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Fishing, the iOS Clone market, and Patent/Copyright
by Andy Schatz on 08/15/11 02:15:00 pm   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

Last week I went to a Weezer concert, they covered a song I'd never heard before: "Pumped Up Kicks".  Here's the performance:

It was awesome.  This morning I couldn't get the song out of my head.  I went and looked up the original:
Also awesome (and apparently pretty popular, I'm just out of the loop).  Weezer didn't specifically say the name of the original band but they did say it was a cover of a song that they heard on the radio that morning and decided to learn.

Enter the Ninja

A few weeks ago, a company called Gamenauts released an iPhone game called Ninja Fishing.  While it has a bland art style, the core game is unique, interesting, and fun.  Apple then featured the game, and it quickly rose to the top 10 list, and they are likely raking in profits at this very moment.

NOT SO FAST.  "Unique"?  "Original"?  No, the game was a clone of a not so well known free flash game called Radical Fishing, released by Vlambeer at the end of 2010.  After Radical Fishing, Vlambeer went on to make Super Crate Box.  And after that, they began working in secret on an iOS remake of Radical Fishing called Ridiculous Fishing.  The new RF has a unique and beautiful art style, and likely would have climbed the charts even faster than Ninja Fishing.  It may still.

IGF chair Brandon Boyer led the charge on educating the masses about the origin of Ninja Fishing's game design inspiration.  A number of developers quickly picked up their pitchforks, and under pressure, Gamenauts offered to credit Radical Fishing as the inspiration behind their work.

But this didn't silence their detractors.  The argument against Gamenauts (and other cloners) is that it chills the incentive for innovation.

But does it?
Katy Perry covers The Pixies

Imagine that Katy Perry (or some equally broad audience but bland performer) had decided to cover a not-well-known and poorly produced but interesting song from a small band and put it on her album, not knowing that the small band had formed an offshoot band with more production values, which had intended to release a cleaned up version of the song at a later date.

She is actually allowed to do this.  She could either sample the original track without copyright or credit* or she could go through one of 3 processes for legally covering the original song:
She doesn't even need to have permission to cover the song if she gets a mechanical license (cheap, easy to get, but has a standard royalty rate attached to it), although the original band is allowed to choose who will release the first version of a song if it hasn't been released yet.  In the case of Ridiculous Fishing, the original version has already been released.

The Desktop Dungeons iOS Clone, and Copyright vs Patents

Desktop Dungeons
is another free-to-play (and AWESOME) PC game that got cloned in the iOS market before the original creators were able to port the game.  There's one major difference here, though: the cloner had access to a private beta, and began cloning the game before the original Desktop Dungeons was ever released to the public.  If game design were covered by Copyright law, rather than patent law, then the team responsible for Desktop Dungeons could have prevented the release of the clone simply by not releasing Desktop Dungeons publicly until they were prepared to hit all markets.

The Game Industry was built on the back of slightly edited cover songs

I think the reason that it's so maddening for the Vlambeer folks (understandably so) is because they took a fairly major game design leap with Radical Fishing, while the rest of the industry tends to take much smaller ones.  I'm guessing this wouldn't be so maddening if someone had cloned their other title, Super Crate Box, as the game design leap to get there wasn't as great.  That said, I don't think public shaming of a cover band is a good thing, nor do I think public shaming of Gamenauts is either.  Games are about entertainment, and the public won't be on the side of the original creators if we act over-protective of our works like the RIAA.

Additionally, Ninja Fishing actually did include some innovations: the art style is different, and more mass market than the original Radical Fishing (which looks... ahem... shitty), and they included a slicing mechanic (which is lifted from Fruit Ninja and a number of other iOS games).  These are small, but they are technically "innovations".

Game Design Patents are bullshit

Currently, game design is covered by Patent law, meaning that game design is viewed more as a mechanical process rather than an artistic one.  This means that you can potentially patent individual mechanics, which certainly chills the market for creative inspiration.  

Here's a recent bullshit Nintendo patent
Here's a bullshit Microsoft patent

It seems pretty clear that game design has a lot more in common with music composition and not mechanical innovation.  Our laws should treat it this way.  What does this mean?  Sampling (copying individual mechanics) should be OK*.  Outright cloning (covering a whole song) should also be OK, but some protections and financial incentive should go towards the original creators.
 
*(The legality of sampling in the music world is actually still being hashed out, but most likely the law will eventually come down against the samplers.  I believe this is the wrong approach, and that sampling should be legal in music AND game mechanics.)

How should the law treat game design cloning differently from music cloning? 

The major differences are these:
  1. It's WAAAY easier to cover a song than to clone a game.  Thus the disincentive for cloning may be too great, whereas it's small enough in the music industry to provide incentive on both sides.
  2. The game industry is built on the backs of slightly modified clones.  Most of the innovations in the gaming world are basically bands changing a single verse or even line from someone else's song.
  3. A mechanical license (cover license not requiring permission) requires that the cover "arrangement shall not change the basic melody or fundamental character of the work".  This doesn't work for games.
In the absence of copyright protection, what should game designers do?
  1. ALWAYS CREDIT YOUR GAME DESIGN INSPIRATIONS
  2. Educate the public on the inspirations behind other games.
  3. Stay positive
I feel bad for the team making Ridiculous Fishing, especially if they find that their market has been sapped by the time their game gets to market.  I do think that they should have some legal protections for their creative inspiration.  But we also have to provide a legal and non-shameful avenue for the cloners (cover bands) to exist and to take the creative baby steps that have formed the basis of much of the innovation in our nascent art-form.


