Konami v. Spec Computer K.K. (Osaka High Court, Apr. 27, 1999)
In this Japanese court decision, Spec Computer is sued (this is the appeal) by game manufacturer Konami for copyright infringement. Spec Computer loses and is forced to pay Konami. Konami had created a game that simulated a love story, where the player/main character would progress over a specific set of days, building personal "stats" and romantic relationships. Spec created a memory unit that could boost a player's stats and start the game at any point in the game's calendar. Konami argued, and the court agreed, that this action changed the essential contents and purpose of how the game was meant to be enjoyed, thus infringing upon the author's "right to preserve the integrity of a work." The case is similar to the Nintendo of America v. Lewis Galoob Toys case in the US, where Nintendo challenged Galoob's right to produce the Game Genie (which did basically the same thing as Spec Computer's product); Nintendo lost. Yet in Japan, the original game creator won out over the party who created the means to modify it. When comparing these two cases, it seems as if Japanese copyright law is enforced more strictly than American.

As other sources indicate, Japanese anime and manga artists happily live with fan-made comics starring copyrighted characters (called dojinshi, or doujinshi). In fact, much of the talent and creativity within the industry can be attributed to artists starting out in the dojinshi field. But in Konami v. Spec Computer it is clear that such infringement is technically against Japanese law as much as it would be against American law (even more so, given this case's similarity to Nintendo v. Galoob). So it is not the law that dictates the products of Japanese fan-culture, but rather common opinion and recognition of the positive effects to come out of certain forms of infringement.

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.

My project is based on the fact that while Copyright law is forever being tranformed by new advances in technology, it is the meduim of video games that most heavily influence changes within copyright law. Video Games not only rely upon strict definitions of source code, and object code like computer software does, but the determination of what should be copyright protected and what should not, is also heavily determined by the audio and visual aspects of the games, along with graphics and plots that must be non infringing as well. While the same applies for computers and computer software, early video game cases brought forth these various definitive questions immediately upon their integration into the mainstream. My paper focuses on several of these cases in order to determine why and how they were so influential to media related copyright law as we know it today.

Merger and the Machines document the issues of compatibility regarding both computer software and video games. Licensing is needed for not only consoles or computers but for cartridges, and operating systems as well. Basically the compatibility wars are battles for Monopolization, which Teter uses the term "Wrestle Mania" to describe. The question he proposes is whether or not the law should in fact allow the steps (such as borrowing from already existing software) necessary for compatibility to occur. Teter believes that in fact, the law should allow for such things. Teter's argument is that interfaces which have become standards are able to thrive because there is a balance between intellectual property protection and standardization. Therefore, the deliberations upon policies regarding compatibility should not be that hard to solve, considering that perhaps Copyright Law is unsuited to take on such issues. The statues of basic Copyright law in his opinion are simply inappropriate for determining issues regarding software of both video games and computers, considering that the protection is so long that it's quite easy for one case decision to allow one company to dominate the industry. Mergers and compatibility should become standards for the industry in order for the "Wrestle Mania" to cease. The question of compatibility is a pertinent one in regards to my paper. This article documents the struggle and fear of monopolization that was present during the boom of both computers and video games, and the inability of the Courts to quickly come to a decision regarding the rush of technology.

In this paper, Peter Buse discusses how our culture has become increasingly more dependent upon technology throughout the years, stating that we are living in a "cybernetic age". All one must do is observe the children of today and their adept skill at playing video games, and computers. He uses elements from David Porush's book the Soft Machine: Cybernetic Fiction, in order to support his theory that within video games, there is a struggle between man and technology for dominance.
Buse goes on to discuss Video Game narrative, and its ability to immerse the player to the point of obsession. His views are not too kind, as he claims that video games are based on belligerence, and they teach through a process of negative reinforcement, considering they are for the most part, based upon competition and combat. He also declares them to be almost chauvinistic in that they primarily show what he describes as a "worst case scenario of patriarchal gender relations" (pg 166) and that they do not ever possess a narrative. Buse even goes as far as to equate video games with cocaine, considering that they can appear to be addictive.
While this article does not have anything to do with video game or computer copyright issues, it does serve as an example of the way in people of different field must strive to interpret them. Buse's discussion of technology and the way in which it causes immersion is also of importance to my paper. The idea that video games are becoming increasingly more interactive begs the question of whether or not technology will progress to a point where interactivity within the game will demand copyright protection.

