Most app developers are well aware of the differences between the curated and heavily controlled market that is Apple’s iOS App Store and the Wild West-style free for all that is Google Play. Each has its charms, but Google often acts as a safe haven or second chance for games that either don’t pass the stringent App Store requirements or are later booted for Terms of Service violations.
Enter Flappy Bird.
Flappy bird was released on both Google Play and the iOS App Store in mid-2013 but didn’t achieve success until early 2014. At its peak, Flappy Bird was earning its creator, Dong Nyugen, $50,000 a day in ad revenue. In the midst of all the success, Nyugen decided to pull the game. He made the announcement through Twitter, and was initially unclear about the reasoning for his decision. He did make it clear, however, that he never expected the level of success, was continuing to make games, had not been acquired, and had not received any legal notices. Nintendo backed up this claim. He later clarified that he removed the game because it was too addictive.
Regardless of his reasoning, the game is gone and people are scrambling to find or recreate the experience. With reports of phones installed with Flappy Bird going for inordinate sums of money on eBay, it’s only natural that developers, legitimate and otherwise, would want a piece of the action. The App Store and Google Play, as well as the Windows Phone Store, were flooded with all manner and type of clone. While many of these clones were legitimate, some using only the mechanics of Flappy Bird, others were fraudulent or even dangerous. The stores also expressed concern about expanding the market too quickly and losing other types of games in a sea of Flappy Bird clones.
Apple responded to these games in the App Store with the expected severity. They’ve banned all new apps with confusingly similar titles. The rejection letters inform developers that Apple believes thier title attempts to leverage the popularity of an existing app. This violates the App Store terms of service. Apple is also rejecting apps that imply they’re associated with Flappy Bird. Apple has a long history of doggedly defending the IP of developers and responding harshly to any claims of infringement; those accused of infringement often feel as though their responses or defenses are ignored. Apple consistently takes the time to carefully curate its ever growing App Store.
Google, contrary to its typically laid back response to infringement claims, has not only banned new apps with confusingly similar titles but has also set upon recently submitted apps that resemble Flappy Bird. In most cases, recently submitted games are only required to change their names or descriptions so they aren’t easily confused with Flappy Bird.
Neither Google nor Apple can rely too heavily on consumer confusion concerns as explanation for removing the apps. Nyugen removed Flappy Bird from the market, and from all ostensible sources, displays no interest in ever re-releasing it. More importantly, this information was widely disseminated through Time, Forbes, and the Wall Street Journal. The consuming public likely knows the original Flappy Bird no longer exists. These new apps are not competing with or taking business from Flappy Bird. Further, it’s unlikely that Nyugen has any interest in going after these games for infringement. Even if he chose to do so most of the games only copy Flappy Bird’s mechanics, which the courts have found to be unprotectable under copyright. Consumer confusion would be his only recourse, and since his game no longer exists anywhere at all, it’s unlikely a court would find in his favor and even more farfetched that they would find damages.
While Apple has always employed heavy oversight and rapid infringement response, this is a notable change in ordinary course of business for Google Play. How much weight given to ordinary course of business, if any, and whether it applies to distribution agreements, varies widely by jurisdiction. In some jurisdictions, when considering contractual obligations, courts take into account not only the contract document, but also ordinary course of business. However, in others like Texas, the only thing that matters is the language of the contract.
Contracts, like the distribution agreement between Google and developers, also include an implied condition that neither party will do anything that will inhibit the completion of the contract. For example, a developer won’t purposely make a game Google can’t distribute and Google won’t take any steps that make it impossible for the game to sell. This is referred to as good faith and fair dealing, and can be thought of as honesty in business transactions. If a party to a contract fails to act in good faith then, depending on how much the failure impacts the contract, the other party can sue for damages. By changing how it handles possible infringement, Google may be impacting how it defines fair dealing in distribution.
Google has potentially introduced a dangerous precedent of oversight- if your game is very successful, Google may actively block new games and ask old games to change their titles or descriptions to prevent consumer confusion. Google has in this case a new standard for dealing with confusingly similar apps, even when the apps are confusingly similar to something that no longer exists. Of course, Google has also acted differently in previous instances, and that inconsistency could itself be a problem
Flappy Bird changed expectations for the app market in a number of ways. Developers have fretted that players aren’t interested in play style or innovation, but are instead easily fixated on impossibly difficult tasks. Others have mused that players don’t know what they want, and are behaving in an entirely trend-driven way. In addition to these concerns, there’s a reasonable concern that Google may become a less open market, no longer a safe haven for the games rejected by Apple.