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Ubisoft Sues Ejoy.com, Apple and Google Over Rainbow 6: Siege Mobile Clone
THE BIG PICTURE
Ejoy, a subsidiary Alibaba, developed a mobile clone, Area F2, based on the extremely popular tactical shooter game, Rainbow 6: Siege, made by Ubisoft. Ejoy distributes AF2 on Google Play and the Apple App Store. Nothing extraordinary so far.
But Ubisoft isn’t just suing Ejoy — they’re suing Apple and Google, too, as active participants in the infringement, as the game’s distributors. Apple and Google normally tell game companies to work it out among themselves; they don’t want to get involved. And normally, Apple and Google don’t get sued in the lawsuits between the cloner and the developer of the original game. Here, Ubisoft doesn’t think that’s fair and/or doesn’t see another good option for protecting its IP.
UBISOFT’S COPYRIGHT INFRINGEMENT ALLEGATIONS AGAINST EJOY.COM
Ubisoft develops and publishes numerous high quality games, including Tom Clancy’s Rainbow Six: Siege (R6S). Ubisoft alleges, in a 43 page complaint filed on Friday, May 15, 2020, in the Central District of California, that Ejoy.com, an Alibaba company, developed a clone of R6S for mobile, called Area F2 (AF2), and is now distributing that game on Apple and Google’s mobile game platforms. The complaint has a single claim against all defendants: copyright infringement.
For starters, Ubisoft alleges that Ejoy “made a substantial effort to ensure that AF2 would look, feel, and play in a manner extremely familiar to R6S players” and includes a number of side-by-side images. Ubisoft shows us with images in the complaint how Ejoy “even used misleadingly similar marketing materials designed to look like those used by Ubisoft for R6S….”
GAMEPLAY, PLOT AND STORYLINE
Ubisoft claims the gameplay, plot and storyline in both games are almost identical. For example, Ubisoft alleges that the character selection screen is basically the same, with the same layout, color scheme, rectangular boxes and similar icons for attackers/defenders:
All the weapon load-out screens are also basically the same:
In these types of lawsuits, I always want to know if the characters were copied and, if so, whether the characters are essentially unprotectable “stock” characters, or have sufficient expressive qualities to warrant copyright protection.
Here, Ubisoft points to at least 13 different characters that Ejoy.com allegedly copied. The first allegedly copied character is “Smoke” from R6S — who is “Swamp” in AF2. Ubisoft shows us the alleged similarity in visual expression:
Ubisoft’s next example is the depiction of “Kapkan” from R6S, allegedly renamed as “Wolf” in AF2:
The part that’s not visual here, but that’s also important to the character analysis, is the characters’ traits and abilities. Ubisoft claims that the AF2 characters “have the exact same (or very similar) special abilities as those in R6S” including:
The R6S character Montagne’s “extendable shield” —> copied by the character Boulder in AF2
The R6S character Mute’s “signal disrupter” —> copied by the character Silence in AF2
The R6S character Kaid’s “electric shocker” —> copied by the character Lightning in AF2
The R6S character Thermite’s “thermite charge” —> copied by the character Volcano in AF2
The R6S character Thatcher’s EMP grenade —> copied by the character Magnet in AF2
Beyond this, each character in both games possesses a similar or identical primary weapon, a secondary weapon, and a gadget; and each character has a similar rating for armor, speed and difficulty. Ubisoft also alleges that AF2 copies the skin themes for its characters, including a “grand larceny collection” featuring 1920s style gangster costumes:
As we saw in the PUBG v. Netease case, here too, we have allegations that the maps/levels were copied with only minor changes or artistic differences. At launch, AF2 had four maps. Ubisoft uses the “Russian Station” map from AF2 and compares it with the R6S map “Bank”:
Are they identical? No (at least not in their entirety). Are they very similar? Yes (and some parts look like they are copied verbatim).
We can see from the pictures in the complaint that Ejoy re-skinned a great deal, while leaving much of the layout the same, including some “unusual building features from R6S locations” such as “dance floors, pool tables, and skylights”:
Ubisoft alleges that Ejoy even copied surfaces, textures and decals, as well as “the behaviors of those surfaces and assets.” While some of that may be functional rather than expressive, it strains credulity to think that AF2 needed to include this staircase plus arrow looking decal:
All of this reminds me, again, of the PUBG v. Netease case where PUBG complained that Netease took some of the more unique/unusual aspects of the PUBG map, such as the rural aqueduct. The argument there was that many copied elements, including the rural aqueduct, were not standard, stock, or scènes à faire for the battle-royale genre, but instead, were protectable, artistic choices made by PUBG.
Here, did AF2 really need to include a hot tub, and in the exact same location? Did it need to copy the random staircase plus arrow decal? Should it matter that the visual design of each element is somewhat different? Ubisoft argues that “[t]hese locations and structures are entirely fictional, and as a result, their layout and design are not dictated by functional considerations as technical requirements.”
THE USER INTERFACE
How similar can the user interface be in the same genre of game?
