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I'm being sued for 'copying game play' ?!

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Hi!

 

I've recently published a small (but fun ;) ) iOS game, Flipz:

https://itunes.apple.com/us/app/flipz/id775988938?mt=8

 

I basically wrote it as a birthday gift for my father since I never know what to give him. The game principle is not completely unique but at least has some unique features not seen in any other games (at least as far as I know).

 

Now, for the scary part: I recently received a cease-and-desist email in broken English from the publisher of the following game:

https://itunes.apple.com/us/app/block-puzzle-fit-match-magnet/id738268654?mt=8

 

The email basically states that I copied their game illegally, that I should remove my game immediately from the app store and pay "lawyer fees" of 500$.

 

What should I do now?? Granted, the games share a bit of gameplay but look nothing like each other and I do have some unique features in it. Should I remove my game and pay as requested? Should I lawyer up and refute the claim?

 

My game has only like 200 downloads, so I don't know how I even got a target :<

 

Any suggestions are greatly appreciated!

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I doubt they have a leg to stand on, but nevertheless, consult an attorney.

 

To be honest, it just sounds like they're trying to extort money; I doubt they'd follow through with an actual legal claim.

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Thanks Tom!

 

I'm not expecting to make any money with Flipz (it was just a birthday gift!) and I would prefer not to spend any money on this either...

 

Is there actually grounds for a the cease-and-desist letter?

 

If, I'll have to take down the game, fine (but sad) - but I'd rather not pay :[

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Thank you samoth.

 

Since I've settled down now a bit, I also feel like just ignoring it... Or not. D*mn, games were supposed to be about fun >_<

 

However, for now, I'll just reach out to that developer of "block puzzle" and ask him directly what's going on there...

 

And no, I don't have legal cost insurance - and wouldn't have dreamed of needing it for this!

Edited by KoMaXX

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Your app is published by Apple and is sold in apples store

 

Haven't thought of that! Thank you very much, I'll try to reach Apple then!

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FLeBlanc,

... maybe you're right. I'm a "just let's sit down and work this out" guy but perhaps not the route to go here :/ Thanks. 

 

I'll lawyer up then.

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I would ignore them, and consult an attorney only if it can be done for free.  If they do sue (highly unlikely), you could get an attorney then, but they will still have to prove damages, and with that download number, that's going to be very hard.

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consult an attorney only if it can be done for free.
Not possible in KoMaXX's country of residence. The lawyer mafia has made sure of regulating that.

 

Not only are rates regulated by the chamber, but it's even strictly illegal for a lawyer to counsel you for free (minimum fee for counselling a private person is 10€, but it depends on the amount of dispute and on the lawyer's greed -- if they say they cannot determine the amount of dispute reliably, they may just charge an hourly rate, up to 190€ for a private person).

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"Broken english, weird claim, demands money", that already fulfills 3 out of 4 criteria on the scam-o-matic scale. Did they say "hurry, or it will get more expensive" too?

Korean company, one of the poorest websites I've seen in my life... are you sure that the C&D letter comes from a lawyer at all? Seems rather unlikely that this is a serious claim.

 

This!  Sounds like a classical scam.  Are you even sure the letter even comes from that game company, not someone who just picked two similar games to make a profit?  Is the bank account you are supposed to "send $500" maybe not someone else trying to earn a few bucks?  The wording sounds an awful lot like a classical fraud to me.

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Well that's not entirely true. Gameplay can't be copyrighted, yes. But at least in the USA it can be patented, as Sega has proven (think Crazy Taxi).

Good point, I had forgotten about that lawsuit. Though it sounds like it might've been justified, since even before the lawsuit, people noted strong similarities. "Road Rage features similar game play, to the point where some reviews commented negatively on the parallels." - IGN
In the sense that it's a clone (according to the reviewers, not merely the lawsuit), and a trashy one at that (according to the reviews), SEGA probably should have sued - but I haven't personally compared the two games myself, so I'm not sure.

What comes to my mind was the copyright lawsuit against 6wave's YetiTown game (an blatant clone of SpryFox's TripleTown) - thankfully, because 6waves copied actual data values, visual layouts, and sometimes even wording, 6waves quickly settled and actually gave over the rights to the clone to SpryFox.

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he email basically states that I copied their game illegally, that I should remove my game immediately from the app store and pay "lawyer fees" of 500$.

Does a lawyer that charges that little even for photocopying even exist?

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I'm not a lawyer, but I ignore *everything* as spam, phishing, or a scam until proven otherwise.

Edited by Nypyren

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Since he already said he was going to get a lawyer, then the important part is taken care of.

The legal process is rather long. He got a C&D order, which is right near the very beginning of the process.


The thing is, from the business perspective, when you find somebody doing something very similar to what you are doing it is frequently the best decision to send a C&D order.

Businesses are required to defend their turf. If they have a pattern of not protecting their names, marks, logos, designs, characters, implementations, color palettes, audio themes, and basically everything else, the business runs the very real risk of losing rights to things they made.

It is always possible this was from a scammer. There are scammers who send false C&D letters trying to scare people into complying. But it is also possible it is from a real business defending their turf. There are several signs: was a signature and proof of delivery required, was it sent by actual lawyers, and do they cite actual law in the violations? Some scammers just try to scare you and are nobodies, some scammers are very serious aggressive lawyers who don't think of themselves as scammers, and who are often able to extract large sums of money from multi-national corporations. Occasionally this group of people are able to convince multiple judges that their demands are real before a judge and appeal eventually declares them a scam. Many in that group feel they are doing what is right, even when popular culture disagrees.


