

Counterfeit Game Sold on Apple's App Store - angrycoder
http://blog.wolfire.com/2011/02/Counterfeit-Lugaru-on-Apple-s-App-Store-developing?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+WolfireGames+(Wolfire+Blog)

======
bermanoid
tl;dr: the art/sound/etc. assets may have been accidentally released under the
GPL because of a file omission in the .zip version of the source release.

From the article: " _According to Kotaku, they are talking about the GPL
release of the source code for a number of the Humble Indie Bundle games,
namely this post. However, the license made it very clear that the authors
retained all rights to the assets, characters, and everything else aside from
the code itself._ "

Disclaimer: I'm not a lawyer, I might be wrong here about some things, so
please step in and correct me if anyone knows better.

So, here's the thing. Looking at the source .zip linked at
<http://blog.wolfire.com/2010/05/Lugaru-goes-open-source> (the .zip file
itself is at <http://akamai.wolfire.com/humble/src/lugaru-srcs-final.zip>, so
that's an official release), I see COPYING.txt, the generic GPLv2 statement,
sitting at the root of the project .zip. By custom, I would naturally assume
that unless that license is overridden somewhere, it's the license in effect
for all copyrightable materials included in nested directories.

I'm not positive about this legally speaking, but I'm _pretty_ sure that if
the code is distributed in such a fashion, and most people familiar with code
would interpret the license to apply in such a manner (to everything in the
subdirectories, unless overridden somewhere within the released code), I can
safely assume I've been granted that license.

Now, I fully believe that Wolfire never intended to release the
art/sound/character assets under the GPL. But - and I encourage people to
check for themselves to make sure I'm not missing something, I could
definitely be wrong - _there appears to be no license statement anywhere
inside that particular source distribution
(<http://akamai.wolfire.com/humble/src/lugaru-srcs-final.zip>) that puts any
of those assets under another license_.

I suspect the file at
[http://hg.icculus.org/icculus/lugaru/file/97b303e79826/CONTE...](http://hg.icculus.org/icculus/lugaru/file/97b303e79826/CONTENT-
LICENSE.txt), the one that sets the license terms on that data, is what the
author of the post was referring to when mentioning the clear license terms.

But someone forgot to copy it from the hg repo into the .zip file before they
released it.

Unfortunately, they didn't forget to put COPYING.txt in at the root, which
means GPL2 for the whole shebang (the default license would have been none at
all, but for the presence of that file). If I'm right, and no other license is
hiding somewhere, then as far as I can tell (not a lawyer) those assets are
under GPL. It doesn't matter if comments elsewhere clearly prove that the GPL
was only supposed to cover the code, a release was made and linked by the
original copyright holder with a license statement whose clearest reading
grants the user a license to _everything_ under the GPL. Prevailing wisdom
seems to be that you can't take back a GPL license, so yes, that means that
all the assets in this game have been accidentally open sourced.

There's still a trademark claim, of course, this joker can't legally call his
game Lugaru, but if he renames it, he's within his rights to try to sell it as
long as he branched from the .zip release (though the GPL issue might keep it
off the App Store).

~~~
speleding
I did a quick search if the USPTO database and the name Lugaru isn't
trademarked yet. So iCoder may have a case. Best defense might be to complain
that the GPL is incompatible like the VLC coder did.

~~~
bena
That's not the end-all, be-all of trademark law though. If Wolfire had a
registered trademark, it would make things easier for them.

But, they have been conducting trade using the Lugaru mark so they have an
implicit trademark on the term Lugaru as it applies to video games. It's the
difference between the TM symbol and the R with a circle around it.

Wolfire can still hit them up with some trademark violation lawsuits and
should probably do so soon to avoid problems down the line.

------
mustpax
I still don't understand why they don't send a DMCA takedown request to Apple
and call it a day. Have they already done this yet Apple is refusing to
takedown the offending app? I highly doubt Apple would take on that sort of
liability.

~~~
patio11
I think the probable outcome is "Wolfire -> Apple: DMCA", "Apple -> Pirate:
You've been DMCAed.", "Pirate -> Apple: Counter-notification. We believe we
have a valid license. The DMCA says that they have to sue us to prove
otherwise.", "Apple -> Wolfire: Well crikey, they're right."

That leaves Apple legally covered, although I would bet they terminate the
pirates under the It's Our System And You're Causing Us Negative PR So Eff Off
provision.

~~~
jedsmith
No, that's not correct at all.

