The First Thing We Do, Let’s Kill All The Lawyers
At conferences you will hear people wonder aloud about what it was like
to work in the game industry before “lawyers ruined it with
litigation.” Curse the dirty lawyers! Those were the good old days and
we wish we could return to them.
When were these
days that game developers lived in happy little communes and even the
word lawsuit was unknown to them? The answer is never and in some cases
we should be glad of that. A portion of the litigation in every
industry, even the game industry, actually leads to positive results
for the industry as a whole. As an example, consider all of the First
Amendment protection that has come from the ESA cases overturning
unconstitutional censorship and distribution laws.
game industry has had litigation as long as there has been a game
industry. In fact, there were patent cases involving Pong even as early
as 1977 and there may be cases even earlier than that.1
Controversies and the litigations that accompany them have continued to
the present day and will continue as long as there is a game industry.
basic misunderstanding is that lawyers are the cause of litigation. In
fact, people disagreeing over something and caring enough to “fight”
about it is the root cause of litigation. Under the vast majority of
circumstances, an attorney cannot sue anyone unless he represents a
client that wants the case brought. Litigation is just the mechanism
that “civilized” countries use to work through controversy, and it is
superior to many of the previous methods such as gladiatorial combat.
I too long for the days of simple gladiatorial combat to settle
differences, and I would gladly be put out of work as an attorney if
that ever comes back into fashion. Imagine Douglas Lowenstein versus
Jack Thompson in a battle to death over First Amendment protection for
games. Aside from this brief bit of philosophizing and dreaming,
litigation is an enduring fact in the game industry and it is often the
cause of robust change. As professionals working in games, we should
understand the importance of litigation and how it has shaped the craft
of making games.
The purpose of this article is
to highlight a few of the interesting game cases (or types of cases)
and consider how these have affected the industry. Readers may be
surprised, but some of these cases produced real changes for the
This article should not be considered a
list of the “biggest” or the “most important” cases in the game
industry. Instead, think of this article as just an introduction to
some of the more interesting battles over the last 30 years.
Copyright Covers Games
is probably the most important protection for computer and video
games. This allows game companies to enter into complex game
development and distribution contracts. Copyright allows companies to
take action against hackers and pirates, even invoking criminal charges
with the FBI. We take it for granted that games enjoy this broad
protection, but this was not always the case.
of the first cases to set copyright firmly on the road to covering
games is not merely an important case in the history of the game
industry, it is also an important case in the history of intellectual
To add to the historical importance, the opinion was written by future
Supreme Court Justice Ruth Bader Ginsberg when she was a judge for the
Court of Appeals for the District of Columbia.
The game Breakout,
now almost 30 years old, was a test case for copyright protection in
games. Writing that sentence makes me feel so old that I need to find
my false teeth and some Depends Undergarments just to brace myself for
writing the next sentence because for many of you, Breakout was “before your time.”
was a 2D game for the Atari 2600 that involved moving a simple bar or
“paddle” across the bottom of the screen to hit a ball that bounced up
into a four-color brick wall. The game had four different tones to
make up the soundtrack. When the ball bounced up into the bricks, it
ricocheted back down and had to be hit again with the paddle. When the
player failed to bounce the ball back up, the player lost a ball. This
process continued until the player ran out of balls.
registering a game with the Copyright Office is a very simple process.
It literally involves filling out a short form and mailing in a fee
less than $50. Atari attempted to register the copyright for Breakout
with the United States Copyright Office and was denied. This began a
struggle involving Atari, the Copyright Office, and U.S. courts that
lasted more than 5 years. The Copyright Office resisted this
registration because it stated that Breakout did not demonstrate the required artistic originality for registration.
the end, the Copyright Office registered the game and with the support
of previous court decisions, this helped pave the way for copyright
protection for all modern games.
- Magnavox Company v. Chicago Dynamic Industries, 201 U.S.P.Q. 25 (N.D. Ill. 1977).
- Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992). This was not
the first case to discuss games and copyright, but because of the judge
that wrote the opinion, its position as an appeals court case, and the
long struggle to register Breakout, it is considered one of the most
important game copyright cases of the period. Other copyright cases
pre-dating this one included cases concerning the games Pac-Man,
Galaxian, Donkey Kong and Scramble.