Spry Fox settles with 6Waves – does it matter?

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Spry Fox and 6Waves have settled their legal dispute over allegations that 6Waves had cloned Spry Fox’s game Triple Town.  News of the lawsuit received great attention and no small amount of oppobrium directed at 6Waves.  News of the settlement has received similar fanfare.  But does this really matter to the wider games or software industry?  I don’t think so – not from a purely legal perspective anyway.

The background:

I wrote about the case briefly back in January 2012 and the full details are on VentureBeat.  Here’s the bare bones: Spry Fox, a games developer, developed Triple Town while also holding discussions with 6Waves, a games publisher, about 6Waves publishing the game.  The discussions were conducted under a Non Disclosure Agreement.  6Waves subsequently broke off those discussions abruptly and released a game called Yeti Town, which Spry Fox argued was effectively a clone of Triple Town.  Spry Fox commenced proceedings, arguing both for copyright infringement and breach of contract among other things.

What’s happened now:

The parties have announced a settlement between them, the terms of which are confidential save that Yeti Town will become the property of Spry Fox.  The settlement followed an attempt by 6Waves to dismiss the lawsuit, which failed.  Litigators, and long-time readers of this blog, will know that failing to knock the other guy’s case out of court is often a cause for settlement (because you can tell in which direction the lawsuit is heading – and it isn’t favourable to you).

Why this case doesn’t really matter for the games industry

Supporters of Spry Fox made the argument that this lawsuit needed to happen because clones should not go unpunished, that there should be a case establishing legal recourse for developers whose products are cloned.  I agree.  But this case isn’t it.

Firstly, because it was settled on confidential terms and therefore: (a) we don’t really know what was agreed between the parties (though the fact that Yeti Town is now Spry Fox’s suggested that they got the upper hand); and (b) it has no legal precedent value.

Secondly, and more importantly, the law on cloning has already moved on since this case was started.  In the USA, the US case of Tetris v Xio Interactive (which I wrote about here) already provides a modern legal precedent against game cloning.  By contrast, in the EU the judgment of the Court of Justice of the European Union in SAS v World Programming (which I wrote about here) has pretty much shut the door on any kind of legal cloning argument.

In other words, from a purely legal perspective, the Spry Fox lawsuit was trying to solve a problem that has since been solved (albeit the US and EU are moving in different directions on what that solution should be).

I’m still sympathetic to Spry Fox ofc, and I think Triple Town is a really great game.  They should be commended for having the courage to commence legal action to protect their position.  But my point is that we need to look elsewhere for cases which will have a lasting effect on cloning in the games industry.

And, lastly, there is the caveat we always need to make regarding games (and software) cloning – having a clear legal position is important but ultimately it is not going to solve the cloning issue on its own.  Engagement by the various distribution platforms, as well as the natural evolution in distribution and business models already underway, will have as much – if not greater – effect than change in the law.

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