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> A sad day for fangame makers: Tetris Holding, LLC v. Xio Interactive, Inc
Rosti_LFC
post Jun 13 2012, 12:14 PM
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QUOTE(Wojtek @ Jun 12 2012, 08:27 PM) *

This is absurd that while game rules are not copyrightable, making game with same rules would allow competitor to fight you. Imagine lawsuit form chess maker against other chess maker, that would say:
-chessboard is 10x10
-there is exactly same set of pieces
Well yes, it is, because it is how chess works, and it is how it is played. Sure you can come up with infinite number of rules, but's that not the point of chess.

If there was someone who had the claim to have designed chess, and held the license for chess, then this lawsuit would be perfectly and obviously valid, and I don't really know what point you're trying to make. Chess is a game old enough to have become public domain, meaning nobody has the ground to sue anyone else over it, whilst Tetris isn't. What's your point?

And pointing out the hypocrisy of Feevo's similarity to Bejeweled totally doesn't have any effect on any lawsuits involving design infringement for Tetris.


QUOTE(Wojtek @ Jun 12 2012, 08:27 PM) *

so when at this list of items that they claim are infringing, one part of them are essential rules of the game and other part are things very generic that are not unique to tetris (i.e. features common among many other games).

We discussed this in IRC in the context of patent law. Just because you make a whole ton of claims that aren't actually valid and defendable in court doesn't mean you invalidate the claims which are defendable.


QUOTE(Paradox @ Jun 13 2012, 02:56 AM) *

What I don't get is if these things aren't supposed to be protected by copyright why does TTC continue to take down games? Is money above the law in this case?

They completely are protected by copyright. Maybe not everything stated, but there's easily enough in this case here for TTC to win. And having the money to buy better lawyers helps in a court case, but it's not like you can just pay money to the judge and win. There has to at least be a semblance of a valid argument in the first place.


Guys, I really don't know why there's so much QQ in this thread claiming that this lawsuit is totally ridiculous and there's no way that TTC should have won and it's stupid. It's a precedent that hadn't really happened yet, but if you guys knew anything about how the laws work for trade dress then it's obvious that TTC were going to win this case.

- The field is 10x20 blocks
- It uses the seven tetromino pieces, no more, no less
- When you get garbage lines they fill up a bar to the side before entering your field (I presume that's what they are)
- I'm assuming the rotation works the same as SRS in 0G, or incredibly close to it
- Next piece previews appear at the top of the screen

In approximately decreasing order of certainty (though the top two are a dead cert, especially the first one) those are aspects of the game that obviously impact trade dress and would be covered by copyright. They are things that could easily be designed differently without fundamentally ruining the way the game is played, and in the case of the first two they are things that can be intricately linked to the design of Tetris, and the design of pretty much every official Tetris game released under the sun.

Are any of you genuinely trying to claim that Xio didn't just take the concept for Tetris and release their own version with basically no modification to the game design and no new creativity to the concept? Because if you're not actually trying to argue this point then anything you say is completely stupid because that sort of rip-off is exactly what copyright and trade dress law is designed to stop (also because they've openly admitted to it in the case). A sad day for fangame makers maybe, but fundamentally it's a ruling that was always going to happen because the whole system is made so you can't just make a Tetris game by lifting all the core game and appearance aspects, change the name to not Tetris, and then try and make money off it.

This guy from Xio has openly admitted to essentially stealing the idea for Tetris and then releasing it in a way which he felt didn't retain anything that was copyrightable (which, as far as I can see, would mean directly lifting graphics because not much else seems different). Even if you really, really know what you're doing, that's an incredibly dangerous game to play because you're trying to very precisely walk along a line that isn't actually particularly well defined in the first place, and has the potential to move on a single whim. They thought they could get away with it through some legal logic play, and it turns out they can't.

EDIT: I started writing this post when I was at about page 8 of the full legal case. By page 32 I'm honestly not surprised that TTC won, because so many of these Xio arguments are massively tenuous and are on very shaky ground, especially given how explicitly similar the two games are.


