Friday, October 23, 2009

Marble Madness?

The developer of Stone Loops, a marble game that used to be available in the App Store, has a very discouraging tale to tell in his blog today. Obviously, this is only one side of the story, but it does seem very suspicious to me that MumboJumbo only made these hefty claims of improper and illegal activity to Apple and not in any other forum (like, say, legal proceedings) nor have they leveled the same complaint about the multitude of previously existing platform version of Stone Loops. If Code Minions had really stolen code (among the things alleged from MumboJumbo), it seems like they would be taking more serious action than just complaining to Apple, that is, unless they don't have sufficient evidence to meet the standard of proof anywhere else, but if that's the case, then Apple shouldn't have removed a competitor's application without being shown proof.

I'll refrain from judgment until I hear the other side of the story, but if things are as laid out in Maciej's blog, then Stone Loops should be restored to the App Store immediately. On top of that, Luxor should be pulled from the store just as immediately, as punishment for making unfounded allegations about a competitor. I'd even go so far as to consider pulling MumboJumbo's developer privileges if this is true, and it were my call to make. I have no tolerance for underhanded tactics, especially when resorted to by companies failing to compete on their merits (I'm looking at you, Nokia).

Again, we don't know the whole story now, because neither Luxor nor Apple has addressed Maciej's allegations yet, so let's not pull out the torches and pitch forks just yet. You might want to sharpen the pitch forks, though, just in case. Apple is unlikely to make a public statement about this; it's just not their style, but MumboJumbo, at very least, should respond.

Personally, I think Apple should impose a new policy. When someone makes an allegation of impropriety about a competitor, they should pull both apps until it's resolved. After resolution, the prevailing party's app goes back on the store, the other does not. This may seem harsh, but it would make people think twice about leveling accusations unless they have substantial proof to back up their claims. Of course, this only works if Apple also puts in a mechanism to expedite resolution of conflicts and they may just not want to get into that business. But, as sole gatekeeper of the sole way to sell iPhone applications, they should have expected conflicts of this nature to arise and should be willing to deal with them in a fair and expeditious manner.



12 comments:

cyril godefroy said...

It is not apple's responsibility to pull the app in such a story. A court order and a dispute (in d├ębat conteadictoire in French) are the way to do it.

What I think is that what inclined apple to take the app out is the comment/ description thing, written by the developer itself.

Anyway, whatever the cause, here's another unwritten rule that sucks.

Jeff LaMarche said...

Cyril:

I agree - absent a legal dictate from some jurisdiction, they shouldn't be pulling apps. However, if they are going to pull one, pull both pending resolution.

I don't know how the French courts work, but in the US, if you bring a frivolous claim, there are deterrents. You can be held in contempt, fined, and even put in jail. It's even one of the few situations in our system where you can be made to pay for your opponent's legal fees (generally, here, you don't even if you lose).

My basic thought is that there needs to be a deterrent to frivolous claims. Having your app pulled as punishment for making an unfounded accusation seems like it would serve that purpose, though I'm certainly open to Apple not pulling ANY application unless they legally have to.

Jeff LaMarche said...

What I think is that what inclined apple to take the app out is the comment/ description thing, written by the developer itself.

I'm not sure about that - the app was pulled after they offered to remove that from the description.

cirby said...

"When someone makes an allegation of impropriety about a competitor, they should pull both apps until it's resolved. After resolution, the prevailing party's app goes back on the store, the other does not. This may seem harsh, but it would make people think twice about leveling accusations unless they have substantial proof to back up their claims."

Unfortunately, this rewards the ripoff artists and punishes the people who actually create original content. A pure "clone game" company would lose a week or two of actual work (by some low-wage nobodies), while taking a really good competing game off of the market (often right in the middle of a large, expensive promotional campaign, and after a long and expensive development/balancing process).

This could end up killing entire game companies - in the attempt to protect people who have "rewritten" games that are just minimal graphic overlays that intentionally copy the successful ones.