****************************

EDIT
A point I think is important that came from the comments:
"Here's the reason I think it's fair to call the changes in Ninja Fishing "innovation": Gears of War. Every piece of game design in Gears of War is a direct clone of something else. INCLUDING the element that is renowned for being "innovative": the active reload concept. That concept is tried and true, it comes from golf sims. Every other element of Gears of War is a direct clone of any number of other games. But the "remixing" of that mechanic into a shooter is meaningful.

The same thing applies here. We just hate on Gamenauts because they aren't as good at their craft as Epic. "

EDIT #2
If you are curious about what the compulsory royalties are for selling a cover of someone's song:

"The current (2006) statutory rate for royalties is 9.1¢ for every copy sold if the playing time for the song is under five minutes.

If the playing time for the song is longer than five minutes, the rate is 1.75¢ per minute, rounding up to the next minute.

  • under 5 minutes = 9.1¢ per copy
  • 5 to 6 minutes = 10.5¢ per copy (6 minutes x 1.75¢)
  • 6 to 7 minutes = 12.25¢ per copy (7 minutes x 1.75¢)
  • 7 to 8 minutes = 14.0¢ per copy (8 minutes x 1.75¢)
  • etc.
" - From cdbaby.com

EDIT #3: After all this and I didn't actually mention the name of the band that Weezer covered.  They are Foster The People.  I'm glad Weezer covered them (performance covers don't even need license, which they likely didn't get) because now I've discovered an awesome new band - which wouldn't have happened had Weezer not stated that it was a cover before they sang it.

EDIT #4:
If it bothers you that Ninja Fishing may profit more than Ridiculous fishing, despite Ridiculous Fishing having incredible artwork and Ninja Fishing being bland looking, ask yourself if you'd feel the same way if Vlambeer's remake had the bland art and the clone by Gamenauts had incredibly beautiful art.

NINJA EDIT #5: Katy Perry actually IS allowed to do the hypothetical Pixies cover I mentioned above, as long as she follows the rules for covers. 

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Comments


Tyrone Henrie
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I agree with where you're coming from but while technically the changes they made are "innovation" I think using the word gives too much credit to what they've actually done.



The analogy that I keep coming back to in my mind is a high school assignment. The assignment is a simple question. "How do you make a great casual fishing game?" Vlambeer took the assignment seriously and gave the question its due diligence. They answered the question and released it to thier peers in other classes for review. While Vlambeer was doing all of their homework and research Gamenauts copied all of Vlambeer's answers and turned in their work before Vlambeer. Gamenauts changed how a few of the answers were worded and used different images (maybe to avoid being caught and to suit the medium they chose for presenting their work).



Now, Vlambeer will eventually be able turn in their assignment but who knows how they will be affected by Gamenaut's actions. Maybe there was extra credit for being the first to hand in your assignment?



I agree that we shouldn't shame cloners as all creativity is borrowing. Cheating is not tolerated in school and at the very least we shouldn't accept what they did and call it ok. The best we can do is call them out and hope that they and others will avoid predatory cloning in the future.

Andy Schatz
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This isn't school, though, it's business. In school, the point is to make sure that everyone learns something, and tests are supposed to be a metric of that. That analogy makes no sense in art or business.

Tyrone Henrie
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It's an analogy, I'm not implying that this is school. I don't think it's fair to dismiss everything I say because you may disagree with the analogy.



The fact that this is business is the problem. People will do anything to make money, it doesn't mean we should go ahead and accept the behavior. They're taking advantage of the situation. If the design was created by Nintendo you know that they wouldn't be getting away with what they're doing scot-free whether their work came out a year ago or not.

Andy Schatz
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Also keep in mind that they didn't turn in their work before Vlambeer. Their game came out nearly a year later than the original RF, and they had no idea at the time that Vlambeer had any intention of making the new RF, especially since Vlambeer came out with Super Crate Box in the meantime.



I'd feel bad for Gamenauts -- except they achieved their objective in making a bunch of money regardless of the creative bankruptcy of their process. As such I just hope that they haven't sapped any of the financial possibilities for Ridiculous Fishing

Tyrone Henrie
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... and I'm not saying that legal action is the correct course of action. They just wouldn't be getting away with it.



I hate internet discussions because you have to cover what you say from every angle... :)

Andy Schatz
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here's the reason I think it's fair to call the changes in Ninja Fishing "innovation": Gears of War. Every piece of game design in Gears of War is a direct clone of something else. INCLUDING the element that is renowned for being "innovative": the active reload concept. That concept is tried and true, it comes from golf sims. Every other element of Gears of War is a direct clone of any number of other games. But the "remixing" of that mechanic into a shooter is meaningful.



The same thing applies here. We just hate on Gamenauts because they aren't as good at their craft as Epic.

Andy Schatz
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Really?

http://bit.ly/jfKea2



(sorry to sound uncivil previously, yes I was dismissing your argument, but I didn't intend to be rude)

Tyrone Henrie
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Ok, I follow that. I see where you're coming from more as far as innovation is concerned.



GIRP is a good example but I'm imagining something like a game called "Chubby Sucker" and it's essentially a ninja-themed Kirby and you swipe to kill enemies and tilt to run. It's all theoretical and beside the point but I don't think Nintendo wouldn't just shrug their shoulders if it climbed to the App store top ten (which it wouldn't because that would be a terrible game).

