For today's main feature, Dr. S. Gregory Boyd returns to Gamasutra with a detailed look
at the history of litigation in games, including what it means for the industry, how far back it goes, and its necessity going forward, with examples ranging from Pong
to Duke Nukem 3D
In his introduction, Boyd takes on notions that litigation in the industry is simply a by-product of overeager attorneys, and says that understanding how litigation has shaped the industry in the past is important to see how it might go forward:
"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. 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."
You can now read the full Gamasutra feature on the subject
, with much more from Boyd on patent trolling, user modification, and the continuing first amendment fight of the ESA versus state legislature (no registration required, please feel free to link to this column from external websites).