Read the Tea Leaves Software and other dark arts, by Nolan Lawson

I posted the short version of this story to Pokédroid’s page on the Android Market:

Pokédroid will be removed from the Android Market shortly.

A legal representative of The Pokémon Company has responded to me via email. He has confirmed that TPC would like Pokédroid, and all similar apps, to be removed from the Android Market.

TPC’s stance is apparently that they don’t want any Pokédex or Pokémon-related apps at all for the Android platform. They feel that such apps infringe upon their copyrights and compete with the print versions of their strategy guides.

While I disagree with this decision, which I believe is detrimental to the interests of both Pokémon fans and TPC alike, I have decided to comply with their request. Thus, henceforth I will cease all development on Pokédroid and remove it from the Android Market.

When this page goes down, please visit my site (www.nolanlawson.com) for more information. I will _not_ host the APK there.

It has been a pleasure to serve the Pokémon community. I hope you had as much fun using Pokédroid as I had writing it.

– Nolan

Going through this whole process of being targeted for copyright infringement, trying to fight it with argument and persuasion, and eventually being defeated has been a strange odyssey for me. I’ve learned a lot about how IP enforcement actually works in the real world, and I’ve lost a little bit of my naïveté. I’ve also lost the hundreds of hours of work I put into Pokédroid, and I’ve let down my 400,000+ users. It’s been humbling, to say the least.

When Pokédroid Donate was first taken down by Google, along with a dozen other Pokémon apps, I was not very surprised. I figured that either Nintendo was trying to crack down on paid Pokémon apps, or they were targeting blatant copyright infringements like wallpapers, games, and soundboards. I assumed Pokédex apps, which are really just strategy guides, would be safe.

Google sent me a copy of the original DMCA takedown notice from The Pokémon Company (which is an affiliate of Nintendo). But the fact that it listed my app, Khiry Arnold’s “Poké Pal”, and Stephen Willey’s “Pokédex” among a dozen-odd wallpaper and soundboard apps seemed to me like a mistake. Anyway, the notice itself looked very hastily thrown together – it was obviously the result of an entry form on Google’s website, and some of the app names were even misspelled. (“Pokédroid” was listed as “Pokédex,” although they spelled my name right.)

So when I started trying to get in contact with The Pokémon Company to rectify the problem, I figured the stakes were low. The free version of Pokédroid was still on the Market (probably due to an oversight from Google), and I couldn’t imagine TPC would want it removed. So I felt like I was mostly fighting for Khiry and Stephen, whose apps had been forcibly removed by Google while mine was overlooked. I had the most users out of the three of us, and therefore the most clout, so it seemed the responsibility had fallen on my shoulders to clear up the misunderstanding. Sort of like I was representing the Pokédex App Developers Union or something.

I honestly thought that the content of the apps was uncontroversial, and that as soon as I could get in touch with someone at TPC they would rescind the takedown immediately. I mean, there are plenty of fansites that offer the exact same content as Pokédroid, and nobody seems interested in taking those down, so why would Android apps be any different?

I did worry, though, that TPC might frown down upon monetizing our apps. So to be on the safe side, I deprecated Pokédroid Donate, which had only distinguished itself by including the “shiny” sprites anyway, and added the shinies to the free version. Now I felt Pokédroid was scrubbed clean of anything even slightly questionable – it was a free (and ad-free) app, with no content that couldn’t be found at a half-dozen popular fansites, and to boot I had gotten written permission from all the people who had given me their data (mostly Marriland, but there were a few other FAQ authors as well). A perfect representative of our little Union.

So like a fresh-faced Jimmy Stewart going to Washington, I penned the following polite email to TPC:

Hello,

I’m the developer of the Android Pokédex app “Pokédroid.” A few days ago I received an email from Google explaining that my app was to be removed from the Android Market due to a DMCA takedown notice from The Pokémon Company (see attached). Several apps are mentioned in the notice, including “Pokédroid” and other similar Pokédex-style strategy guide apps.

