A legitimate version of the game, titled "Lugaru HD," is available on the App Store for $9.99. The pirated version, simply called "Lugaru," is currently selling for $1.99 [formerly 99 cents]. The seller is listed as Michael Latour and iCoder.
Alex Matlin of iCoder told Kotaku that it has "every legal right to market and sell the software," citing that the game went open source in March. "The license we were granted allows for non-exclusive redistribution of the source code or the compiled product, modified or unmodified, for a fee or free of charge," he said.
Wolfire disputes the claim, saying rights to the code doesn't equate to the rights to sell the game. "The license made it very clear that the authors retained all rights to the assets, characters, and everything else aside from the code itself," wrote Jeffrey Rosen. "It's as legal for them to sell Lugaru as it would be for them to sell Quake 3, Marathon, Aquaria, or Arx Fatalis. That is to say, it is completely illegal."
Rosen points to a blog post, published shortly after Lugaru went open source, explaining the difference between open source software and freeware.
This also raises concerns regarding the open source community. "This incident may make developers much less likely to release the source code to their games," wrote Rosen. "Even if Apple takes the counterfeit game down tomorrow, that is theoretically a week of sales down the drain. While Lugaru is a very small title on the App Store, there's no reason why it couldn't happen to bigger ones, and that represents an enormous loss of revenue.
"While released source code in no way makes it legal to sell someone else's game, it is apparently enough to make scammers think they could get away with it, and that may be enough to discourage other developers from risking it."
We've reached out to Wolfire for comment and will update as the story develops.