Speaker 1: Welcome to tech Stuff, a production from I Heart Radio.
Speaker 1: Hey there, and welcome to tech Stuff. I'm your host,
Speaker 1: Jonathan Strickland. I'm an executive producer with I Heart Radio
Speaker 1: and Holdna Tech Are you. We're going to listen to
Speaker 1: a classic episode of tech Stuff. This one originally published
Speaker 1: on April. It is called the Biggest Lawsuits in Gaming History. Enjoy.
Speaker 1: So these two lawsuits have atari in common as as
Speaker 1: one of the the the participants in said suits, and
Speaker 1: I as I'm so glad you're here to explain not
Speaker 1: just what happened and what are the particulars of the case,
Speaker 1: but why it's important because both of these cases took
Speaker 1: place fairly early on in the era of home video
Speaker 1: games and as a result, would end up really shaping
Speaker 1: the way video games are treated under a copyright law. Yeah. So,
Speaker 1: for those who don't know, I went to law school,
Speaker 1: I graduated, I passed the Barn, New York, States, and
Speaker 1: immediately got a job in technology. Ended up doing that
Speaker 1: for the rest of my career. Um, and so there's
Speaker 1: there's there's a long history of why I became a lawyer.
Speaker 1: You know, parents in first generation American like be be
Speaker 1: a lawyer, or doctor. So the game a law degree. Um,
Speaker 1: and I took intellectual property in school and these cases,
Speaker 1: the ones that we're gonna talk about, were presented to
Speaker 1: me back to back and it was just maddening to
Speaker 1: try to figure out the differences why one case went
Speaker 1: one way and went why one another. And we'll get
Speaker 1: all into that. But I'm really kicking myself because I
Speaker 1: used to have my my books, my notebooks. I'm like,
Speaker 1: I'll never need my briefs anymore, so I chucked them out.
Speaker 1: And so here we go talking about two cases that
Speaker 1: I learned a long time ago. So uh, if there
Speaker 1: are any errors, I apologize. But we have looked over
Speaker 1: the cases of several times day personally, and I've looked
Speaker 1: at two or three times today and written up notes. Again.
Speaker 1: I printed out one of them the right notes, because
Speaker 1: that's how I used to do it back in the day,
Speaker 1: to the point to the point where you have hard
Speaker 1: copy in front of you, I literally have my penciled
Speaker 1: out notes all over based on book briefs, which I
Speaker 1: used to do when I was in school. Wow. So
Speaker 1: the first of the two cases we're talking about, and
Speaker 1: as I has pointed out, these have to do with
Speaker 1: intellectual property with copyright, which is a tricky subject, right Well,
Speaker 1: I've talked about several times on tech stuff, and in general,
Speaker 1: copyright is about making sure someone who creates a work
Speaker 1: of some sort that's in a fixed tangible medium has
Speaker 1: some sort of protection that that you don't have to
Speaker 1: worry about, or rather you have some recourse if someone
Speaker 1: were to try and copy that work you could pursue
Speaker 1: action against them based upon the copyright. It gives you
Speaker 1: that that level of protection, and anything that you set
Speaker 1: down in a fixed tangible medium technically is protected by copyright.
Speaker 1: Registering a copyright, however, is a great idea because then
Speaker 1: there's an official record of said copyright if you should
Speaker 1: ever have cause to, you know, bring that up in court. Um.
Speaker 1: This is one of those things where it really only
Speaker 1: plays out as soon as there is is either a
Speaker 1: lawsuit or the threat of a lawsuit. Otherwise it's kind
Speaker 1: of a it's it's kind of in the background. And
Speaker 1: the first case that we wanted to talk about was
Speaker 1: Atari versus Amusement World, which sounds like the most fun
Speaker 1: lawsuit ever. It definitely does the cases from way back,
Speaker 1: and it was the U. S. District Court in Maryland,
Speaker 1: and uh, it's pretty simple ideas. So we have two
Speaker 1: different companies. We've gotta tar they held the copyright for Asteroids.
