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.

The 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.

Another 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.

Yet, 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 better.

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

Copyright 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.

One 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 property law.² 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.”

Breakout 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.

Today, 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.

In 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.