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Is TETR.IO legal?

by osk at 2023/04/17 (Mon) 9:34:15 pmPERSONALTETR.IO

This question comes up from time to time, mostly from people who haven't been in the community much. With the recent release of the Tetris movie all about the legal rights behind Tetris, I thought it'd be interesting to go over what exactly the Tetris company owns and doesn't own, and how TETR.IO can exist alongside licensed Tetris games.

NOTE: I am not a lawyer, and this blogpost does not constitute legal advice. These're just my personal ramblings, so please don't interpret them as anything more than an opinion piece.

A little backstory

Tetris is among the largest genres (as a subgenre of the falling block puzzle genre). There are literally thousands of Tetris games, with new ones created on a daily basis. Tetris is, at its core, an easy game to create, and one that's very often used by new programmers to get into games programming. This all makes sense, considering the game is 38 years old by now, originally made in 19851 in Russia to run on, well, the hardware at the time! And yet, the game, in what's mostly still its original format, lives on and on.

1: Not 1984. The 6/6/1984 date is made up by The Tetris Company for the sake of a 25-year anniversary party at E3 2009, nothing more. Before this E3, official sources repeatedly state 1985, and sources close to Alexey also corroborate this. Read more here.

Tetris has always had legal troubles—if you've watched the 2023 Tetris movie, you'll know the gist of it. The movie uh, exaggerates things a bit, but getting the legal rights to the game was definitely tricky, with a ton of confusion as to who exactly has the rights to the game. It was Dutch game designer Henk Rogers who managed to come out on top and put together The Tetris Company (which I'll refer to as TTC from hereon out for brevity), mainly after recovering the rights to put the game onto the Game Boy as its pack-in title, which gave the game center stage and made it into the massive genre it is today.

Of course, that was 38 years ago. The question of what rights existed to Tetris was already a tough one then, and the situation has only become more complicated. Let's see exactly what intellectual property rights TTC could be holding on the concept of Tetris, and analyze them one by one to narrow them down.

Copyright

Copyright does not protect concepts or systems. To quote the U.S. Copyright Office FL-108:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

Simple, huh. Copyright law does not protect the concept of Tetris in any way. Copyright only protects specific works. For example, the blockskin (the image that makes up the blocks) in a game, the writing of a game's manual, or the specific programming code of a certain game. Copyright protects a lot, but it does not protect the game's concept itself.

However, don't forget the concept of copyrightable expression. This concept states that despite the fact copyright doesn't cover concepts, it does cover the expression of those concepts, if done in a way uncommon to the genre. For example, while the concept of a health system isn't copyrightable, and nor is a simple progress bar to display health (because everyone does it), a special health bar that looks wildly different from any other you generally see in games may be copyrightable as a design work, for the amount of "abnormal" expression it adds to the basic concept of a health bar is notable. Tetris does no such thing, the few artistic choices it makes are very much standard decisions that either hold no artistic value or are made out of simplicity/necessity. We'll get back to this in a moment, as there's another concept very similar to this one.

Patent

The main (and practically always only) way to protect a concept or invention is by means of a patent. Patents are specifically made to protect a concept, system or invention for 20 years, after which it enters public domain.

Tetris, being made in Soviet Russia, is not patented. Even if it was, said patent would have expired almost two decades ago. Therefore, patent law only encourages competition in this scene.

Note: TTC does have some patents regarding specific types of touch controls for mobile Tetris. However, nothing that protects the game itself.

Trade dress

Here's the interesting one. When it gets down to the wire, TTC likes to claim trade dress. Trade dress is a type of trademark. Trademarks are a type of intellectual property to protect your brand and its identity. Most people will know trademarks for logos and business names, but trademark law also protects the "look and feel" of your brand, called the trade dress. For example, take Coca-Cola. The curved shape of the bottle, the deep red label with white cursive text. It's distinctive and noticeable from afar, and creates a brand identity that goes deeper than just the name "Coca-Cola", the logo, or the product itself.