Could you please explain why The Pokémon Company is targeting these particular apps? My understanding was that they fall under the category of “fair use,” in that they function as strategy guides (i.e. research) and are not directly competing media. Furthermore, there are plenty of iPhone apps and web sites (such as Bulbapedia and Serebii.net) that offer the same content, so I’m perplexed as to why Android apps were singled out.

To be fair, many of the apps mentioned in the notice are clearly copyright-infringing – e.g. games, wallpapers, and soundboards. I can understand your desire to have these apps removed. But strategy guide apps, to me, do not appear to fall into the same category.

If this was indeed a mistake, please notify Google so that they can restore these apps to the Market. Hundreds of thousands of Pokémon fans use these apps as a resource when playing your wonderful games, so I’m sure that having them back in the Market would make those fans very happy.

If not, then I will be happy to keep “Pokédroid” off the Android Market, per your wishes.

Thank you for your time.

Sincerely,
Nolan Lawson

For two weeks I received no response. I sent multiple emails and even left a voice message at TPC’s company phone number. Then finally, after finding the phone number of one of their lawyers and leaving a message there, I received this email:

Nolan:

I’m the position omitted for The Pokémon Company International, Inc. I’ve been given to understand that you’re trying to reach someone at TPCi to try to get some information about Pokédroid and Pokédroid Extras and more specifically about why we asked Google to have them removed from the Android Market. Since you’ve reached out to us and been reasonable about this, I wanted to take a moment to write you back and give you some insight into our thinking.

By way of background, and sorry but I do have to get legalistic for a minute, you have told us that you think your apps are fair use. Unfortunately that’s not the case. There are lots of websites that purport to give information about what is and isn’t fair use, but I find one good summary is from the US Copyright Office at http://www.copyright.gov/fls/fl102.html. Under US law all uses of a copyrighted intellectual property by anyone other than the owner of the IP are presumptively illegal, and it’s up to the person using the IP to demonstrate that their uses are permitted. So fair use isn’t an affirmative permission to do something, it’s a defense to an action that is otherwise illegal, which means that it’s your obligation to prove that you should be allowed to make apps based on Pokémon and unless you can prove that you’ve got a legal right to do that, your apps are infringing.

One thing that’s not commonly-understood by fan communities is that the owners of the Pokémon IP have the right to decide not to put this IP into the Android Market or anywhere else. Put another way: if we don’t create our own Android Market app, that’s not an invitation to other people to fill what they perceive as a gap, it’s a decision that they have to respect. You may think that Pokédroid and Pokédroid Extras don’t compete with our print strategy guides like the one for sale at Amazon (http://www.amazon.com/Pokemon-Black-Version-White-Official/dp/0307890600/ref=pd_sim_b_1) or the one available for free at our website www.pokemon.com. But as you can see from the Copyright Office link that’s not the only criterion in the test, and even if it was I’d have to say we don’t agree, and in any event we have chosen not to allow any Android Market apps for Pokémon.

I hope this helps you understand the situation and our position. I can’t ask that you agree with me, although I’d hope that after you’ve read this you’ll know that we didn’t act capriciously or lightly. But I do have to ask that you take Pokédroid and Pokédroid Extras out of the Android Market and not upload them anywhere else. Could you confirm to me by return email that you’ll do that?

I hope that you’ll find another way to contribute to the Android app community. Given how skilled you are at app development, I don’t think it will take long.

Name omitted

Needless to say, I was shocked. Were they serious? Why would Nintendo target apps that do the exact same thing as a half-dozen fansites, which they’ve never attacked before? (To be fair, TPC has attacked fansites in the past, but only for small portions of the content they publish.)

I’m not arguing that Nintendo doesn’t have the right to act in this way. They can do pretty much whatever they want with their own intellectual property. IP law, taken to its logical conclusion, means that they can prohibit me from whistling the Pokémon theme song as I walk down the street, for instance. This is kind of a silly example, but I’m just pointing out that determining IP infringement is not clear-cut. For this reason, most companies choose to act judiciously when they enforce IP, because too much enforcement could be dismissed by the courts or cause a backlash from fans. They have to find a middle ground.