If you can't at least design your "new game" to be sufficiently different from another game (making it a "genre game" instead of a clone), then you probably shouldn't be in the business to start with.

As far as the "Apple pulling games" thing: if they realize that someone ripped off another game, they actually have a certain legal duty to not distribute that game (especially since they profit from it both ways).

Jeff LaMarche said...

Unfortunately, this rewards the ripoff artists and punishes the people who actually create original content. A pure "clone game" company would lose a week or two of actual work (by some low-wage nobodies), while taking a really good competing game off of the market (often right in the middle of a large, expensive promotional campaign, and after a long and expensive development/balancing process).

Wait, big American game companies don't use "low-wage nobodies"? Or, were you trying to say that most of the "original" games on the app store are made by high-wage somebodies?

What the hell?

I'm not buying this argument. It's whiney and insubstantial. You assume that the person leveling the complain will always be the one in the right, but common sense should tell you that the system is just as likely to be used against "original" developers as it is to be used by them.

What constitutes a clone? I'm not a fan of derivative, unoriginal works, but it's not Apple's place to judge the merits of these allegations. If you've got valid copyright or trademark claim, send a DMCA takedown notice or file a lawsuit and get an injunction. The system provides plenty of protections. Use them. Don't try and have Apple do your dirty work for you because it's easier. If you deliver to Apple a legal mandate that they take another application down, they will take it down. That's not the situation I'm talking about here - I'm not suggesting they should take down all of an application that they receive a takedown notice or an notice of injunction for.

I'm talking about companies that DON'T use the legal protections that exist and just think they can complain to Apple to get a competitor's work taken down. You shouldn't be able to do that, but if you can, it should work both ways, and yours should come down to until the situation is resolved. That encourages both parties to resolve it quickly. It's the only way to prevent abuse in both directions and create a level playing field.

The way it is now, if the "clone" game maker decides to make a preemptive strike on the "original" game maker, it's the "original" game that comes down and the bad guy is sitting pretty. That seems fair, right? Of course not. Without knowing the merits or making assumptions about who's right, the only fair way is to take down both.

As far as the "Apple pulling games" thing: if they realize that someone ripped off another game, they actually have a certain legal duty to not distribute that game (especially since they profit from it both ways).

This isn't about Apple "realizing" anything, this is Apple them being told, by way of a formal protest in a case with what appears to be dubious merits. This is about a company going to Apple and filing a protest that alleges serious impropriety, possibly even criminal acts without, it appears, using the legal system. It's about taking an easy way out.

This could end up killing entire game companies - in the attempt to protect people who have "rewritten" games that are just minimal graphic overlays that intentionally copy the successful ones.

Bullshit. Nothing but bullshit. If the competitor is infringing on your trademark or copyrights, send a DMCA takedown notice or file a lawsuit. If it's just somebody stealing the general ideas from your game, sorry, those aren't protected under our system. You may not like it, it may seem unfair, but it's not unjust. You shouldn't be using Apple's formal complaint mechanism to try and get your notion of "fairness" enforced. If what the other company has done is illegal or infringes on your rights, you have options. If they haven't, then you you need to compete in the marketplace without getting to use Apple to strong arm opponent's whose products you don't like.

K. A. Barber said...

Yes, either file a true legal complaint or stop whining and get back to writing games. Using Apple's moral code to remove competing may seem cool in the short term but you'll eventually end up on the other end of the stick. There is nothing new under the sun.

How far could this be taken. There are lots of physics based platform games using the idea of a ball or round object roll across a set of user drawn platforms out there. There are lots of snood clones floating around also. If I a concerned citizen complained about the idea copy could I get the one I think is the offender removed form the app store?

Laws are created to stop this type of thing fairly without injuring either party until the dispute is settled. If in this case the law shows that the defending party is not in the wrong then the defending party has sustained damages and the accuser has reaped a benefit from the act of accusing.

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