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.

belongs to The Influence of Video Games on Copyright Decisions project
tagged K_C_Munchkin atari copyright copyright_protection graphic pac_man video_games by mymorg ...on 27-NOV-06

This journal article is a profile of the Modifying or “Mod” Community who use existing video game engines as the framework to create video games of their own. It focuses on Mario Orsini who with his team of 15 is developing a Mod called “Orbit Wars.”

It becomes germane to the subject of Video Game Copyright issues because the Mod Community itself is a bit of an oddity in the context of a Video Game Industry laden with myriads of complex copyright and patent laws. When a video game is created, it is programmed in two fundamental parts, the engine, which is the part that defines the physics of the gameplay itself, and then there is what the author refers to as the “aesthetic package” which defines the look and theme of the characters and visual effects. Modders take the engine from an existing game and create an aesthetic package of their own. In essence, they create a derivative work, the kind in which one conventionally thinking, might believe to be under fire from waves of lawsuits. As this article demonstrates, not only is that premise not true, but the situation is quite the opposite. Several examples are cited which illustrate the encouragement of the modded video games. It becomes clear that the Mod Community is looked upon by the industry as a way to seek new talent and embrace innovation.

The aim of the article seems to be in its illustration of benefits the Mod Community provides for both Modder and Game Maker. It does this by alluding to situations such as Id Software’s “Quake” line, which was the first game to include a set of developer’s tools with the game. They also cited the popular Mod “Counterstrike” which was a created with the engine of a game called “Half-Life.” Counterstrike’s popularity grew so much among the online Mod Community, that Sierra Entertainment, who published the original Half-Life, picked it up and sold it commercially. It would go on to sell “at least 1 million units.” These are effective and well-known examples that support the argument. Ultimately, it may be a way to show the Mod Community as a shinning example of the ideal relationship that could exist between Game Maker and Consumer. The context of this relationship entails one of mutual respect where the creative aspect of the game comes from both ends. It also demonstrates that the knee-jerk reaction to protect the content of the software can often end up hurting the product because it shuts it off from the community of people that support it through sales and allegiance.

Argued before the 9^th Circuit Court in 1992, this case was Nintendo’s attempt to stop Galoob’s production of the “Game Genie.” The device in dispute attached to standard Nintendo cartridges, which allowed users to input various special codes to perform “cheats” and alter the physics in the games they owned. Nintendo argued that the device created unauthorized derivative works, Galoob stood solidly behind the fair use defense.

The arguments presented some interesting perspectives on the extent of exactly what constitutes a derivative work, and also how far fair use defenses can go. Nintendo’s arguments imply that Galoob’s device unlawfully authorizes users to use copyrighted works in spite of the fact that it does not violate copyright law. This method of argument however was unfruitful considering that the precedence set by the Sony Corp. of America v. Universal City Studios, Inc. case unambiguously established that simply providing the means to commit a type of infringement does not constitute infringement in itself. What further invalidated the argument was the fact that the Game Genie did not even encourage any infringing activities in that the purchase of a legal copy of the game was required to use it with the device. Of the four factors, which determine fair use, the effect on the potential market was what came into play. Since it did no apparent harm to the potential market, the Court was not receptive.

This distinction is very important to the idea of Video Game Copyright Issues because it give a definitive boundary to what we as consumers are physically allowed to do with software that we purchase. This is a case that goes beyond the arguments of copy protected source codes and piracy. With lawsuits like this, Game Makers attempted to exercise control over the products that they sell beyond the point where ownership has transferred to the consumer regardless of if it affected their market. Did it become an argument about the moral rights of the Game Maker to maintain quality of their own brand? Perhaps such an argument would have held more water. However, if the Game Genie case had gone Nintendo’s way, it may have set precedence for more lawsuits of the same nature which may have further pushed the boundaries of DRM technology for software and hardware. Such actions would not be to the benefit of the consumer, and would have only solidified a monopolistic control on not only sale and distribution, but on the very existence of the software itself.

This is a news item, which discusses a list of four exceptions provided by the Library of Congress, which may be legal ways to circumvent the arm of the DMCA (Digital Millennium Copyright Act) and allow limited impunity to bypass some forms of copy protection. In relation to the theme of Video Game Copyright law, it is perhaps not a hugely relevant list of exceptions, but it does effectively illustrate that there is somewhat of a gray area in the Emulator/ROM issue.