Mike Reddy
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So, where's the email they sent asking him if he had any plans to make an iOS version? Probably nowhere. Courtesy would have saved face. Licensing the idea would have cost little - the intent of your cover "analogy" - and saved everyone time. Darwin "rushed" his Evolution theory to publication because a lowly thinker without all his well funded advantages came up with the same idea (who, for credit can name this acknowledged co-inventor?). He'd have sat on it till death, otherwise, because he wasn't ready to take the risk.

Tom Baird
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In general, I agree with you.

Although I don't feel you treat much of a difference between inspiration and cloning.

It's a gray area, and everyone will draw it in a different place, but as consumers(and developers) we should be pushing for inspirations over straight cloning. What does Ninja Fishing bring to the gameplay of Radical Fishing? Does a Graphical Style and the slash contribute enough to make it worth it on it's own?



For a musical comparison, I feel It can be worth it to sample small sections of a song, and remix it so that it is distinct, but if I were to take a 2:30 song and sample 2 straight minutes of it without any other effects does that still constitute a new worthwhile work? What if I add my own little flair at the end?



It's subjective, and I feel that Ninja Fishing is really on that line with regards to what it's contributions bring to the original gameplay.



A comparison between something feeling new, and worth a new game, and a straight up clone for me personally would be Infiniminer -> Minecraft -> Fortresscraft, which can cause the same arguements of cloning from some people. Minecraft feels different from Infiniminer. It has different goals and directions, whereas Fortresscraft is just trying to be Minecraft and not something else.



I would hope that Gamenauts next game feels more distinct, and I really don't think anything legal should be done, but we should continue to let people know when we feel that they get to close to the line between inspired from and copied off of.

Andy Schatz
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True, it's subjective. But I actually believe Ninja Fishing basically is a Katy Perry cover of a Pixies song, sung in Katy Perry's style, but with all the same melodic notes and words.



Minecraft is more like a full song where the first verse is wholly lifted from a short song, but where the artist got permission to do so without any royalties or kickback



Fortresscraft is like a cover of a song (by a different artist) which sounds close enough to the original so as to potentially be confused with the first. If copyright law were to apply, it would be ok to do this, but they would owe royalties to Notch, thus making him even richer. :)

Evan Jones
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Hey, guess what: in the music world, you have to get permission from the original song's writers to cover it *before* you start selling it. And then the original writers wind up getting royalties.



That's not how Gamenauts went about it.

Andy Schatz
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That's true, but that's also because there's no legal structure set up to require this. I'm arguing that there should be.



Until game design is covered by copyright law, this is a natural consequence of the game design process.

Andy Schatz
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Also note that cover artists don't need to get permission from the original authors, just from an organization like Harry Fox or Limelight, or simply notify the original copyright holders that you are obtaining a Compulsory License. You then must pay them:

The current (2006) statutory rate for royalties is 9.1¢ for every copy sold if the playing time for the song is under five minutes.



If the playing time for the song is longer than five minutes, the rate is 1.75¢ per minute, rounding up to the next minute.



under 5 minutes = 9.1¢ per copy

5 to 6 minutes = 10.5¢ per copy (6 minutes x 1.75¢)

6 to 7 minutes = 12.25¢ per copy (7 minutes x 1.75¢)

7 to 8 minutes = 14.0¢ per copy (8 minutes x 1.75¢)

etc.

Sven Bergstrom
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I think its interesting. One thing i personally find weird though, gears took bunches of stuff into a shooter. Not a golf sim. If you copy mechanics from other 'inspirations' into a totally different thing, that's different to the exact same game taken into the exact same game. If someone copied their active reload into a shooter, its different to if it was copied into something more innovative, like a fishing game. Copying a fishing game into a fishing game is why people are up in arms I think.



Also, the common discussion I have seen regarding it is the business and strategies decided behind the clone. Cloning a well liked game from flash onto iOS with the sole intention of raking in the cash (ESPECIALLY before the actual game gets a change to make it to market) is what makes it crappy (in my view).



Anyway, this is one of those discussions that are yet to come around as you say, its hard to not limit innovation but its even harder to race someone else for making your possible income. Sometimes you have to release on one platform to make money to survive, and in that time someone else starts making your possible future income on another platform. Which to me, sucks.

Andy Schatz
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My point with the Gears of War analogy was that Ninja Fishing introduced the "slice" mechanic after the fish are thrown in the air, which is from another iPhone genre entirely. In Radical Fishing you shoot the fish.



Also keep in mind that Radical Fishing WAS in the market, they were paid for it by sponsors. It wasn't in EVERY market, true, but no game ever is.

Sven Bergstrom
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Sure, i see what you were getting at totally. But the slicing is not the cloned part that is raising issues. Its the entire game other than the slicing.



But , this is the internet. Hardly expecting everyone to agree, but I personally hope a balance can be found. I think contacting the original inspiring developers is a good first step. At least asking them what they think, if they are planning something to move on. I don't know. I just don't like the other strategy.

Andy Schatz
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Oh yeah, I totally understand that. But everyone seems to agree that if you innovate ENOUGH, then it's OK. Everyone seems to think that Infiniminer->Minecraft should be ok, because he added/innovated just enough for it to be a new game (also he got permission, but I think people would still feel ok with it). So why don't we recognize that Ninja Fishing did significantly alter the concept via art and a couple of minor changes to mechanics?

Sven Bergstrom
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I personally (being an artist and coder) don't see the gap between the art side. If i copy a game and skin it, i still copied it. My conscience won't allow me to say I innovated a game by changing one thing and changing the art.



What matters most in the game itself? What made the game the most fun? Was it the art? Hell no. What are the reviews of people enjoying NF saying? Its fun! Its addictive! Those are the core mechanics. Slicing doesn't define that for the game... Does it? Does adding slicing automatically take a boring fishing game to be an addictive fun experience?



