart, you’ll see that the boxes say something along the lines of “Compare to the active ingredients in Vicks Dayquil!” I’m sure Vicks would love to be able to prevent this on the grounds of trademark infringement, but they obviously can’t.

Mudlock says:

Re:

Monopoly was patented. But the patent (actually, there were several) expired many, many years ago.

http://en.wikipedia.org/wiki/History_of_the_board_game_Monopoly#History

The game’s artistic elements, and the specific formulation of the printed rules, are still protected by copyright, and of course the name (and also, I believe, some of iconic imagery) are also protected by trademarks. But if you don’t reuse their artwork, re-write the rules in your own words (but saying the same thing), and avoid any trademarked materials, it should be absolutely legal to make your won Monopoly-like game. (But, of course, that doesn’t mean Hasbro won’t take you to court over it.)

Catan, by all appearances, is NOT patented, and if it had been before publication, then the patent would expire in 2015.

Elements of Catan are also trademarked; that’s why you couldn’t name your Catan-like game to include the word “Catan” (but you can use the word “Settlers”, just like you can make your own soft drink called “Cola”, but not “Coke.”)

All the artwork (and the specific formulation of the rules) are protected by copyright, but again, if you avoid those things, making your own Catan-like game SHOULD be legal. But, as the story says, that won’t stop you from being threatened with a law suit ๐Ÿ™

And by the way, if Hasbro is still putting the patent labels on the current printings of Monopoly, you (yes you!) should take them to court for $1.6 billion.

http://techdirt.com/articles/20100225/0114278298.shtml

($500 times 3.3 million copies sold each year.)

Dave (profile) says:

If it was YOUR game you wouldn't want others stealing it

Think twice people!

I like to hate on big rich corporations too but this is their game. It just so happens that I have spent two and a half years developing my own boardgame, which I hope to market someday. If I release my game and some hot shot programmer takes all my ideas to make an electronic version without giving me royalties I sure will be upset. I will certainly sue.

The people who make Settlers of Catan have invested a lot of time and money developing the various versions of the game, manufacturing and marketing the game, developing a customer base. Why should some yahoo reap the benefit of all that without paying a royalty or getting a license?

If you don’t want to be sued, MAKE YOUR OWN ORIGINAL GAME and stop stealing intellectual property!

misterdoug (profile) says:

Re: If it was YOUR game you wouldn't want others stealing it

Maybe you read a different article. The one I read was about selling game pieces that can be used to play a certain game, not about copying the game itself. Inventing the game of tennis doesn’t entitle us to sue people for making tennis shoes, giving tennis lessons, writing tennis books, drawing a picture of someone playing tennis, etc.

Unfortunately the law does allow us to make all kinds of litigious threats to which other people must respond, with the hope of depleting their resources to the point where they give up in spite of having done nothing wrong. It’s trial by combat, we just don’t call it that.

EMB says:

By contrast, at least one competitor, Rio Grande Games, not only sells many board games that I like better than Settlers, but it’s also a lot more reasonable about this sort of copyright/trademark issue. They not only don’t try to sue people making electronic versions of their games, but they also are generally quite willing to license the artwork for free for free electronic versions.

It’s a matter of realizing that these electronic versions are definitely not substitutes for the physical product and that they can act as free advertising. Of course, for a really popular game like Scrabble, I could see them wanting to sell their own computer versions and keep others from using their trademark, but I’m very skeptical that Settlers is there yet.

(In particular, I highly recommend Dominion and Carcassonne for more casual board gamers and Puerto Rico and Race for the Galaxy for those who wouldn’t mind something a bit more complicated.)

Mudlock says:

If it was YOUR game you wouldn't want others stealing it

That’s cute, but without the resources of a Hasbro-sized (or at least Klaus-Tueuber sized) company behind you, I don’t think you’ll be able to successfully intimidate anyone into falling for your abuse of the legal system. If I were you, I’d get my own digital version up first, because that’s the best way to compete.

And reading this might help: http://arstechnica.com/gaming/news/2011/01/video-games-breathe-new-life-into-pinball.ars

Anyhow. Wishing the law were different only makes it so if you’ve got a ton of money.

Chris in Utah (profile) says:

Prefer Indepence

Wow didn’t know that…. Though hope on the horizon.

