Ubisoft Sues Apple and Google Over Distribution of Alleged 'Ripoff' Game

[Amazing Iceman]

Apple is just the distributor. Sue the developer with the copyright infringement.
Apple and Google can't check every single developer and their apps to make sure there's no copyright infrigment.
Although now they may be more alert to notice a similar situation.

It's like suing a web host because someone website's has posted copyrighted photos, video or music. The plaintiff will go after the website owner, and not against the web host or the ISP delivering that media to the users.

 

[farewelwilliams]

I've had an app developer complain about the name of one of my apps. All Apple did was just put me in contact with the accuser. I didn't expect Apple to take any sides, neither should Ubisoft.

 

[macfacts]

Apple is just the distributor. ....

Why not sue apple. People always sue Google when they don't even distribute nor host copyright infringing content

 

[MauiPa]

And to be clear, by taking a cut of sales on the App Store, if it was properly notified and did not act, a platform maker like Apple, who controls the distribution channel for its platform, is directly and deliberately profiting from the infringement. If Apple is aware of it and continues to sell it, they have a potential problem.

Properly notified? I'm not sure if this will qualify. anyone could make a claim and submit a "proper" notification. wouldn't UBISOFT have to get a judgement first? Once it gets a judgment, the there is infringement.

 

[Akiainavas]

Not so fast. Apple is not the person to determine ownership of intellectual property if there is a dispute. Thats the job of the courts. If a lawsuit were to happen between the two parties over ownership a judge could grant an injunction to NOT PAY those Royalties because the results of the copyright lawsuit is pending..but they are not suing for ownership...they are suing Apple for distributing what someone else claims is theirs. Losing case, and they know it. Wouldnt be surprised if this got thrown out. They are hoping the negative press will make Apple and Google remove it so no money is made from it. Imagine if I said..Hey that Emimen song sounds like mine. Suing Apple because its on AppleMusic...and every other streaming service as well...and also any record store that sells Eminem...not how it works. I gotta sue Marshall Mathers and get the money owed to me FROM HIM. Apple has ZERO responsibility to investigate ownership since to get it into the App Store you are saying you legally own it, and if you dont YOU are liable for damages and possibly jail time.

you are 100% wrong

if you’re a retailer and you sell stolen goods - you are guilty, just as the person who stole it and sold it to you

distribution of illegal/stolen goods is a crime just as much as stealing them is

whether they are stolen/illegal goods needs to be determined by court BUT it is actually in Apple’s favour to act because if this goes to court and it’s deemed illegal then Apple will be deemed an accomplice and fined heavily

 

[pasamio]

If Apple and Google were served with a DMCA and refused to comply with it then they don't have their safe harbor protections under the law. That means they can now become litigants in the situation. However if that is the case that also means that both Google's lawyers and Apple's lawyers decided that they would be safe from a successful claim to reject the DMCA notice. If they weren't served with a DMCA notice it becomes a little less clear and I still wonder if Google and Apple would move to dismiss based on standing, they aren't the ones who produced the infringing work and are not the correct party to defend it, that would be the authors of the game.

If you are a retailer and you sell stolen goods without knowledge, or without a reasonable expectation that you should have had knowledge, then you are not liable. The retailer will obviously lose money in the situation as the property is returned to it's rightful owner but if people selling goods that ended up being stolen was illegal than many pawn shop owners would be behind bars. If you knowingly sell stolen goods then that is different but knowledge is the important piece.

That said this is a different case as the game is an original work for mobile devices and it looks like maybe they generated their own art. Much of the art can be said to be inspired by arguably public domain resources and it is also aiming to simulate real world situations. It is a similar game to R6S but one could say that it's also similar to Counterstrike as well. The genre is not novel and the mechanics of the game aren't particularly unique either.

It would be interesting to see the full text of the filing with the court as that will answer a lot of these questions.

 

[jlc1978]

you are 100% wrong

if you’re a retailer and you sell stolen goods - you are guilty, just as the person who stole it and sold it to you

distribution of illegal/stolen goods is a crime just as much as stealing them is

whether they are stolen/illegal goods needs to be determined by court BUT it is actually in Apple’s favour to act because if this goes to court and it’s deemed illegal then Apple will be deemed an accomplice and fined heavily

It's not quite so simple. You have to knowingly sell stolen goods; unknowingly do so would not necessarily result in you being charged with a crime. It's the same when buying stolen goods.