It was the core mechanics... The fishing, the concept, the weapons, the power ups. The combination into one complete, fun experience. That, is what was copied FIRST. And one change, in my mind, doesn't cut it (pun intended).



Art plays a huge part on a platform like iOS and many others of course, but they (vlambeer) covered that BRILLIANTLY. I haven't dropped jaw for a game style in a long while and RF took an epic step that way. So to me, I still think it sucks :)

Andy Schatz
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But does it suck because you dont like the way they covered it, or does it suck because of the moral issue? Would you feel the same way if Gamenauts had made the Ridiculous fishing art and Vlambeer's version had the ninja fishing art?



I'm trying to argue that we should find a way for both parties to profit, because sometimes the cover bands do a fucking fantastic job with songs that the original artists may never have granted permission for (artists are often very protective of their works)

Sven Bergstrom
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Yea, I think there should be a balance. I think it sucks because of the execution, and as mentioned, the motives. Financially driven to seek-and-copy games that lots of people are playing from one market into another I don't like. I don't like that it was done with no communication between the original creators.



I'd prefer if someone was so inspired and wanted to make a game, copied or incredibly similar to mine - they would have the decency to mention it to me first. There is no need to be shady, least of all non-crediting. I just think that the line between being a dickhead cloner, and an actual homage/honour/innovation/inspiration/flattery/etc is pretty obvious, at least when communication is involved, mandatory.



Hopefully raising a voice about it will help (as a community , of course). And that, I feel, is what the pitchfork crusading should be about. Awareness, credit, and accountability are good things if we want growth and ACTUAL innovation.



Again, all opinion from me!

Andy Schatz
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To a large extent, I agree with you. Credit is the most important thing that we can accomplish short of legal changes. That said, it's easy to see why they wouldn't inform the original authors: The Desktop Dungeons guy made his iOS clone because of his love for DD, informed them before release, and the DD guys made a stink (rightfully) and threatened legal action (rightfully, since he stole the ideas from the private beta). If you are cloning a game and your clone has significant financial possibilities, you should probably expect that people are gonna come after you, whether you are friendly about it or not.



Which is why we need there to be a legal way for the cloners to exist and profit even when they are dealing with the most primadonna of artsits (which describes neither Vlambeer or QFC)

Sven Bergstrom
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Yea, our games, and the names we attach to them are the way we get ahead. One of those two being taken for money, by someone else, with that intention, can be a tough break.



I am in no way legally clued up (enough) to go into any discussion in that direction, but I agree with you that there needs to be a way to protect but more importantly, enforce accountability. Credit is one thing, a couple thousand or hundred thousand dollars is another. If the accountability and 'relationship' between the originals and clones can be beneficial for both parties then I think it can totally work. So yea, I agree that there _should_ be benefits for both, but its hardly the case in the mentioned examples (financially i mean. but the stink can cause marketing and awareness of RF) :)

Andy Schatz
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Yeah, I'm conflicted about the stink made about RF. I agree, it actually probably helped both parties, but I don't think it's a good long term solution to wind up the slander machine every time someone clones a game.

Sven Bergstrom
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I don't think they will be so brazen about it in the future, do you? They will be far less likely to copy that closely. At least, that is all one can hope.

Andy Schatz
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I dunno... they made a lot of money... and other companies like GameLoft are also hugely popular and profitable. If I didn't take a lot of pride in my own innovations, and I had the stomach to weather the mud slinging, I might just double down.

Sven Bergstrom
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I guess there will always be that line, I don't think it will go away too soon. Perhaps those kinda people are after the money too hard, not the innovation and the love of the games, the passion. Its a business and it pays ( maybe well ) to do it. Sad as it is, that motivator isn't leaving - only getting more fierce. So I can see that view as well.

Andy Schatz
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Imagine if Rovio owed 1.75 cents per sale of Angry Birds to the creator of Crush the Castle. That would be true justice, and would still allow for a world where Angry Birds exists. That's really what this argument comes down to.

Jeffrey Crenshaw
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I like it; it respects the original author who obviously inspired you, but since it's a per sale deal (as opposed to a random large licensing fee), you don't have to worry about losing money, just earning less. Perhaps, in this regard, it should be a percent of profit instead of a flat value (in case, for some reason, Rovio was getting less than 1.75 cents profit for each sale).

Luke Shorts
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Maybe it's just me, but I don't understand where this piece is going...



" If game design were covered by Copyright law, rather than patent law, then the team responsible for Desktop Dungeons could have prevented the release of the clone simply by not releasing Desktop Dungeons publicly until they were prepared to hit all markets."



Actually, no. Keeping your product top-secret until last minute is what you do when you do not enjoy any sort of IP protection AT ALL. If you had a patent (or even if you just filed for it) you could go public confident that anyone implementing that mechanics without permission - in a cloned game or not - would have to deal with an infringement lawsuit. Of course, being able to patent game mechanics (at least in the US) causes the proliferation of the 'bullshit' patents that we all know and love.



On the other hand, copyright protection is not so weak as you make it to be: first of all, copyright is obtained automatically (even if registering your work is safer from a legal point of view); second, it is considered copyright infringement not only a 100% copy of a protected work, but even when only a characterizing portion is copied, and in this way copyright also protects to a certain extent derivative works. To make some examples, for books, the title alone might be subject to copyright protection, as well as it is copyright infringement under most legislations to publish a book with the same plot but characters named differently; in case of games, several fan-made games have been subject to cease and desist notices because they used without permission characters of copyrighted works.



