Rockbox's jewels [LWN.net]

LWN readers are familiar with Rockbox; this project (which has developed free firmware for a number of digital audio players) has been mentioned here several times, and was reviewed in detail last January. Since Rockbox operates in the sensitive area of media playback, it is not entirely surprising that the project has managed to attract an unpleasant cease-and-desist note from an outside party. It is surprising, however, that the dispute involves jewels.

In particular, the Rockbox developers have received a notice from a manager at PopCap Games, the makers of "Bejeweled." He came out swinging:

The game PluginJewels, for use on RockBox and available at http://www.rockbox.org/twiki/bin/view/Main/PluginJewels, is a blatant copyright violation of Bejeweled, the popular match-three game owned by my company, PopCap Games, Inc., of Seattle, Washington, USA. I am writing to you to demand that you remove PluginJewels from www.rockbox.org and all other sites where users may download this game for the Rockbox, no later than April 30, 2006. PopCap Games takes seriously all copyright and trademark violations of our games and, if necessary, we will enforce our rights to the fullest extent of the law.

The initial reaction is best described as "befuddled"; the "Jewels" game found in Rockbox contains no code or other materials from PopCap's game, so it is hard to see where the copyright violation might come from. A subsequent message makes things more clear, however; PopCap takes issue with the jewel icons used in Jewels. It is, says PopCap, "obvious that someone on the PluginJewels team ripped the graphics from one of the Astraware-licensed versions of our game."

Bejewelled	Rockbox

The figure on the right shows a subsection of the images (provided by PopCap) meant to back up this claim; Bejeweled appears on the left, Rockbox is on the right. A quick inspection shows some obvious similarities - the Rockbox jewels were clearly meant to resemble those from the original game. But they are just as clearly not identical - the Rockbox jewels have not been "ripped" from an official version of Bejeweled. In fact, they came from Gwled, where they were explicitly developed for use with that game. They are an independent - if imitative - creation.

The message from PopCap makes it clear that the game itself is not a problem; it states that "non-infringing gem art needs to be substituted for the infringing gem art." So not only is Rockbox not threatened, but even the "Jewels" game should be safe. All that is required is to replace the artwork with something seen as being non-infringing. Jewels would be the same game if users were matching penguins, mathematical symbols, or mug shots of SCO executives. But even a change of that magnitude is not required; PopCap only wants "non-infringing gem art."

The Rockbox developers have not, as of this writing, decided how they will respond to this request. None of them seem to think they have actually infringed upon PopCap's copyrights. But, says Daniel Stenberg:

However, I don't think we'd lose anything by being "soft" and simply modify our jewels somewhat so that they don't look so similar to their versions, just to be nice.

That seems like it could be a reasonable solution to the problem. There appears to be a number of people, however, who oppose making any changes to appease PopCap. Their position is that Rockbox has done nothing wrong, has violated no copyrights, and that to give in to this sort of demand would be an invitation to others who would harass the project with infringement claims. They would rather tell PopCap to simply take a hike.

A smaller group suggests that, since Gwled provided the artwork under the GPL, (1) Gwled has stated that it has the right to distribute that artwork, and (2) PopCap should be sent over to present its claims to the Gwled developers. There would appear to be little support for the idea of simply dumping the problem onto another GPL-licensed project, however.

Rockbox may well be in the right on this issue, and it may well be that, legally, the project is under no obligation to change anything. It may also well be that the project could find itself having to argue that point in court. The free software community faces a wide variety of legal challenges, with others certainly to come in the future. We should pick our battles carefully. The Rockbox developers will have to make their own decision in this case; in so doing, they will want to consider whether the goals of the project are truly served by taking a hard-line stand over a set of little jewel icons.