As an aside, showing it to people in the street and them saying "it's Tetris" would probably be pretty easily beaten in a court of law by the scenes a faire principle, because you could probably create something which you could prove to be fundamentally different to Tetris and most people would still say that it's Tetris. That said, it does say in the court text (page 25) that they've taken to analysing with the eyes of a layman rather than an extremely high attention to detail, so they are taking something of a broad approach to it.


And to people who might just expect this post is me arguing the way I do and trying to come across as more learned and confident than I should do, I'll admit I Am Not A Lawyer. However I have just finished a 4 year engineering degree at Cambridge, the last two years of which I focussed heavily on product development, product design, and patent/copyright law, as well as starting work at a product design consultancy in August. I do know my sh** to a fairly reasonable extent when it comes to this sort of thing.


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EDIT2, now that I've read the whole case

For those who can't be arsed reading the whole case pdf, or don't really understand it, a (not actually that brief) brief explanation of the arguments being made in the case and the principles behind them:

Xio's argument hinges primarily hinges on a distinction between patent law and copyright law. Patent law covers function, whilst copyright law covers form (appearance, feel, sound, etc). There is a whole different infrastructure and stuff for the two, but that's not really relevant here.

What Xio have argued is that anything that should be covered by a patent (function) can't be covered by copyright law if the patent isn't held. In a sense this is correct. To use an extremely simple example, if someone invented the wheel and patented it, they could stop everyone else making/using wheels without their permission and without paying royalties. On the other hand, if someone invented the wheel and let it become public domain but didn't patent it, they couldn't then sue everyone else making wheels on the basis that their wheels looked the same because they were round. This is because the wheel being round is a critical aspect to providing the function of a wheel, and the function isn't protected in any way. Essentially the roundness is an aspect that is too strongly tied to the function, and is difficult/impossible to avoid using, meaning a copyright law that covered it would be too restrictive and too broad.

This legal argument is perfectly sound, and there are a ton of precedents for it (named in the case). The problem here is that Xio have extended it as far as they possibly can, by trying to claim that every single aspect of the game is tied to function, and therefore can't be covered by copyright because TTC don't hold the patent to the game function.

The court has sort of ruled where they draw the line between copyright covering function and copyright not covering function. Part of this goes into the territory of scenes a faire, where you can't protect stuff by copyright if it is pretty much staple for the entire genre. For example, pieces falling from top to bottom falls under scenes a faire, because there are plenty of games that have pieces falling from top to bottom that aren't Tetris (Puyo Puyo, Dr Mario, etc), and if Tetris held copyright to this then it would essentially hold copyright to the entire "crap falling from the top of the screen" genre.

Xio argue, and argue correctly, that a lot of the aspects they've copied are either critical to function or fall under scenes a faire, but the problem for them in this case is that they've copied far too closely for this argument to apply any more. To use an example explicitly mentioned in the case, they argue that a playing field that is higher than it is wide is a functional part of the game, and it not being the case would have a huge impact on the game. The court concedes that this is true, but then goes to point out that Xio haven't just copied a playing field higher than it is wide, but in fact have gone for the exact same 10x20 dimensions of a typical Tetris field. They're trying to use an argument to defend similar copies when they're being sued for making an exact copy.

The argument Xio have made is fine, and to a lot of the things it does technically still apply (a 12x20 field will functionally play differently to a 10x20 field), but the court have ruled that they're trying to take it too far, and to levels that are not practical and would unravel a huge amount of copyright law, which is why they've lost. They've copied too much for Mino to be functionally different from Tetris in a substantial enough way, hence losing the lawsuit.


And whilst this is a sad day for fangame makers who want to just completely rip-off Tetris and make their own version, there's a lot of precedent in here that implies if you want to make a version that uses the core Tetris gameplay of falling blocks and complete lines disappearing (which has deemed to be too tied into function to copyright) then you can quite comfortably so long as you change around other aspects of the game design a bit.
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meow
post Jun 13 2012, 12:38 PM
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I also found it interesting that the court suggested that there were an unlimited number of ways to design the pieces, and then the court later stated that the fundamental rules of Tetris are not protected by copyright.