Every element to be protected by trade dress has three requirements:

  1. The element must be non-technical. Changing or removing it must not alter the base product in any way.
  2. The element must be meaningful to public recognition. That is, people recognize the product/brand based on this element.
  3. The element must be confusing if copied. If copying this element doesn't confuse customers of the source of the product, it does not infringe trade dress.

Let's apply this to the Coca-Cola example and see how trade dress works when all three requirements are fulfilled:

  1. The way the bottle looks, and its label, has no effect on the actual product, the contents of the bottle, and is as such non-technical.
  2. The shape of the bottle and especially the color of the label is very distinctive, and many people recognize the Coca-Cola section of the aisle from far away in a supermarket. It is very much meaningful.
  3. Copying these elements would create severe confusion, as people have become accustomed to the branding of Coca-Cola. If a customer grabbed a curved bottle with red/white label and it turned out to be Pepsi, they would be rather confused.

So that's how trade dress works, and how it protects brands against people leeching off of their visual identity and people's recognition. Now for the interesting part, we'll go through the concept of Tetris, and see how much of it falls under trade dress. We'll work by process of elimination, since all elements must fulfil all requirements.

Let's begin with the second requirement, the meaningfulness requirement. Let's quickly think of what elements of Tetris are the ones that people recognize the game by. There's a lot of elements to Tetris, but most of them aren't what drive public perception, after all. I think it's fair to narrow down Tetris, and the elements that people recognize it by, to the following:

Tetris is a game where you move and rotate square geometric shapes, which fall to the bottom of the screen and pile up. If a line is filled horizontally, it disappears and the player receives positive feedback. If the shapes reach the top of the play area, the player receives negative feedback.

I believe this to be a very apt representation of the elements of Tetris. Removing any element here would stray so far that people would stop calling it Tetris—for example, if the shapes weren't simple geometric shapes, people would no longer recognize a still image as Tetris. Similarly, if pieces didn't pile up, people would stop believing it's Tetris after seeing even the smallest bit of gameplay. At the same time, any additional other elements added to this (colors, hold piece, other rules, effects, specific ways the game rules work, etc.) are extras and don't impact people's recognition of the game. For example, the dimensions of the screen don't matter, as people would recognize these elements as Tetris on a wide board just as well as they would on a thin one.

So that narrows down our list of trade dress elements to those few. Now to get to the first requirement, the non-technicality requirement. Is there any element here, that if changed, doesn't impact the game in any way? Are there any elements here that are only cosmetic? Try it, look at the outline above and try to come up with a change to them that wouldn't impact the game in any way. ...It doesn't exist. There are no elements to Tetris that are both meaningful and non-technical. By the way, you can use this same technique on the "copyrightable expression" idea for all of these. You'll find every artistic decision is either meaningless or made out of necessity.

Trademark

Tetris, however, is covered by trademark! As in, the name "Tetris" is, and so is the logo. Well, in theory if the game rules are proven in court to be unprotected, there is a path for the name "Tetris" to be unprotected as well, as becoming a generic word to describe the game genre. But, proving the genericization of the trademark is a bit tougher than proving the lack of protection on the game itself.

The DMCA problem

So there you have it. TTC essentially only controls the trademark on the word Tetris and the logo. And yet, there's a problem.

DMCA.

DMCA law is pretty simple. It states that, if some company (the "platform") publishes someone's (the "uploader"'s) content on their behalf, then a rightholder can send the platform a takedown request, and as long as the platform always agrees and takes it down immediately, the platform will not get in trouble. In essence, it means that as long as the platform complies with all takedown requests, they can't be sued, a "safe haven" of sorts. It also gives the uploader the ability to send a counterclaim, which is sent back to the rightholder, who can either accept the counterclaim (or not respond within 2 weeks) or send the case to court. If the case is taken to court, the content will remain taken down until the court reinstates it.