The exceptions themselves include Internet filtering lists, programs protected by a dongle (any type of hardware device which is necessary for activation), programs in obsolete formats, and ebooks, which do not contain accessible features for disabled people. While this type of “legal” circumvention of DRM measures does not create the huge impact for those who wish to see copyright restrictions loosened, it may possibly have rejuvenated the emulator debate among its proponents. The vast majority of the emulators that exist in downloadable formats on many Internet sites are made from older video game consoles that have been long out of production. The ROMs that the emulators run are ripped from games that are likely older than a great portion of those who download them. It is this very argument through which many form the moral justification to download and play these ROMs. Such an idea could even be expanded into one about the promotion of arts and sciences, or the cultural benefit of generations too young to immerse themselves in the classic games.

The article uses the short reach of these exceptions as a way to illustrate the need for more rights to be given. The author makes the point that the Library of Congress has found itself in the unique position of being able to “poke the law” and get the attention of the Government and bring these issues into light. Being from a technology-oriented site, the article is clearly in favor of loosening restrictions. However, it is not so much a call to arms as it is a reporting of the exceptions themselves as they were released. The author’s point of view is apparent and he uses the news to bring up the questions about its possible impact on the emulation debate. There is perhaps no issue that is of more importance to the subject of Video Game Copyright than this. It is through this debate that the future of the industry will transform.

This is a news item that discusses a rumor that had been going around the Internet around fall of 2005. It was regarding a possible DRM (Digital Rights Management) measure for which Sony had acquired a patent. The belief immediately became that this technology would have been incorporated into the upcoming Sony Playstation 3 video game console.

Sony, because of its extensive activity in the courtrooms has garnered somewhat of a reputation for being DRM fanatics. However, when this rumor began to spread, it created an intense wave of negative backlash to Sony and perhaps to the DRM argument itself. The rumor in question was that the Playstation 3 console would have a technology that would leave a type of electronic signature on each new game disc that was placed in the machine. From that point on, the game disc would be playable on that machine and only that machine. The implications of that would have been enormous. People would not be able to loan games to their friends. Rental outlets would not be able to carry Playstation 3 games. If one were in a situation where the console needed to be replaced, that person’s entire library of games would be unplayable. And it would be the complete elimination of the used game market.

Fortunately for consumers, and Sony itself, “rumor” is exactly what it was. Sony recently made it very public that the rumor was not true. Perhaps it was a competitor who started this since interest in the Playstation 3 seemed to drop for a time due to the backlash. However, the patent for the supposed technology itself does indeed exist. It would not exist if there were not a desire by some to incorporate it. It is no secret that Game Makers have been attempting to exercise control of not only the intellectual property aspect of their software, but also its physical format. If the other video game consoles also adopted these measures, you would more than likely see alternatives such as acquisition of the games as downloads through their respective online features. Perhaps such a measure would have been tempting to Game Makers who saw the benefits of phasing out physical copies of their games as a way to cut production costs and maintain tighter control over its distribution. Cases involving the reverse-engineered production of Emulators were ruled as a fair use because the physical extraction of the object code stimulated activity for the public good. To be aware of how easily their work can be infringed (in their eyes anyhow), there is no denying that this is the ideal direction in which the industry would like to lead. It would be their proverbial check against the blows that have been dealt to them in unsuccessful litigation.

This is a short news item about the DMCA (Digital Millennium Copyright Act) backlash against modification or “mod” chips. Any relatively recent console system has embedded unto it, a DRM (Digital Rights Management) chip, which prevents pirated or counterfeit copies to played on the system. A mod chip is essentially a chip designed to replace that DRM chip that will in turn allow the user play out of region copies of games and consequently, counterfeit copies.

This particular item focuses on a Hong Kong-based online software store. The crackdown on the mod chips which the site sells, seem to have been legally strong-armed by joint lawsuit filed by Microsoft, Sony, and Nintendo. The article serves to illustrate how DMCA-like measures are occurring not just in the United States, but also around the world. The author quickly relates the aforementioned lawsuit to the renewed vigor of the Video Game Industry to stem piracy in the aftermath of the DMCA. It also effectively puts into perspective the point of view of the industry, which sells heavily equipped hardware at a loss, which is ideally made up in software sales. The effect of piracy is not a mere nuisance but something that insidiously chips away at the infrastructure of its very business model.

It is the somewhat personalized perspective of this article brings which makes it applicable to the predominant theme of the copyright issues pertaining to video games. While viewed in the context of a research item, it is limited in the amount of information it gives and is more in the area of food for thought. However, it is a piece through which perspective is gained. In this case in the near peril of the site Lik-Sang.com, which at one time was one of the world’s leading distributors of mod chips. Its struggle against the so-called “Goliaths” of video games was one that showed how these measures affected the supposed “pirates” which they had gained the reputation of being. Suddenly, the anonymous pirates and counterfeiters seem more anthropomorphic. The article makes reference to a similar lawsuit brought about by Sony against a retailer in Australia that was ruled in favor of the retailer. This contrast effectively illustrates a primary point in the whole debate in regards to the inability for international law to come to any consensus. International law is very disparate as far as the acceptance of the devices. In light of that, anything that sheds light on the global aspect of the mod chip crackdown is a ripe subject in terms of video game copyright.

