I’m never surprised to read notices of apps being pulled from Apple’s App Store. After all, the company has made a point of doing what it wants to do, without comment most of the time. However, a recent post about Google removing some apps made me take notice.
According to DroidGamers.com, Google received a notice from The Tetris Company, LLC that under the DMCA the company should remove various Tetris clones from the Android Market. It turns out there were more than 35 of them, and they have all now been taken down.
The interesting part about this news story is that not only did Google do the taking down–the company is traditionally not in the habit of openly being a protector of big companies–but also that technically, the idea of a game in not protectable.
Since I’m not an attorney, I reached out to Doug Wolf, Co-Chair Trademarks, from Wolf Greenfield. I have asked Doug to comment before on the iPad trademark and thought it would be a nice add-on for this piece. I have quoted him below: [disclaimer: Doug has advised me in the past]
“Copyright law protects the expression of the game rather than the idea. In other words, the look and feel, the presentation, colors, and arrangement are all protected under copyright law. On the other hand, the idea of the game is not protectable. The problem for people making Tetris-type games is understanding where the copyright protection ends.
Considering that copyright rights in games can be difficult to separate from the game idea, the significant level of damages in copyright cases, and that Google does not need these games for its customers, taking down the games is an easy decision.
The Copyright Act does not involve trademarks which are the brands. That is a different area of law, and in fact there could be “fair use” of trademarks which allow some display of the brand. Also, the test is different under trademark law - whether the consumer would be confused as to source of the game. All of this makes for a different analysis and possibly a different decision from Google depending on the game.”
From the above it sounds like Google took the easy way out. These independent developers don’t have the financial resources to fight either Google or The Tetris Company, LLC, so the games will probably remain unavailable for the foreseeable future. Then again, perhaps they’ll show up in either open source or in some other form in the future?
I hope that this latest move by Google isn’t a sign of things to come. In the case of the Android Market, I was hoping that Google would actually use some of its own resources to really look at what its developers are offering and protect them, if appropriate. After all, Google really needs Android developers, especially in the Android Market. If developers feel like their apps could get pulled at any time, they will be even less inclined to develop for the platform.