A tl; dr of all above is: the situation you describe can be fully handled within the existing IP law: if the guys behind RF didn't (try to) patent their techniques (which is probably good for gaming as a whole), they can still make a case for copyright infringement if they feel the other game is derivative enough. If they are deterred by the costs of a lawsuit, then the problem lies in the prosecution system, not the way IP is defined per se...

Andy Schatz
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Good points: as for the QFC case, they should be protected, since the ideas came from copying the ideas in a private beta that the cloner had access to (i loaned someone my manuscript to read, they cloned it and released it).



As for whether copyright actually SHOULD apply to game designs, it sounds like you know more than I do, but it was my understanding that the generally accepted view was that copyright law does not apply to game design. Am I wrong on that?

E Zachary Knight
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Copyright applies to the expression of ideas and not the idea itself. So in this case, there is no case, as far as I am concerned, of copyright infringement.

Andy Schatz
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A good buddy of mine is a professor at a top law school, I asked him if anything struck him as wrong in the article, here was his response:

"I'm not an expert in copyrights or patents, but no, nothing in there seemed wrong. You're dead right that patent law is a terrible fit here -- you should listen to the This American Life podcast from two or three weeks ago about patent trolls in Silicon Valley. It's out of control. Copyright law would seem to work better, but tailoring an enforceable system to cover computer games would require resolving tough policy choices and technical challenges (as you sense). Doesn't mean it's not worth it, just means that it's hard."

Luke Shorts
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A necessary disclaimer here is that I have not played either game, but I think that this particular incident is generating some pretty weird statements of principle.



@Andy:



"As for whether copyright actually SHOULD apply to game designs, it sounds like you know more than I do, but it was my understanding that the generally accepted view was that copyright law does not apply to game design."



My point is not that copyright law applies or should apply to game design; the kind of IP right that more or less describes a general idea is a patent, and I actually do not believe that protecting game mechanics would be conductive to the development of the gaming industry (even if some game mechanics have been historically awarded patents in the US), pretty much in the same way I don't think that gaining monopoly on a plot device would be beneficial to literature at large.



What I wanted to say is that copyright law was and is used - in other fields, at least - to attack also partial reproductions and highly derivative work, so that is the kind of IP right you should consider in case of obvious rip offs (although actually arguing that in front of a court may be very tricky).



@Ephriam:

"Copyright applies to the expression of ideas and not the idea itself. So in this case, there is no case, as far as I am concerned, of copyright infringement."



As for the current case, I cannot really say (see above); however the general standard for copyright protection is to look at the characterizing features of a work (the legal term, and its exact meaning varies a bit from legislation to legislation) and consider it infringement when such features are copied.



As I said above, in case law of various countries it has been considered copyright infringement to distribute titles of a press release (i.e. a part of a copyrighted work) and also to reproduce the plot of a known bestseller with character names and backgrounds slightly altered, or to use characters of a protected work in a new and original plot. There may not be much related to gaming (yet), still I stand by my position that if plagiarism is the problem, copyright is the suitable IP right to use to defend against it. If it falls outside the relatively broad scope of copyright, then I think it won't be wise to try and concoct new ways to protect content.

E Zachary Knight
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Luke, I must disagree. We should not be allowed to copyright game mechanics. To o so would be to kill this industry. It would become far too expensive to bring a game to market for indies and smaller studios because they would not have the capital to license the game mechanics for their game. Do you really want to see innovation stopped dead in its tracks? Copyright lasts 95 years when owned by a corporation and life + 70 years for an individual. That would mean some game mechanics would not be free to use for possibly 150 years. That is a long time to wait for innovation.



Copyright is meant to protect a whole work not the individual parts.



Right now, I cannot write a book about the life of Sam Gamgee because his character, his traits etc are part of a copyrighted work. However, I can write a story about a village of midgets and the pudgy mayor.



I cannot animate a short film about a Mickey Mouse, but I can make an animated film about an animated mouse.



Your example of taking a story and just changing the names of the characters is copyright infringement. Yet, taking game mechanics and making a new game from them and innovating on those mechanics is not.

Luke Shorts
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I think we are expressing a very similar point of view, albeit from different angles.



I say: "the kind of IP right that more or less describes a general idea is a patent, and I actually do not believe that protecting game mechanics would be conductive to the development of the gaming industry (even if some game mechanics have been historically awarded patents in the US), pretty much in the same way I don't think that gaining monopoly on a plot device would be beneficial to literature at large". I think this makes it clear that my stand on "patenting" game mechanics is far from positive.



The question of "copyrighting" game mechanics is imho ill-posed so I don't really consider it, on the other hand I say: "if plagiarism is the problem, copyright is the suitable IP right to use to defend against it. If it falls outside the relatively broad scope of copyright, then I think it won't be wise to try and concoct new ways to protect content", which I think kind of falls in line with your position. I am just cautioning against the belief that "copyright infringement = 100% copy", which is the vibe I got from your comment, as well as from your statement "copyright is meant to protect a whole work not the individual parts". This is not the case (copyright can cover part of a work insofar it is considered characterizing of the whole work), as I tried to explain by making reference to cases which actually went to court.



I don't know (and I said that many times) the merit of the two games; I simply take position on the (imho misguided) notion that I have seen expressed here and there that to protect themselves against plagiarism game devs need some sort of IP right that at the moment is missing on the table, when the tool to be used (if applicable) is there, and it is copyright.

E Zachary Knight
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And that is why I listed specific examples in my comment. I cannot make a story about Sam Gamgee running the Hobbit village, but I can write a story about a town of midgets and the work of their mayor.