This is a journal article, which is a comprehensive look at the Video Game Emulation debate. Its layout is filled with loads of historical facts and analyzes the nuances of the debate in several chapters according to each aspect. In spite of the heavy loaded nature and its plethora of facts and technical data, it does all of this to arrive at a conclusion regarding the suggestions of the authors towards finding an amicable way to solve the legal disputes surrounding copyright infringement.

Its argument is not established early on in the article, but it lays the groundwork for it by setting the debate itself into context. It begins by explaining exactly why there is a need in the first place for the emulators and how the emergence of these have only been magnified by the rise of the Internet and peer-to-peer networking. Then it devotes some chapters to examining the methodology and technical data that brought the emulators about. The economic ramifications are also discussed, at which point the direction moves towards the points of views of both sides of the debate. Several cases are cited examining the potential legality or illegality of the practice. Finally, it arrives at its conclusion, which gives the authors’ strategy for issues.

The argument given is quite adamantly against an RIAA (Recording Industry Association of America) type of attempt at simply eliminating the emulation community through endless litigation and bullying tactics. It also makes the case that Game Makers should embrace emulators by recognizing the consumer need and actually meeting that need themselves instead of persecuting the individuals from the outside who have taken the initiative to do it for them. Moreover, the claim is made that customer loyalty would be recaptured. The support of backwards compatibility among gaming consoles is another major suggestion placating consumer ennui and possibly extending the longevity of the product itself. A plethora of statistics is also given to solidify its points.

So what does all of this have to do with Copyright Law, specifically related Video Games? Much of it does, and much of it is technical data and statistics that is, perhaps inconsequential to the legal debate itself. Ultimately, the article serves as a well-researched cornucopia of information about the subject. The overarching theme of this is how legality is either upheld or circumvented in the industry. Piracy and copyright law go hand in hand. The arguments made by the authors are conventional ones, views more than likely anyone outside of a Game Developer’s office would hold. However, its methodology is very precise. It cites information in a very unbiased way and allows the reader to make up his/her own minds. This results in a very different experience for individual readers, yet at the same time brings the debate into the frame of mind that it wants. While probably more fact and data-oriented than the casual reader may care to stand, it accomplishes what it sets out to do in a very efficient way.

This was a landmark case in relation to the debate over Emulators. While taking place before a time when people downloaded illegal ROMs (Read Only Memory) on the Internet to play reproductions of classic video games, the argument here would be perhaps the most material one related to the subject. It was argued over Software Publisher Accolade’s practice of manufacturing unauthorized game cartridges for Sega’s Genesis video game console. Accolade did not wish to pay the heavy licensing fees that Sega was charging for official authorization, so they instead purchased Sega hardware and software and reverse engineered the console and “cracked its code” allowing them to produce and sell their own Genesis-compatible games (the first of which was 1990’s “Ishido” which was a game they converted from its original Macintosh and IBM PC release.) A district court found in favor of Sega, but it was appealed and overturned by the US Court of Appeals, 9th Circuit.

The important precedent set in this case was the fair use judgment involving the disassembly of copyrighted object code. According to the Judge J. Reinhart, “Where there is good reason for studying or examining the unprotected aspects of a copyrighted computer program, disassembly for purposes of such study or examination constitutes a fair use.” This decision essentially gave a validated legal existence to Emulators as well as the right to distribute them. This specifically refers to the Emulators themselves, which were created by reverse-engineered object code of the hardware of the original video game consoles. The ROMs used to play on the Emulators however, remain illegal to distribute even to this day under the DMCA (Digital Millennium Copyright Act.) However as established in other landmark fair use cases such as Sony Corp. of America v. Universal City Studios, Inc. simply providing the means to an infringing activity does not constitute an infringement itself. It is this method of argument that the Judgment seems to draw its endowment. The aim of stimulating activity for the public good qualifies object code as a fair use.

