The RIAA is not a popular name amongst many music consumers. Its actions against potential copyright infringement have created a huge backlash amongst the community, and it has done little if anything to alleviate the general ill will. Now, the video game industry risks following the same path. For years, the industry has attacked video game emulation and the copying of cartridges as detrimental to the industry and illegal. While it has succeeded in many places (and failed in others), the gaming community has started to become angry. Unless some middle ground can be found (such as has been attempted by websites such as vNES), this pursuit of piracy could turn the ESA into the next RIAA.

Nintendo’s attacks against anything capable of copying a video game are not just a historical curiosity.  The company, along with the rest of the video game industry, continues to sue these copying devices to this day.  The most recent lawsuit is against the R4, a Nintendo DS cartridge that fills many of the same purposes as the old Game Boy Advance flash cartridges.  The device bypasses the protection on the system and uses a micro SD card to run pirated games, homebrewed games, or anything else capable of working on a Nintendo DS system (playing music, programming, etc.).  Despite being fully aware that the device skirted the edge of legality, Japanese retailers continued to stock and sell the device to high demand (while explicitly not explaining what the device does).  Of course, Nintendo was not happy about this state of affairs, and proceeded to sue the companies that make and distribute the device.  54 other software companies joined the lawsuit.

Under the precedent set by the Game Boy Advance flash cartridges these devices are probably illegal.  It is easy to see why the video game industry wants them off of the market.  However, the consumer base clearly loves these devices.  The R4 apparently sold very well in Japan, and with the lawsuit the price of the device skyrocketed (see another article linked from this one).  Consumers seem to believe that there exists plenty of legitimate uses for the R4, not just playing old, illegally obtained games.  Consumers write homebrew applications that allow the DS (and also the PSP, although this is not the subject of the lawsuit) to do an incredible number of things.  The author even notes that he has meet people who jumped into game design by learning on hacked DS’s and PSP’s.

Clearly, the consumer base enjoys using the R4.  And while Nintendo might be perfectly within their rights to stop them, it could create massive ill will.  Being told that all of the hard work you put into a homebrew application that you created without breaking copyright law is bound to make anyone angry.  With a huge portion of the video game industry getting behind this lawsuit, it makes an easy target for the ire of the community.  The video game industry, it seems, has not learned its lesson.  Despite already angering many consumers with their attacks against any form of copying or emulation, it continues to press lawsuits.  If this path continues, then the industry risks turning into the next RIAA.

Lik-Sang was an Internet mail order business based in Hong Kong. Note the word “was”; the company was forced out of business in 2006 by multiple lawsuits from Sony regarding the early selling of PSP's in the UK. However, in the early 2000’s Lik-Sang was embroiled in a legal battle with Nintendo over the selling of Game Boy Advance copy devices (similar to the GB Flash Advance Linker). These devices allowed a consumer to either copy a ROM from a PC onto a blank cartridge, or copy a legitimate game cartridge to a PC. The court ruled in Nintendo’s favor that the devices were illegal, making the analogy of going after drug traffickers instead of drug addicts to curb drug use.

But this article is primarily a statement from Alex Kampl, one of Lik-Sang’s founders, after the decision was handed down. First of all, he notes the errors in the official Nintendo press release (which can be found via link from this article), including the fact that he had filed an appeal to the case, and that it was a summary judgment, not a full trial. In addition, he notes that the Hong Kong judge in the case was not an IP specialist (apparently there is not IP specialist in the Hong Kong judicial system any longer) and seemed to misunderstand some basic concepts about video game emulation. Kampl goes on to claim that since there is not copy protection on the Game Boy Advance, this particular section of law does not apply. Kampl also describes his disappointment that Nintendo is going after hardware used extensively by hobbyists, even by certain video game companies (apparently companies purchase flash cartridges from Lik-Sang for development purposes). Kampl claims that what he is doing is perfectly legal, and that presumption of innocence seems to no longer apply to cases of video game copying (“Nintendo doesn’t need to prove you are a pirate anymore, it is assumed you all are if you have the technical means to copy”).