And in the case of Pokédroid, IP enforcement seemed to me like a clear lose-lose for Nintendo. If there are no mobile Pokédex apps, then that seriously reduces the value of every Pokémon game that Nintendo publishes. Gamers love strategy guides because they increase their enjoyment of the games. Imagine if a resource like Bulbapedia were taken down – so much of the fun of playing Pokémon games would be sucked out of them! And it’s the same with mobile apps. Undoubtedly, taking down mobile Pokédex apps would cause fewer people to buy Pokémon games in the future, and Nintendo/TPC would suffer. They might sell more $10 strategy guides, but they’d sell fewer $30 games. They’d lose money.

Alternatively, TPC may be thinking of releasing their own app, which would explain why they’d want to eliminate competitors. But even that reduces quality for consumers. Undoubtedly TPC would release one monolithic app with a limited feature set, and if some fans wanted different features or a different presentation, then tough luck. With a lot of competing apps, though, choice is increased for consumers and everyone’s more likely to get what they want. This was already happening with “Poké Pal,” which was an app geared more towards serious, competitive players than my own. It was a free app, and it excelled in its own way, while Pokédroid excelled in other ways. Consumers could download one, the other, or both. Everybody wins.

I sort of doubt that TPC or Nintendo will release their own app, though. If anything, the author of this email seems to be suggesting that Nintendo is deliberately leaving a “gap” in the Android Market, and that I need to respect their decision to keep it that way. Similar to when Nintendo shut down that fan-made Zelda movie, or when Square Enix shut down the fan-made Chrono Trigger sequel, no replacement is intended. IP enforcement can be somewhat mindless in its destruction. I like to picture it as a grumpy old coot, waving his cane at those pesky neighbor kids when they’re having too much fun on his front lawn.

So at this point, reading the email, I kind of glumly realized that the game was lost. There was probably no way to convince TPC to take back the original DMCA notice. I felt a little frustrated that I had provoked them in the first place, since, if I had just done nothing, Pokédroid might have stayed on the Market awhile longer while they shuffled their paperwork around. But by buzzing in his ear, I had invited the giant to swat me down. It seemed there was nothing left for me to do but bow to their demands.

I wanted a little more clarification about their motivations, though, and I also hoped I could make an emotional appeal for them to reconsider. So I wrote the following:

Hi Name omitted,

Thank you so much for your response. I really appreciate you taking time out of your day to help explain these kinds of issues to me, especially since (as a layman) legal matters are obviously not my area of expertise.

I think I have a better understanding now of what is meant by “fair use.” I understand that TPCi has complete legal right to their intellectual property, and that therefore any third-party use of that IP is considered to be infringement until proven otherwise. Also, I’m perfectly willing to take down Pokédroid and Pokédroid Extras from the Android Market and not upload them anywhere else, per your request. In case you were wondering, the reason it’s still on the Market is because Google did not take it down themselves, probably due to an oversight on their part. I was confused about the situation, and so I left it up until I could get word back from your company.

I have to admit, though, that I’m surprised by TPCi’s decision, and I’m hoping you could tell me a little more about the motivations behind it. Specifically, why Android apps? To my knowledge there are about a dozen Pokédex apps for iPhone, and many of those are even paid apps. There are also popular web sites such as Bulbapedia and Serebii.net that offer similar content. Does TPCi plan on removing those sites and apps as well, or is there a specific reason that Android apps are being focused on? I’m not asking this in order to play “gotcha,” or to make some kind of “two wrongs make a right” argument; I’m honestly just trying to understand TPCi’s position on this issue. After having put several hundred hours into developing this app, I think it’s reasonable for me to want to know a little more about your company’s decision before shutting it down for good.

Also, I realize it’s sort of a “children’s letters to Santa Claus” argument that doesn’t carry much legal weight, but I do hope you’ll read some of the reviews for Pokédroid: https://market.android.com/details?id=com.nolanlawson.pokedex. Ever since I mentioned that the app might be taken down, there have been lots of comments expressing sadness and frustration over the news. Pokédroid has over 420,000 users, and it honestly saddens me to think about taking away what is obviously such a valuable resource for them.

