Burrow fails to Crush Digital Media

How pleasant to write about something which contains the word "Digital" but lacks the word "Economy". On Wednesday, Mr Justice Norris (Chancery Division, England and Wales) gave his ruling in Burrows v Smith, Crush Digital Media Ltd [2010] EWHC 22 (Ch), an interesting little copyright/breach of confidence dispute.

Burrows, a computer game designer, alleged that Smith, a director of his former employers Circle Studio Limited, (i) infringed his copyright in a game called "Traktrix" which he had proposed to them, or (ii) committed a breach of confidence by trying to exploit a substantially revised version of the game (Crush, the second defendant in these proceedings, was a company formed by Smith and which purchased some of Circle's IP rights from the liquidator. It too has since gone into administration).

On the facts Norris J found that Burrows lost on both scores:

* Burrows argued that Circle had copied significant parts of his original document which recorded the concept for the game in a later design document relating to it. Nobody at Circle knew of the original document and, if the design document did indeed incorporate parts of it, it was because Burrows himself incorporated them.

* there was no breach of confidence since the proposal for "Traxtrix" was not disclosed in circumstances importing an obligation of confidence; in disclosing the idea, Burrows was only doing what he was paid to do as a games designer; there was no evidence that he told Circle that it was an idea that he had thought up before joining Circle.

The question arose as to whether the court might imply a licence on the part of Burrows, if he had incorporated parts of an original document into Circle's later document. No, said the court, this would be no more than a unilateral act on Burrows' part, which Circle didn't even know about.

Serious IP readers can stop here. However, some of you may be wanting to know what Traktrix game was all about. Fortunately the judge told us:

It was to move a ball from one side of an environment to another by laying a track or path in front of the ball as it continuously rolled. The pieces of track or path were randomly provided and the player had to improvise the course: and the ball would encounter obstacles (such as gates or hoops or holes) that would have to be overcome (e.g. by making the ball hover or by filling in a hole with concrete). As the game progressed the environments became more complex to navigate, the ball speeded up and the track pieces were provided faster. The idea was not entirely novel and contained no wholly unique feature. It combined elements drawn from other games. Mr Burrows himself described it as "Marble Madness meets Tetris/Wetrix and a Scalectric track" and "Super Monkey ball meets Tetris".