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.

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.

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.

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.