It is this very judgment from which the very crux of the pro-emulation side draws its argument. Even after the implementation of the DMCA, a person who is able to establish him/herself as a developer or an associate of one is legally permitted to create backups of game software based on the premise that they are extracting the code for either educational purposes or for providing the basis for an entirely new work. This is a very important concept in relation to Video Game Copyright Issues because serves as a prime example of what one is able to physically extract from products they pay for and own. To know that what transformative works may have resulted from that extraction is protected is key to understanding the intricacies of the emulation debate. That debate may pave the road for the future of the industry itself.

Reverse engineering is a common practice among those tech-savvy enough who wish to extract the source code from software or hardware. Even under the DMCA (Digital Millennium Copyright Act), such a practice is considered a fair use as long as the individual can demonstrate that they have legitimate interest in it such as being a game developer who wants to use it to create some kind of transformative work. However, this particular case, a 2006 appeal, brings to front the exception that negates this defense.

Davidson & Association (better known as Blizzard) are a software company who have developed many popular PC Video Games (Diablo, Starcraft, Warcraft, World of Warcraft.) Blizzard provides means for game players to play against one another through a specialized server whom authorized purchasers of their games are provided. This access is carefully safeguarded through a process involving an End User License Agreement (EULA) and a Terms of Use Agreement (TOU). These agreements are prompted to users before installation and applicable to this case, they strictly prohibit reverse engineering of any kind with their software.

This brings us to the defendants, Internet Gateway. In spite of these agreements, they reverse-engineered Blizzard software to create a type of emulator called the Bnetd Project, which was a namesake nod to “Battle.net,” the name of Blizzard’s server. The Bnetd software allowed users to run the online features of official Blizzard software on servers that they created themselves, in essence, bypassing Battle.net. The fair use defense of Bnetd failed even on the merits of its own arguments. What perhaps was its main defense was that Bnetd still required the official Blizzard software to operate. It may have been an argument on the possible lack of effects it would have on the market, but at the same time, it allowed potential pirated copies to enjoy benefits that would have otherwise remained exclusive to paying customers. The onus was on them to demonstrate how their software could provide legitimate non-infringing uses.

Indeed the law agrees that simply providing the means to commit infringement does not constitute infringement itself. However, no other use could be justified seeing as Bnetd existed only for the single purpose of infringing on the Blizzard licensing agreements. The standards for finding a fair use simply did not apply in this instance. The significance of this case is its demonstration of the power of the EULA and TOU. The court did uphold them as valid enforceable contracts and even went so far as to point out that Blizzard had placed the agreements on the outside packaging of the software, which also guaranteed a full refund within 30 days if the purchaser did not wish to comply.

In relation to the overall scope of Video Game Copyright Issues, you begin to see with this case where the old loopholes loose their luster when put to applicable standards which force infringing parties to reveal the underlying motive behind what they do. It may not necessarily be nefarious, but the ambiguity of copyright law was designed to create an atmosphere of innovation and creativity. If you are being honest with yourself and find that your motives are not quite so altruistic, then the concession may need to be on your part.

This was one of the most famous and controversial cases in the arena of the issues surrounding Video Game Emulators. The irony is that the case had nothing to do with a single piece of software. Instead it was over a screenshot of a Sony Playstation game screen that appears on the back cover of the packaging of the Bleem software. This screenshot was a comparison of what a game looked like when viewed through the normal Playstation console vs. how it would appear on the Bleem software, with supposedly enhanced graphics due to a properly equipped PC’s superior ability to represent color and pixels.

Sony had filed suit and won over the issue of this screenshot, it was quickly appealed and argued before the 9th Circuit Court. Bleem openly admitted that it took the screenshot and used it for advertisement and for the packaging, but doing so was protected as a fair use. The Court made special effort to apply the four factors in determining fair use: The purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the whole, and the effect on the potential market or value of the copyrighted work.

The fair use argument of Bleem brought forth examples from landmark cases like Campbell v. Acuff-Rose and Harper & Row v. The Nation. The Court’s attempt to avoid rigid application to copyright statute illustrates the frame of mind in which this decision was made. It was found that Sony’s argument did not stand the scrutiny as the screenshot did not have enough substance or was not the heart of the work, which was supposedly infringed. In relation to the last of the four factors in determining fair use, Sony was in the market in this instance with video game hardware and software, yet argue that they at the same time were in the market with the screenshots themselves. The Court clearly rejected this line of argument because the screenshots had no adverse affects on the market that Sony represented. Although the case was not directly about the Bleem emulator software, its presence undoubtedly hung as a pendulum over the entire case and was even addressed by the Court. It was not difficult to read between the lines to find what this case was really about.