...Uh oh. That text in bold is a bit more crucial than you might think. Because while content is taken down, it cannot be monetized. And court cases are expensive. There's a deep-rooted problem here...

Let's explain. Imagine you are a small game studio, and you make a tiny mobile game. You put some ads into it, and somehow, the game actually does kinda well! You manage to make enough to pay everyone, when suddenly—! Some crazy company (let's call them "Big T") sends Apple a DMCA takedown notice! Of course, you know you haven't actually infringed their rights, but Apple wants to keep their own safe haven, so they remove your content. Your revenue drops to 0 within the blink of a second. Of course, you send a counternotice! You're in the right, there's no denying that!

Following the standard procedure, the counternotice is sent over to Big T, who promptly deny it and take you to court, while your revenue is still sitting at 0. Now, you are at a crossroads. Big T has a lot of money, and they will stall the court case for as long as they please. You, on the other hand, have very limited assets, and every minute spent in court you are bleeding money, creeping closer to going bankrupt. What do you do? Do you fight and go bankrupt, or do you give up?

This is the decision that faced Xio Interactive for their mobile game Mino, when the case Tetris Holding, LLC v. Xio Interactive, Inc. was opened against them following their counternotice. Of course, Xio Interactive had no choice and did not oppose practically any of the claims TTC made, to let the case end as swiftly as possible. It's a massive shame that instead of seeing the deserved upset, TTC sees a victory based on technicalities giving them an unfair edge.

Most people receiving a DMCA don't even get to this point. Almost nobody bothers to send a counterclaim. Not because they don't believe in their own case, but because they know the system is rigged against them. TTC, on the other hand, like all large rightholders, loves this. They send out mass DMCA requests, because they know it's safe. They know that most people won't fight back, and that even if they do, they're at such a disadvantage that there's no danger to TTC at all.

You might think this is uncommon, but TTC has become very ligitious lately following a long hiatus. From taking down simple fan projects to stopping a new game (Tetra Online) from blooming, TTC is once again very much interested in ensuring they get no competition at all.

TETR.IO and The Tetris Company

So where is TETR.IO in all this? Well, I simply ensure it's not easy to strike me in a way that puts me at a disadvantage. I don't use software distribution platforms like Steam (despite even having been invited to such platforms), nor do I publish for mobile app stores. Doing so would put me at risk of becoming the underdog in a DMCA lawsuit, which is an impossible task to win unless you already have the assets.

Instead, TTC would have to sue me directly, which would put us at equal footing. Considering how much TTC has to lose if they were to lose a lawsuit over their IP, this is not a fight they're willing to pick.

...And nor am I. I respect the work of The Tetris Company in many areas, allowing us to enjoy this quite special genre which might otherwise have never left Russia. I much prefer this laissez-faire situation over one of constant legal battle. Rather, this post is an appeal, in the hopes it might help give Tetris back to the community. I would love to see a future in which TTC works together with the community to elevate Tetris to be truly something special, to be more than "that game everybody knows but only plays once every 5 years".

...Or at least that they stop thinking anybody wants a Tetris waffle maker.

Photo of a Tetris waffle maker. Yes, it exists.

Image credit: Firebox

preview
44 comments sorted by star rate

Higaki Chinami

at 2023/05/06 (Sat) 8:30:13 pm

i want to comment something but don't know what

Manatsu Kagari

at 2023/04/18 (Tue) 1:09:13 am

game developer makes block stacking game and plays 4d chess to not get sued by greedy corporation, what a world

Yoneyama Chiyo

at 2023/05/13 (Sat) 3:21:23 pm

awesomre!