Registration stop

When I started this website for the public I had never anticipated so many abusive, disrespecting, whining and dishonest people. If I had knew at the time, I probably never would have started it. Some of you may know I absolutely love programming, creating new stuff and improving other. Unfortunately, since quite a while now, I rarely get the change to do so. I find myself constantly busy with the ‘social stuff’ which is no fun at all. Much of this can be handled by my lovely voluntary crew but they need proper tools to do so. Since I am always busy with the ‘wrong’ stuff these tools are also lacking at the moment. With the current rate of ‘new’ members, we find ourselves unable to handle every complaint, request, question with the attention we would like to.

To give ourselves some time to sort things out I have closed the registration form. Besides that, I have removed all inactive profiles that haven’t logged on for at least 6 months. We are now down to about 180.000 active registered members which I think is quite a lot already. To be honest, I don’t think this measure will hurt anyone that much. Currently active members can play with their usual names, truly new members are not addicted yet and banned players are, well, not welcome. If anything, I actually think it may create a better experience for our existing members in a short while.

I have not set an end-date for the registration stop. If ever, it will open when the current crew and crew-to-be are settled and have the proper tools to do their jobs.

Greetings, Aso

Administrator

Q: I just told my friends about this website, can they please register?
A: No, we do not make exceptions.

Q: My old account doesn’t work anymore, can I get it back?
A: No, if you haven’t logged on for at least 6 months you are now a new member.

Q: Can I ‘give’ one of my accounts to a friend?
A: Yes, but this is at your own responsibility. If your friend gets banned, you will also.

Q: Can I post my profile details on the web so others can use it?
A: No, any account (name+pass) found posted on the web will be removed.

Q: Can I be notified when registration opens again?
A: No, you can check the news once and again

Q: Can I somehow pay for an account (e.g. Donation)?
A: No, no, no..
Added by Aso on Mar 02, 2010

Its been around for years as my #1 source for it so I wonder if Mike might be interested in contacting Aso for a freebie insight ๐Ÿ˜‰

Iori Branford says:

If it was YOUR game you wouldn't want others stealing it

I don’t care if they copy-pasted the game to the very last piece; as they don’t try to pass for the original product, this is not a matter for any court other than public opinion, which comes down really hard against any perceived imitation as it is.

Until their actions escalate to fraud — duplicating the product and/or taking credit for its creation, with clear intent to eat into the creator’s profits — trying to take them to any court of law is just verbal tire-slashing and legal window-smashing.

Dave (profile) says:

If it was YOUR game you wouldn't want others stealing it

I take it you’ve never spent countless hours working for no pay, spending your own money, creating something in hope of selling it?

How about I write a book about wizard school called Sally Potter and the Sorceror’s Throne? I’ll copy all the characters and situations from J.K. Rowlings Harry Potter stories but I’ll change some of the names. I can probably make a pile of money. You have no problem with that?

How about you spend years (yes, years!) creating a board game, playtesting it, updating the rules, paying artists to do the artwork, talking to manufacturers and retailers and distributors and trying to get a project off the ground. Do all that and then I’ll copy your game and make money off of it. Maybe my version will outsell yours. You okay with that?

I hope these court cases lead to a strengthening of the laws regarding copyright of board games. Just because protections are weak now doesn’t mean things will always stay this way.

Jimr (profile) says:

Great board game but poor computer implmentations

I enjoy playing Catan. A great board game for kids and adults as it there is some skill but that can ultimately be undone by luck. Every computer version I have played has cheated strongly in favor of the computer (satirically improbable events occurring all the time the computers favor).
It is best played with real people and the real non-computer game.

Settles of Catan is one of the first board games I will introduce my kids to. It has luck, a bit of strategy and most importantly I can enjoy playing it too. Then it to introduce Talisman.

Thanks for the info. I have always wonder why there is such poor computer versions of this board game. I do think a third party could do a much better job.

ChrisB (profile) says:

Re:

Patents =/= copyrights.

The only thing that could be patented on board games are devices, like the dice-roller on “pop-o-matic trouble” or maybe the mouse trap in “mouse trap”.