Under OCILLA/DMCA, counter-notification _cannot_ be accepted by your provider
and is _not_ legally usable unless access to the alleged offending material
has been _completely prevented_. 17 USC 512(d)(3). The material must _stay_
removed _completely_ for at minimum 10 (ten) business days and at most 14
(fourteen) business days to allow the complainant to file suit or otherwise
obtain an injunction if they so desire. 17 USC 512(g)(2)(B) and (C). That's
with a counter notice; without one, the material can never be restored.

So, your scenario then becomes:

    
    
        - Wolfire > Apple: DMCA
        - Apple > Pirate: We have received a DMCA and removed it
        - Pirate > Apple: Counter notice
        - Apple > Wolfire: Here's a counter, we will restore in 10 days unless you sue
        - (10 business days)
        - Apple > Pirate: OK, it's back
    

After the waiting period, you or the provider can restore access with the
DMCA's blessing. DMCA only requires providers to "act expeditiously" to remove
access to material, so what "expeditiously" means is left to interpretation. I
doubt Apple would leave anything up for long, though.

When you get a serious DMCA complaint -- meaning, not one of the automatic-
fire BitTorrent ones from MediaSentry or whatever -- try a counter-notice
without removing the content and see what your provider does. If they abide by
the law, they'll immediately reject it and ask you politely to remove the
content, or they will for you.

But wait, you say, doesn't that encourage frivolous DMCA complaints to remove
content from the Internet that I do not agree with? All I have to do is file a
well-prepared DMCA complaint that asserts copyright and the content is
federally required to disappear?

Answer: Yes.

(IANAL, but I have researched it extensively to draft policy.)

~~~
patio11
I checked the statute. You're right about a DMCA notice / counternotice
exchange essentially requiring a minimum of 10 days of the disputed content
being offline. Thanks, I like learning things.

------
TeHCrAzY
The title on the post is "Counterfeit Lugaru on Apple's App Store", which is
slightly less inflammatory, and much more correct.

------
mwg66
Hang on, if the claim is that the source is under the GPL (and I'm not that
convinced saying the characters are excluded is sufficient - a trademark
violation would be more sensible) surely all they need to claim is a GPL
violation (no source distribution) and cite the previous incompatibilities
between the GPL and App Store.

As copyright holders they can later resubmit the game under a different
license.

------
tibbon
I wish Apple had a 'flag application' button in the App Store to flag things
that seem amiss and report them. If so, I'd have flagged this for being GPL
software on the app store.

~~~
jedsmith
> If so, I'd have flagged this for being GPL software on the app store.

Which is probably why they _don't_ have a flag application button.

~~~
tibbon
Perhaps, but it seems to be a pretty legit reason to pull something.

edit: instead of downvotes, i'd love a response to understand why someone
should be allowed to put a GPL application on the app store and not distribute
their code (and that you can't copy the application and send it to others,
etc). Seems to be a pretty clear GPL violation.

------
benjoffe
I wonder how many people visiting their site are going to take this
opportunity to get the game at a discount... hopefully not many.

~~~
rchowe
Apple's response when they decide to take it down will be the interesting
part. We'll find out if there is a kill switch or blacklist in the mac app
store.

~~~
arn
not really. stuff gets taken down off the App Store all the time due to legal
issues and obvious copyright infringement.

the apps get removed (you can't download them anymore), but anyone who has
downloaded it can still use their copy.

~~~
rchowe
<http://news.cnet.com/8301-13579_3-10013322-37.html>

Supposedly there is some sort of kill switch functionality in the iOS app
store, and I haven't heard about copyright infringement to the level of taking
someone else's game and redistributing it before. In my mind, the best case
scenario is to refund everyone's money and take the game off the market,
uninstalling from computers. The only backlash you receive is the press about
the kill switch functionality and the whole "dude, where's my game" moments
that people will have.

~~~
arn
Oh, there's certainly a kill switch. Jobs admitted to it during an interview,
but it hasn't been used. The closest App Store comparison is probably Abuse
(source code released into public domain,
<http://en.wikipedia.org/wiki/Abuse_(video_game)> ):

<http://appshopper.com/games/alien-abuse> (pulled from app store)

<http://appshopper.com/games/abuse-classic> (official version)

reason:
[http://forums.toucharcade.com/showpost.php?p=426791&post...](http://forums.toucharcade.com/showpost.php?p=426791&postcount=238)

 _Long story short, Eurocenter did not have the right to use the sound
effects, registered levels (levels 5 and up), or the Abuse trademark in their
game "Alien Abuse"._

So very similar circumstances. And the original app was never killswitched.