Thank you again for your legal advice and courtesy towards me. I hope you know that, as a longtime Pokémon fan, I offer TPCi the same courtesy and will bow to any of its wishes regarding its own IP. But I also hope that TPCi will consider alternative solutions to this problem.

Nolan Lawson

The next day, I received the following response:

Nolan:

Not a problem to respond, and thanks also to you for your reply. It’s certainly not unreasonable for you to ask for a bit more background. Unfortunately and as you can probably imagine I can’t really discuss the specifics of other situations or other apps, except to note that we’ve sent a fair number of notices recently, will be sending some more, and if there are people out there who aren’t as great about this as you have been they may receive a slightly different form of communication from me. But you shouldn’t feel singled-out at all, and it’s not just Android apps. Apple has a slightly different approach to these kinds of things than Google does and so their process takes a bit longer to operate, for example.

Thanks again for your reply and for your understanding here.

Name omitted

He’s obviously not letting on very much here. He isn’t recognizing the contradiction in targeting Pokédroid while leaving Bulbapedia and Serebii up, and he doesn’t really explain why TPC has suddenly decided to go after mobile apps. The evasiveness of his answer was kind of a letdown for me, although I can understand why the legal team would want to keep mum about such things.

He’s also being very diplomatic about all this, which I appreciate. But I do detect a sort of “good cop” routine going on here (“as great as you,” “how skilled you are”), with the thinly veiled threat of the “bad cop” waiting in the other room in case I don’t play ball (“a slightly different form of communication”). He’s left little room for debate – the impetus is clearly on me to either follow directions or face the consequences. No response to my heartfelt Miracle on 34th Street reference, and no response to my suggestion to seek alternative solutions. I suppose I naïvely thought he might be touched by all the user comments, but it seems not.

So that’s pretty much the whole score. Nintendo: 1; me: 0. I wish I had the courage to fight this battle, but I searched my soul and came up empty. It just doesn’t seem worth it to me to stick out my neck and try to stop Nintendo from attacking their own customers. Also, I could do more harm than good if I continue this line of argument with them. I was worried enough that, when I mentioned Bulbapedia and Serebii, the lawyer might respond, “Hmm, shut down Bulbapedia and Serebii? Not a bad idea.” At a time when TPC’s legal team is clearly on the rampage, the last thing I need to do is draw attention to myself or anybody else. It’s like the T-Rex in Jurassic Park – stand still, and he might just leave you alone.

On a personal level, though, I’m deeply disappointed with this whole result. Although I haven’t been the most dedicated Pokémon fan (I tried but couldn’t really get into the newer games), I’ve poured my heart and soul into Pokédroid. In terms of Android app development, it’s my magnum opus. I put deliberate care into every inch of the interface, every function call in the code, every UI design decision.

Pokédroid might not look pretty (I don’t have an eye for design), but there are little touches that improve the experience in ways the user might not even perceive. For instance, the buttons’ “onClick” methods load in the background, so that the UI doesn’t slow down. The voice search uses string edit distance to try to find approximate matches. The moves and locations use dropdown lists, because I wanted to keep the interface clean and uncluttered. The “advanced search” uses optimized SQL indexes for the fastest possible searching.

All of these are things I put time and effort into, to please my 400,000+ users. I’ve spent hundreds of hours trying to improve Pokédroid, which, even with all my donations considered, was done at below a minimum-wage rate. And yet, I don’t regret any of it, because (and I’m going to get a little mushy here) I know Pokédroid has brought a little ray of sunshine to so many people’s lives. As of today, it’s in the top 50 free apps in the “Entertainment” category, it has a perfect 5-star rating, and it has hundreds of comments from satisfied users, all expressing how much joy, delight, and amusement Pokédroid has brought to them.

To say that this gives me the warm and fuzzies would be an understatement. In fact, Pokédroid was a great psychological boon to me, as I left the safety of college and entered into full “quarter-life crisis” mode. I wondered: What was my contribution to the world? What had I done to justify my existence? With Pokédroid, I could always point to it and say, “Right there. 400,000 people who got a kick out of my app. 400,000 people who reminisced about the cartoon show, looked up stats for their competitive team, or just giggled at the silly text-to-speech feature. 400,000 smiles. That’s what I’ve done for the world.”

