Tuesday, December 6, 2011

Software Copyrights Protect More Than Just Code

As I frequently say, software copyrights are the new thing. Since long ago, software patents were viewed as the only vehicle to protect your software against anything except actually selling unauthorized copies of your software. But most people don't remember that until the rise of software patents, which is a relatively new thing, copyright law was the vehicle of choice. Well I believe that choice is being made again, and it should be. Copyright protection has lots of benefits: it's easier to get, cheaper, lasts longer, and gives you more leverage if you have to file a lawsuit.
Oracle has been leading the charge on this front, scoring big wins for copyright infringement. But others are following that lead. The latest case is one filed by Zynga against a Brazillian company named Vostu. Zynga is the company that makes the popular games people play on social networking sites like Facebook. You may know about Mafia Wars or FarmVille. Well, Zynga also make a game called Cafe World. Apparently this game is fairly popular, so the Brazillian game maker Vostu decided they would knock it off. Now Vostu did not break in to the Zynga offices at night and steal the code, nor did they download "copies" of the game and start serving up their own versions. Rather, Vostu did what most software developers do who want to knock off a popular competitor: they wrote a new game that looked just like Cafe World. Vostu even called it Cafe Mania. No similarity there.
Here is a side-by-side comparison of the two games:
software copyrights protect user interface
Now you tell me, is Cafe Mania a copy of Cafe World? The similarities between the two games drastically outweigh any differences. Clearly, this is a knock off in my opinion. The copyright laws exist to protect exactly this kind of copying. I'm not saying only this kind of copying, but definitely this kind of copying.
The real difficulty in making money in software, and gaming in particular, has nothing to do with writing code. Anyone can write code. The difficulty in making money in software is providing users with an application that they like. People play games because they like playing those games. People don't play games because the games have well written code, they play games that have well-done user interfaces and inviting graphics. Software success doesn't turn on whether the end user likes your code, it's whether the end user likes what he sees on the screen.
Against that backdrop, isn't it most important to protect the part of your code that sells it? One of the most important considerations, at least for a fair use analysis, is how has your copy affected the original author's ability to make money on the original work. If all a software developer does is wait until its competitor comes up with the magic formula for a successful game, and then writes new code to mimic that game, that is copyright infringement. The expression of the code is what the user sees on screen, not the words that appear in source code. Copying the product of the software should not avoid copyright liability just because you used different materials to construct the same end result. Protecting the expression of the source code the same way you would protect the source code itself is the only way to provide meaningful protection to software developers.
This is not a novel concept. In the furniture industry, copyright protection is used all the time to protect furniture. In those cases, a furniture company comes up with a visually-pleasing design for a table or a rug, so someone else knocks that design off. Invariably, the knock off is made of inferior materials and workmanship. So what is being protected? Is it the underlying materials used to embody the artist's vision? Or is it the physical expression of that vision separate from the underlying materials? I would say it is the latter.
Copyright protection is supposed to protect the expression of the author's idea, not the particular medium used to express that idea. I say that software copyrights are an idea whose time has come. More software developers need to be following Oracle's and now Zynga's lead.