tepples wrote:Using the term "intellectual property"
confuses the reader: is it a copyright issue, a patent issue, or a trademark issue? Also "theft" and "infringement" are
not the same thing under the law. In most of these cases, what you mean is "copyright infringement".
Actually, in this case I meant all three. Reproductions infringe on copyright, trademarks and potentially patents. I'd have to look at the specific patents Nintendo has for the latter.
I also disagree strongly with GNU's assertion that they have no common factors and should be treated as fully separate entities. To say they have nothing in common is wrong. By analogy, the term property shouldn't exist. The parcel of rights bestowed for ownership of land, ownership of a corporation and ownership of a painting are completely different as well, but all are considered property.
Even their history of it is inaccurate. Yes, IP laws in their earliest form were brought for to protect the best interest of the public, not the IP holder. This was because it was presumed that prior to the laws, that creators had a natural right of ownership. These restriction are analogous to many physical property rights such as the restrictions created by heritage building laws, or right of first refusal on sales.
As for theft versus infringement, you're right. I choose a loaded term which is not accurate in this situation and I apologize.
unless the game is fully homebrew. Bomb Sweeper is the closest to a legitimate game on that site, but even that is a close of a Game & Watch game.
Clones don't necessarily infringe. The court in
Capcom v. Data East ruled that the
scenes a faire doctrine excludes a lot of game elements from copyright.[/quote]
While not all clones infringe, in this case they took the name, the game design and the level design from the original Game & Watch. The Capcom v. Data East case specifically differentiates between cloned elements which are not protected by copyright, and those which are. This would likely have elements that would be deemed protected by copyright, and thus would be infringing.
