Nintendo sued Lewis Galoob Toys, Inc with the belief that its Game Genie device infringes on Nintendo's copyrighted games, by creating derivative works each time it is used in conjunction with both the Nintendo console and corresponding games. The District Court however, did not agree with Nintendo on this matter. Upon examination of the way in which the Game Genie interacts with both the Nintendo games and the Nintendo system, it was found that the device only serves to temporarily "enhance" said games, and therefore does not infringe upon Nintendo's existing copyrighted material. Not only was there no permanence, but the Game Genie was found to merely interfere with the signal between the Nintendo system and the game itself, which would not allow it to alter the source code of the game being played.
Nintendo appealed with the argument that the Court should focus on the visual elements produced, which they claimed to be derivative works. The court discusses the fact that improvement is laudable, while replacement is not. The spell checker for a word processing program is used as an example of a positive improvement/enhancement. And with that, the subject of fair use was taken into account, and the functions of the Game Genie were scrutinized in relation to the four factors that allow for fair use to be claimed. If in fact the Game Genie was determined to create derivative works, then the question was, would they be allowed under the factors of fair use?
The out come was a positive one for Galoob. The Game Genie's temporary derivative works were determined to be non-commercial, and they were not found to cost Nintendo any loss of profit. Therefore, no injunction was granted to Nintendo.
This case is an interesting one because of the fact that the Court discussed the coding of the games, which proves that there is a growing understanding of such technology among court officials. In addition, it shows a progression of Copyright law which allows it to accommodate new technologies.

"Moral Rights for Authors and Artists." Information Today; Jan2002, Vol. 19 Issue 1, p17, 2p

Stephanie Ardito summarizes the background of moral rights for intellectual property in the United States with emphasis on the Berne Convention of 1886.  Beginning with an example of a court ruling against Samuel Clemens, she shows how laws in the United States have changed over the past hundred years and where they are likely heading.
            Moral rights have been absent from US law for the most part but have origins in international trade conventions such as The Rome Act of 1928 and the Berne Convention of 1886.  Both agreements contained articles pertaining to moral rights for authors different from the American style copyright.  Ardito examines article 6b of the Berne convention and its three parts with regard to length of time, economic right, and governing set of rules.
            Ardito points out that no national law explicitly mentioned moral rights for literary or digital works, but through various state laws, the US was allowed to join the Berne Convention.  In summary, moral rights for authors are limited in the United States compared to a large part of the rest of the world.  Other countries use the Berne Convention as a guide whereas the US seems to have limited desire to give ‘moral rights’ to the creators of intellectual property.
            This applies to my thesis through a comparison to the rest of the world.  US copyright law and doctrine is rather unique with an absence of moral rights, a fair use doctrine, and a resistance to the Berne Convention.  Despite this, the United States has a strong desire to expand into the global economy.  The bare minimal participation in the Berne Convention seems to satisfy US copyright culture, as current practices can be maintained while joining the global community.

 

This article discusses the rise of computer software technologies and the challenge of protecting intellectual property that is a result of such technological advancement. While Dam believes that copyright and patent law in its present form (within the year 1995) is a definitely sturdy basis for dealing with and understanding these issues, the strict definitions of transformative and substitutive work must be carefully taken into consideration. The life of software is not necessarily long enough to constitute a new patent for each body of work represented. Dam goes on to discuss the controversies over software copyright protection. There is a thin line between copyright of ideas, and the copyright of software, and this aspect of Dam's article is of most interest to me regarding my paper. The idea that Copyright law is loose enough to be interpreted allows for the examination of new technologies. However, Dam believes that the sui generis approach is not useful because of the 1984 statue on computer chips, and questions regarding the competency of lawyers and judges to determine the law when it comes to rapidly changing technology. The question remains relevant to my paper because along with rapidly changing technology comes the need for legislation that will accommodate it. Determining the economic need for intellectual protection within this article shows that there were so many unanswered questions during the rise of software, and whether or not copyright was useful at all. This of course is contrasted with actual cases within my paper, in which copyright was indeed proven necessary for video game software. However, it is important to gain the perspective of those in various fields in order to make an educated guess.