Speaker 1: You guys probably heard that game. You've probably seen it,
Speaker 1: you know the saying asteroids. I'm sure you guys have
Speaker 1: a picture in your head. There's a little triangular ship
Speaker 1: and there and their rocks flying at you and you
Speaker 1: blow them up right right until you get blown up
Speaker 1: by either a rock or one of the few little
Speaker 1: enemy spaceships that would occasionally pop up. Yeah. So another
Speaker 1: company called Amusement World, which again is a great name,
Speaker 1: it's not as creative as Atari as that. When I
Speaker 1: listened to the three partner on its are finding out
Speaker 1: where the names came from, I'm like, this is pretty
Speaker 1: awesome to hear. Um. So these guys basically saw the
Speaker 1: idea and they're like, we could make our own game.
Speaker 1: And uh, one of the big things that you're gonna
Speaker 1: get out of this case is that you can't. You
Speaker 1: can't have a monopoly on an idea. So they are
Speaker 1: free to make a game. But as Ali saw this
Speaker 1: game and they're like, wait a second, it's Trangler ship.
Speaker 1: You're blown up rocks, you're totally stealing our stuff and
Speaker 1: we're suing you, right. And another thing to keep in
Speaker 1: mind is this is early enough in the in the
Speaker 1: era of video games that the court had not fully
Speaker 1: decided that video games were something you could totally copy. Right.
Speaker 1: In fact, in the other case we're gonna talk about,
Speaker 1: there's a note in the court's decision that says the
Speaker 1: video games are not something you can fully copyright. But
Speaker 1: there are elements of copyright protection that do extend to
Speaker 1: video games, and it gets into particulars that we're probably
Speaker 1: not going to cover in this in this podcast, but
Speaker 1: just to say that this was kind of a wild
Speaker 1: West era of both the home video game industry and
Speaker 1: of law because technology had outpaced what the legal system
Speaker 1: was ready to cover. And we see that again and again,
Speaker 1: not just in video games obviously, but in all realms
Speaker 1: of technology and law. You see that with things like
Speaker 1: the autonomous cars coming out and people saying, wait a minute,
Speaker 1: how do we what sort of legislation do we need
Speaker 1: to put up to deal with this new reality of technology,
Speaker 1: And it just turns out that, you know, the law
Speaker 1: is something that has to catch up to our changing world. Uh,
Speaker 1: And in this case, you know we had we had
Speaker 1: an interesting uh case brought forth by Atari saying here
Speaker 1: are some of the things that we say, are the
Speaker 1: similarities between our game and this other game called Meteors
Speaker 1: Asteroids and Meteors. I mean already just just with the names.
Speaker 1: You're like, guys, maybe we should come up with a different,
Speaker 1: you know, title, But they court identified a bunch of
Speaker 1: multiple points of similarity. Now, in cases of trying to
Speaker 1: determine whether an author has plagiarized another author, for example,
Speaker 1: often courts will ask for some third party, preferably a
Speaker 1: a the third party that has no interest in the
Speaker 1: outcome of the case, to identify any points of similarity
Speaker 1: and then give his or her opinion as to whether
Speaker 1: or not the points of similarity indicate a case of plagiarism,
Speaker 1: or if, in fact, it could have just been coincidence, because,
Speaker 1: as we're all aware, different people can come up with
Speaker 1: similar ideas that around the same time, and it's not
Speaker 1: always a case of of plagiarism. So here are some
Speaker 1: of the points of similarity. Both games involved the player
Speaker 1: shooting and destroying rocks, and in both games there are
Speaker 1: actually three different sizes of rocks. Those rocks would appear
Speaker 1: in waves, with the initial waves being composed of bigger rocks.
Speaker 1: When you shoot them, they would break into medium sized rocks.
