Argued before the 9th 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.