Another monumental case in which Williams Electronics sues the company Artic International for making a video game that was nearly identical to Williams Electronics Inc's popular game, Defender.
The game Defense Command was determined to be nearly identical to Defender in both the "play mode" in which the player gains control of the character, and the "attract mode" which is defined by the screen that displays before the coins are inserted. Artic's defense was that there was no "fixation" as far as the audio and visual effects presented on screen were concerned. When a person plays "Defense Command" whether in attract mode, or play mode, the person changes what is occurring on the screen, and so there is an element of transience to the images and sounds presented to the player (even though said changes are infinitesimal). Essentially, Artic made the argument that each player is a co-author of his individual game. The Courts however, did not accept Artic's argument of transience.
It was concluded that Artic's claims were not sufficient, considering that within the play mode, there was enough repetition of audio and visual material that the little difference made by the interference of the player was insignificant, and within the attract mode, there was basically no player manipulation.
The most important aspect of this case, which relates significantly to my paper is fact that this case brought into question whether or not ROM was copyrightable. Artic claimed that by initiating the case, Williams was arguing that ROM was in fact not only a machine part, but intellectual property. Still, the Court dismissed this claim as the ROM was said to merely prove fixation, and that it was not copyrightable. Artic also argued that it copied object code, rather than source code, making this case groundbreaking on another level. Copy of object code would not have infringed upon copyright, considering it was un-copyrightable. It is important to note that in order for a decision to be reached, the Court had to deliberate and almost translate existing copyright law in order to reach a conclusion and counter argument to match Artic's claim. The case ended in favor of Williams, because the Court was able to study existing Copyright law in order to accommodate the technology.

Serving as a focal point to my paper, this work entitled "The Adaptation of Copyright Law to Video Games" discusses the growth of competition that is a result of growth within the video game market, and the desperate need for copyright law that will accurately protect video games against infringement. Hemnes considers how copyright law may not accurately represent the creativity that goes into creating video games, as the Copyright Act does not protect games, method of operation, ideas, and so on. All in all, there were at the time of this publication, definite limits to copyright in terms of software protection. Hemnes goes on to describe each "blackletter law" of the copyright act in relation to video games, starting with the law that games are not protected under copyright provision. There is a certain problem in that a game can be considered "unoriginal" in that it has certain "obvious" elements to its game play, such as a car in a racing game, or lasers within a space game. However, Hemnes notes that the programming behind such aspects is of utmost importance, and should be regarded as copyrightable material in that it required hard work and skill on the behalf of the programmer.
Hemnes used several cases to illustrate his point that in most early cases, video games are either over or under-protected. Cases such as the Pac Man or Galaxian cases are used as examples in which copyright law applies differently to video games than it would to another medium, such as literature. Although not mentioned within the text, the novel "The Wind Done Gone" is an example of a derivative work that could be considered to have undergone a similar case. However, while the novel was considered fair use, the speeding up of the game Galaxian was not.
What is most important, Hemnes argues, is the preservation of originality and expression of ideas, which in his conclusion he believes could be better achieved through more careful analysis of the effects that video games have upon elements of the fair use doctrine. Considering my paper focuses on the ever growing complexities of video game and computer game software, it is important to take into account early video game cases and the obvious flaws in their litigation.

Atari v. North American Phillips Consumer Electronics is a primary case in determining video game copyright law. Atari/Midway sued North America Phillips Consumer Electronics on the ground that their game, K C Munchkin directly infringed upon Atari's original, copyrighted game, Pac Man. Pac Man was copyrighted as an audio visual work, and so the very fact that KC Munchkin possessed similar visual and aural elements, not to mention near identical game play , was the basis for the lawsuit. The case beings by describing in meticulous detail, the copyrighted work of Pac Man, from the shape of the pixilated creatures, the position of the "gobbler", right down to the number of "power pellets" on the maze-like playing field. Conversely, aural and visual elements of the accused KC Munchkin game were also painstakingly reviewed down to the smallest detail. Minute differences, such as the number of dots/power pellets, and the position of the "gobbler" at the initiation of game play, are heavily scrutinized. While there were found to be evident similarities in so far as both games display the same basic element (such as a mina, "gobbler" character, ghostlike enemies, pellets, maze structure, etc.) the court concluded that there were enough differences between the games that an injunction was not necessary. The court maintained that differing elements such as the personification of the KC Munchkin character, the different sounds and even the fact that the KC Munchkin ghosts were "spookier" were enough to make the games significantly different. The factor that games are not protected under copyright law was a rather large issue, and so there was credit given to the artistic visual aspects of the game. In addition, the question of how much of the elements of the game were original and artistic, and how much of them were common sense, was also a big factor. The graphics also came into discussion, with the belief that the technology simply could not allow for drastic distinction between characters.
However, with an appeal, Atari was in fact able to take KC Munchkin off the market. The court employed the "ordinary observer test" and concluded that even though there were differences between the games, to the average player there would really be no distinction (nor care) for differences between the games "artistic expression".
This case is extremely important to my paper because within it are various examples of the way in which video games can be misinterpreted, and the complications that can arise from such interpretations. Labeling Pac Man as an audio visual work, along with the fact that source code is not mentioned at all within the case are very important factors to my paper. How can copyright define a video game? Also, visually, the court determines the similarities between both games as a fault of the graphics, and this is certainly something that can not be said of later games, as technology advances.