Kampl’s claim that the Game Boy Advance does not have copy protection is more or less false; the system does have a form of copy protection (as explained in the Customs and Border Patrol ruling on the GB Flash Advance Linker). In addition, the analogy to drug trafficking has some logic to it, since it would be impossible for Nintendo to find and prosecute all video game pirates. But Kampl’s statement that the whole case should be embarrassing for Nintendo certainly seems to have merit. The purchase by video game developers of hundreds of flash cartridges clearly shows that they have some legitimate use in game development (and could be used by consumers to produce homebrew games), and as such is does seem that Nintendo is assuming that anyone who uses this device must be guilty. In addition, these types of cases clearly build up ill will towards Nintendo within the video game community, something that the company wants to avoid. Overall, while the decision may have been correct, Nintendo’s decision to pursue this case may have been a mistake.

This is a ruling by US Customs and Border Protection in 2001 on whether or not the GB Flash Advance Linker violated the DMCA (if it did, then CBP would not allow the device the pass through customs). The GB Flash Advance Linker serves two basic purposes. The first is basically a blank Game Boy Advance cartridge on which the consumer can load data. This cartridge can then be played in a normal Game Boy Advance. While homebrew or public domain games could be loaded onto these cartridges, most often illegally downloaded ROMs were placed on them. The second, and more important, is to make a copy of a Game Boy Advance cartridge and store it on a PC. Nintendo, naturally, wanted CBP to stop this product from entering the United States. CBP noted that the DMCA prevents the importing of devices that are primarily for circumventing protection, have limited use outside of circumventing protection, and are marketed with the explicit knowledge of their circumvention capabilities. The floppy disk that comes with the device (and installs the necessary software) is simply used to provide the Nintendo boot up code, clearly signifying the intent to bypass protection. Then, the device illegally copies the cartridge data to flash, and then to a PC. Therefore, CBP decided that the GB Flash Advance Linker violates the DMCA.

The ruling makes perfect sense. Clearly the Game Boy Advance cartridge has a form of copy protection on it (although a weird one, as described in the ruling), and this device was created and sold with the intention of bypassing that protection. Obviously this violates the DMCA. The problem here is that this ruling effectively leaves no legal way to create a backup of a legitimately owned video game. If any attempt to back up the video game data breaks the DMCA, then how can backups be created? If I want a backup of my video game, to be used in the event of damage to the original, how would I go about getting it? Petition Nintendo? The other major problem with this ruling is that there do seem to be a few legitimate uses of this device, most notably concerning homebrew games. If a consumer creates his or her own video game for the Game Boy Advance, then how could they move it to a cartridge playable on the actual system? In essence, once one has created his or her own game, it is unplayable on the system that they designed it for. Unfortunately, there seems to be no way around this problem. Nintendo, in going after this device, clearly indicates that it wants complete control over how its games are used and copied. Basically, Nintendo does not want consumers to have the ability to make backup copies (which are allowed by law) or create homebrew games.

This is Nintendo’s legal page and list of frequently asked questions (FAQ).  Many things on this page are completely unsurprising.  For instance, Nintendo defines terms such as copyright, patent, and trademark, along with explaining what ROMs and emulators are.  Nintendo very clearly has a zero tolerance policy towards emulators and illegally distributed ROMs (it refers to emulators that play illegally copied software as “the greatest threat to date to the intellectual property rights of video game developers”) and refuses to legitimize any attempts at emulation.  Nintendo also makes it clear that the exception of the law allowing backups does not allow a consumer to download a ROM of a particular video game (as the company notes, it is not a “second copy” law).  This exception, it explains, only refers to an owner making a copy to ensure that, in the case of the destruction of the original, they have a usable alternative.  However, later in the FAQ, Nintendo explains that game copying devices are illegal, since they allow for the illegal uploading of ROMs to the Internet. 

Nintendo’s absolute refusal to legitimize any emulators, while completely expected, is unfortunate.  Emulators are completely legal, and, considering how widespread they are, are here to stay.  It would be nice if Nintendo accepted this fact, and tried to find some middle ground (the Virtual Console on the Wii system could be seen as a sort of middle ground).  The classification of emulators as “the greatest threat” is a little excessive; emulation tends to focus on previous generations of video games, which bring in little revenue for the companies.  And even if emulation was such a large threat, the fact that it is legal means that Nintendo needs to live with the existence of emulators.