Imahori Rio

at 2023/04/17 (Mon) 10:41:17 pm

the points exposed in this blogpost are pristine and should be used as reference for the foreseeable future -PSI

Uesato Matsuko

at 2023/05/14 (Sun) 8:25:17 pm

tetris waffle maker? excuse me? i dont want my food to fall in 1fps down my throat

Azuki Yuria

at 2023/09/29 (Fri) 9:29:52 pm

make sure not to play 20G while eating tetris waffles

Sakisaka Kurenai

at 2023/07/26 (Wed) 10:07:00 am

i want it to

Nagasaki Mitsuko

at 2024/01/17 (Wed) 3:53:19 pm

now imagine what it feels like for your stomach when you get a line clear

Fujiwara Akari

at 2023/06/07 (Wed) 9:09:30 am

Oh dont worry, they will fall at 1 Billion FPS based on your body's build quality

Yada Kumiko

at 2023/04/17 (Mon) 10:44:44 pm

That last bit about DMCA is important in my opinion. On one end it allows a creator to not have to deal with the incredibly abusable system that is DMCA (even to the point where claims are rarely even fact checked out of fear of being a false negative.) The downside of course is that such games can't receive the exposure and additional features of popular storefronts. Sadly it's an issue that will never be resolved as those with the power to change the system don't understand it and those with the money to lobby against change will do so as it heavily benefits them.

Makiyama Risako

at 2023/04/17 (Mon) 10:20:41 pm

ok but i would absolutely buy a tetris waffle maker

Takayanagi Saki

at 2023/05/08 (Mon) 1:09:34 pm

wholesome

Azuki Yuria

at 2023/09/29 (Fri) 9:34:23 pm

this comment got a maxout, good job

Shimakawa Runa

at 2023/04/17 (Mon) 9:50:10 pm

wake up babe, osk made a new post :happy_kagari:

Fukuo Rumiko

at 2023/04/17 (Mon) 10:11:09 pm

clearly we just need a tetr.io wafflemaker, but this time in a size that's actually a pc that alone would earn the game 1,000 years of supporter the copyright system is a huge mess, glad to see that it (hopefully) wouldn't be much of a threat here

Ōkawa Kotori

at 2023/04/17 (Mon) 11:04:42 pm

that's some long ass blog post from osk

Arase Eiko

at 2023/04/17 (Mon) 10:20:11 pm

to be fair i do want a tetris waffle maker but probably not for the amount it currently costs

Takasugi Mitsuko

at 2024/03/27 (Wed) 8:12:57 pm

idk either

Kamibayashi Kiyoko

at 2023/04/17 (Mon) 10:04:16 pm

i can't believe they killed basouy in the tetris movie

Masaki Satoko

at 2023/04/17 (Mon) 11:23:57 pm

always a great day when osk posts

Morishige Mieko

at 2023/06/01 (Thu) 1:29:09 pm

give me a waffle maker

Shimamura Hanae

at 2023/12/05 (Tue) 8:08:51 pm

how 2 get a tetris waffle maker? thanks

Akahoshi Kou

at 2023/05/28 (Sun) 7:21:41 am

I'd love to know, how does the TTC suing you directly put you on equal ground as opposed to when doing it through a DMCA takedown request?

osk

at 2023/05/28 (Sun) 12:35:45 pm

DMCA takedown works on guilty-until-proven-innocent principle. You have to prove you did NOT infringe, and only then your content gets reinstated. The claimant can stall the case until you (the smaller dev, now without revenue) run out of money. Suing works the other way around, it's innocent-until-proven-guilty. The content remains online until a court orders it to be taken down; only then do you lose your revenue stream. So there's less (still a lot, don't get confused) money influence in the court. In essence, if you're small fry, and esp. if your now-taken-down content is your revenue stream, there is zero use to countering a DMCA claim, as you will simply run out of money in court. DMCA law is rigged; it's to benefit the large parties (claimant and provider), not the content creator!

