The PUBG Lawsuit Will Fail And That's Good For Us

Alright, now that I've ticked off half of the internet, let me explain the title. PUBG Corporation, is suing Epic Games over similarities between their product and Fortnight. It's worth noting that they're doing this in Korea, and not the United States, so even if the case succeeds it's unlikely to be terribly enforceable in the US, since we've got some pretty simple laws on copyright.

Author's note: I'm not a lawyer, but I did actually take a class on copyright law with the late Dennis Karjala, a rare advocate of avoiding the extension of copyright and pushing for more common sense restrictions of copyright in the ivory halls of scholarship. I'm a little rusty, and I'm not going to be writing verdicts any time soon, but I'm at least passably familiar with most of this stuff.

To make a long story short, PUBG Corporation doesn't have a leg to stand on, and the fact that they're suing in Korea is probably to leverage the legal situations there. Epic's US lawyers are probably infinitely greater than theirs in number and quality (indeed, Epic has won some fairly significant IP cases, including one against the creator of Too Human that got their studio dismantled).

This goes back to a point in copyright law practice that only works, not ideas, are protected. We all benefit from this greatly. It's also worth noting that the law defines ideas as being greater than just facts; facts and ideas presented as facts are not protected explicitly, but there's more of a gray area of unprotected ideas.

Two things that fall into the unprotected idea category are genre (literary and otherwise) and game mechanics.

What Epic has done with PUBG, it is alleged–though not proven, as direct inspiration is difficult to prove–is to make a game in the same genre that shares many mechanics, Fortnite. I'm not actually terribly familiar with the two games; I've played and watched a few rounds of each, but it's not really my cup of tea.

However, there is one situation in which PUBG would have a case–if Epic had created Fortnite using proprietary art or code that was used in PUBG and had not been released to them under license. This is unlikely, because it is pretty much the most obvious form of copyright infringement and anyone with three brain cells in the same jar would realize that doing so would be an incredibly terrible idea. PUBG Corporation is not alleging that this took place, or else it would be suing in the US, where Epic is based and where PUBG Corporation would be more likely to be able to enforce and profit from a verdict in their favor.

The allegation is simply that PUBG and Fortnite are directly competing products. Epic gave PUBG Corporation a license to create a game using their software, and then Epic in bad faith proceeded to make their own competing product.

This is not going to pass the judicial smell test.

First, any corporation that licenses game-making tools from a company that has a long history of making games is going to have to accept that the creator of those tools is likely to have a certain likelihood of creating new content with those tools.

One allegation that I heard is that PUBG Corporation was in talks with Epic about adding new engine features to the general Unreal toolkit that would enable the battle royale gameplay in PUBG, but I have been unable to substantiate that this ever took place.

While on the surface this may sound like PUBG Corporation would have paid for the changes and therefore had a sole license to use them, this is unlikely to be what Epic's policy would require. I don't have a copy of any contracts between PUBG Corporation and Epic (which are probably private affairs). However, if Epic did sign such a license, there is nothing preventing an alternate branch of the company from pursuing such goals independently.

Since the code itself, not the things the code does, would be protected by copyright, and you're not going to get game mechanics patented (they've either been patented already like network architecture, or they're too far removed from the technical side to be protected under copyright or patent law) the only way that Epic could essentially get in trouble for this is if they had in-house staff working on PUBG Corporation's demands with a contract that explicitly states that their work can't be used by Epic in the future.

No software corporation in its right mind will do such work with regular employees, because those employees will naturally continue to work in their own way and potentially infringe copyrights left and right.
Instead, if Epic actually changed their Unreal game engine to meet PUBG Corporation's demands, they would certainly do so in a way that both covered their behinds legally and improved the Unreal game engine, which is one of their major products, in a way that all their customers could benefit from.

So the argument that PUBG apparently forced Epic to improve their engine and therefore only PUBG Corporation should have a right to using those features is legally indefensible. If PUBG Corporation made their own changes to a fork of the Unreal game engine, then they could naturally retain control of that code, but it seems incredibly unlikely that Epic would do that work for them and then license it with a non-compete clause preventing them from using that work anywhere else.

This is where every gamer and small game designer should take solace. The PUBG Corporation lawsuit against Epic has been painted as a David and Goliath story, of an underdog being oppressed by a major corporation. However, while there may be some truth to the fact that PUBG Corporation has no chance of competing against Epic's comparative expertise and may not be able to retain a market in the presence of Epic's competing product, this is entirely a problem that comes down to product quality and distribution.

If the tables were turned, no independent developers would be able to make games. We wouldn't have tabletop roleplaying games, except under license from Wizards of the Coast, no first-person shooters without a sign-off from id Software, and so forth. The larger publishers and corporations would likely try to innovate ahead of the curve, sure, but only so that competitors were blocked from making similar games.

Instead of having clones pop up a couple months after a game becomes popular, we wouldn't see any games mimic another game for ninety five years. The game industry thrives on imitation and innovation, but every single genre would be owned by a single corporation.

I'm sympathetic to PUBG Corporation: having something you work on get crushed by a larger rival that can put more time and resources into their alternative sucks.

But it's also entirely legal. If you want to beat them, you need to do so by innovating beyond their capacity, not resorting to lawsuits and accusations of bad faith.

Epic Games logo from Epic Games