It's as if the court forgot or was not informed that the tetr in the uncopyrightable 'Tetris rules' means four and from four small blocks, there are only seven distinct pieces.
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Wojtek
post Jun 13 2012, 12:55 PM
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QUOTE(Rosti_LFC @ Jun 13 2012, 02:14 PM) *

If there was someone who had the claim to have designed chess, and held the license for chess, then this lawsuit would be perfectly and obviously valid, and I don't really know what point you're trying to make. Chess is a game old enough to have become public domain, meaning nobody has the ground to sue anyone else over it, whilst Tetris isn't. What's your point?

My point is size of the board and set of pieces should be considered rule of the game and functional part of it. Why you would think those are expression (i.e. art) or trademark?

Rosti, you sound like it was obvious that TTC owns tetris gameplay. I can't agree with that. In case of more complicated game if you take gameplay and change artwork (graphics, sounds, animations) it would make game look and feel very different, but in case of tetris it dosn't, just because whole thing is so simple. game in question was made from scratch and everything it share with tetris are merely ideas.

I see how when interpreting game as piece of art you came with such verdict, but if you interpret game as piece of software then it is totally different. As a programmer I must say i agree 100% with Xio interpretation. In software world cloning is not copying. Most of software and games made are direct clone (in you term rip-off) of other software or game. When you make game your "expression" is code you write and graphics you make.


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Paul676
post Jun 13 2012, 01:27 PM
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Thanks Rosti for the analysis - that makes complete sense Smile.png


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Rosti_LFC
post Jun 13 2012, 03:32 PM
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QUOTE(Wojtek @ Jun 13 2012, 12:55 PM) *

My point is size of the board and set of pieces should be considered rule of the game and functional part of it. Why you would think those are expression (i.e. art)?

Because video games are a massive grey area that combine a huge amount a variables between physical products and artistic works, and the experience you get is a combination of many of them.

I also think you're misunderstanding the term "functional part" in the way it applies context and taking it too literally to say that anything with any function or impact on the function is a functional part (which is what Xio tried to do) - also caffeine is doing the same thing with "function of the game", which is basically outlined in the case to be falling blocks and completed lines disappearing. Also, the combination of functional parts is arguably what makes up the trade dress for a game as simple as Tetris.

The pieces moving how they do is something that can be used elsewhere (say on a 16x16 board instead). It's a functional part and you could use it in other games. The board for chess is also a functional part - it's used for checkers. But when you combine the functional parts of the board size and design, of the different pieces, and of the way the pieces move, then you're just producing something that is a complete copy of chess with no attempt to innovate or be creative whatsoever. And given it's a complete copy, it'll look and play basically the same and you can then be sued under copyright law for attempting to make money off what is clearly not your own idea.

QUOTE(Wojtek @ Jun 13 2012, 12:55 PM) *

In software world cloning is not copying, I most of software and games made are direct clone (in you term rip-off) of other software or game.

If you make a piece of software, and it includes more than a certain number of lines of code (I forget the number) which is identical to another piece of code, they can potentially sue you for breach of copyright, unless it's a case where it'd be difficult to code another way, or restricting use of that piece of code would be overly prohibitive, in which case it's scenes a faire and isn't covered by copyright law. You can also sue for non-literal elements such as code structure or or organisation.

But this is all somewhat irrelevant, because the fundamental issue is intent.

If Xio had made a game that loosely used the principles of Tetris but in a way that people would use the term "inspired by Tetris", then they'd be fine. But they've not. They've wholesale just stolen the entire game design, they've admitted to stealing the game design, and they've admitted to changing as little as they thought they had to in order to avoid lawsuit under their fairly smartass "you can't defend functions under copyright" extension argument.

All of these laws regarding copyright not covering function, and scenes a faire, are to protect creativity. They are to make sure that a single act of copyright cannot cover non-competing products and people who have genuinely been creative and innovative themselves but just so happened to have some overlap with something that's already out there. This is completely not the case here, and Xio have been very open that it is not the case. You say "game in question was made from scratch", but Xio make it abundantly clear that it wasn't.

As was stated in the court case, the extension of copyright not covering function than Xio were trying to make would essentially completely remove any copyright law for software unless you're copying actual chunks of code or graphics, which obliterates any protection for the actual functionality of the software through copyright (which is important here, because software patents are pretty dodgy and in some countries [pretty sure most of the EU] you can't actually patent software at all). This would mean that anyone making and attempting to sell a piece of software, be it a video game or otherwise, could have the actual design and use behind it completely copied by another party and sold by them instead, and all they'd have to do is code it from scratch and not use the exact same artwork. It would be like if you could just re-record a song someone else wrote and release it as your own with no risk of lawsuit whatsoever.

