When it comes to events within the law, the bulk of the publishers tend to remain in the dark as to what matters and what does not. Which might be fair enough when you consider the fact that they are more and more about numbers in circulation, not about the clarity of reporting. So when I saw certain reports on how there are issues with Hello Games (read: No Mans Sky) and the law, I tend to get curious fast.
There were to instances. The first one was regarding Sky TV. Because the issue was settled, there is not too much official news in play. As far as I was able to tell, from the various sources. We get “The root” of the “secret stupid legal nonsense” is down to Sky’s belief that it owns the word “Sky” in the context in which Hello Games planned to use it”. Can anyone explain to me why any judge would not throw this out of court in an instant?
The fact that this is of course linked to Rupert Murdoch in some way, means that plenty of people are too scared to go against that fossil (I hereby apologise to all fossils who feel offended by their media categorisation)!
In law however, there could have been a case and there was a case and in consideration, beyond the academic parts of Trade Marks law, there was, as I see it never a case. In the case where we see that action brought against the decision of the Fourth Board of Appeal of OHIM of January 30th 2013 (Case R 2398/2010-4), there are three players.
On one side we have
British Sky Broadcasting Group plc & Sky IP International Ltd
And on the other side there is Skype Ultd.
One issue is and has for ever been, more alike than not. Which is one that Sky versus Skype (hear: Skaip) would win, yet, one could argue that British Sky Broadcasting Group plc and Sky IP International Ltd are not alike Skype Ultd in any way. Yet it is the service Class 38 that works in favour of Murdoch again. These are Telecommunication services and as such, there could possibly be a conflict. Of course the non-legal academic mind realises that the Sky services is there for people who contemplate suicide, whilst Skype is about communicating with others. There is no overlap at all (unless you’re talking to your mother in law).
Yes, there is an unfair issue here. Because there is in no way any clear overlap from a consumer point of view, there is as I see it no chance of mistaken service here, but the legal point was made by Sky. It is the issue at [17] where we see “the risk that the public might believe that the goods or services at issue come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion“, which is unlikely, yet not impossible and as such Skype lost the trial. The support was found from case Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS).
So why bring this up?
You see, there is one part where there is a relevant part in the more likely than not as well as more similar then not. This is however not the case for Hello Games. First of all, this product of service is not telecom, it is a video game. In that regard Rupert Murdoch has a lot less knowledge of video games then Robert Maxwell, you know the other tycoon who took a swim on November 5th 1991. I know that to be a fact! In defence of Robert Maxwell, he was visionary enough to see that video games had the real future (he was the man behind Mirrorsoft), he would be proven correct less than 5 years after his death.
So when we consider British Sky Broadcasting Group plc. Sky IP International Ltd or Sky, there is absolutely no similarity between the one and the game ‘No Man’s Sky’. That case should have been dismissed of the bat. In addition, if Sky did not start a case against the following movie titles: ‘October Sky’, ‘Fire in the Sky’, ‘Iron Sky’, ‘Island in the Sky’, ‘Castle in the Sky’, ‘Red Sky’, ‘Sky Captain and the world of Tomorrow’, ‘Vanilla Sky’ and ‘Sky High’, can we contemplate that if these cases had not gone to court, the injustice against Hello Games should be trialled for against Sky IP International Ltd?
You see, for Hello Games, the initial case could have been decided against them if the game was called ‘Sky of no man’, this is not the case so the dissimilarity is there. In addition, this is a video game and unless there is a clear sky game ready for the office, I am better of not getting close to it. As I see the likelihood of confusion would have never been a case so I am getting the idea that there is more. Yet, without the court papers there is no way to tell for certain. What is known are some of the facts in play? You see, the part “Too close is determined by whether the relevant consuming public would likely be confused by the second mark“. I can state with 100% certainty that those buying the game will never be confusing the mark of the game, with the mark of a Murdoch corporation.
In addition we can raise the following cases:
Jockey International, Inc v Darren Wilkinson [2010] ATMO 22, where Jockey was sufficiently different from Throttle Jockey and Chris Kingsley v David Scott [2011] ATMO 20, where Rebellion was sufficiently different from Soul Rebellion. As such, Sky should be seen as sufficiently different from ‘No Man’s Sky’. Yet, I will accept that without the full court data elements might be missing from the case. So I am keeping an open mind to some extent.
Now we see that Hello Games is in another situation, yet now on an optional case regarding the feat of patents, or is that the alleged featured use of a patent?
‘Dutch company claims No Man’s Sky Uses Its ‘Superformula’ without permission‘ (at http://www.ibtimes.co.uk/dutch-company-claims-no-mans-sky-used-patented-superformula-create-its-massive-universe-1571747), the news now three weeks old gives another side of the entire universe. Wherever there is a true innovator, there is a vulture trying to get on the gravy train! In nearly all countries we see the application of it. In Belgium Law we see “De machine is patenteerbaar, evenals het proces van de aanpassing in functie van het draaimoment van de motor of de kracht op de snijkop. (voor zover dit voldoet aan de 4 voorwaarden voor een klassiek octrooi, maar laten we dit even aannemen). De wiskundige formule die gebruikt wordt om deze functie te berekenen niet.” (Translated: A machine can be patented, so can the process of adjustment in function of the rotational moment of the engine on the power of the cutting head, the mathematical equation to calculate this cannot). You see, this is at the heart of the matter, in academic reality you could patent the universe, the methods of how it was conceived was not in addition, as the game is unique, Hello Games now have the copyright, yet not on the formula.
