dmca/2016/2016-05-25-Set.md

May 24, 2016  
GitHub.com SENT VIA EMAIL  
Attn: [private]  
88 Colin P. Kelly, Jr. Street  
San Francisco, CA 94107  
email: copyright@github.com

Re: Digital Millennium Copyright Act (“DMCA”) Notice for content at:  
https://github.com/vincentwoo/setgame

Dear Registered DMCA Agent:

I am [private] for Set Enterprises, Inc. (“Set Enterprises”). [private] is the creator of the award winning SET game. Cannei, LLC (“Cannei”) is the owner of all intellectual property related to the game and Set Enterprises, Inc. (“Set Enterprises”) holds an exclusive license to produce and sublicense products containing said intellectual property. A website that your company hosts is infringing on copyrights owned by Cannei and licensed exclusively to Set Enterprises.

An example of the original copyrighted work can be found on the Set Enterprises website at http://www.setgame.com/set/puzzle. A licensed copy of the copyrighted work can be found on The New York Times website at: www.nytimes.com/set.

The unauthorized and infringing copy can be found at: https://github.com/vincentwoo/setgame. Set Enterprises does not claim to own copyright for the code itself but rather the copyrighted designs of the SET game. There is one file in particular that quite clearly violates the copyright of the design for the SET cards: https://github.com/vincentwoo/setgame/blob/master/public/perm/cards.png. In addition, copyright protection is available for original textual, pictorial, graphic, or sculptural expression contained in games. The law is clear that graphical expressive elements such as the color and style of game pieces, game boards, and game playfields are protectable.[1] Expressive elements related to the game’s function or play are copyrightable so long as that expression is capable of being separated from the game rules or game function—leaving other ways of expressing those rules or functions.[2]

In analyzing the combination of game elements for copyright, the work as a whole may be copyrightable even if the individual pieces are not.[3] The overwhelming totality of copying is taken into account and the “total concept and feel” of the work is considered.[4]

Set Enterprises is the exclusive licensee of copyrights in the SET game, cards, box and the game’s instructions. These registrations give Set Enterprises a presumption of valid copyrights.[5] The classic SET card game includes at least the following expressive card game piece features: shape (ovals, squiggles, diamonds); color (red, purple, green); number of figures (1, 2, 3); and shading (solid, striped outlined). The classic SET game also contains a 12-card playing field arranged as rows of three cards by four cards.
The code available in [private]’s setgame repository implements substantially similar shapes, colors, numbers of figures, shading, and play field. Furthermore, the fact that [private] states that his code is “a multiplayer, realtime implementation of the popular “Set” card game” points to the fact that he deliberately chose to copy SET’s expressive graphical elements despite literally an unlimited number of dissimilar ways to functionally implement the rules of a SET-type game. This constitutes copyright infringement, particularly when the overwhelming totality of copying is taken into account and the “total concept and feel” of the work is considered.[6]

This letter is official notification under Section 512(c) of the DMCA and I seek removal of the aforementioned material from your servers. I request that you immediately remove the infringing material and prevent the infringer from posting the infringing material to your servers in the future. Please be advised that in order to receive the benefits of the limitations of liability contained in section
512(c) of the DMCA, a service provider must “expeditiously remove or disable access to” the infringing material upon receipt of this notice. Noncompliance may result in a loss of immunity for liability under the DMCA.

I have a good faith belief that the display and distribution of the code described above has not been authorized by Cannei, Set Enterprises, any of their agents, or the law. Under penalty of perjury I certify that, to the best of my knowledge, the information contained in this notice is true and accurate and I am authorized to act on behalf of the copyright owner and exclusive licensee with regard to this matter.

In addition to infringing our copyright, this content violates your Terms of Service, Section A.8:

You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright or trademark laws).

Please contact me within five (5) days of receipt of this notice to confirm that your company has removed or disabled access to the infringing material that is available on https://github.com/vincentwoo/setgame.

Thank you for your cooperation.

Sincerely,  
[private]

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1 Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394, 404 (D.N.J. 2012); see also Atari Games Corp. v. Oman, 979 F.2d
242, 245 (D.C. Cir. 1992) (Ginsburg, J.) (“The hallmark of a video game is the expression found in ‘the entire effect of the game
as it appears and sounds,’ its ‘sequence of images.’”); Atari, Inc. v. North Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 617
(7th Cir. 1982) (finding copyright protection extends “to at least a limited extent the particular form in which [a game] is
expressed (shapes, sizes, colors, sequences, arrangements, and sounds)”).

2 Tetris Holding, 863 F. Supp. 2d at 404 (discussing this rule as result of scenes-a-faire and merger doctrines).

3 Atari Games Corp., 888 F. 2d at 883 (“None of the individual elements of the Reader's Digest cover — ordinary lines,
typefaces, and colors — qualifies for copyright protection. But the distinctive arrangement and layout of those elements is
entitled to protection as a graphic work.... Reader's Digest has combined and arranged common forms to create a unique
graphic design and layout. This design is entitled to protection under the Copyright Act as a graphic work.”); see also Apple
Barrel Prods., Inc. v. Beard, 730 F.2d 384, 388 (5th Cir. 1984) (component parts “neither original to the plaintiff nor
copyrightable” may, in combination, create a “separate entity [that] is both original and copyrightable”); Roth Greeting Cards v.
United Card Co., 429 F.2d 1106, 1109 (9th Cir. 1970) (greeting cards held to be copyrightable although textual matter standing
alone was not copyrightable; “all elements of each card, including text, art work, and association between art work and text,
[must] be considered as a whole”).

4 See Tetris Holding, 863 F. Supp. 2d at 409-10 (finding copyright infringement by unauthorized iPhone app using game pieces
with substantially similar shapes, bright colors and shading, rectangular playing field, and movement of game pieces as in classic
Tetris game). “If one has to squint to find distinctions only at a granular level, then the works are likely to be substantially
similar.” Id. at 410.

5 Apple Computer, Inc. v. Formula Int’l Inc., 725 F. 2d 521, 523 (9th Cir. 1984).

6 See Tetris Holding, 863 F. Supp. 2d at 409-10 (finding copyright infringement by unauthorized iPhone app using game pieces
with substantially similar shapes, bright colors and shading, rectangular playing field, and movement of game pieces as in classic
Tetris game). “If one has to squint to find distinctions only at a granular level, then the works are likely to be substantially
similar.” Id. at 410.