This is an early, perhaps arguably, the first case that directly addresses the legal issue of Video Game Emulators and ROMs. Decided in 1983, the controversy here was surrounding a device JS&A produced and sold commercially called the “Prom Blaster.” It was a device, which attached to Atari’s 2600 video game console and allowed users to create back-up cartridges or copies of Atari games. JS&A also sold the blank cartridges it required.

JS&A’s method of argument was that the device allowed users to create backups of the cartridges they owned for protection against “mechanical or electrical failure.” But given the massive library of games that already existed for the Atari 2600 system at that point, the Court did not find any other relevant non-infringing uses for it. JS&A’s other argument was that the Prom Blaster was intended to copy games sold exclusively by JS&A themselves. The Court found that argument weak since they only manufactured nine games and given the cost of the machine, it would not constitute any logical decision to do such. The burden on JS&A was rather light especially considering it came in the aftermath of the Sony Corp. of America v. Universal City Studios, Inc. case which demonstrated that if the device could justify any legitimate non-infringing uses, it could be within the scope of fair use. JS&A’s device could not reap any such uses. It’s failure to do so left the Court with little choice but to issue a preliminary injunction enjoining JS&A from selling, manufacturing, and distributing the Prom Blaster.

There have been many such devices as the Prom Blaster developed for many subsequent game consoles over the following years. But it was not until the rise of the Internet did the practice of emulation really start to make any serious kind of detrimental impact to the industry. When all one needs is a computer and Internet connection to acquire an emulator of a game console and download an entire library of games, this became a danger to them in an exponentially greater way that JS&A could compare. Unlike physical counterfeit copies, this could lead to a form of piracy where the supposed loss and damages would be inestimable. That perhaps is why the JS&A decision is so important to the issue of Video Game copyright. There had been cases regarding software programming codes, but this was the first one to specifically call video games to the forefront to be judged in its own merit of being a protected work of artistic expression.

A giant repository of machinima.

OpenGLExtractor by Eyebeam

blog published by gawker media.  brian a. japan editor.

Looks at what libraries and librarians can learn from the world of online video games.

"So it should be no surprise that the video game industry is plagued by legal battles -- many of which have shaped companies and games as we know them. And it's hardly a new trend; the justice system has a long relationship with videogames, stretching back to the medium's infancy."

 need to read this one...

An analysis following the idea that all narrative experience, on a cognitive level, can be thought of as virtual realities...

Abstract:

A MUD (Multi-User Dungeon or, sometimes, Multi-User Dimension) is a
network-accessible, multi-participant, user-extensible virtual reality whose
user interface is entirely textual. Participants (usually called players) have
the appearance of being situated in an artificially-constructed place that also
contains those other players who are connected at the same time. Players can
communicate easily with each other in real time. This virtual gathering place
has many of the social attributes of other places, and many of the usual social
mechanisms operate there. Certain attributes of this virtual place, however,
tend to have significant effects on social phenomena, leading to new mechanisms
and modes of behavior not usually seen `IRL' (in real life). In this paper, I
relate my experiences and observations from having created and maintained a MUD
for over a year.

This is an essay found in the book "Gamers," it addresses the use of language and language manipulation in gaming.

This is a short little article by Janet Murray on the emerging feild of computer based media. She gives mostly just background for the fast paced state of innovation and invention which we're living in right now.

"Machinima is the making of animated movies in real time through the use of computer game technology. The projects that launched machinima embedded gameplay in practices of performance, spectatorship, subversion, modification, and community. This article is concerned primarily with the earliest machinima projects. In this phase, DOOM and especially Quake movie makers created practices of game performance and high-performance technology that yielded a new medium for linear storytelling and artistic expression. My aim is not to answer the question, “are games art?”, but to suggest that game-based performance practices will influence work in artistic and narrative media." -Lowood

 This article was a primary source for my paper. Althogh Lowood focuses almost entirely on the FPS culture which emerged out of Id Software's original 3D shooter trilogy: Wolfenstein, DOOM, and Quake, it also covers a good deal of general info about machinima...

"Video games shape our culture. It’s time we took them seriously." A really great essay by Henry Jenkins (Textual Poachers) about the future of interactive media. He states the video games are in fact art, and that is is up to fans and critics to shape the video game industry through cooperation and constructive critisim.

"The main contribution of this work is in illustrating the available interaction forms and in analysing them based on the various functions they support. The successful application of the social theory framework as a tool for analysing interaction forms indicates the importance of combining the research efforts of various disciplines and practices in order to achieve more comprehensive results in the area of interaction design for multiplayer games."