When the UI or layout of the controls is dictated by functional considerations, there is no copyright protection. My favorite example of this can be found in a case about an alleged clone of a golf game. In Incredible Technologies v. Virtual Technologies, 400 F.3d 1007 (7th Cir. 2005), the appellate court affirmed a district court’s decision to deny the original game publisher’s request for preliminary injunctive relief and pointed out that a lot of the user interface for the allegedly infringing golf game was dictated by functional necessity. As the court explained:
…golf is not a game subject to totally "fanciful presentation." In presenting a realistic video golf game, one would, by definition, need golf courses, clubs, a selection menu, a golfer, a wind meter, etc. Sand traps and water hazards are a fact of life for golfers, real and virtual. The menu screens are standard to the video arcade game format, as are prompts showing the distance remaining to the hole. As such, the video display is afforded protection only from virtually identical copying.
With that in mind, consider AF2’s end-of-match scoreboard screen, which allegedly uses “the exact same layout as the corresponding screen in R6S, including the same arrangement of information and extremely similar icons to represent points, kills, assists, and deaths (i.e., a trophy, a target, a fist, and a skull”):
Certainly, no game publisher has a monopoly on using icons like this to represent basic genre outcomes such as K/D/A. However, is this “virtually identical copying” in the video display? Or is it merely “substantially similar”?
FANS WEIGH IN
Of course, no cloning complaint would be complete without the fan reactions. Ubisoft includes a choice selection of color commentary from the AF2 user reviews posted on the Google Play store:
“[C]oming from a Rainbow Six Siege player this is an exact replica.
The devs could of at least come up with their own ideas...”
“It’s exactly like Rainbow six siege, at least it tries to be...”
“[G]reat copy of siege...”
“Absolutely amazing, even though it’s a mobile version of 6 Siege it’s just like the real console game but in your hands.”
“Potential to be a great Mobile R6 Siege.”
“Alright. Clearly a Rainbow Six: Siege Ripoff, let’s be real.”
“Honestly, it’s a fun game as its basically Rainbow Six Siege: Mobile edition.”
“I know that this is a perfect example of Rainbow Six Siege. One of my favorite games.”
“I really appreciate your hard work on making it like ‘Rainbow Six Siege’”
“It is made to look exactly like Rainbow Six Siege which is currently one of the top trending games.”
“I have been dying to play a mobile game that is similar to rainbow six siege and now that I have the chance I am extremely happy.”
“It’s just like rainbow six siege and I love rainbow six siege.”
“Clean copy of rainbow six siege if anyone didn’t know. They just renamed the operators in r6s as agents and renamed the same weapons and even the abilities are the same. I guess they even copied parts of the maps from the maps in r6s.”
WHAT KIND OF DEFENSE WILL WE SEE?
In several of these recent lawsuits, we’ve seen aggressive tactics from law firms representing the infringers, including aggressive attacks on the pleadings and threats of Rule 11 motions for sanctions. While this well-drafted complaint seems to have taken great care to avoid the risk of a Rule 11 challenge by only including original Ubisoft material in the claim for infringement, it will be interesting to see whether defense counsel pursues the same aggressive approach we’ve seen recently in cases like this. Unlike the PUBG v. Netease case, though, Ubisoft used its own AnvilNext engine and assets to develop R6S, so it’s unclear how there can be any colorable claim that Ubisoft didn’t originate the assets depicted.
UBISOFT’S ALLEGATIONS AGAINST APPLE AND GOOGLE
Ubisoft alleges that Apple and Google have not only been turning a blind eye to the infringement, but have been actively marketing and promoting it:
Google and Apple, for their part, have been actively distributing AF2 to consumers in the United States, promoting AF2 on their websites, and, on information and belief, have been receiving all the revenue generated from AF2 on the platforms and keeping a substantial share of that revenue. Ubisoft has notified both Apple and Google that AF2 blatantly infringes Ubisoft’s copyrights. But rather than take any measures to stop or curtail the infringement (including by removing the game from the Google Play store and Apple App Store until the claim is resolved), Google and Apple instead decided that it would be more profitable to collect their revenue share from AF2 and continue their unlawful distribution.
These allegations translate to two things.
First, Apple and Google wouldn’t be protected by the DMCA safe-harbor from Ubisoft’s claim of copyright infringement because, if true, Apple and Google actively participated in the infringement. Second, even if the DMCA did apply initially because Apple and Google were only passively benefiting from the infringement (and without actual knowledge), it wouldn’t apply because of the take-down notices that Ubisoft sent to notify Apple and Google of the infringement (giving them actual knowledge of the infringement). Ubisoft claims that Apple and Google chose to ignore the take-down requests. Ubisoft’s legal position here will be that they did so at their own peril. In other words, the platforms could be held liable for all of the infringing conduct (at least that occurred in the United States).
Will this lawsuit have an affect on Apple and Google’s policies in how they respond to take-down notices based on copyright infringement? Or will this case quickly settle and things will go on, business as usual?
It’s very hard to see how Apple and Google will get out of this case at an early stage based on the allegations in the complaint.
Apple and Google may seek contractual indemnity from Ejoy — meaning Ejoy would be on the hook for any potential losses suffered by the platforms, and possibly even have a duty to defend them in the lawsuit. It’s unlikely the platforms would allow Ejoy to actual defend the platforms’ interests here. Instead, the most likely outcome is that the platforms try to get this case settled as soon as possible by working out a deal.
For academic reasons, I’d love to be wrong in this prediction, chiefly to see how the DMCA safe harbor issue plays out. I suspect Apple and Google will not want this to proceed for, if it goes poorly, it could create a very bad precedent for them. On the other hand, for game publishers, such a precedent could make it much easier for all publishers to get clones removed expeditiously from the platforms.