At this point, all Apple has is a claim by UbiSoft that the game infringes on their copyright; there is no difinitive decsiohn it does. Absent that, it's a stretch to say Apple was knowingly aiding copyright infringement.
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If Apple and Google were served with a DMCA and refused to comply with it then they don't have their safe harbor protections under the law. That means they can now become litigants in the situation. However if that is the case that also means that both Google's lawyers and Apple's lawyers decided that they would be safe from a successful claim to reject the DMCA notice. If they weren't served with a DMCA notice it becomes a little less clear and I still wonder if Google and Apple would move to dismiss based on standing, they aren't the ones who produced the infringing work and are not the correct party to defend it, that would be the authors of the game.

I would be surprised if they were served with a DCMA notice as, IIRC, that requires stating they are the copyright holder or acting on their behalf. Since they are not the copyright holder of the work in question, their claim would be invalid.

 

[FrankieTDouglas]

Ubisoft did not elaborate on why it is suing the app store operators for enabling distribution of the game rather than developer Qookka Games itself for the initial infringement.

Apple built a platform for apps, and then decided to become a publisher by curating which content is and isn't allowed on there. Since they're not operating as a platform, they're now responsible for the approval and content of this app through their publication of it.

 

[pasamio]

I would be surprised if they were served with a DCMA notice as, IIRC, that requires stating they are the copyright holder or acting on their behalf. Since they are not the copyright holder of the work in question, their claim would be invalid.

I was referring to a DMCA take down notice, I should have clarified further. As the distributor/platform they can be served a take down notice and if they comply with the notice then they aren't jointly liable. The other party can also counter notice to have their content restored at which point the claiming party, Ubisoft in this case, would then have to take the allegedly infringing party, the game developer, to court. Can't wait to get the documents for this one because it's also possible that they did a DMCA notice and a counter notice occurred as well, there might not have been a DMCA notice as well, a lot of unknowns for a surprisingly spartan article from Bloomberg.

EDIT: Party is allegedly infringing, innocent until proven guilty.

 

[Brandhouse]

Why? Game inspired by another is fine. A clone is another thing.

Exactly, so start suing every game house that has a first person shooter.

 

[TracesOfArsenic]

I don't go much on Ubisoft but I hope this is successful because Apple need a kick in the pants to get them to curate their store properly.

 

[I7guy]

I don't go much on Ubisoft but I hope this is successful because Apple need a kick in the pants to get them to curate their store properly.

Seems this is business as usual and not much will change if Apple wins or loses. (Loses means removal from the app store, I would guess)

 

[Peepo]

All the free advertising they getting though!

 

[jlc1978]

I was referring to a DMCA take down notice, I should have clarified further. As the distributor/platform they can be served a take down notice and if they comply with the notice then they aren't jointly liable. The other party can also counter notice to have their content restored at which point the claiming party, Ubisoft in this case, would then have to take the allegedly infringing party, the game developer, to court. Can't wait to get the documents for this one because it's also possible that they did a DMCA notice and a counter notice occurred as well, there might not have been a DMCA notice as well, a lot of unknowns for a surprisingly spartan article from Bloomberg.

EDIT: Party is allegedly infringing, innocent until proven guilty.

The problem I see with that is a to issue you a valid DCMA takedown notice you need to be the copyright holder of the matreial in question. UbiSoft does not hold the copyright to the allegedly infringing material; and thus it woyld not be anle to issue a takedown notice unless they claim specific parts contain their copyrighted material. It seems UbiSoft is arguing it is to too similar to their game and thus infringing, not that the game used elements of theirs.

 

[Carnegie]

It's not quite so simple. You have to knowingly sell stolen goods; unknowingly do so would not necessarily result in you being charged with a crime. It's the same when buying stolen goods.

At this point, all Apple has is a claim by UbiSoft that the game infringes on their copyright; there is no difinitive decsiohn it does. Absent that, it's a stretch to say Apple was knowingly aiding copyright infringement.
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I would be surprised if they were served with a DCMA notice as, IIRC, that requires stating they are the copyright holder or acting on their behalf. Since they are not the copyright holder of the work in question, their claim would be invalid.

I was referring to a DMCA take down notice, I should have clarified further. As the distributor/platform they can be served a take down notice and if they comply with the notice then they aren't jointly liable. The other party can also counter notice to have their content restored at which point the claiming party, Ubisoft in this case, would then have to take the allegedly infringing party, the game developer, to court. Can't wait to get the documents for this one because it's also possible that they did a DMCA notice and a counter notice occurred as well, there might not have been a DMCA notice as well, a lot of unknowns for a surprisingly spartan article from Bloomberg.

EDIT: Party is allegedly infringing, innocent until proven guilty.