Speaker 1: Medium sized rocks would break into small rocks. Small rocks
Speaker 1: would disappear when you shot them, and the speed of
Speaker 1: the rocks would depend upon their size, so large rocks
Speaker 1: move more slowly than small ones. So as you're spinning
Speaker 1: around with your little ship in both Asteroids and Meteors,
Speaker 1: as you shoot these rocks, they start getting smaller and
Speaker 1: they start moving faster, so you know, you develop your
Speaker 1: strategy around that. Uh. And in both if you got
Speaker 1: hit by a rock game over right, or at least
Speaker 1: your your player life for that one ended, you would
Speaker 1: usually get multiple lives per game. Um. And both games
Speaker 1: had enemy spaceships and UH. The enemy spaceships came in
Speaker 1: two different sizes for both games. The bigger ones were
Speaker 1: worth fewer points than the smaller ones, the idea being
Speaker 1: that the smaller ones are harder to hit, therefore they're
Speaker 1: worth more points. Both the players ships and the enemy
Speaker 1: spaceships could shoot projectiles. Impact would be automatic destruction, which
Speaker 1: would be accompanied by I think they actually said the
Speaker 1: symbol of an explosion, because I mean this is this
Speaker 1: is early days of video games. Guys. You remember, like,
Speaker 1: there's not a heck of a lot you can do. Yeah,
Speaker 1: when it comes to graphically representing anything. So we're talking
Speaker 1: some pretty primitive looking graphics. So it's the stuff that
Speaker 1: gets laid out here in the next case, it actually
Speaker 1: determines how, like we could have so many side scrollers.
Speaker 1: It's just such a bizarre way to go. Yeah, and
Speaker 1: when that's something else that will come up in this
Speaker 1: discussion is that part of the reason the cases turned
Speaker 1: out the way they did is again it's so early
Speaker 1: on in the era of video games that people had
Speaker 1: not really well, one, the technology had not advanced to
Speaker 1: the point where you could have very different depictions of uh,
Speaker 1: you know, different interpretations of the same basic idea. You
Speaker 1: were limited in that because the technology itself was limited.
Speaker 1: So it's not like you could, you know, have one
Speaker 1: that looks like asteroids where you've got this top down
Speaker 1: view of a little triangle shooting rocks, and the other
Speaker 1: one you have a photo realistic, you know, a space
Speaker 1: simulator where you're flying through shooting rocks. Uh. So the
Speaker 1: technology itself was limited, and thus a lot of people
Speaker 1: figured that the ability to express an idea itself was
Speaker 1: limited because of that. Um, But there's some other similarities
Speaker 1: that I thought were kind of like, well, there's no
Speaker 1: reason that you could argue one game would have to
Speaker 1: have this particular element versus the other. For example, both
Speaker 1: games had a two tone beeping noise that increased in tempo.
Speaker 1: Is the game progress, so like, uh, and we just
Speaker 1: get faster and faster. Um. Both games had scores for
Speaker 1: players that were displayed in the same sections of the screen. So,
Speaker 1: in other words, like the player one score would be
Speaker 1: in the upper left corner and the player to score
Speaker 1: be the upper right corner. Both games had a thrust
Speaker 1: button that would let the player's ship move in whatever
Speaker 1: direction it happened to be facing at the time. Um,
Speaker 1: have you ever played Asteroids like the arcade version of Asteroids?
Speaker 1: I've actually played the home version of of Asteroids. I
Speaker 1: don't think I've ever played it in the arcade. Actually, yeah,
Speaker 1: the arcade version was tough. I mean, this would be
Speaker 1: the home version because it is a tari I believe
Speaker 1: it's not the video game version. Maybe it could be
Speaker 1: the video game version because you did have both divisions.
Speaker 1: But um, the the buttons on the Asteroids game were
Speaker 1: what would allow you to turn the ship left, turn
Speaker 1: the ship right, or use thrust? Um Obviously you would
Speaker 1: just use a a direction on your joystick. Usually I
Speaker 1: think pressing up would give you the thrust in the
Speaker 1: home version. Ah, but in both versions, if you released
Speaker 1: the thrust, then gradually your ship would come to a halt,
Speaker 1: although the court did did actually notice that this happens
Speaker 1: more quickly in meteors than in Asteroids. Uh. And both games,
Speaker 1: at ten thousand points, you'd get an extra life, and
Speaker 1: each successfully completed wave of rocks initiates a new wave,
Speaker 1: and each new wave has more rocks in it than
Speaker 1: the previous wave. So those were the similarities that the
Speaker 1: court noticed between these two games, and there are a
Speaker 1: lot of them. I mean, there's the very basic nature
Speaker 1: of the game seems identical in these cases, right, I mean,
Speaker 1: it would be hard for me to argue otherwise I
Speaker 1: would think, yeah, I mean, if if it's kind of
Speaker 1: like modern games, you're thinking of the Call of Duty
Speaker 1: versus any other battlefield game, you think of any any
Speaker 1: kind of war game, they're all kind of the same.