Most interesting is Nintendo’s understanding of the backup copy exception.  As Nintendo explains, you cannot simply download a ROM of a video game that you already own, since that copy is illegal.  A legal backup, however, seems impossible to create, since Nintendo classifies all game copying devices as illegal.  Without a legal means to copy a video game, Nintendo has essentially made it impossible for a consumer to create a backup copy of a video game that they own.  Nintendo provides no solution to this dilemma, and in all likelihood does not want a solution to exist.

First, some basic background. VNES (stands for Virtual NES) is an online NES emulator, written entirely in java. The site, based in the US, has a huge catalog of original NES games, which are completely free to play online (no downloading required). Now, obviously a whole bunch of legal questions come up here, most notably the claim that this is massive copyright infringement. The vNES legal page attempts to address these claims, and provide a justification for the legality of the site, through six main points.

One of the most notable arguments is the claim that the website constitutes fair use. It states that the website is noncommercial, only uses cartridges out of the market for 15 years, keeps copies of entire works, and that it holds works "vastly technologically inferior" to modern works (and then claims that these facts sufficiently satisfy the four factors). It also claims that, under Sony v. Universal, this emulation simply constitutes time-shifting, and therefore must be fair use. But by far the most interesting claim that they make is their classification of themselves as an archive (under 17 U.S.C. § 108). As an archive, the claim goes, they should be able to make their works available to the public. Also, they only provide games that they have physical copies of in their offices.

Now, their fair use claim in tenuous at best. The fact that they use entire works actually hurts their case as opposed to helping it, and just because the works are "vastly technologically inferior" to modern games does not mean that companies cannot still profit off of them (as remakes clearly demonstrate). Also, this isn't time-shifting so much as space-shifting, and the legality of space-shifting is not well tested in the courts. However, the archive claim is interesting, and could provide a valid loophole for emulation sites to provide video games to consumers. It relies on the games only being playable online though (no downloading (other than normal, incidental downloading) is involved). And the site has been contacted by the ESA (after which they removed all games for which they did not own physical cartridges), so presumably the industry is aware of it. This could provide an interesting middle ground for video game companies and consumers.

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.

Universal sues Nintendo over the rights to King Kong, claiming that Nintendo's Donkey Kong character directly infringed upon their giant ape character of a similar name. In retaliation, Nintendo made a counterclaim that a King Kong game licensed to Tiger electronics was directly infringing upon their copyright of Donkey Kong. The court ended up in favor of Nintendo, and so Universal appealed their claim. However, there really were no grounds for this suit, as Universal failed obtain and include the actual film(s) of King Kong as the subjects of infringement. Instead, Universal was basically producing a claim that Nintendo was infringing upon their "mascot" or image of the gorilla who possesses a woman, which they believed to be copyright protected. Considering the likelihood of consumer confusion between Donkey Kong and King Kong, the Court determined that the chances of someone believing Donkey Kong to be King Kong were slim to none. Many factors were brought into question, such as the temperament and disposition of the characters in question, along with the medium of the work, and even the sophistication of the consumer. Donkey Kong, while still a giant gorilla, had a much different temperament than King Kong. While King Kong was ferocious and domineering, Donkey Kong is almost loveable and sympathetic, making him if anything, a parody of King Kong. In addition, a survey was conducted among owners of the arcade game in order to answer the question of whether or not there was any confusion between the characters, although flaws in the survey left it inconclusive. And so it was determined that the characters were indeed different, and so Universal was not granted injunctive relief.
This lawsuit has bearing on my paper because it brings forth the subject of graphics in games, and how a pixilated image can be argued to be an infringement of an object or character within ulterior media. It also documents the success of the video game industry, as a large company such as Universal would certainly not make such an obviously fruitless claim if it did not anticipate competition from the defendant company.

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.

(Nintendo)

(Samuelson, 1996)

(Samuelson, 1993)

(Genie)

(NES)

"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...