Defending Against Dubious Lawsuits: Options For Indie Developers
As an indie developer, you pour your heart and soul into building innovative games and apps. However, your success can sometimes make you a target for dubious lawsuits seeking to capitalize on your hard work. Frivolous lawsuits from opportunistic parties can disrupt your operations, drain resources, and steal attention from your creative vision. This article explores common triggers for lawsuits against indie developers and equips you with practical strategies for protection.
Understanding Where Lawsuits Originate
The most common sources of litigious threats against indie developers include:
Trademark and Copyright Infringement
Your distinctive game artwork, characters, storylines, and branding elements may inadvertently overlap with existing protected intellectual property. For example, using a character name, logo, or iconic imagery that is substantially similar to someone else’s IP can trigger allegations of infringement. Threatening cease & desist letters or lawsuits may demand that you immediately stop using the contested material or pay exorbitant licensing fees.
Patent Trolling
Patent assertion entities (PAEs) do not create products themselves. Instead, they purchase vague software patents solely to threaten litigation against others. Trolls often target successful indie developers, claiming minor implementation details infringe on their patents. Faced with an expensive legal battle or settlement demands, many developers reluctantly choose the latter.
Consumer Class Action Lawsuits
Players or customers can band together to file a class action suit alleging your game or app fails to meet expectations, delivers an unsatisfactory experience, or does not function as advertised. While individual claims may be weak, aggregating many complaints creates potentially significant liability.
Preventative Measures
Proactively protecting yourself can reduce vulnerability to opportunistic litigation.
Thoroughly Vet Assets and Code
Rigorously screen all production elements to confirm original authorship and ownership. Seek written attestations from contributors verifying assets they provide are their own original work not infringing any protected IP. Conduct due diligence confirming no code snippets were copied from elsewhere without appropriate permissions and licenses.
Clear Policies and Consumer Communication
Maintain unambiguous fair use, copyright, consumer protection, and terms of service policies. Prominently display the policies to customers before purchase confirming permitted usage, rights, and restrictions associated with your products. Using clear communication to align consumer expectations with reality helps defeat claims your products are misleading or defective.
Lock Down Terms of Service
Include carefully crafted Terms of Service with all games and apps that favorably govern permissible usage, limitation of liability, warranty disclaimers, and binding arbitration. Provisions that mandate individual arbitration prevent participation in damaging class action lawsuits. However well-drafted terms provide another layer of protection.
Responding to Legal Threats
If confronted with concerning legal demands, prudent early reactions include:
Assessing Validity of ClaimsObjectively evaluate the legitimacy of allegations made against you. Threatening notices sometimes make outlandish unsupported claims in hopes developers will immediately capitulate. Determine if purported evidence truly demonstrates violations or infringements occurred.
Issuing Take-Down Notices
If others are infringing your protected works, directly request they immediately cease and desist their unauthorized usage. Issue formal DMCA take-down notices requiring prompt removal of your original content from their apps, videos, websites, or other properties.
Seeking Legal Counsel
Promptly retain qualified legal counsel to confidentially review your situation and provide tailored guidance. Experienced lawyers in your jurisdiction can best advise if claims have actual merit and recommend prudent actions to protect your interests.
Navigating Litigation
Despite best efforts, an officially served lawsuit still requires an assertive defensive strategy:
Building Your Defense
Work closely with litigation counsel to construct compelling legal arguments and affirmative defenses debunking frivolous claims against you. Gather powerful evidence like development records, original asset artwork, source code logs, and witness statements helping to prove your innocence.
Understanding Litigation Costs
Carefully project and set aside adequate financial reserves to fund legal proceedings to clear your name. Depending on case complexity and jurisdiction, total litigation costs often exceed six figures in legal fees and expenses over an extended period.
Seeking Dismissal or Settlement
Instruct your lawyer to aggressively pursue pre-trial dismissal of unmeritorious claims against you. Alternatively, calculate if an expedient nuisance settlement for less than anticipated legal fees makes business sense. Both options allow focusing energy on building great products instead of lawsuits.
Maintaining Business Operations
Effectively cope with the disruption of legal actions using smart business practices:
Insurance Options
Explore cost-effective insurance policies covering intellectual property litigation, errors and omissions liabilities, or general commercial general liabilities. While perhaps unable to influence a plaintiff’s decision to sue, insurance can financially shield defendants from excessive losses.
Establishing Legal Reserves
Designate sufficient working capital, lines of credit or shareholder commitments to fund legal expenses through resolutions. This financial padding helps maintain smooth operations during disputes and reassures partners of stability.
Securing Operations During Disputes
To insulate business critical functions from litigation-related instability, cross-train multiple employees for key responsibilities and implement systematic process documentation. Have trusted deputies ready to seamlessly support operations if lawsuits divert leaders’ attention.
Looking Ahead Positively
Despite temporary setbacks from legal challenges, keep sight of the big picture:
Learning from Challenges
Let abrasive situations strengthen your commitment to ethical, lawful conduct, however difficult falsely maligned. While acting with integrity carries no guarantees, clear conscience from modeling principles of honesty and respect yourself is its own reward.
Making Processes Bulletproof
Use past legal threats as inspiration towards ever-improving development practices and self-audits confirming adherence to laws and best practices. Build air-tight systems preventing avoidable claims.
Staying Focused on Your Vision
Finally, stay encouraged and focused on fulfilling your creative dreams despite periodic distractions. With sound preparation, perseverance, and perspective, you remain well-equipped to navigate challenges while building outstanding indie games that deliver joy.