The problem I see with that is a to issue you a valid DCMA takedown notice you need to be the copyright holder of the matreial in question. UbiSoft does not hold the copyright to the allegedly infringing material; and thus it woyld not be anle to issue a takedown notice unless they claim specific parts contain their copyrighted material. It seems UbiSoft is arguing it is to too similar to their game and thus infringing, not that the game used elements of theirs.

Ubisoft did issue take-down notices to Apple and Google. Both informed Ubisoft that they wouldn't be taking down the allegedly-infringing material. I would assume that Ejoy issued counter notices.

So now Ubisoft is suing all three - Apple, Google, and Ejoy - and a court can decide whether the material actually does infringe Ubisoft's copyrights. Its argument is, essentially, that Area F2 is similar or nearly identical to R6S in a multitude of ways. I don't have an assessment of whether Ejoy successfully skirted the (infringement) line or crossed it.

 

[pasamio]

The article didn't mention they were suing Ejoy, only Apple and Google. Do you have a reference to something where they are suing Ejoy?

If Apple and Google didn't do a take down, Ejoy wouldn't have necessarily needed to do a counter notice. If there is a counter notice from Ejoy that would also mean Apple and Google shouldn't be litigants because Ejoy is asserting it isn't infringing. That assumes Ubisoft took the DMCA pathway though. My read of the article seems to imply Ubisoft asked them to take it down (through a DMCA take down or some other mechanism) and both companies disagreed.

 

[Carnegie]

The article didn't mention they were suing Ejoy, only Apple and Google. Do you have a reference to something where they are suing Ejoy?

If Apple and Google didn't do a take down, Ejoy wouldn't have necessarily needed to do a counter notice. If there is a counter notice from Ejoy that would also mean Apple and Google shouldn't be litigants because Ejoy is asserting it isn't infringing. That assumes Ubisoft took the DMCA pathway though. My read of the article seems to imply Ubisoft asked them to take it down (through a DMCA take down or some other mechanism) and both companies disagreed.

I read the complaint. That’s how I know Ubisoft is suing Ejoy.

Ubisoft claims it filed a take-down request with Apple, that 2 days later Apple forwarded that request to Ejoy, and that 13 days later Apple told Ubisoft it was going to close the matter (without having taken action). Ubisoft doesn’t say that Ejoy filed a counter notice, that’s why I said that I assumed that it did.

This all happened pretty quickly. Ubisoft filed its complaint 4 days after Google, and 2 days after Apple, indicated they weren’t going to remove Area F2. Ubisoft claims that Apple and Google have constructive knowledge that the game infringes its copyrights, that they failed to remove it after having been given notice to that effect, that they benefit financially from the infringement, that they’ve failed to control the infringement, and thus thus they aren’t entitled to safe harbor under the DMCA.

 

[ApfelKuchen]

you are 100% wrong

if you’re a retailer and you sell stolen goods - you are guilty, just as the person who stole it and sold it to you

distribution of illegal/stolen goods is a crime just as much as stealing them is

whether they are stolen/illegal goods needs to be determined by court BUT it is actually in Apple’s favour to act because if this goes to court and it’s deemed illegal then Apple will be deemed an accomplice and fined heavily

Ah, but there's a difference under law between "stolen goods" (someone hijacks a truck and then sells those goods to a store) and "IP infringement." The word "stolen" is used casually to describe plagiarism, but IP infringement is generally covered by civil law, rather than criminal law.

Civil law is a dispute between two individuals. In this case, Company A sues Company B to enforce its copyright claim. Anybody can sue just about anybody else, for any reason, without first proving a wrong was done. The lawsuit claims a wrong was done, it is then up to the courts to decide.

Criminal law is a dispute between the government and an individual. Theft and selling stolen goods are crimes against the state. The sale of counterfeit goods (exact copies) is often also classified as a crime against the state (consider the FBI warning at the beginning of DVDs and videocassettes). Under criminal law the government has some obligation to determine that a crime may have been been committed prior to arrest/prosecution.

I've been in businesses subject to copyright law for over 40 years. The assumption is, anybody can sue anybody and everybody, whether the claim is valid or not. It's civil law; that's the way it works.

This case is all about leverage. Lawyers know that if distributors/retailers can be "encouraged" to pull an item from distribution/sale, then it hardly matters whether their infringement claim will win in court. Without distribution, the claimed infringement is effectively ended. The power to "encourage" can be abused, of course. It's one thing if the plaintiff has clear proof of infringement. Booksellers/distributors tend to drop those like hot potatoes, but they also need, if just occasionally, to stand up to less easily-proven claims or they will be open to endless, spurious claims from anyone with enough money to hire a lawyer. At the extreme there are what are called "slap suits" - lawsuits that have no legal merit at all but are too expensive to fight. A "free press" must be defended in order to remain free.