There's far more to software than just writing the code up and making the visuals, and in this case that's exactly the part of the software that Xio completely ripped off, and it's the part that the court has deemed is covered by copyright law.

QUOTE(meow @ Jun 13 2012, 12:38 PM) *

It's as if the court forgot or was not informed that the tetr in the uncopyrightable 'Tetris rules' means four and from four small blocks, there are only seven distinct pieces.

It's not that they forgot or were not informed - it's that it's not relevant.

And if you're going to make pieces from scratch and not just steal the seven Tetris ones (because, you know, you're not just trying to shamelessly emulate Tetris or anything) then you do have a pretty massive number of possible pieces to play with.
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caffeine
post Jun 13 2012, 03:41 PM
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QUOTE(meow @ Jun 13 2012, 07:38 AM) *

It's as if the court forgot or was not informed that the tetr in the uncopyrightable 'Tetris rules' means four and from four small blocks, there are only seven distinct pieces.

I believe you're referring to this:
QUOTE
The pieces in Tetris are based on combining four equally sized squares in different
patterns, but the idea of Tetris‚€”fitting different shaped pieces together to form
complete lines‚€”can be achieved with nearly limitless shaped pieces and geometric
shapes. Xio‚€™s expert, Jason Begy, agreed at his deposition that a ‚€œa game designer could
design the playing pieces for a video game in an almost unlimited number of ways‚€Ě and
that the specific Tetris pieces were ‚€œnot necessary‚€¶to design a puzzle video game.‚€Ě Pl.
Stmt of Undisputed Fact, ¶ 53.

Xio is trying to invoke the doctrine of merger, which means that the idea and the expression of the idea are inseparable. Apparently Xio's expert said that there are an unlimited number of ways to express the Tetris idea. Therefore, there is no merger. Interestingly, the Judge references this as "Pl. Stmt of Undisputed Fact, ¶ 53." It looks as though the defendant failed to dispute that there are indeed a limited number of ways of expressing the Tetris idea.
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benmullen
post Jun 13 2012, 04:56 PM
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without many viable tetris company platforms that offer the type of gameplay that the players want, a ruling like this could seriously damage the game.

It would leave a HUGE vacum the they seem either unable or unwilling to fill.

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Integration
post Jun 13 2012, 05:08 PM
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Mino:



EA's Tetris for iPhone:



Unfortunately, I can't find a video or screenshot for the multiplayer. Meanwhile, EA's Tetris version has been re-released, but it seems to have happened after the creation of Mino.

My conclusion: Mino doesn't look like a 100% rip-off. And I can't understand, how copyright of a very simple, 28 year old video game, can still be owned by a company, which was founded more than 10 years later.
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Rosti_LFC
post Jun 13 2012, 07:35 PM
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Copyright can be bought and sold. If there was a source of ownership for the original video game and creation of rights in the first place (which there was) then it's easily possible for a company formed later to own those rights by buying them. It's not like TTC randomly came along and just acquired intellectual property that was previously public domain. It's the same reason that companies like P&G and Unilever can own the rights to hundreds of different household brands through purchasing them off smaller companies.

Also it's not claiming that it's a direct rip-off of specifically EA Tetris. If it was, then I'd expect EA would be in on the case given it's in their financial interests. It would be a dumb move anyway though because they'd heavily be restricting the scope of what's being ripped off to a specific product, which is a far more difficult point to prove and wouldn't set a precedent for other clones ripping off other products. Instead they've claimed that Xio has copied guideline Tetris and the specific gameplay design principles that go into that, which is a far easier case to win as there's far more material to back it up.

QUOTE(caffeine @ Jun 13 2012, 03:41 PM) *

It looks as though the defendant failed to dispute that there are indeed a limited number of ways of expressing the Tetris idea.

They conceded that they couldn't dispute it, because in the context here there aren't really a limited number of ways of expressing the "Tetris idea" [that blocks of some description fall and fit together and clear lines]. There's a finite number of sets of blocks at practical disposal, obviously, but the number is still massive.

