PUBG | Copying process on mobile: “they cannot monopolize a genre”.
THE NetEase, Chinese developer and publisher focused on the mobile phone market, filed a lawsuit to reject the PUBG Corp. process. against mobile games Knives Out and Rules of Survival.
As you may remember, PUBG Corp. filed a lawsuit against NetEase in April, claiming that PUBG suffers unfair competition, where Knives Out and Rules of Survival infringe on Bluehole’s copyright.
Below you can find a summary of the argument presented by NetEase’s lawyers. In news related to NetEase, the publisher recently made a huge investment ($ 100 million) in Bungie to create “new experiences”. (the text below was translated using the google translator).
PUBG’s attempt to monopolize the popular “battle royale” genre of video games fails under the Copyright Act, the Lanham Act and California’s unfair competition law.
PUBG’s copyright claim must be rejected. Copyright protects only against copying the original expression – not ideas, not expression so inherent in an idea that “merges” with the idea, not elements borrowed from another creator or public domain, and not scenes from a faire that flows from any idea, mixed expression or stock treatments of a particular genre. For example, Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443-46 (9 Cir. 1994); Capcom Co. v. MKR
Grp., Inc., WL 4661479, at * 6 (ND Cal. 20 October 2008).
Consequently, PUBG’s copyright in Battlegrounds does not prevent other game developers from creating competing games based on the same underlying ideas, rules or expressions that flow from the game idea itself. For example, Allen
v. Acad. Games League of Am., Inc., 89 F.3d 614, 617-18 (9 Cir. 1996). When comparing games for a determination of non-infringement, the Court must “filter” all unprotected expression. Capcom, 2008, WL 4661479, a * 6; see also Rentmeester v. Nike, Inc., 883 F.3d 1111, 1118 (9th Cir. 2018); Capcom USA, Inc. v. Data E. Corp., 1994 WL 1751482, a * 5 (ND Cal. Mar 16, 1994).
Once these elements are removed, the Court must compare the two works using the “virtual identity” standard applied both to games of the same genre and to works that express real-world objects. See Frybarger v. Int’l Bus. Machs Corp., 812 F.2d 525, 530 (9th Cir. 1987); Satava v. Lowry, 323 F.3d 805, 812 (9 Cir. 2003). PUBG cannot show substantial similarity, let alone the required virtual identity. Therefore, your claim fails.
PUBG’s Lanham Act claim does not identify any clothing distinct from its copyright claim and claims the functionality of the claimed elements. It must be dismissed because it is in incorrect conflict with copyright and patent law. See, for example, Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23, 37 (2003); TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 USA 23, 29 (2001); Summit Mach. Tool Mfg. V. Victor Sys CNC, 7 F.3d 1434, 1438 (9 ° Cir. 1993).
PUBG does not claim necessary elements to declare a claim under the California Business and Professions Code §17200, its predicated “illegal” acts fail with its Copyright and Lanham Act claims, and it, along with PUBG’s common law claim , is replaced by 17 USC § 301
