Dominic Szablewski, @phoboslab
— Friday, August 31st 2012

Where the Innovation Stops

Some time ago a rather large US entertainment company bought a few licenses for my HTML5 Game Engine Impact. They used it for internal prototyping and, as they told me, were quite happy with it.

A few month later I got an email from the company's legal department. They asked me to sign an amendment to the Impact Software license agreement with three additional terms. I assume they wanted to publish a game they made with Impact.

The first term stated that I would not be allowed to use their company's name in marketing material. Fine with me. I wouldn't do that without asking beforehand anyway.

The other two terms however felt a bit strange.

But let's back off for a second. As you may know, I'm the sole author of Impact. I'm based in Germany and self employed. It's a one man show. I'm providing Impact without any warranty and I'm not liable for any damages my software may cause (6. & 7. in the license agreement). Pretty standard.

Now, the license amendment I was to sign stated that my software "does not use, embed or incorporate any software which is subject to any open source or other similar types of license terms". What? Why? How? Is there any software out there that truly honors this term?

At this point it's already clear that I can't sign this. Impact uses John Resig's Simple Inheritance, Array.erase and Function.bind as found in MooTools, parts of DOMReady as found in jQuery and some more snippets and boilerplate code that I would consider public domain.

Typical Huge Company™ I thought. Kind of cute.

The last term however is where it gets truly frightening. In short, I would be held liable for "all damages, liabilities, losses, costs and expenses (including attorneys' fees) relating to any claim, action, suit or proceeding brought by a third party based on any actual or alleged infringement or misappropriation of such third party's intellectual property rights in connection with the use of the software." This goes on for a few more paragraphs.

Let's ignore for a minute that this legalese is written so vaguely that I could be held liable if the company published a game, using my game engine, with art assets they stole from another company. Let's ignore that this multi-billion-dollar company only bought software worth a few hundred USD from me, yet they still want me to pay their legal fees. Ignore that.

The core of the problem is another one: The US Legal System and Patent Law.

Quite frankly, the US Legal System scares me. A Legal System that is vague enough, emotional enough to have spawned a whole subcategory of dramatic movies is not a good indicator for true justice. The notion that the party with more money wins a trial, the whole jury selection process, the fact that there even is a jury. It all seems so absurd from our perspective.

Maybe I have watched too many Hollywood movies. But maybe it really is like this. Just look at the recent Apple vs. Samsung case – a supposedly boring patent trial made convoluted and emotional.

If I ever get sued in the US, who knows what will happen. It's truly unpredictable.

And in the US there's always a reason to get sued. Impact probably (unknowingly) infringes a whole lot of US software patents. All trivial, all with prior art. Yet, proving so in a court case would absolutely ruin my business and me financially.

It's understandable that this entertainment company wanted me to sign their license amendment. It absolutely made sense from their perspective. They are deep in this circus and wanted a bit of certainty that their legal system couldn't provide.

I told them I couldn't sign their amendment and never heard back.

Sometimes I have the feeling that I'm missing out by not being in Silicon Valley, in the epicenter of Startup culture. I was there for a visit and it was extremely energizing and motivational. I loved the people, the mentality, the atmosphere. Instead, I'm in a small and boring town in Germany.

But then again, I feel safer here; I have the freedom to experiment, to innovate. I'm glad that we don't have impeding software patents. Glad that our Legal System is still sane. Glad that my business is based in Germany and not in the US.

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