With the two games above, we have a case of the second example happening within games. Someone took game mechanics and crafted a new experience out of them.

Andy Schatz
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Good points, helping me to refine my opinion. There is a certain granularity of copying that is acceptable: making a cartoon about a mouse is OK, but when you make him look exactly like the mouse, or give him the name Mickey Mouse, then that's infringement. I think my argument that copyright should extend to game mechanics draws the line of granularity at copying a whole work of game design.



I've never heard of anyone TRYING to use copyright to defend a game design, only media associated with a game. It's my opinion that it should apply, but only to the whole work, because that defines its essential character.



I am most definitely against patenting or copyrighting individual mechanics. The difference I am trying to draw here is that we still need a free marketplace of ideas from which new games can grow, but protecting innovators against wholesale ripoffs is a good thing.

E Zachary Knight
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I just don't see how you can "protect innovators" without causing all kinds of legal headaches.



There have been lawsuits over Tetris and Breakout. Those are two specifics I know of. But, things will get even more hairy when you try to expand copyright.



The way things are right now works. If your game is good it will sell. If it is better than the competition it will sell better than the competition. Is there an advantage to first to market game ideas? Yes, but there is also an advantage to being second or third.

Luke Shorts
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After having finally bothered to look up the games in question, I think the problem (and main source of confusion) here is that there is very little that can be called as characterizing the game except the peculiar fishing mechanics itself. It is also true that at first sight it would seem that the iPhone game is simply a carbon copy of the first with different graphical assets (maybe there are some subtle gameplay differences, I cannot tell from a video).



In the end, nothing will probably happen mainly because the two developers are both "small fish"; if RF had been developed by a big company, however, I am pretty sure they would try to have the game taken down claiming copyright infringement, exactly as it happened before for Tetris clones. I think it would be possible to make an argument on this, which will not necessarily follow by a lawsuit proper, nor it will be for sure upheld by a court, but cannot be summarily dismissed as unfounded (due to the aforementioned similarity), given the way copyright protection works.



While a gut reaction might bring you to consider that the creators of RF are entitled to compensation for having their idea "ripped off", in law the reasons why a decision is taken are as important (if not more) as the decision itself: in such borderline cases the difficulty in determining the "granularity" of copying that you mention, when applied to game mechanics, are such that I am not sure a court could elaborate a test guaranteed not to have undesirable effects on another case (simply put, they could be opening a can of worms in doing so). As a consequence - it's my wishful thinking, not any kind of legal opinion - I'd prefer to be safe and call copyright out of the equation than sorry (ok, since I went into speculating results of a possible, non-existing lawsuit I'll stop here :P).

Andy Schatz
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Thanks for the analysis, I didn't know about the tetris lawsuits.



The problem with the "small fish" (well played sir) argument is that Angry Birds and Minecraft both started out small fry, and nobody would have guessed that either is as big as they are now. The Ninja Fishing people really are making a lot of money now.



And I think the reason the NF/RF case is interesting is that the game design is the ONLY aspect that is ripped off, the art, sound, characters, and title are all distinct. But why should the creative implementation of code (game design) be exempt from copyright when it applies in all these other cases?



You do sound very much like you know what you are talking about, are you a lawyer? Do you mind if I ask your background?

Luke Shorts
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As I said before, drawing a line in such a case would be quite hard. In the NF/RF case, it must be noted that not only the mechanics as such, but also the entire "narrative" (as basic as it is) wrapped around it has been copied. However, I wouldn't know where to go from there without encountering other problems that cannot really be treated in a comment...



As for me, I am not a lawyer, my background is related to programming (nothing related to games, though), however it's been some years that my job involves dealing with (mostly) patent-related matters and I have the [sic] pleasure of knowing a number of attorneys. As part of my job, I try and keep myself informed on what's happening also in neighbouring fields of IP law, such as copyright and trademarks, so my knowledge in those two fields derives mainly from case law I studied. I find that copyright, in particular, is difficult to grasp since the regulatory framework is quite complex and the definition of its scope of protection is less clear (or more murky) than for patents or trademarks.



There's a rising awareness on IP matters from computer programmers and game programmers in particular, which I welcome because IP law is enforceable whether you know about it or not. There is also a diffuse sentiment that the system may not exactly be "fit for purpose", but when criticism is formulated it is important to know 1) what IP can potentially do for (or to) you and 2) that the devil is in the details, so any proposed solution in form of a "blanket statement" either misrepresents the actual state of things, thus being not credible, or it is like the proverbial elephant in the china shop, creating more problems than it fixes.

Andy Schatz
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Thanks again for the insightful analysis! I still stand by my feelings on the subject, but your thoughts have made me realize how tricky it would be to apply existing law to game design as creative expression.

Thomas Grove
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The likeness and name of Mickey Mouse infringes on more than just copyright. It also infringes on the much more litigious trademark.

E Zachary Knight
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I don't like the idea of being able to copyright game mechanics. In all other forms of expression it is only the expression of the idea that is covered by copyright and not the idea itself.



Can you imagine a world where fantasy adventure itself was owned and controlled by JRR Tolkien? Or where animated animals was owned by Disney or Warner Brothers?



These people made two different games that share some mechanics. Those mechanics are the idea. The game is the expression of the idea.



Given the schizophrenic nature of the music industry and the licensing that goes into covers, mash up and even public performance, I would not want that to happen to games.

Tyler Martin
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I have to say I'm with you on this if only because copyrighting game mechanics could lead to some pretty murky waters and actually impede the ability of people, particularly small developers, to be creative while building on what's come before.