You NEVER ignore a C&D letter. Deciding exactly how to reply, or to not reply, is a discussion best held with a competent lawyer. A wrong response, either to a real legal threat or to a scammer, can cost fortunes.

It is a part of doing business, and by virtue of putting a product on the market you are in business.

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The legal process is rather long. He got a C&D order, which is right near the very beginning of the process.

Well, no. He got an email from some unknown guy which alleges some claim and alleges some lawyer costs. That isn't quite the same thing.

 

If you get a C&D order, you get it via certified mail (that is, on paper), and you get an invoice for the attorney's fees with the letter along with a threat of legal proceedings if you do not comply within 14 days (or a similar time period).

Edited by samoth

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The legal process is rather long. He got a C&D order, which is right near the very beginning of the process.

Well, no. He got an email from some unknown guy which alleges some claim and alleges some lawyer costs. That isn't quite the same thing.
 
If you get a C&D order, you get it via certified mail (that is, on paper), and you get an invoice for the attorney's fees with the letter along with a threat of legal proceedings if you do not comply within 14 days (or a similar time period).
Ah, didn't see the 'email' word in the original.

As noted in my earlier reply with "signature and proof of delivery", I totally agree. Legal demands are sent through paper channels that require real signatures to ensure delivery. Email doesn't cut it. Yeah, that kind of email bill is safe to ignore. A real C&D demand, however, is not.

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If you have released this on the Apple app store then Apple have a system in place for protecting iOS developers. If the other developer wants you pull your game then they need to contact Apple and not send you a C&D.

Well, in practice someone can attempt to sue (or threaten to do so) who they like. Normal practice is to send a C&D to the site, but they can still sue who they like, no matter what Apple or anyone else say - in the unlikely even that he was sued, I'm not aware that those whole teams of lawyers would turn up to defend him...

In practice, I agree with every else that this smells of a scam or extortion attempt.
 

 

It is a part of doing business, and by virtue of putting a product on the market you are in business.

You're right that sometimes scammers can do real damage. OTOH, is he doing business, when he isn't selling/charging, or doing anything to otherwise promote a way of making money? People can be sued for any reason, even if it isn't business - but then, it isn't a part of doing business, it becomes a part of life.

When you're not in business, people often can't afford to pay a lawyer for every scam or threat that may come along - it is a useful first step to ask for free advice first, to see which situations may require seeing a lawyer (and indeed, in this case it seems to have been useful, to find out that an email in itself does not constitute a legal C&D).

Edited by mdwh

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People can be sued for any reason, even if it isn't business - but then, it isn't a part of doing business, it becomes a part of life.
Makes you wish you'd live in ancient Babylon, under Hammurabi's law, doesn't it? If you dragged someone to court and it turned out you were deliberately making a false claim or giving false testimony, you had to pay back ten times the sum disputed. And if you didn't, you became the other one's slave.

Oh, and of course judges were held responsible, and punished for demonstrably wrong trials, too...

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It is a part of doing business, and by virtue of putting a product on the market you are in business.

OTOH, is he doing business, when he isn't selling/charging, or doing anything to otherwise promote a way of making money?

That is actually pretty complicated.

Unfortunately it gets into lots of different aspects. In some ways it is a business and in some ways it is not.

He clearly created a product, a thing of value. He is selling the product, but not for cash. He is marketing his product, but not extensively. Take a look at his web site, including the "Get it here, now" text, including all the bullet points encouraging people to get it; clearly something of value is being traded. The value may be only a few moments of entertainment, but the entertainment business is huge.


First up is commerce.

Regardless of where he is physically located, he has created a product and made his product available on the global market. He placed a product on a store based in the United States. Several copies of the product were actually sold, not necessarily for money, but the law allows for the trade of just about anything, including goodwill.

He has clearly engaged in commerce in the United States and the transactions are subject to the law as it refers to commerce and trade. That includes quite a lot of benefits, including trademark protections, but also includes a few responsibilities like proper marking. That means he can also be sued and threatened under commerce and trade laws even if he never made any money.


Next up, taxes.

When it comes to taxes, all of that commerce and trade gets interpreted under different rules. Businesses -- especially startups -- can offer goods and services for free, can operate at a loss, and can even exist without selling anything at all for a few years.

Trading or selling the results of your hobby can be taxed as a business. That is quite common. The threshold for how much income you can make before reporting it on taxes varies by location, but it isn't very high.



But is that a business?

It is absolutely engaging in commerce, it may or may not reach a tax threshold, but does that make his actions a business? Maybe. It depends on the local law. It may be considered a hobby or a business depending on how much it affects his life, how much time and effort he put in to it, the market value of the product (which can be very different from the cash value), the way he keeps records, or many other factors.


So as you can see, it gets complicated quickly. Business and law are fun that way.

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I've received dozens of Email C&D's, and legal threats in general. I even had someone threaten to sue me for "blackmail" because I distributed information about a court case against him when he banned me from a game.

 

Only bother contacting Apple if you get one in writing, that can be verified as authentic. Whatever you do, don't contact them, because they'll think they can fleece you for some money.

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