Legal Issues? There's an app for that
|This is an editorial by Archaic.|
Liam Pomfret, a.k.a. Archaic, is the webmaster of Bulbagarden since December 2002. A long time member of the online Pokémon fandom, he has worked on numerous Pokémon websites as an administrator, moderator and news correspondent since early 2001.
Offline, Archaic is an academic involved in the study of online consumer privacy behaviours, and is currently in the process of working towards his PhD. He has taught for undergraduate subjects relating to Marketing, Management and International Business Strategy, and has guest lectured on the topic of online communities for post-graduate students.
The following editorial is based largely on the contents of email exchanges between Archaic, Nolan Lawson (the developer of PokéDroid), and Tim Oliver (the developer of iPokédex). Much of this was originally written back when PokéDroid was taken down, though we ended up not posting it because of how long it took me to finish. Now that there's been further developments, with iPokédex having received a notification of an IP claim against them by The Pokémon Company International, we feel that the time is right to get some of these thoughts up and out to the wider fandom.
If you've been watching the Pokémon fandom news over the past few months, there's a good chance you've heard about how The Pokémon Company has moved to have Pokémon related apps of all types removed from the Android market. As of the last couple of days, we have had confirmation that they have now made moves to remove apps from the iTunes market as well. As you'd probably expect from such an issue, it's resulted in a bit of a backlash from certain segments of the fandom against Nintendo and The Pokémon Company, which I personally feel isn't deserved. Within that backlash, I've noticed a certain common stance, where people assert a feeling that "Nintendo/TPC(i) are applying a double standard with apps. There's plenty of fansites out there which give even more info. They're hypocrites.". However, I feel that this represents a misunderstanding of exactly what is involved here to Nintendo/TPC(i), both in a legal sense and in a marketing sense. With this editorial, I intend to address this stance, to dispel some of the myths and hopefully impart a bit more understanding of the underlying issues at play here.
Let's get the big elephant in the room out of the way. Yes, all Pokémon fansites, and all Pokémon apps, are committing copyright infringement. I've said it plenty of times before, most recently during events last year where legal action on the part of Nintendo/TPC(i) was provoked by certain people not being cautious enough with leaks. But that's a different story.
That us fansites are committing copyright infringement by our very existence is important. Specifically, the fact that it's copyright infringement and not something else. Many people don't understand the significance of copyright, just lumping it and everything else in the basket of intellectual property (or assuming that intellectual property is just a synonym for copyright). Unlike, say, trademarks, copyrights have no burden of enforcement. This means that Nintendo/TPC(i) are well within their rights to ignore copyright infringement for as long as they like (within the duration of the copyright), and/or to only sue selectively.
Okay, so I realize that's sounding like I'm admitting there's a double standard. But there's another factor that comes into play here. Namely, implied claims of ownership. This is a situation where a burden of defense does exist, where control over one's intellectual property can be lost if one doesn't launch efforts to legally defend it.
Now, I think it goes without saying that no Pokémon fansite would really claim to own its information. We might own our own representations of the information (ie. the way we present it to you, the specific wording of paragraphs, etc), but no fansite has claim to owning, say, a list of attacks a Pokémon learns in the video games as it gains levels, or a list of cards in a TCG set. To claim that would simply be ridiculous. If anything, we go out of our way to not claim it, posting lengthy disclaimers to that effect to try and give ourselves a measure of legal protection, no matter how thin that might actually be.
These apps though, didn't have any such defense.
Wait a second, I hear you say, didn't the apps have those disclaimers too? Well, yes. But in their case, their disclaimers are invalid. Why? Because they agreed to legal contracts with Google (for Android market developers) and Apple (for iOS developers) which stated otherwise, hence putting the developers in the situation where they have perhaps unwittingly committed fraud. I don't have the iOS one handy, but here's the relevant passage of the Android Market Developer Distribution Agreement, section 5.5, that all Android app developers agree to on uploading their app. I think it's fairly cut and dry.
"5.5 You represent and warrant that you have all intellectual property rights, including all necessary patent, trademark, trade secret, copyright or other proprietary rights, in and to the Product. If You use third-party materials, You represent and warrant that you have the right to distribute the third-party material in the Product. You agree that You will not submit material to Market that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to submit the material."
So, what's the solution to this for Pokédex app developers? I'm not entirely sure myself, but I can say with a good degree of certainty that just open-sourcing their apps and releasing from non-official marketplaces (or direct downloads from websites) probably wouldn't be enough. For starters, open-sourcing would again have the same issue of asserting ownership. You can't release something under an open-source license unless you own the underlying intellectual property. While much of the code would be the property of the developer, the information contained in those Pokédex apps is not. Regardless of if you open-source or not, realistically it doesn't remove the fact that you're still committing copyright infringement. Releasing on a different market won't save an app. If anything, it makes you a bigger target for legal action, since you're now potentially going to be seen as acting in bad faith.