Speaker 1: But why is that even allowed? And uh, there are
Speaker 1: differences in these two games, Meteors and Asteroids. So Asteroids
Speaker 1: had this, uh had a black field underneath the actual game,
Speaker 1: but in Meteors you had this star field and the
Speaker 1: look of distant stars. And this is kind of really
Speaker 1: pushing it because when you're looking at them, if you
Speaker 1: haven't seen the photos of this this game, you'll see
Speaker 1: they're just basically dots. That's kind of neat. Asteroids is
Speaker 1: black and white, and Meteors was in color, and that
Speaker 1: was pretty different. Meteors also had some shading on the
Speaker 1: spaceship and the rocks, so kind of had more dimension
Speaker 1: because the Asteroids is pretty flat looking when it comes
Speaker 1: to ships and rocks, almost like a schematic drawing, like
Speaker 1: it's it's it's or almost abstract in a way, because
Speaker 1: the rocks all look the same and they all just
Speaker 1: kind of float at you, and then you shoot them
Speaker 1: and now they're they're different sized, but the shapes are
Speaker 1: still very much the same and they're still floating at you.
Speaker 1: It's not you know, there's no real sense of, uh,
Speaker 1: the dimensionality in the original Asteroids game. I really like
Speaker 1: the element that Meteors starts off. When you start off
Speaker 1: the game, there's an animation of you blasting off of Earth.
Speaker 1: Compare that to Asteroids. You just start and you're just
Speaker 1: in the in the field. Time to go. Um, you've
Speaker 1: got the game. Meteors is actually faster in general, and
Speaker 1: it moves, and you have a different way of shooting
Speaker 1: as well. You could can you could shoot a lot
Speaker 1: more I think continuously compared to Asteroids. Right, Asteroids was
Speaker 1: like a burst fire thing. You could fire a few shots,
Speaker 1: but then you had to weight. It's almost like a
Speaker 1: recharge period. Have I missing anything else? So that's are
Speaker 1: the main ones. That's the main ones. I mean, uh,
Speaker 1: you know there were There was also the fact that
Speaker 1: the Meteors and meteor and Meteors rather could tumble like
Speaker 1: they actually they actually seemed to rotate as they were
Speaker 1: coming towards you, whereas the if you watch the old
Speaker 1: Asteroids game, those shapes just they maintain their same orientation
Speaker 1: as they move across. So there was that too. So
Speaker 1: there were some definite improvements on the game. So Amusement
Speaker 1: World had to defend itself against these claims of copyright infringement.
Speaker 1: They tried a couple of different tactics. The first thing
Speaker 1: they tried was, uh, they said that Atari's copyright on
Speaker 1: Asteroids was invalid in this case because of the way
Speaker 1: they registered their copyright. So they said that Atari had
Speaker 1: registered Asteroids copyright as an audio visual work, not as
Speaker 1: a literary work, and that as a result, the copyright
Speaker 1: wasn't valid. They said that Atari had submitted essentially a
Speaker 1: film video of one out of a possible infinite variations
Speaker 1: of a single game. So in other words, they captured
Speaker 1: gameplay footage of Asteroids, and that particular gameplay footage was
Speaker 1: being sent as as part of the the the work
Speaker 1: that Atari was submitting to get this copyright, and I
Speaker 1: guess Amusement World was essentially saying, well, technically, wouldn't that
Speaker 1: just give copyright to that specific film? Like that was
Speaker 1: that's such a great argument. It's taking like you were saying,
Speaker 1: this is the wild West, it's the early days of
Speaker 1: video games, and how are they protected. So the idea
Speaker 1: that that Amusement World is pushing us wait a second,
Speaker 1: that's a tape or recording. You definitely have protection for that,
Speaker 1: but you're suing us about the game itself. And the
Speaker 1: court was like wait, wait, wait a second, Okay, now
Speaker 1: they did uh put the work in a tangible medium
Speaker 1: and that happens to be the circuitry, and it's not
Speaker 1: so easy to just send us an arcade cabinet. This
Speaker 1: is the way it used to be. Yeah, yeah, because
Speaker 1: the wrong trip. I mean, the game is hard coded
Speaker 1: on a a a circuit board, and that circuit board
Speaker 1: is only useful if you haven't connected up to the
Speaker 1: rest of the system. So yeah, I mean you would
Speaker 1: have to have had a tory send a full console
Speaker 1: like I mean a full like Atari cabinet out to
Speaker 1: the Patent office that or rather the copyright office, and
Speaker 1: uh deliver that and say like, here's our fixed tangible medium.
