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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.
Call#: Van Pelt Library Z642 .V35 2001
Within the chapter “The Digital Moment, The End of Copyright?” Vaidhyanathan includes a sub chapter entitled, “”Recycling” The Idea-Expression Dichotomy” which begins by describing the format and icons of the very computer he is using to type his book. Every “GUI” or Graphic User Interface displays a trashcan icon, which is used to delete documents and programs from the computer. However, there are obvious differences regarding this icon, depending upon whether you are using a Mac, or a computer with the Microsoft Windows operating system. One displays a trashcan, while the other is more of a recycling bin. Not only do they look different but they are labeled differently as well, even though they inherently perform the same function. Vaidhyanathan uses this example to argue that although intricacies such as a trashcan/recycling bin causing a monumental court case may seem to threaten the idea-expression dichotomy (which is what copyright laws initially serve to do, protect the expression of an idea, rather than the idea itself) they actually do the opposite, and serve to revive it (when it comes to software design). Vaidhyanathan believes that this revival began with none other than the Atari v. North American Phillips Consumer Electronics Corp. case, in which the game KC Munchkin was found to be too similar to Pac Man and eventually (after a struggle regarding what is in fact copyright-able) was taken off the shelves. This case was won by Atari even though such things as “pellets” and “ghosts” were not deemed “original”. In another case, the Apple II fought against the Franklin Ace 100, which brought about the question of whether or not source code should, or could, be copyrighted. This case was a triumph for Apple as well, allowing the company to dominate for quite some time.
However, back to the discussion of GUIs, the court ruling between Microsoft and Apple regarding their similar GUIs resulted in the idea of standardization, which allowed for basic design to be identical, as long as very minute differences such as the trashcan/recycling bin were to exist. Although an opposite outcome to the Atari case, it can be seen within Vaidhyanathan's discussion that the idea-expression dichotomy was revived in relation to software, be it for video games or computers. This is crucial to my paper because the idea that software (in general) can be protected under copyright law, is a definite example of the Courts having to deliberate upon new technology, and interpret Copyright law in order to include advancements in technology.