Take a platformer like Mario for instance. Is the general concept of a platformer (ie: traveling from the beginning of the level to the goal while jumping over or on enemies and obstacles) what's copyrighted, or is it the jump mechanic, or picking up a power up that let's you shoot a projectile at the enemy? If the jump is copyrighted, is it the idea of a player avatar jumping which is copyrighted, or is it more specific? A jump of a certain maximum distance, height and time to complete with some amount of control over direction?



And even if it is the very specific implementation that is copyrighted, how do you go about finding out if your mechanic has ever been implemented in exactly this form before? You probably can't until someone comes after you for royalties, at least not all of the time.



I'm all for the work as a whole being copyrighted, and would even be fine with the combination of all of the game mechanics as a whole being covered by copyright law. But being able to protect individual mechanics to any degree would be bad for the industry when so much of what comes out builds on successful mechanics that came before in one way or another.

Andy Schatz
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"I'm all for the work as a whole being copyrighted, and would even be fine with the combination of all of the game mechanics as a whole being covered by copyright law. But being able to protect individual mechanics to any degree would be bad for the industry when so much of what comes out builds on successful mechanics that came before in one way or another."



This is all that I'm suggesting should be copyrightable, not the individual mechanics. Note that I harsh on the idea of gameplay patents in my article :)

Evan Jones
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It's totally untrue that live performances of cover songs don't require licensing. If you don't have a license to perform a cover song, and you get caught performing it live, it's extremely common that you'll get busted for it. Most acts have their managers take care of all of this for them, so it's not widely understood.

Andy Schatz
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Ah, yeah, I think you caught me on one here, I didn't do my research on the performance side of covers.

Jake Birkett
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Good stuff Andy. I agree with the article, especially the stuff about patent trolls - however, I would not personally call the mechanic in Radical Fishing a "fairly major game design leap" because it reminds me of the Salvage Arm minigame in Zelda Phantom Hourglass on DS: http://www.youtube.com/watch?v=K7UBcdVDX3o Also fishing games have existed for ages and there are a bunch of casual games about a gold miner who "fishes" for gold, kinda: http://www.youtube.com/watch?v=eE7X8q7VCCc I really don't want that to come across as sounding rude to Vlambeer, who I'd like to remain on good terms with, I just think it's worth pointing out those similarities as a lead in to what I'm about to discuss below.



RF is certainly not a clone of that Zelda minigame because there are significant differences, but it could have been influenced by it (although I'm not saying that is the case here - hold your flames), also it's possible to invent the same type of simple mechanic completely independently (just as musicians do with guitar riffs for example).



I've made clones with my own twist (match-3 games) and had some my games cloned too (I was flattered not pissed off - although interestingly the cloners denied it at first, even though it was really obvious). I've also played some fantastic clones over the years that have made incremental changes that have moved their genre forward. After all, what is a genre but a whole bunch of clones with small differences? I've also listened too, watched and read many clones all with varying degrees of innovation. People like genres because they know what to expect when they buy something in that genre.



In the casual game industry, which is where Gamenauts cut its teeth, cloning is rife, but it has produced some real gems that have advanced the genre, as well as a whole slew of just great fun to play games that game players around the world love. So as long as the graphics and mechanics (and sound) aren't copied 1:1 (like some well known iOS rip offs) I personally don't have a problem with it and would hate to see more controls put in place to stop it. The world needs less controls, not more! /anarchy rant off



I'm also of the opinion that developers would be better off spending their time making great games instead of worrying about being ripped off and about preventing piracy. It's like positive thinking versus worry. But hey that's just me, each to their own.

Andy Schatz
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Those videos are actually super interesting and go a long way towards me feeling less bad about what happened. That said, it's quite clear that they were "inspired" by the core concept and expanded upon it greatly, while Gamenauts made a wholesale clone with a minor addition. I would argue that this is the difference between sampling and covering.

Jake Birkett
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Yes I'd totally agree with that and was wondering if I should make an extra comment to that effect.



It seems that at one end of the scale we have 1:1 copies, and at the other end, completely new game mechanics. NF vs RF was closer to 1:1 than RF vs Zelda minigame. Where do we draw the line and say "this is an unacceptable clone and this is OK"? It seems that the line is in different places for different people :-) Don't forget that NF has all new sound and graphics, its own GUI, and some "new" mechanics, so is that > 50% of the game? Is that enough?

Mike Reddy
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I'm in development of three games for learning, to help children with dyslexia learn English as a foreign language. They are inspired by Professor Layton's stickerbook minigame from the Lost Future, Plants v Zombies and the 3DS Streetpass Quest freebie. They use a radically different mechanic - identification of words from images, sounds and character recognition, and click, drag and type interactions - all simple casual put downable titles, suited to making the learning tasks not tests. So, I'm grateful that I can innovate on an existing 'feel' of a game, but the inspiration will be apparent. If such loose copying were prevented by vague protection, innovation would be quashed, but that doesn't mean protection isn't needed. It just has to be well crafted. Alternatively, they could just download the law off the Internet and change a few bits. Everybody's doing it!

Kevin Wells
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Either patent or copyright protection for game mechanics would have prevented the whole of game development for the past 30-40 years, wouldn't it?

Martain Chandler
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You mean that time that wall street wasn't into game companies? Yeah.



But now it's only a matter of time before some AAA title publisher sues an indie over game mechanics.

E Zachary Knight
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And they would lose. But probably not before they bankrupted the smaller company.