Speaker 1: And hilariously, I know a lot of people think the
Speaker 1: laws kind of messed up and it allows for absurd results.
Speaker 1: If this kind of actual event that's happening right now
Speaker 1: we're talking about, if they if Atari had to send
Speaker 1: an actual cabinet every single time it made a game,
Speaker 1: that would cause such a ludicrous amount of storage requirements
Speaker 1: by the government it would make no sense. It would
Speaker 1: can you imagine filing these arcades? Well, it would have
Speaker 1: made the copyright office a much more fun place to work.
Speaker 1: It would be a great, fantastic break area where you like,
Speaker 1: we guess, guess what we got? This other game hasn't
Speaker 1: even come out in our gades yet. Um, you know,
Speaker 1: it seemed to me this this is the argument I
Speaker 1: would make with this, Like if you were trying to
Speaker 1: to say, like, well, what is this similar to? Let's
Speaker 1: say that I write a play and, for some reason
Speaker 1: that I cannot even come up with right now, I
Speaker 1: submit my play to the copyright office, not by sending
Speaker 1: in a script to to be copied, you know, to
Speaker 1: register the copyright, but rather I put on a performance
Speaker 1: of the play and then I record the performance on
Speaker 1: using a video camera or whatever, and I send that
Speaker 1: in to be copyright. That you could argue like, well,
Speaker 1: you're copyrighting the performance of this play, but the play
Speaker 1: itself you still haven't registered. That's kind of the argument
Speaker 1: Amusement World was making. And ultimately the court dismissed this
Speaker 1: argument and said, all right, you know, for for practicality sake,
Speaker 1: just for the same reasons that I as was mentioning earlier,
Speaker 1: we have to draw the line somewhere and a video
Speaker 1: depicting gameplay footage is going to be differentiated from a
Speaker 1: film in that we're not saying that this one video
Speaker 1: representation of the game is the only thing that is
Speaker 1: protected under copyright because it's ludicrous. But but it could
Speaker 1: have gone the other way. That could have been a
Speaker 1: first case where they're saying, actually, you're right, didn't the
Speaker 1: necessarcuit board. Um, well, no, you're right, there's no copyright
Speaker 1: protection and definite your copyright covers a heck of a
Speaker 1: lot of things, include including derivative works. So if John
Speaker 1: Fannitz end in that recording, if I transcribed it and
Speaker 1: go ha ha, I can sell this because you didn't
Speaker 1: copyright the actual script, Clearly it's derivative of what you've done.
Speaker 1: So that's it's supposed to reward the content creator. It's
Speaker 1: supposed to be about furthering uh society, because you when
Speaker 1: you write something, you're protected and you can actually enjoy
Speaker 1: the fruits of your labor. And that's the whole point
Speaker 1: of copyright in a nutshell. Yeah, and it and it
Speaker 1: does get complicated. I mean, using that other example of
Speaker 1: the play and shooting a video, let's say that I
Speaker 1: haven't sent in the script for copyright yet, I as
Speaker 1: comes to a rehearsal of this play that has not
Speaker 1: yet been copyrighted. He video tapes the rehearsal and copyrights
Speaker 1: the videotape, and now suddenly he's got a registered copyright,
Speaker 1: assuming that it's granted, he has a registered copyright for
Speaker 1: this thing. I haven't copyrighted my script, and his registration
Speaker 1: would predate anything I would send in, which would cause
Speaker 1: further complications. So you know, the whole point of this
Speaker 1: is to try and create as clear a record of
Speaker 1: ownership as possible. But if you don't do your part
Speaker 1: in that, then you can't expect to have the protection
Speaker 1: that it would grant you. So uh, in this case,
Speaker 1: I guess it was a good thing that the court said, hey, uh,
Speaker 1: the audio visual thing is not um, not a barrier.
