1 April 2012Jurisdiction reportsOtto Licks and Carlos Aboim

Copyright for video games

Video games on social platforms such as Facebook are a new category of fun, offering both highly viral and engaging characteristics.

The games can be played for free, but gamers who are eager to progress can buy extra virtual coins using real cash, and millions of people invest real money on them. In Brazil, two of the big players in the market are Zynga Inc and Vostu Ltd, both from the US.

Combined, they have approximately 40 million users in the country. Thus, when a major copyright infringement suit was filed in Brazil in 2011 by Zynga Inc against Vostu Ltd, seeking protection for four of its games, including CityVille, it became the largest ever software infringement case in the country, demonstrating the scope of legal protection provided for software in Brazil.

The games that were subject of the infringement suit were launched by Vostu on Orkut (then the most popular social platform in Brazil, now surpassed by Facebook). The São Paulo trial court issued the ex parte injunction requested by Zynga with the first brief, ordering Vostu to shut down its games based on prima facie evidence of infringement.

The court of appeals issued a preliminary order staying the injunction based on the risk of irreparable harm to consumers, but the parties settled before the panel of three appellate judges had had time to decide the interlocutory appeal filed by Vostu against the injunction. To reach a settlement, Vostu paid an undisclosed sum and agreed to make changes to the games.

Despite the absence of a ruling on the merits, the lawsuit brought attention to the protection afforded by the Brazilian legislation for IP protection of software. The statute defines software in article 1 as the “expression of an organized set of instructions”.

An expression can be any kind of digital work, such as video games. The trial court judge agreed with the experts that as the “expression of an organized set of instructions”, comparing the programming language, source or object code is irrelevant in determining infringement.

“Despite the absence of a ruling on the merits, the law suit brought attention to the protection afforded by the Brazilian legislation for IP protection of software.”

The Brazilian court was not persuaded by the comparative law arguments brought by Vostu stating that, in the US, copyright scholars and some decisions from last century used pejorative language when referring to the “look and feel” of a product. The expert reports filed by Zynga offered comments and an algorithm to establish a test for the limitation of the protection established in article 1 of the statute. The comparison needs to be made with both examples of software running in normal conditions.

As article 2 of the statute establishes that the legal regimen for protection of software is copyright, the limitation that applies to software protection is well defined within article 6, III, which states that a similarity between a new and an existing program does not constitute infringement “when it is given by force of functional characteristics of its application, of the observance of technical precepts, or of limitation of alternative form to its expression”.

Vostu argued that the features of its games were necessary to video games to be played on social platforms, but the technical opinions issued by scientific institutions in Brazil were unanimous in the conclusion that there was a huge number of alternative forms of expression in the same genre (for instance, forms for expression of video games on ‘building cities’).

Based on expert findings, copyright professors offered views stating that Vostu’s games were copied without any technical imposition, being therefore illegal and subject to the ex parte injunction to enjoin infringement immediately.

Therefore, arbitrary choices about software that result in the materialisation of expressive elements that can be experimented with by its users (in the case of video games, user interface, gameplay and look and feel, among others), are protected intellectual work as perceived during the normal use of the software.

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