There are effectively two kinds of cease-and-desist orders. Court-ordered cease-and-desist, and plaintiff-demanded cease-and-desist. The first holds the full force of law. The second... The second is what we see here - Company A demands that Company B cease and desist because they are claiming infringement. If Company B does not cease and desist AND if Company A prevails in court, Company B will be liable for greater damages than if it had stopped sooner. However, if the complaint doesn't succeed in court, no harm, no foul.

 

[jlc1978]

This all happened pretty quickly. Ubisoft filed its complaint 4 days after Google, and 2 days after Apple, indicated they weren’t going to remove Area F2. Ubisoft claims that Apple and Google have constructive knowledge that the game infringes its copyrights, that they failed to remove it after having been given notice to that effect, that they benefit financially from the infringement, that they’ve failed to control the infringement, and thus thus they aren’t entitled to safe harbor under the DMCA.

Interesting. If Ejoy claimed it wasn't infringing, it would seem Apple and Google would still enjoy safe harbor under the DCMA since it allows for that if there is a counter notice; could failure to remove it during the time between the takedown notice and counter notice?

 

[DeepIn2U]

All the free advertising they getting though!

my thought exactly. I just downloaded this game and Damn it’s pretty awesome to be honest! Now more mature and careful NOT to buy add-one to advance game play. Now considering gettingPS4 controller for accurate control vs screen controls.

 

[Amazing Iceman]

Why not sue apple. People always sue Google when they don't even distribute nor host copyright infringing content

The same applies to Google (and others): Just a distributor.
No need to become overexcited by my comment.

 

[FreakinEurekan]

Ubisoft claims they informed Apple and Google .....

...and a bunch of other irrelevant stuff. It's not Apple's job, nor Google's job, to gauge the merit of one developer's claim versus another's. Ubisoft can sue the developer of the app they believe is infringing, if they win that suit then Apple and Google will comply with the result and take the app down. And, Ubisoft will likely win the proceeds from that app as well... from the infringer, not from Apple or Google.

 

[unclemax]

Ubisoft's just afraid to have beef with a Chinese entity. Shame!

 

[pasamio]

I read the complaint. That’s how I know Ubisoft is suing Ejoy.

Ubisoft claims it filed a take-down request with Apple, that 2 days later Apple forwarded that request to Ejoy, and that 13 days later Apple told Ubisoft it was going to close the matter (without having taken action). Ubisoft doesn’t say that Ejoy filed a counter notice, that’s why I said that I assumed that it did.

This all happened pretty quickly. Ubisoft filed its complaint 4 days after Google, and 2 days after Apple, indicated they weren’t going to remove Area F2. Ubisoft claims that Apple and Google have constructive knowledge that the game infringes its copyrights, that they failed to remove it after having been given notice to that effect, that they benefit financially from the infringement, that they’ve failed to control the infringement, and thus thus they aren’t entitled to safe harbor under the DMCA.

Thank you for the link to the document. Interesting the speed at which they filed which would indicate they had an expectation at least that the companies weren't going to take down the offending material. There is also this interesting line:

Google and Apple are unable to avail themselves of any of the safe harbors of Section 512 of the Digital Millennium Copyright Act, to the extent that any of those safe harbors ever were even arguably available to them.

Seems that Ubisoft doesn't even want to acknowledge they'd have a safe harbor defence.

I also saw a video from Lawful Masses which seems to suggest in his opinion that Ubisoft didn't make much of a case for copyright infringement. In part I wonder if Ubisoft was angling to get it in front of a jury but I suspect there will be a motion to dismiss to get rid of this early.

 

[69Mustang]

...and a bunch of other irrelevant stuff. It's not Apple's job, nor Google's job, to gauge the merit of one developer's claim versus another's. Ubisoft can sue the developer of the app they believe is infringing, if they win that suit then Apple and Google will comply with the result and take the app down. And, Ubisoft will likely win the proceeds from that app as well... from the infringer, not from Apple or Google.

Yeah, all of that is wrong. It is their job, and they did it. Ubi informed them. Apparently they didn't think Ubi's claim had merit so they didn't remove the app. That's why Ubi sued them. Just in case you are unaware, Ubi can sue any and everyone in the distribution chain of that app if they want to do so; all the way from the publisher to the dev, from the distributor to the end user. It's their choice whom to sue. They chose Apple and Google because they assumed it would be the quickest route to getting the offending app removed from sale.