Don Rubin v. Apple Inc. et al


United States District Court for N.D. Cal.
Case No. 3:09-cv-02607, Filed June 9, 2009

Case Update:After surviving Apple’s motion to dismiss, on September 8, 2009, this case was sent to ADR. After several months of mediation, this case was fully and confidentially settled as to defendant Apple, on May 18, 2010. The case was dismissed with prejudice as to defendant Apple on July 21, 2010. As to the other two defendants named in the complaint, they never responded, and default judgments against them were entered on September 28, 2010.Original Post:A puzzle inventor has filed suit against Apple for allegedly using one of his puzzles as the basis for an iPhone application without authorization.

Don Rubin, dubbed by The World Almanac as “America’s premiere puzzlemaster,” contends that Apple has infringed on one of his copyrighted puzzles with its iPhone app ParkingLot. According to the complaint, Rubin created and published the original sliding block parking lot puzzle (see image at left), titled Lots of Luck, “on or before October 1, 1977” and since then came up with five derivative versions of the game. The complaint further states that the puzzle has been registered with the Register of Copyrights as a contribution to a serial publication and in various other forms numerous times since 1977. The puzzle and its authorized derivations have been published in hundreds of periodicals worldwide since its creation. Rubin asserts that his weekly puzzle column entertained 15 million readers from 20 countries per week and led to a volume of responses so overwhelming that the U.S. Post Office in Chicago “gave Don his own zip code.”

According to the grandmaster of sliding block puzzles, Edward Hordern, “[a] sliding block puzzle consists of a group of pieces of any shape(s) enclosed within a confined area, in which the purpose is to rearrange the pieces either into a certain order or to get a particular piece to a specified position. This is accomplished by sliding the pieces or “blocks” —hence the name sliding block puzzles — usually one at a time into areas not occupied by other pieces. The lifting of pieces is never allowed — nor must they hop or jump over other pieces.”

The complaint alleges that the ParkingLot application, introduced on January 1, 2008 and now one of the iPhone’s best-selling apps, copies Rubin’s puzzle “in all material respects.” Both Lots of Luck and ParkingLot are restrictive movement sliding block puzzles set in a parking lot, the complaint states. In both games, players work to move the arrangement of cars in a grid, or “parking lot,” to free a main target car so it can exit the lot.

Rubin is requesting a preliminary and permanent injunction to enjoin Apple from infringing the copyright, thus preventing publishing, selling, marketing, or otherwise disposing of copies in any format of the game. Rubin is also seeking damages from the infringement to account for gains, profits and advantages that Apple received through its use of ParkingLot.

As another piece to the puzzle (pun intended?), the complaint also names as a party of interest. A quick search of revealed that Quetouch is the developer of ParkingLot. According to its website, ParkingLot was “[i]nspired by Mr. Yoshigahara’s invention.” After further investigation, it turns out Mr. Nobuyuki ‘Nob’ Yoshigahara, a famous puzzle columnist from Japan, was the inventor of the game Rush Hour. Both Lots of Luck and Rush Hour require a user to move car pieces backwards and forwards to clear a path for the target car to exit the grid, but Rubin’s game takes the form of a picture puzzle while Rush Hour is a physical version of the sliding block puzzle. Rush Hour, produced and marketed by Thinkfun (formerly Binary Arts), was supposedly created by Nob in the late 1970’s and introduced into the U.S. in 1996. Nob commercially licensed Rush Hour and other puzzle designs to Thinkfun. Click here to see the design patent issued to Thinkfun in 1998 regarding Rush Hour.

The blog Puzzling iPhone shows that there are many apps besides ParkingLot that are restricted movement sliding block puzzles. Perhaps Rubin focused on ParkingLot because it has earned more revenue as one of the most popular apps and that may result in him receiving larger monetary damages. The blog also mentions the issue of sliding block iPhone app developers not acknowledging the original designer of the puzzles the games are based on. But in its push for attributing credit to the real creator of the game, the site refers only to Rush Hour and Nob, not Rubin’s picture puzzle. So where did the idea for a puzzle based on maneuvering a trapped car out of a parking lot truly first originate?

All of this might not even matter, depending on where you draw the line between an idea and an expression of that idea. Copyrights only provide protection for actual expression of an idea; not to the underlying idea itself. This is rooted in the First Amendment and freedom of expression. If there was any copying, a court will likely consider whether the alleged infringer actually copied artwork and graphics, or did the alleged infringer merely use the IDEA of a sliding block puzzle in the theme of a parking lot, yet create new artwork and source code to implement that IDEA? Also keep in mind that copyrights provide NO protection for functional or utilitarian aspects of works, so the plaintiff will have a hard time relying on any similarity of rules, placement of vehicles, possible moves, etc., because those are likely to be considered functional considerations.

Read the full complaint, which includes an example of Rubin’s puzzle, here.

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