I’d like to close this article with some of my favorite reviews from the Android Market. The fans are the reason I kept working at Pokédroid, and they’re the ones who gave me feedback and criticisms that helped me fix bugs, retool the user experience, and correct glaring flaws. I want to thank them for giving me a really cool project to work on for the past year, and for giving me lots of insights into application development. Thank you all.

• this is the most amazing app i have ever seen, ive always dreamed of having a dex on my phone. i love you man<3 – Jonesyruless
• Now i can trump my kids with my mad pokemon knowledge – Lisa
• Kids love the talking pokedroid. Its a must have for any Pokemon fan! 5 stars – Ash
• Is super great and I would buy the donate version but my mom said no haha but as soon as im off her plan I will if I still play Pokemon – Steven
• I am donating asap. And I NEVER donate. Not to the homeless, friends in need of a buck for gas, never! – Philippe
• Love it! Showed it to my office mate and we started getting all nostalgic – Lumpy
• Why I bought Android – Nick
• My 5 yo daughter loves this. – Eric
• This app has amazing info, and the voice is hilarious! – Sean
• I was out in the wild and a pokemon appeared. My friend asked me what it was but i didnt know. So i took out my Pokédroid and identified it! – Dal
• I absolutely LOVE this app! My friends have become jealous and they want an android phone JUST for this app! Genius! ^_^ – Abigail
• Incredible! This app has single handedly justified my Droid purchase. Please add egg moves! – |3reak
• Thank you Thank youThank youThank youThank youThank youThank youThank youThank youThank youThank youThank youThank youThank youThank youThank youThank – Wonton
• This is well cool. My friend’s all want android phone’s just for this app. :-) – Max
• My daughter loves this app. Just like a pokedex from the cartoons! – Jessica
• My son loves this keeps him occupied for ages – Lorna
• Wow, this is simply awesome, no words to describe.. it just feels very special for some reason!.. thank you! =] – Cloud
• I bought a Droid for this app! I love it. Keep up the good work. – Timothy
• A real Pokedex? I love the future. – Craig
• Would give it 1000 stars if I could, what an elaborately designed app. Thank you for sharing for free! – Zach
• I use this pokedex on the regular. Helps with all versions. I am in college and I still use it to settle disputes. Great app. A+ – Dietrich
• Fantastic! Work at gamestop and this app has gotten me some sales haha def donating. Game specifucations would be nice tho – Victoriano
• I cant imagine playing the games w/out this app. I use it whenever i am in battle to help me choose what pokemon to use. Cant wait for b and w update. – Cameron
• Being a programmer it takes alot to get 5 stars but he earned this – Jonathan
• Awesome! My kid loves the black & white update. Really useful, and free! – Paul
• Good resource! Great for keeping up with my 7 year old daughter ^^ – Midd
• This is the best Pokédex app that is out there. It makes me feel like I’m part of the show. – Kohaku
• Since the moment I downloaded this months ago I’ve loved it. The latest update makes the interface lightning fast and pretty much flawless. – Daenym
• Thanks for B/W update! Scrolling is PERFECT now!!! Thank you for voluntarily working to satisfy such a prissy bunch of people! – Sidney
• Perfect app for a beginner or veteran. Now I can stop getting on the PC to look up new Pokemon I haven’t heard of! – Frogmum
• Best app on my phone – Tom
• Childhood dream come true… enough said – Kevin
• Not only is it a great app but the customer support is tops as well – Christopher
• This has got to be the funnest/greatest app ever!! Absolutely in love w/ it! – Denise
• So convenient! Considering that bulbapedia is down half the time! – Kathy
• Best thing ever – Daniel
• I love this app! Easy reference to help me train my pokémon in the best way possible! Plus getting to freak out my friends w/ random pokémon cries! – Bryan
• 10 out of 10!!!!!! This is by far the most comprehensive pokedex I have ever seen. Fast, easy to use. Settings for different versions (Great for when I play Black and by daughter plays Platinum). Consistent updates. If you have not already downloaded this and the extras bundle… then you are dumber then a Magikarp! – Wayne

UPDATE: I was in error when I wrote this post. Apparently, all Pokémon-related Android apps were cited in the DMCA takedown notice, not just paid ones. Every Pokédex app has been removed by Google except for Pokédroid and Pokédex Companion. It’s not clear why.