The only thing that can be copyrighted on a game is the artwork and the rulebook. I know Mike said the rulebook can’t be copyrighted but typical rulebooks have much more verbiage than recipes, especially for complicated games like Catan. If you re-write the rules and don’t plagiarize, sure, they aren’t copyrightable.

ChrisB (profile) says:

If it was YOUR game you wouldn't want others stealing it

> copy your game and make money off of it

I have experience in board game creation. There is no money in it. Really. They are fun to make and play with your friends but you will never make money from it. Most board games sell a few thousand copies. The best you could do is license the game and get a few cents for every one sold. If you only have one game, what distributer is ever going to talk to you?

Your best bet: create an app and get it into the Android store. Seriously. You have a much better chance of making some money.

PS. it is legal to make a character named Sally Potter.

Soundy (profile) says:

Sounds all too familiar...

I used to play a great game on Facebook, called Wordscraper… a take on the Scrabble idea, with the added ability to create your own custom boards.

Then Hasbro stepped in and bullied and shut down Wordscraper, and its “cousin”, Lexulous. Oddly enough, they also released their own online version of Scrabble about the same time… and it was DREADFUL.

Wordscraper and Lexulous eventually returned… with a changed layout and several “tweaked” rules… but to a Scrabble player, scores are like trophies, and with fixed values (tile values, double/triple score squares, etc.) it’s easy to compare crowns with other Scrabble aficionados.

But now there are 8 tiles to a rack instead of 7; most of the tile values have changed (Q and Z are 12 points instead of 10, etc.), there are 4x and 5x multipliers, and the new default layouts make it too easy to cross two word-multipliers at once, something that is (by design) very rare and difficult to do in Scrabble. In short, it really takes a lot of the challenge out of the game, as well as most of the meaning of the scores. And the ultimate insult: creating your own custom Scrabble-layout board is blocked.

In essence, Hasbro has used legal wrangling to strike down the competition. Nice.

Killer_Tofu (profile) says:

If it was YOUR game you wouldn't want others stealing it

Well, if it is very expensive, hopefully it is good. If some random small time programmer can come along and release a simple version of it that people like more, than your version was too complicated or you paid too much or something. It should be pretty easy to compete with the knock offs since you have originality on your side.

indieThing (profile) says:

If it was YOUR game you wouldn't want others stealing it

Grow up mate, I’ve been in the games industry for 25+ years, and have seen many of my game ideas copied. Hell, I’ve even seen an exact(almost) copy of my first ever game (made in the late 80s), now released by some unknown company for iPhone using the same name as my original game, ‘Oh Mummy’. I actually though about contacting them to cease and desist, but when I thought a bit longer (30 seconds!) it’s pretty obvious that this won’t affect my sales in any way, if anything it’ll be a boost.

I’ve also taken ideas from other games and used them in my own games. It’s what happens in a creative industry.

Bill Fogarty says:

Not understanding the IT Lawyer's law reading

So if I understand this correctly, the lawyers are saying that there is no law keeping anyone from changing the art of a game, rewriting the rules, and releasing it except for a big scary group of lawyers tht threaten a lawsuit. If that is the case, what keeps Hasbro from releasing their version of Island Settlers (or any game on the market). I assume that their lawyers can beat up Catan’s lawyers.

If there is as little Intellectual Property protection as is claimed by the article writers, I would assume that we would see many more examples of “stolen” property than we do. Instead we see companies paying for the right to release games. Which suggests that there is more to IP law than we are being told by the experts in the post.

generateui (user link) says:

New clone

Hi all,

I’m writing OpenSettlers, an open source webbased implementation. Just like “Island settlers”, it’s completely free of using any copyrighted work from Mayfair. It’s currently in alpha, development goes steadily and somewhere in the coming months I hope to start a public beta. I’m looking for contributors to add graphics, game rules (wiki), code, and some crossplatform stuff.

A alpha demo is located at http://opensettlers.sourceforge.net.

Obson says:

If it was YOUR game you wouldn't want others stealing it

Except, it’s de facto *not* intellectual property. And if you are spending 2 years coming up with game *rules* then you are wasting your time as they are not protectable. Furthermore, Catan borrows heavily from other preceding game rules. Catan even borrows from MULE which was a computer game.

You apparently don’t understand what intellectual property is, and what can and cannot be protected.

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