When designing a falling blocks games there are a huge number of different pieces you can choose from. If you don't limit yourself to pieces that are fully connected shapes, and allow maybe a handful of 3 and 5 block pieces, then you've got a huge amount of variation in there. Yet out of all this variation Xio picked the exact combination of seven pieces that is standard for Tetris, and which Tetris has a strong claim to in terms of design rights and trade dress.
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caffeine
post Jun 13 2012, 08:39 PM
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QUOTE(Rosti_LFC @ Jun 13 2012, 02:35 PM) *

When designing a falling blocks games there are a huge number of different pieces you can choose from. If you don't limit yourself to pieces that are fully connected shapes, and allow maybe a handful of 3 and 5 block pieces, then you've got a huge amount of variation in there. Yet out of all this variation Xio picked the exact combination of seven pieces that is standard for Tetris, and which Tetris has a strong claim to in terms of design rights and trade dress.

One-sided tetrominoes used in a playfield that is taller than is wide is de jure functional. A competitor's inability to use these features would make them unable to compete effectively. These combination of features make the game interesting and challenging in the first place. In other words, they are not merely part of the trade dress used to distinguish one product from another. They are part of the functions necessary to establishing the idea (i.e. the gameplay) that consumers enjoy.
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post Jun 13 2012, 09:29 PM
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QUOTE(Rosti_LFC @ Jun 13 2012, 09:35 PM) *
Also it's not claiming that it's a direct rip-off of specifically EA Tetris. If it was, then I'd expect EA would be in on the case given it's in their financial interests. It would be a dumb move anyway though because they'd heavily be restricting the scope of what's being ripped off to a specific product, which is a far more difficult point to prove and wouldn't set a precedent for other clones ripping off other products. Instead they've claimed that Xio has copied guideline Tetris and the specific gameplay design principles that go into that, which is a far easier case to win as there's far more material to back it up.

So if there are no issues with graphics, layout or sounds, then why does the article reference to Tetris for iPhone? It seems to me, that every game using TTC's (or even Tetris') basic gameplay mechanics can be successfully sued by the argument "We have already created a Tetris game on that platform, so you are not allowed to". Or the other way around: what must commercial developers fulfil to be protected? Would a combination of memoryless randomizer, different spawning orientions & colors and a unique way to send garbage lines even help you?
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Rosti_LFC
post Jun 13 2012, 09:42 PM
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QUOTE(caffeine @ Jun 13 2012, 08:39 PM) *

One-sided tetrominoes used in a playfield that is taller than is wide is de jure functional. A competitor's inability to use these features would make them unable to compete effectively. These combination of features make the game interesting and challenging in the first place. In other words, they are not merely part of the trade dress used to distinguish one product from another. They are part of the functions necessary to establishing the idea (i.e. the gameplay) that consumers enjoy.

This is covered in the legal document (page 31, about halfway down):

QUOTE
Xio defends copying the exact size of the playing field‚€”20 units high by 10 units wide‚€”by saying that a rule of the game is to have a board that it higher than it is wide. But having a board higher than it is wide is not the issue; Xio copied a field that was the exact same dimensions as Tetris. Even assuming it is a rule to have a field higher than it is wide, which the Court does not necessarily find, it is not a rule to have the playfield be exactly 20 units by 10 units. Xio was free to program a puzzle game with the playing field designed "in an almost unlimited number of ways" as admitted by Xio‚€™s expert.

Xio was not limited to those precise dimensions and was free to take the general idea of having a long game board and express it in its own unique way. For example, it could have had a field three times as high as it is wide or 15 units high by 8 units wide, without copying the exact game dimensions and infringing the look and feel of Tetris‚€™s expression. Thus, I find this to be protectible expression that Xio infringed.


In short, yeah, you're perfectly fine to use a playing field that is taller than it is wide. But you're not fine to use one that is exactly 20x10, or at least not when you're nicking a whole load of other stuff at the same time.

In my opinion the sad thing here is not the ruling itself, but the fact that a ruling that sets such an important precedent like this one has happened in the way that it has, and in a court case that, frankly, was never going to go against TTC.