Analysis of creative player input in conter-strike communities..

The practice of modding - i.e. modifying and extending officially released games with fan-produced content - is arguably one of the most distinctive features in current computer gaming culture, and has helped to define the state of computer game fandom. Moding is closely related to the creation of machinima, an emerging art form using video games as source material for short films.

A postmodern analysis of Pavel Curtis' authored virtual world: LambdaMOO.

Another book to read

Addresses the ways in which digital filmmakers are using computer games as "digital sets" to create short films. aka Machinima! Gives a short review of varrious machinima projects. Mirapul compares machinima to a sort of live puppet theater, with the feel more of live theater than film.

David Nieborg explores the history of mod culture in computer games in this essay. Most of his analysis is based on Jenkins' theories of fandom and participatory fan culture. There is a short section on how manchinima fits into the larger culture of modifing first person shooter games.

This is a great essay by Nic Helman from the book "Gamers." It discusses the future of games in terms of film and traditional game media.

A new book by Nic Kelman on the future of video games from an artistic standpoint.

Legal cybertheorist Ernest Miller outlines the effect a broader acceptance of the INDUCE act might have on the creation of derative works based on video games, most specifically on the creation of machinima. The induce act puts not only machinimakers in legal peril, but all the websites and hackers who innovate new machinima techniques and encourage the creation of machinima publicly.

This is a nice posting about the legal implications of machinima, from a blog totally dedicated to covering the latest news in the world of machinima. The author, Paul Marino, outlines three possible aproaches to the issue of copyright machinima makers might use to clearing their work for commercial use.

An article about the changing landscape of video games, as they evolve from product into art.

Wierd. When I click on the link to penntext screen from Penntags, it looks like we don't have te article online fulltext, but the screen I tagged provided a link to the ACM journal that has it. We do have the fulltext. Hmm. A little troubling.

Apparently, there's something in here about video games teaching spatial literacy. Reccomended by David Seaman from DLF.

Lev Manovich on the budding world of digital media. From "The New Media Reader"

A meta-analytic review of literature that examines the physiological and psychological effects of violent video games. Concludes that violent video games increase aggressive behavior in children and young adults.  Specifically, violent video games increase physiological arousal and aggressive cognitions, while leading to decreases in prosocial behavior.

Just the basics about machinima, from the Academy of Machinima Arts and Sciences...

Books
Film and Media Theory Approach
Remediation: Understanding New Media / Jay David Bolter and Richard Grusin. MIT Press, 1999.

The End of Celluloid: Film Futures in the Digital Age / Matt Hanson. Rotovision, UK, 2004. ISBN 2880467837

The Medium of the Video Game / Mark J.P. Wolf. University of Texas Press, 2001.

The Language of New Media / Lev Manovich. MIT Press, 2001.

Narrative vs Ludological Approach
First Person: New Media as Story, Performance, and Game / Noah Wardrip-Fruin and Pat Herrigan. MIT Press, 2004.

Narrative as Virtual Reality: Immersion and Interactivity in Literature and Electronic Media / Marie-Laure Ryan. Johns Hopkins University Press, 2001.

Cybertext: Perspectives on Ergodic Literature / Espen J. Aarseth. Johns Hopkins University Press, 1997.

Game Design Theory
Rules of Play: Game Design Fundamentals / Katie Salen and Eric Zimmerman. MIT Press, 2003.

A Theory of Fun for Game Design / Raph Koster. Paraglyph Press, 2005.

General Reading
Videogames / James Newman. Routledge, 2003.

The Video Game Theory Reader / Mark J.P. Wolf and Bernard Perron. Routledge, 2003.

---

Internet Resources
Ludology.org
Academic-Gamers.org
Buzzcut.com
Gamestudies.org Academic Journal

Turkle talks to children, college students, engineers, AI scientists, hackers, and personal computer owners--people confronting machines that seem to think and at the same time suggest a new way for us to think--about human thought, emotion, memory, and understanding. Her interviews reveal that we experience computers as being on the border between inanimate and animate, as both an extension of the self and part of the external world.

The article begins by examining some standard arguments for games being narrative. There are at least three common arguments: 1) We use narratives for everything. 2) Most games feature narrative introductions and back-stories. 3) Games share some traits with narratives.

The article then explores three important reasons for describing games as being non-narrative: 1) Games are not part of the narrative media ecology formed by movies, novels, and theatre. 2) Time in games works differently than in narratives. 3) The relation between the reader/viewer and the story world is different than the relation between the player and the game world.

