Tackling mobile's "game cloning" issue

This week saw the filing of a lawsuit of a sort that's become depressingly familiar in the games business in recent years; an attempt by a developer to prevent fairly blatant infringement of its IP by another company's mobile title.

The pugilist in this case is Riot Games, which has alleged that a game called Mobile Legends: Bang Bang by Shanghai Moonton Technology is a rip-off of the enormously successful League of Legends. There are specifics to the case that make it interesting, but the overview is one we're all used to by now; any game that achieves major success nowadays seems to face an inevitable attack of the clones.

Of course, slavishly copying successful innovation has been part and parcel of the games industry since its earliest days, and a breakout hit always inspires imitators. Often, that's not even a bad thing; it can give rise to entirely new genres, or advance the frontiers of game design, interactivity, storytelling or artistry. No matter our field, we all stand on the shoulders of giants - as I just did by quoting Isaac Newton, who was himself quoting the philosopher Bernard of Chartres. Writer, coder, artist, designer, musician; we all take part in an ongoing dialogue, not a self-sufficient monologue, so some degree of imitation and even copying is not just inevitable but actually desirable.

"There are cases where the copying of game systems or art styles skirts far too close to the line, and nowhere is this more true than on mobile"

Yet there are cases where the copying of game systems or art styles skirts far too close to the line, and nowhere is this more true than on mobile. In the first few years of the mobile gaming boom, professionals in the field often grumbled at games being referred to as a "Clash of Clans Clone" or an "Angry Birds Clone" or whatever, pointing out that games which fit within well-defined genres on other platforms don't face this ignominy.

There's a little historical blindness going on there - I have enough white hairs to distinctly recall when "Doom Clone" and "Command & Conquer Clone" were common terms in the industry - but the point itself isn't unreasonable. For the most part. You don't have to hunt for long on the App Store or Google Play to find games that really aren't just "in the same genre" as the biggest mobile hits; they've aped the game mechanics and the art style, the name has a similar cadence, and if you'd lost your reading glasses you might have trouble distinguishing the logos.

The business of churning out cynical clones like these must be profitable, because it keeps happening, and it must certainly be frustrating for the developers who put the time, effort and funding into building the successful original only to see some brazen development sweatshop hoodwink consumers into downloading the wrong thing. On the other hand, most of these clones skirt close to the line but never quite cross over into IP infringement. The frustration they cause is real, but their legal status is also pretty solid; you cannot copyright or patent the aspects of a game that they're most closely copying, and that is as it should be.

Riot's case against Shanghai Moonton is an example of a more rare, but nonetheless serious and quite prevalent, issue: an outright, blatant copying of aspects of a game, right down to assets and levels that look incredibly similar. In this instance, it's rendered even more blatant by the fact that it's not the first time it's happened, nor even the second; while Shanghai Moonton denies the present allegations, it's previously been forced to remove not one but two clones of League of Legends from app stores for infringing on Riot's IP. Each time it's had a LoL clone taken down, it's released a near-identical one with a different name shortly afterwards; Riot is now apparently sick of playing whack-a-mole and has chosen to seek a judgement which, it hopes, will end the whole farce permanently.

"Much of the responsibility for handling these situations has to fall on app store operators - most notably Apple and Google"

This is just one instance; you don't have to talk to many successful developers before you start hearing more stories along the same lines. It's worth noting the strength of Riot's position here. It's a very successful company whose Chinese parent firm is the world's largest games company, which gives it significant leverage and financial muscle to pursue this kind of issue. Even so, it's been chasing down Shanghai Moonton's clones since 2015 and has yet to reach a final resolution - and even when it does, it'll only apply to this one company, with plenty of other unscrupulous firms still out there.

What hope does a smaller developer have of getting a successful resolution to a similar case? How can a small indie developer, for example, possibly hope to exert its IP rights over blatant cloning operations, especially if they're across an international border, and doubly so if that's the notoriously difficult (in IP law terms) border with China?

There is an argument here not for stricter IP laws overall - indeed, the present IP regime in most of the developed world is arguably already too strict, stifling both creativity and consumer rights - but for a significantly improved process for enforcing existing IP laws. Over the past couple of decades, a lot of political focus has been placed on systems allowing IP holders to crack down on consumer piracy, but as that has become less relevant to a wide range of industries (it's almost meaningless in this case, for example, since League of Legends is free-to-play), perhaps now we can finally focus back on the thing that IP laws were originally designed to protect creators from, namely the passing-off of their work or its copying and sale by parasitical third-parties.

A change to IP enforcement regimes is a big ask, of course; but it's worth noting that there could be far better mechanisms within the existing IP laws to cover these situations, and especially to help smaller firms that don't have Riot's muscle to protect their creations. Much of the responsibility for handling these situations has to fall on app store operators - most notably Apple and Google. It goes without saying that a reputable retailer in the bricks'n'mortar age would not have sold dodgy cloned games or copied discs to customers; if Apple and Google wish to take the retailer's role and their share of the revenue, then it's only reasonable that they should also hold up that aspect of a retailer's responsibility to their partners.

Balance is, of course, tricky to strike in these issues; you don't want an excessively strict automated system like YouTube's rightly despised Content ID, but you do want some way for creators to have rapid and straightforward redress when their games or assets are copied. It's important to note that Apple and Google do have some systems in place for dealing with this already; it's a matter of improving what exists and making it more accessible and effective, especially for smaller creators, rather than having to take responsibility for a whole new area.

Ultimately, the problem will entirely disappear, not least because there's always going to be a grey area in which it's hard to find consensus over the line between inspiration and copying, between paying tribute and leeching off another's success. For truly egregious instances, though, the facts are often quite clear, and given the huge amount of revenue flowing through app store style platforms, it's certain that more effort and focus could be given to protecting both creators and consumers from parasitical IP copycats.