Aichi Mayuko

at 2024/02/25 (Sun) 10:48:48 pm

hi

Ichiyama Chitose

at 2023/06/04 (Sun) 1:00:31 am

yes. -shps18ppt

Shimanuki Mie

at 2023/05/27 (Sat) 4:54:09 pm

The thought of TTC ever calming down is hard to imagine without a supposed implication of Henky stepping down or just withering away from any involvement.

Ōtori Mira

at 2023/08/17 (Thu) 10:39:48 am

Hey osk, I heard that apple and android have to add 3rd party app stores, if I make your own and download from there,does that change your footing?

Fujibayashi Fumie

at 2023/10/24 (Tue) 7:23:22 pm

with all due respect, i think your opinion on Xio is misguided. TTC. v Xio Interactive is still important, because despite the fact that Xio didn't defend properly (in your and other's opinions), it established in a federal court that you can copy the 'look and feel' of a game. This is only binding in that specific district, but other cases (E.A. Inc. v. Zynga Inc., Spry Fox LLC v. Lolapps, Inc.) have relied on it as case law.

osk

at 2023/10/25 (Wed) 2:31:56 pm

this is entirely true, but very shameful. i should probably have paid more attention to this in the post i believe the case's resolution has very little legal basis, but of course that doesn't stop it from being used by other companies for their (as such similarly problematic) cases. it's absolutely an important case, but it doesn't have anything to say about whether TTC is in the right from a solely legal basis. rather, it makes even more clear the failures of the DMCA system when a highly unfair case can leave such a large impression. i'm sure if i ever were to get into trouble with TTC, this would be one of the obnoxious thorns to deal with

Hori Megumi

at 2023/10/23 (Mon) 7:20:00 am

cool

Horikawa Noriko

at 2023/08/09 (Wed) 1:34:53 am

Tetris waffles look good to eat. Yum yum yum ;-P

Idemitsu Mayuko

at 2023/11/06 (Mon) 2:34:36 am

cool

Shimamura Hanae

at 2023/07/08 (Sat) 8:35:28 pm

ok

Kase Chiho

at 2023/12/01 (Fri) 9:03:03 am

one difference between original tetris and tetr.io is tetris is fair and tetr.io is most definitely rigged

Gomi Chika

at 2024/03/18 (Mon) 7:12:46 pm

I want the waffle maker...

Takasugi Mitsuko

at 2024/03/27 (Wed) 8:11:37 pm

Tetris waffle maker? HAHAHA

Nishida Fumiko

at 2024/03/19 (Tue) 1:52:47 am

my boyfriend bought me the tetris waffle maker. im living the best college life ever rn

Kuwazuru Mai

at 2024/02/10 (Sat) 4:11:09 pm

The DMCA is a largely a tool for bullies and I definitely hate that it exists, but your reasoning seems flawed. I don't understand why you think that tetri io website itself would somehow be immune to a DMCA takedown request if they chose to pursue you? Platform is irrelevant as the web is considered a platform.

Chihaya Kotori

at 2024/02/10 (Sat) 8:22:32 pm

"The Web" is not really a platform by itself, as there is no one at the top hosting it. DMCAs are sent to the platform, so you can for example send a DMCA to Youtube or to Steam, but not to some grand Internet LLC that hosts everything. So far the way the Internet works is that a website hosted by itself deals with its own complaints itself. Best you can do is sue. Some companies really want this to change, for example by telling service providers (Cloudflare or even ISPs) to get stuff off the Internet directly by refusing websites service, but they sensibly deny that it's their responsibility. (Mostly, anyway, there's some battles around that now but that's not a story for a comment)

Machii Chiyako

at 2024/03/19 (Tue) 5:39:55 pm

Why does everybody have a Japanese name here

Machii Chiyako

at 2024/03/19 (Tue) 5:40:54 pm

Even I have a Japanese name. Funny.

Onchi Teiko

at 2024/03/16 (Sat) 6:46:09 pm

LOL

Domon Chiyoko

at 2024/03/07 (Thu) 6:51:34 pm

e