This dude has shamelessly ripped off Tetris. He is not, like the Cultris or Nullpo devs, attempting to make a cool game that is based around Tetris gameplay for the purposes of filling the currently poorly populated PC Tetris market. He is merely ripping off the concept of official Tetris games, changing as little as he possibly can (basically the name and not using pre-existing graphics, which would be a totally idiotic move not to do anyway), and selling it as a smartphone app with the intention to make some easy money. And he's completely open about his intentions behind the whole thing and his apparently smartass loophole to why he's fine. He's not trying to make a better product to break an existing monopoly, he's just trying to steal someone else's creative work for his own gain.

Basically, he's creating a clone that is in the largest possible way exactly what TTC don't ever want to happen, for fairly obvious reasons. It's also the sort of behaviour that copyright law is obviously in place to attempt to stop. Which means that the court were practically never going to rule in his favour, because setting that sort of precedent basically means that anyone with the resources to clone an existing video game can do so without reprimand, as long as they don't steal the name and exact graphics.

Because this Xio guy has been so much of a dick, it's basically pushed the court into defining what classes as a functional aspect and what classes as trade dress really far towards the "everything is trade dress" side because it's basically the only way to have the copyright law remain defensible against people ripping off games in the way that Mino has done. If there was a shred of creativity about Mino, then there's a chance he could sensibly argue a lot of these features to be necessary for the game design to function, but there isn't. He's not used a 20x10 field for any reasons of gameplay being better; he's used 20x10 because it's what official Tetris games use, and has then tried to defend it as though he did it for the reason of gameplay being better/feasible/playable/whatever, and it hasn't worked.

QUOTE(Integration @ Jun 13 2012, 09:29 PM) *

Or the other way around: what must commercial developers fulfil to be protected? Would a combination of memoryless randomizer, different spawning orientions & colors and a unique way to send garbage lines even help you?

They might not make your a** immortal to being sued, but all of those would definitely help you, because they would show that you're making a game that is fundamentally different to Tetris (which could be unintentional and a result of you having a sh** attention to detail, but that's hard to prove). The thing is, if you have a 16x10 field, the game concept would still work, you've created a game that isn't a direct copy, and by the words of the legal stuff said here, you're potentially fine.

What it says in this case is that things like the basic gameplay mechanics (which it defines as being falling blocks that fit together and lines are cleared and stuff) are not covered by copyright and are public domain. So if you want to design a game that uses those gameplay mechanics, you are perfectly entitled to. If you create the game around those mechanics from the ground up then you'll probably come up with something that is similar, but functionally distinct from Tetris, and you're fine. If you can justify any things that are the same (for example the playing field size) with "we explored options but found this one was better for reasons X, Y and Z" then you'd be helping yourself out immensely as basically saying there's only one good solution and it happens to be the same one used in Tetris (this is really hard to prove though and is far from a solid defence).

The copyright law works so that it shouldn't infringe people who want to make games that happen to play similarly to Tetris but were not intended to directly be a Tetris clone. The problem in this particular court case is that Mino was intended to directly be a Tetris clone, hence losing the ruling and hence setting a precedent that is pretty conservative and has such a large impact on potential fangames.
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post Jun 14 2012, 12:11 AM
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I'd just like to interject for a moment, if I'm not mistaken, Xio Interactive's author (and CEO) is a woman by the name of Desiree Golden.
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Rosti_LFC
post Jun 14 2012, 01:27 AM
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QUOTE(meow @ Jun 14 2012, 12:11 AM) *

I'd just like to interject for a moment, if I'm not mistaken, Xio Interactive's author (and CEO) is a woman by the name of Desiree Golden.


Didn't pick up at the time of reading the name that she was female (in fairness it's only mentioned like once near the start of the document).

Still don't retract anything I've said Sticking Out Tongue.png
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post Jun 14 2012, 01:49 AM
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It was obvious that they were going to lose.

By comparing the two products to a layman with no knowledge of Mino, they would be both be identified as Tetris. Not "like tetris", but "tetris".


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QUOTE(Paradox @ Dec 16 2010 @ 05:52 PM)
Like many setups here, it is useful if your opponent doesn't move and you get 4 Ts in a row.
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