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My guess is that the accuser is also infringing

Posted Apr 20, 2006 4:51 UTC (Thu) by tetromino (subscriber, #33846) [Link]

Actually, no. If you look at the screenshots of XJewel, you will see that its graphics are substantially different from both Rockbox Jewels and Rockbox Bejeweled. For example, the XJewel blue stone is presented viewed from the top; in Bejeweled and Rockbox it is viewed from the side. The orange stone in Xjewel is a cube drawn in isometric perspective; in Bejeweled and Rockbox it is more of a truncated hexagonal pyramid. The XJewel diamond is aligned differently from the one in Bejeweled and Rockbox; etc.

I would have say that Rockobx Jewels graphics were mostly based on Bejeweled, and not on XJewel. It is extraordinarily improbable that two independent game projects -- both starting from something like the 1993 XJewel graphics -- would end up with graphics that are so similar to each other and yet so different from their ancestral programs, unless the artists of one project were copying the other one's style.

legal opinions

Posted Apr 20, 2006 8:27 UTC (Thu) by pjm (subscriber, #2080) [Link]

It is useful for Free Software programmers to be knowledgable about copyright law, so it would be nice to see a reference for the claim that icons do not infringe copyright even if they have been "copied from" (by way of deliberate though inexact imitation) a copyrighted work (or from an infringing copy of that work) without permission of the copyright owner.

I've spent a while trying to come up with a reference one way or another for the case of Australian copyright law (just by reading a textual copy of the Copyright Act 1968). (I don't know how relevant Australian copyright law is to the Rockbox case, it's just the law most relevant to me as an Australian.)

It seems that for "artistic works" (as distinct from e.g. "literary works", including computer programs), adaptation is not one of the rights reserved for copyright owners: see section 31 ‘Nature of copyright in original works’. (See section 10 ‘Interpretation’ for definition of ‘artistic works’.)

Section 21 ‘Reproduction and copying of works and other subject-matter’ paragraph 3 gives some fairly narrow cases where non-identical copies are considered reproductions of artistic works; and paragraph 1A of that section says that all “conver[sions] into ... digital ... form” are considered reproductions.

(Conversely, section 77A ‘Certain reproductions of an artistic work do not infringe copyright’ gives a few things that are considered reproduction but that do not infringe copyright.)

Another section relevant to non-exact copying is section 14 ‘Acts done in relation to substantial part of work or other subject-matter deemed to be done in relation to the whole’.

I can't see any other guidance in the Act as to what counts as a “reproduction” (or “conversion”, in the case of conversion to digital form); so I suppose we look to a dictionary or everyday usage.

In the case of paintings, the term “reproduction” includes manual, inexact copies, though my very ignorant impression is that it is still fairly narrow in what is considered a reproduction as distinct from adaptation.

Nevertheless, as a non-specialist in either art or law, I might consider, say, the orange, yellow & green jewels to be reproductions of the corresponding Bejeweled icons, at least if they had in fact been copied directly from Bejeweled rather than via Gwled etc.

IANAL.

Rockbox's jewels

Posted Apr 23, 2006 20:00 UTC (Sun) by pm101 (guest, #3011) [Link]

It does feel like it might be plagarism to me. The graphics were
a) Clearly redrawn from scratch
b) Clearly redrawn to resemble the originals, down to (as dvdeug pointed out) the same shape-color mapping

(a) shouldn't prevent this from being a copyright violation, at least in some jurisdictions. If you take a book, rewrite each sentence (say, switching passive and active town), change character names, etc., it remains a copyright violation.

What's interesting about (b) is that, as some people have pointed out, xjewel used mostly (but not entirely) the same shape-color mappings as bejeweled. While not a direct copy, the Bejeweled images are based on xjewel (or some intermediary) images, to a similar (slightly lesser -- a couple of the gems were redrawn) extent as Roxbox are based on Bejeweled. If Roxbox is a copyright infringement of Bejeweled, then Bejeweled (barring any licensing we do not know about) is mostly likely a copyright infringement of xjewel. By winning a lawsuit against Roxbox, Popcap would be setting up precedent for a lawsuit against itself by the authors of xjewel (or whoever originally created the graphics).

Popcap was founded in 2000. xjewel is from 1990/1992.