[Freeciv] Re: it's like a screenplay

[Steve Hodge <shodge@xxxxxxxxxxxxxx>]

Brandon Van Every wrote:
...

Here's my take on it:
There is no trademark infringement in FreeCiv.
There is no copyright infringement as far as documentation and artwork
goes in FreeCiv.
There is no copyright infringement as far as the code goes because it is
not reverse engineered (which may or may not be illegal anyhow, but
that's another story).

I think we all agree on those.
The legal debate hangs on (i) whether the *rules of a game* can be
copyrighted, and (ii) whether the rules of FreeCiv in particular are
copyrighted. (ii) is probably irrelevant since copyright can be claimed
whether it is explicitly stated or not. I'm not getting into the ethical
debate either because it just can't be won either way.

IANAL, but the research I have done indicates that the rules are not
copyrightable material. One of the requirements for something to be
copyrightable is that it must be "fixed in a tangible medium", and
copyright protects the expression of an idea and not the idea itself.
Rules of a game are clearly not fixed in a tangible medium, although a
description of the rules may be. The rules would most likely be
considered a "method of operation" which is not covered by copyright
(see http://www.loc.gov/copyright/faq.html#q1). As a process or a method
the rules may be patentable. Indeed a search of the patent database at
http://www.uspto.gov/web/offices/com/iip/index.htm reveal a number of
patents that appear to include the rules of a game. Civilization,
however, is not patented.

A similar case is the Tetris Company's attempts to shut down clones of
Tetris (here's one of many links about this issue:
http://www.geocities.com/Hollywood/2430/tetris.html). Note that they
don't go after these people on the basis of a copyright on the rules -
they claim a "look and feel" copyright and a "trade dress" copyright.
These types of copyright are covered at
http://www.computerlaw.com/lookfeel.html. Tellingly I have not heard of
any one of the hundreds of cease and desist letters sent by the Tetris
Company being followed up with legal action.
I think that look and feel would be Hasbro's best chance against
FreeCiv, but the games feel significantly different to an experienced
player, and the lack of an isometric display make them look quite
different too so it wouldn't be cut and dried for Hasbro.

Finally here some more supporting references:
17 U.S.C. §102(b) "in no case does copyright protection for an original
work of authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery, regardless of the
form in which it is describe, explained, illustrated or embodied in such
work." 

http://www.loc.gov/copyright/circs/circ1.html#wnp:
"What is not protected by copyright ... Ideas, procedures, methods,
systems, processes, concepts, principles, discoveries, or devices, as
distinguished from a description, explanation, or illustration". Note
that the "description, explanation, or illustration" may be protected.

Hopefully I have managed to convince a few people to give this issue a
rest now? At the very least a cease and desist letter would be issued
before a suit was engaged so at this point we don't need to do anything
(and the issuing of such a letter in no way suggests Hasbro feel they
could win the case).

Regards,
Steve Hodge