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[flagged] Agar.io Clone DMCA (github.com/github)
42 points by _jomo on July 30, 2015 | hide | past | favorite | 24 comments



It's not a clone, it's deobfuscated code from the game client that's being used in several sites to host an exact copy of the agar.io client, with their own ads. If you actually read the DMCA, it's pretty detailed in how it violates Miniclip's copyrights.

An example of clone that doesn't infringe their copyrights (written from scratch, not derived from the original game): https://github.com/huytd/agar.io-clone

Disclaimer: I'm the agar.io developer


I haven't double-checked it, but if that's true then a DMCA is fair and appropriate IMO.


IANAL, but my understanding is that the fact that the clone was written from scratch doesn't have any bearing on whether or not it infringes on copyright. The clone uses the name "Agar.io Clone" and copies the look and mechanics of the original game, thus making it substantially similar in appearance and use to the copyrighted work. Unless they have found some way to invoke fair use (educational purposes, etc.), the clone you mention is also infringing.

An analogy: if someone were to write a book called "Harry Potter - Clone" in their own words about the adventures of young wizard, you could expect them to receive a notice of infringement pretty darn fast, regardless of the fact that they didn't copy the original word-for-word.


IAANAL, but I do deal with these topics from a technical point of view.

"look and feel" are generally a part of Trademark law, not Copyright law. More specifically, Trademark law deals with concept of "customer confusion".

Copyright deals generally with "expression", and generally does not cover what something looks like. So for example, it's possible to copyright the textual rules of a game, but it's not possible to copyright a particular style of game. Which is why it's generally legal to clone something.

It would not legal to do what the person has been been accused of here, which was to substantially copy the original code.

The reason why Trademark/Copyright generally get mixed up with regards to clones is because:

1.) It's actual copy of the original source code, and thus is a copyright violation

2.) It's a "from scratch" clone of the game elements, but mentions the original work in a way that doesn't make it clear to the consumer that it's not actually the original, which is a Trademark violation

3.) It's a "from scratch" clone of the game elements, and mentions specifically that it takes inspiration from the original, but makes it clear that it's not the original. But the original creator doesn't like it, and they are really mad that "anyone can steal my work", and the original creator bills it as a Copyright/Trademark infringement when it's really not.

Assuming the complaint is correct, this is obviously a case of #1. It's been ruled that a literal translation from one language to another is a "mechanical translation", and is not deserving of it's own copyright.

Obviously this is a very coarse overview of a very complicated framework, but should hopefully provide a little more insight in to what the actual law is.


In the above mentioned link to Agar.io clone the copyright infringing part is the "agar.io," not the actual reproduction of the game. The game play it self can not be copyrighted, and it can not be patented because there have been several prior art games with exact same gameplay (or very similar). There is a very similar planet like game for the iOS that I used to play back in 2010, and that's just off the top of my head.

In the main link Agar.io has a very fair DMCA claim if their JS has been literally copied, even if it has than been subsequently altered. However, if one was to make a game like "Bob's Better Floating Balls that Eat Each Other" from scratch, I don't think Agar.io would have a fair claim. I am guessing that they also have a trademark out on Agar.io.


"Agar.io" is not copyrighted. It is trademarked if anything.


You are right, Trademarked, you can't copyright names. It would be an easy trademark case to make though.


No exactly, they'd receive a notice of Trademark infringement. You could however write a parody about a wizard named Parry Hotter that would be okay under "Fair Use".


It seems the author of the repo wrote a new implementation of the backend but copied the code from the frontend. I dislike the DMCA process and I find some other stuff in the complaint I disagree with but it seems like the repository was infringing.


Not even that. There was just client-side in that repository.

It used this for the server side: https://github.com/OgarProject/Ogar


Going from the webcache, it looks like Matheus28 is right about it only being front-end code:

http://webcache.googleusercontent.com/search?q=cache:i6GrF7V...


I've reached out to Rob Small(Miniclip founder) on numerous occasions over the last 5years. He's always very helpful, supportive and willing to make introductions. He also bootstrapped Miniclip to where it is today.

I doubt Miniclip is going around throwing DMCA notices to companies cloning Agar.io without good reason.


IANAL, but my understanding is that the fact that the clone was written from scratch doesn't have any bearing on whether or not it infringes on copyright. The clone uses the name "Agar.io Clone" and copies the look and mechanics of the original game, thus making it substantially similar in appearance and use to the copyrighted work. Unless they have found some way to invoke fair use (educational purposes, etc.), the clone you mention is also infringing. An analogy: if someone were to write a book called "Harry Potter - Clone" in their own words about the adventures of young wizard, you could expect them to receive a notice of infringement pretty darn fast, regardless of the fact that they didn't copy the original word-for-word.


"All copyright, trademark and associated intellectual property rights in www.agar.io and the Agario game are owned by Miniclip SA."

Miniclip SA is a Portuguese company. Can non-US entities submit DMCA takedown requests?


Of course. Why wouldn't they? The DMCA takedown process specifies how US-based ISPs, hosting providers, and other web sites should respond to copyright complaints, and guarantees them a variety of legal protections so long as they follow the process. Making that process unavailable to copyright holders outside the US would make those protections unavailable, increasing the workload for these businesses.


Can anybody describe what will happen if the clone author file a DMCA counter notice and how after that the non USA company can proceed and prove that the code is really stolen? As i understand the code is not copied exactly, as it's obfuscated in the original, so no way to prove exact copy.

Have a similar situation, my code was obfuscated and somebody just decide to do a reverse engineering and add some features on top, then they put all of this on github under a nice GNU license...


As others mention, this seems to have directly copied the client code. However, I found this amusing:

> The Agario game’s distinctive style and graphics are known to tens of millions of players

Colored circles moving around on a checkered grid [1] is apparently "distinctive style and graphics".

[1]: http://i.imgur.com/h3rr9xc.jpg


This is not a DMCA request, this is a IP property rights notice that the repository is violating copyright & trademark. Nowhere is it stating that it is a DMCA.


"I have read and understand GitHub’s Guide to Filing a DMCA Notice."

Not only that, it uses language and structure common to all DMCA takedown requests.


Probably an honest mistake considering it's GitHub's 'dmca' repo.


"If you are the repository owner, and you believe that your repository was disabled as a result of mistake or misidentification, you have the right to file a counter notice and have the repository reinstated."

Guilty until proven innocent.


To be fair, at least the DMCA gives the benefit of the doubt to content hosts via the safe harbor provisions.


"Filing a counter notice" is a much lower standard than "proven innocent"


Welcome to the DMCA.




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