Andy Schatz
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Copyright shouldnt extend to individual game mechanics, only the entire game. Would only prevent games from being cloned wholesale. Yes, it probably would have blunted the early FPS market, and this needs to be taken into account.

Danny Day
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With regards to what happened with Desktop Dungeons: You could possibly argue that we were approached with a licensing offer (the value of 1 [one] iPod Touch in the US - 30% of the value of an iPod Touch in South Africa, btw) and rejected it. Our contact with the maker of League of Epic Heroes all came about before LoEH was released, we negotiated. Negotiations broke down and LoEH released anyway, we complained and it was pulled by the developer.



I'm totally keen on Andy's take on the games and music analogy, he's dead right that games need to be considered as a creative process vs a purely mechanical one by the law. I think that game crediting and possible royalty/performance/homage structures would go a long way towards dealing with the "copyright stifles innovation" debate while helping to prevent some of the utterly cut-throat business practices that destroy innovation just as much.



To use Andy's analogy: We would have been totally fine with a song inspired by DD that wasn't a note-for-note copy and wouldn't have asked for any royalties at all. The discussion on how deep royalties go, when we start paying them, who we pay them to for multiple inspirations, and the like are ones that I look forward to having.

Andy Schatz
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I think a difference needs to be made between a game that is cloned from a single primary source (Ninja Fishing) vs a game which "remixes" a bunch of other games (Gears of War). If there is a single primary source (notwithstanding the few minor changes), it should fall under copyright protection. This incentivizes people to make riskier, more "out there" designs, because you won't be able to hide the fact that its a single primary source.



In the case of the DD clone, I think it was immoral of him to do what he did, and there should be a way for you guys to have an opportunity to release on iOS first, but at the same time I think that the cloner should have SOME honorable and legal way to market. I'd play his game! I'd buy it twice if it also gave you guys royalties. :)

John Mawhorter
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There really doesn't seem to be a good legal framework that solves this problem. Derivative, unoriginal, copy works exist in most other creative industries and are problems there too. Many bands will scoop other bands sound and feel and make it more "accessible" by dumbing it down and reap the rewards. That is similar to what happened in this case (imo) and also totally legal. The way the legal system works makes it very difficult to make laws against this sort of thing and there are many instances where copiers make true innovations, but in this case it is rather obvious that Gamenauts straight up ripped their design with few additions. Moral censure is deserved imo.

Andy Schatz
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"The way the legal system works makes it very difficult to make laws against this sort of thing " But currently there are NO laws about this sort of thing in the game world, short of patents (which most people agree are terrible). Copyright protection would go a long ways towards preventing the worst of the offenders.

Mark Johns
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It's funny that you used the musical cover analogy, seeing as Gamenauts ripped off John Williams' theme for Hook almost note for note in their last game. They of course removed it once they were called out.



Hook: http://www.youtube.com/watch?v=3GUFHNvnsHs

Gamenauts: http://www.youtube.com/watch?v=r-c8Q2seWLc#t=8s



Or would you prefer to call that "musical innovation"?

Andy Schatz
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Ha, very interesting.



As for your last comment, I think you are sarcastically referring to my claim that the small changes they made to NF are, in fact, "innovation". If you are implying that this type of innovation is worthless because it's obscured by the clearly unethical "cover" of the remainder of the work, I disagree. Any baby step innovation is good. My goal with this article is to find a way for the baby-steps to still happen while protecting and rewarding the innovators. Do you have a better idea?

Chris Bell
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Hey Andy! If you haven't already, I encourage you read this article. I think it's very close to the discussion.



http://www.techdirt.com/articles/20110624/01393814836/kind-blue-u
sing-copyright-to-make-hobby-artist-pay-up.shtml#c1261



It's late now and I'm off to bed, but I'll chime back in with more personal insight later. Thanks for the write-up! :)

Andy Schatz
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Ah yeah, I saw that article a few weeks ago, really interesting and I feel like the pixel art should have been allowed (and the copyright owners should have just chilled out).



But yeah, speaking of chilling out, I think the worry is that by applying copyright law we might chill a lot of innovation. That said, a lot of money is being made these days by the little guys, and I think it's important to protect the commercial potential of indie games from predatory larger companies.

Jake Birkett
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Here's an example of a clone that crosses the line for me: http://www.diygamer.com/2011/08/super-puzzle-platformer-copycat-d
ecide/

Adam Summerville
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So, I posted my thoughts at my blog (here: http://www.circlecatgames.com/2011/08/25/cloning-mk2/), but the TL; DR is this:

1. Copying mechanics isn't unethical, but cloning a game is.

2. The line between copying mechanics and cloning a game is whether there are any substantive differences in the game play. Dune 2 and Warcraft are in the same genre, but play out differently.

3. I don't think that Ninja Fishing is a clone of Radical Fishing. The addition of Fruit Ninja-esque mechanics is the type of riffing on a genre (admittedly, a young and unformed genre) that should be encouraged.

4. Don't release your game until you are happy with your monetization/marketing. Getting in the market first is important in this day and age. Don't do someone else's homework for them and make your own job harder at the same time.

5. Cloning of simple to grok games is always going to happen. Try to make the underlying structures of your game harder to guess, and therefore your game will be harder to clone.

Curtiss Murphy
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This: "5. Cloning of simple to grok games is always going to happen. Try to make the underlying structures of your game harder to guess, and therefore your game will be harder to clone."

My goal was to make a purple cow - something so good, it would stand out like a purple cow in a field. But, in time, it became, 'Make a purple-cow - unique to me". So, I'm building stuff that is new and different, but also unique and personal. Hard to clone that.


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