Today I received an email from Google explaining that Pokédroid Donate was removed from the Android Market due to a DMCA takedown notice from The Pokémon Company (a subsidiary of Nintendo). The email begins:

This is a notification that the application, Pokédroid (Donate) with package ID com.nolanlawson.pokedex.donate has been removed from Android Market due to a violation of the Developer Content Policy. Please review the Content Policies and Business and Program Policies before you create or upload additional applications. Note that repeated violations may result in a suspension of your Android Market Publisher account.

Mine wasn’t the only app removed – in total, about a dozen Pokémon-related apps were cited in the DMCA notice. These include “Poké Pal Donate,” “Pokédex,” and “Who’s That Pokémon?”, among others. Apparently only paid apps were targeted; the free versions of Pokédroid and Poké Pal, for instance, were not mentioned.

In response, I made an update to Pokédroid and added the following text at the beginning:

Google has removed Pokédroid Donate from the Android Market, due to a copyright claim by The Pokémon Company. In fact, all paid Pokédex apps (Poké Pal Donate, Pokédex) were removed. Free apps were not affected.

In response, I am adding the shiny sprites to Pokédroid for free. To the people who already paid for Pokédroid Donate, I apologize for the sudden bait-and-switch. So you won’t feel like you wasted your money, I am hereby donating all proceeds from the month of May (about $150) to Doctors Without Borders.

I disagree strongly with what The Pokémon Company is doing. It hurts Pokémon fans the most, because they are the ones who benefit from having a variety of apps on the Market. Also, the apps don’t even threaten Nintendo’s bottom line, because they’re strategy guides and not competing games. However, there isn’t much I can do, because Nintendo is a powerful company and I’m just one guy.

Please keep in mind that your donations sustain my interest in developing this app. You can still donate via PayPal at my website: nolanlawson.com/donate.

Thank you for using Pokédroid, and stay tuned for more updates! I have some very cool features in the works, and I will try to get them to you despite these legal hurdles.

– Nolan

And for the “pics or it didn’t happen” crowd:

Mostly what I’m doing here is damage control. Nintendo has backed me into a corner, and I’m too sheepish to fight back. So I’m just doing what I assume they want me to do – make Pokédroid 100% pro bono. But since this will irritate people who already bought Pokédroid Donate (and who are therefore my best and most enthusiastic users), I’m also doing the donation as a show of good faith.

This is my own, somewhat cowardly reaction to the news. I’m not sure what other app developers will do. I’m in contact with Stephen Willey, the developer of Pokédex, and Khiry Arnold, the developer of Poké Pal, but neither seems to have decided what their strategy will be. Admittedly, we’re all in a bad predicament. I feel especially sorry for Khiry, because he had just started doing a freemium model like me, and his app was really spectacular in terms of depth and detail.

Of course, none of these deleted apps really violate fair use, insofar as they might compete with Nintendo’s core product. There’s nothing about a strategy guide or a silly “Who’s that Pokémon?” quiz that diminishes anybody’s desire to go out and buy the next Pokémon game. If anything, these apps actually increase interest in the product, because they add value for current Nintendo customers and encourage them to learn more about Pokémon. And if nothing else, they’re free advertising.

But this is the tragedy of current copyright law. Presumably, Nintendo took out its copyrights to protect against blatant infringements, like game piracy. But here instead it’s using its IP to attack the Pokémon fan-developer community, at great cost to its customers and, indirectly, to itself. To be fair, though, none of this is really Nintendo’s fault. They’re just operating within the mad logic of a broken system.

People who know me personally know that I am very skeptical of copyright law and intellectual property in general. I tend to view patents and copyrights as government-enforced monopolies that drive up prices, reduce choices for consumers, waste money on litigation, and stifle more innovation than they spur. For your own interest, and to challenge any assumptions you may have about IP, I recommend reading these articles: here,
here, and here.