Some thoughts on GTA3

This thesis argues that the value codings inaugurated by
retail exchange exert a powerful influence over the aesthetic reception of gaming as a
set of enjoyable, exchangeable and exhaustible encounters. At the same time, the
mere fact that gamers talk about and contest each others' valuations in online forums
shows that there is nothing natural about such a valuation, and that the boundaries of
value codings and the boundaries of what constitutes fun are tested, if not traversed.

just a book i'm reading

?

reading it now..

what a fun title

Another recomendation from Nick Montfort, this is Jesper Juuls PhD diseration on video gaem realities and rule systems.

This is the bibliogrpahy for a reaserch essay I am working on in conjunction with a documentary I produced on my own addiction to videogames, entitled As Real As Your Life. Mostly just an overview of where i see the indusrty heading in the next 10 years,and what complications we may be faced with in a culture increasingly dependent on virtual reality experience.

Electronic reprint of 2 studies conducted at Rice University about the short-term effects violent video games.  Concludes that violent video games increase aggression in the short-term.  The more violent the video game the more detrimental the impact of the video game is. 

Short scientific article which discusses the findings of brain-imaging during exposure to violent video games.  Proves the link between violent video games and aggression on a neurobiological level.

Thoughtful discussion of violence in video games.  Also offers a comparison to violence in other forms of media.  In particular, there is a rich discussion on why violent video games may have less of an impact on youths than other forms of media, and why video games may have a more ruinous impact than other media.

A comprehensive meta-analysis and statistical research project of all prior studies conducted about the effects of violent video games on aggression.  Sherry is skeptical that violence in video games causes aggression and believes that more research is needed.

One-hour tv special that was originally aired on the G4 network.  The program discusses the history of violence in video games ranging from "Death Race" (1976) to "Grand Theft Auto: San Andreas" (2005). The special examines both sides of the controversy regarding the effects of these games. 

 

This article discusses Illinois's Governor Blagojevich's desire to ban the sale of violent video games to minors because he believes that they desensitize and contribute to kids becoming more violent.

The statement of the American Medical Association discusses the effects of violence in various media types on youths.  In video games, they focus on the problem of "role-modeling" and video games' capacity to potentially promote "real world" violence.

The chapter "Straight out of Doom" discusses the influence of violent video games like "Doom" and whether or not they may be partially responsible for incidents like the Columbine High shootings of 1999.

Provides a brief history of violent video games and discusses potential negative effects of violent video games.  Also provides models and theories relating to the effects of Media Violence.

Chapter 4, "It's Important to Feel Something When You Kill", discusses the evolution in violence in video games.  It explains why violent video games are popular, addictive, and dangerous.  Includes a very interesting section on video games as desensitizing killing simulators and military/law enforcement usage of them. 

Chapter entitled "The Prometheus Engine" in part discusses military technology that is similar to video games.  With wars being waged from increasingly great distances, they're fought and seen through video game-type graphic systems.  Such technology turns killing into a "game".

Not sure about this one yet, just another article analizing the nature of interative narrative expereince

Nick Montfront recomended this collections as a good way to start understanding the origins of the modern gaming world.

This is an amazon link, the book wasn't in the catalog...Looks like a good colletion of essays based on person experiences in gaming...

Professes that contrary to what the media may like you to believe, there is no substantial link between violent video games anf and real-life violence or crime.  Also explains that further research is needed to support any conclusion

Provides a brief overview of existing research on the effects of violent video games.  Reveals that exposure to viuolent games is linked to an increase in aggressive behavior, aggressive cognition, aggressive affect, and cardiovacular arousal.  Also linked to a decrease in "helping" behavior.

Historical, philosophical, & analytical discussion of video games

 

(click print as PDF to open in an easy-to-read format)

Discussion of two scientific studies relating to the effects of violent video games.  Compares the results of these two studies to popular behavior models.  Results of both studies are consistent with "the General Affective Aggression Model, which predicts that exposure to violent video games will increase aggressive behavior in both the short term and the long term"

Discussion of the violence in the video game, "Grand Theft Auto"

Discussion of the violence in the video game, "Grand Theft Auto"

Discusses the controversy surrounding the 1976 video game "Death Race"

Discussion of the history and evolution of violence in video games

Examination of the myths, facts, and unanswered questions relating to violence and video games

It is argued that exposure to violent video games causes aggressive behavior, desensitization to violence, belief in a "scary world", etc.  Three types of evidence are commonly used  to support these conclusions--correlational studies field studies, and laboratory experiments.  This paper analyzes the experimental evidence that is used to support this argument.