Another suggestion some people have offered is to remake these apps in a fashion that would make them essentially function as parsers for external databases not part of the app. I personally feel this is actually a rather dangerous proposition. For starters, this doesn't necessarily prevent IP claims against the app itself, should the name incorporate anything which might link it to the Pokémon franchise. Secondly, can you demonstrate any non-infringing uses of the app? Tape recorders, CD/DVD/Blu-Ray burners, BitTorrent, these all have substantial legitimate uses, which prevented their underlying technology from being targeted legally even though there's potential for misuse of them to commit infringement of intellectual property and/or copyright. These apps would have no such defense, since they'd have to be highly specialized to parse a Pokédex database, and there's really no other use for them. Finally, where are you going to get this database from? If the information is parsed off a website in real time (as opposed to a download which is plugged into the app), then you've got all sorts of other issues. Even if the website allows you to do this (and old-timers may recall a situation where we actively worked to disable and break an app which did exactly this with our Pokémon pages on Bulbapedia), then you're only putting fansites in the firing line for potential legal action, and that's one of the most dangerous situations we could get ourselves into.
Of course, this isn't even bringing up the issue of The Pokémon Company releasing their own app. When I originally discussed these issues with Nolan and Tim, the Pokédex app for the 3DS had yet to be announced, so it was somewhat gratifying to see my prediction to them of an official app being released coming true so quickly. On top of that, we've just had the announcement in the last few days of a Pokémon rhythm game app to be released for the iPhone and Android in Japan. Personally, I can only think of these mobile apps as a tactical move by The Pokémon Company. With them actually having apps in the market, it's a lot easier for them to launch legal claims to have them removed. With iOS apps in particular, the existence of an official Pokémon app there may even lead to Apple automatically rejecting any unofficial Pokémon apps submitted.
The marketing issues are perhaps a bit easier to grasp, though again not something that everyone's thought about deeply. I brought up 4 points with Nolan in our email discussion, but they all really boil down to one main issue. How much are fan activities worth to Nintendo/TPC(i)?
Let's be honest about this, when you boil things down, apps from independent developers offer Nintendo/TPC(i) fairly little in return. A Pokédex app in particular is nothing but a personal reference tool, and so is only in competition to Nintendo/TPC(i)’s official products without offering anything substantial back. Specifically the only useful things to Nintendo/TPC(i) from them would be their download statistics (which may be useful for market research), and a possible (though highly debatable) boost to the value of Nintendo/TPC(i)'s core product (ie. the games).
Fansites on the other hand provide a kind of compensation to Nintendo/TPCi through two main channels. Firstly, fansites providing a means for Nintendo/TPCi to conduct wide ranging market research (eg. conducting qualitative analysis on forum discussions). Secondly, fansites also functioning as vehicles for Nintendo/TPCi to generate hype (through forum threads, news articles, etc). I think we can all agree, that's a pretty big difference from the apps.
Now, I was just saying before that the apps are in competition to Nintendo/TPC(i)’s official products. So are fansites for that matter, but there's an important difference here. Namely, tethering. That is to say, you don’t need to be near an internet enabled device for you to use an app. Even if you ignore the mobile apps The Pokémon Company is now releasing for iPhone and Android, unofficial independent apps have the potential to cut heavily into sales of things like strategy guides (which we know they're pushing this generation, since they've put Dream World codes into them), and would be expected to cut into them far greater than any fansite would due to that tethering issue. Strategy guides are generally purchased so that one can have the info available when they go out of the house (particularly when they go on a road trip), or as a quick-reference to have at home. These are situations where a fansite would suboptimal at best (where the individual has an internet connection on their phone), but an app would be far too convenient and easy a replacement.
I hope that this editorial has given everyone a bit more information on why Nintendo/TPC(i) would choose to target these apps, and why it's not really hypocrisy for them to do so. These are issues we had been thinking about ourselves for quite some time, as part of our now abandoned plans to launch our own Dex app, so I'd like to think I know what I'm talking about. Having said that though, I am not a lawyer, and I have no formal legal training relevant to this situation. If you do spot any errors I've made though, please let me know in the discussion thread for this editorial on the Bulbagarden forums, and I'll make corrections as needed.
For app developers out there who may be reading this, I feel like there's only one piece of advice I can really give to you. If you get one of these letters, comply. It's not worth your while to make yourself a target for legal action from Nintendo/TPC(i). Doing things to try and sidestep or get around these infringement notices may very well get you labelled by them in legal action as acting in bad faith, and if that happens then it's game over. If you feel that you need an outlet where you can contribute back to the Pokémon fandom, well, we're always looking for devoted and patient people like yourselves on Bulbapedia ;)