In addition, I need to show you the article by Eurogamer, who did some of the legwork (at http://www.eurogamer.net/articles/2016-07-21-why-no-mans-sky-fans-are-worried-about-a-patented-superformula), they make a few references, more important is the fact that they got through to a few of the connected parties. Now we get to the gritty part of it. You see, there is orchestration in the wind (not by or through Eurogamer mind you).
Consider the quote Jeroen Sparrow gave Eurogamer, as stated in the article: “Genicap is working on a project to create revolutionary software based on the superformula that can be used likewise by indies and the major game studios. Using the superformula to generate natural objects enables you to create endless varied and original objects such as trees, rocks, beaches, planets and mountains. Currently most of this work is still done manually. We are still in the conceptual phase. We expect to be able to tell you more in autumn“, which is, as I see it a load of bollocks! Consider, that initial publications of teasers of No Mans Sky started in December 2013, it was introduced at the E3 2014, now we see ‘We expect to be able to tell you more in autumn‘, how is this even contemplated to have any kind of value?
You see, part of all this is linked to the patent claim EP1177529 (A1). You see in Patent Law, whenever the first element fails, all subsequent elements fail too.
So consider the first claim: “1. A method of creating a physical form, comprising: programming a computer with a computer application for computer graphics or computer aided design or the generation of physical waveforms, with a representation of the following formula r = 1 1 a · cos m 1 ·φ 4 n 2 ± 1 b · sin m 2 φ 4 n 3 n 1 <img class=”EMIRef” id=”188164907-ib0037″ /> where r is a radius value at an angle φ, selecting values for the parameters a, b; n 1, n 2, n 3, m 1and m 2, at least one of n 1, n 2and n 3and at least one of m 1and m 2being variable; generating a pattern via the computer based on the selected values input into said formula; transforming said generated pattern into a physical form.“, here you might be confused, but you need no math, just plain English “transforming said generated pattern into a physical form“, here is the simple crux. A virtual representation, is not a physical form. A supporting thesis can be found (at https://unfoldingform.wordpress.com/about/), if there is one upside then it would be that this all introduced me to the work of Kris Henning. The abstract quote “a design investigation exploring the transition between the virtual representation and physical fabrication of folded forms” gives the goods: ‘transition between the virtual representation and physical fabrication‘, they are two different dimensions. Whilst we could argue that Jeroen sparrow is finding new ways to fund a tax party and here the quote “transforming said generated pattern into a physical form” does not hold the bacon, because this is not what Hello Games are doing and as such, we could regard Genicap as a simple vulture trying to get scraps from someone who was able to create. You see, Dutch patents are very similar to those in Common Law nations “De vinding moet gaan over een product of productieproces, en je moet kunnen aantonen dat dit technisch kan functioneren. Zo kunnen diensten, ideeën zonder concrete uitwerking, natuurwetenschappelijke theorieën, rekenmethoden en esthetische vormgeving niet beschermd worden door een patent” The invention needs to be on a product or production process and it must be shown that it technically functional, services, ideas without concrete solutions, natural theories, calculations and aesthetic shapes are not protected by a patent (translation), so as we cannot fault Eurogamer for lack of Dutch, plenty of Dutch sources did not give this the attention it needed to have. This case is likely to go nowhere!
So we see the collection of people lacking innovation and applicational genius and trying to weasel in on their flaccid approach of inability (perhaps I am oversimplifying the issue?)
When we look at the final part of the Eurogamer article (which is quite excellent), we see “If Hello Games used our technology, at some stage we will have to get to the table. We have reached out to them but understand they have been busy. We trust that we will be able to discuss this in a normal way“, whilst, as I see it, there is enough to debunk the patent claim, there would still be issues of copyright. Yet, there is an issue there too. For this we need to take a step towards Forbes, who published on May 19th 2014 (http://www.forbes.com/sites/johnvillasenor/2014/05/19/how-much-copyright-protection-should-source-code-get-a-new-court-ruling-reshapes-the-landscape/), where we see “Consider a programmer who writes source code to implement a complex weather forecasting model. Models for weather forecasting are not subject to copyright, but the programmer (or, if the programmer is an employee, his or her company) may nonetheless have an enforceable copyright interest in the specific code written to perform that task“, which actually gets us pretty close to the heart of No Man’s Sky. the mathematical model has no protection (if it was used), but Johan Gielis could have ‘an enforceable copyright interest in the specific code written to perform that task‘, yet that part is stopped, because that part was built from scratch by Hello Games, so even if the superformula is in whole part of No Man’s Sky, it seems to me that the application was re-engineered and as such, Genicap has nothing. Nothing is as I see it should be, because they come up with “the superformula to generate natural objects enables you to create endless varied and original objects such as trees, rocks, beaches, planets and mountains. Currently most of this work is still done manually. We are still in the conceptual phase“, whilst a demo has been visible for close to two years? I reckon that they were asleep at the wheel (possible trying to come up with a mathematical formula to grow mentioned wheel).
In the end, Hello Games is growing an industry in a direction no one foresaw, the even better part is that I blogged an additional application for this solution well over 6 months ago implies that I surpassed Genicap regarding any superformula (without ever seeing it), even before they went into some conceptual stage, I found it another application. So what does that tell us about Genicap and Jeroen Sparrow?
So, be like me and enjoy playing No Man’s Sky (and thanking Hello games for coming up with a brilliant game).
Lawrence van Rijn - Law Lord to be 