Speaker 1: It's not something that is going to count against Atari
Speaker 1: in this case. But Amusement World then had to change
Speaker 1: its tactics and said it Uh. What Attari was trying
Speaker 1: to do was claim copyright protection of the idea of
Speaker 1: a video game in which the player tries to survive
Speaker 1: encounters with asteroids and enemy spaceships. Who knew that video
Speaker 1: gaming could be so litigious? And I'll have to do
Speaker 1: a follow up episode to this one at some point,
Speaker 1: because there's more to it. But before we get ahead
Speaker 1: of ourselves, let's take a quick break and be back
Speaker 1: for more of this classic episode. So this is where
Speaker 1: we get into another interesting, uh facet of copyright, because,
Speaker 1: as it turns out, an idea by itself is not
Speaker 1: something that's guaranteed protection. Yeah, that's the whole thing about
Speaker 1: idea versus the expression of an idea. And you're gonna
Speaker 1: get familiar with this jeweled be pendant and what this
Speaker 1: this thing is. If there was this lawsuit, I'll do
Speaker 1: it real quick. There was one manufacturer of a thing
Speaker 1: of it, like a brooch or a pin that a
Speaker 1: person would wear. It was a BE that had jewels
Speaker 1: on it. So somebody saw that idea, Hey, that's a
Speaker 1: really cool idea. I'm gonna make the same thing. So
Speaker 1: the first person who made the be jeweled B said, no,
Speaker 1: I'm suing you for a copyright that's mine. And the
Speaker 1: court said, listen, there's only one way to show a
Speaker 1: jeweled B. That's it. Now. Granted we could have a
Speaker 1: different pattern on the actual B, but a B, if
Speaker 1: you're trying to keep it realistic, is going to have
Speaker 1: the black and yellow or brown and yellow kind of stripes.
Speaker 1: It's gonna have wings. There are elements you cannot change
Speaker 1: about this, and there's only one true way to do this.
Speaker 1: In that case, you do the first person does have
Speaker 1: a copyright on that actual item, but it's not exactly
Speaker 1: terribly strong. Another person can actually make the same thing
Speaker 1: also have a copyright on it, which sounds a little
Speaker 1: bit bizarre if you think about it. But because you
Speaker 1: can't copyright the idea, this is free to copy and
Speaker 1: you know you still have a copyright, it's just such
Speaker 1: a weak, uh week copyright that it's it's very very strange.
Speaker 1: And that's basically we gets applied to this case. Yeah, yeah,
Speaker 1: this this idea that okay, so the idea itself is
Speaker 1: not copyrightable. That there you could have the reasonable expectation
Speaker 1: that different people would want to create a game based
Speaker 1: on this same kernel of an idea. The argument then becomes, well,
Speaker 1: how many different ways are there to express that idea?
Speaker 1: If it turns out there's really only one method of
Speaker 1: doing it, you can't truly have protection of that because
Speaker 1: it would be silly, right if it's it's only if
Speaker 1: there are multiple ways to express that idea that you
Speaker 1: you could argue, well, this person copied you, and they
Speaker 1: didn't have to. They could have expressed that same idea
Speaker 1: in a totally different and novel way. So therefore they
Speaker 1: are they are actively violating your copyright. You have a legitimate, uh,
Speaker 1: legitimate complaint. So what the court had to decide in
Speaker 1: this case was, did what the stuff that Amusement World
Speaker 1: did by creating meteors? Did they in fact copy Atari
Speaker 1: or did they simply employ the same ideas Because there
Speaker 1: was really only that way to express a game where
Speaker 1: you are trying to maneuver a spacecraft through an asteroid
Speaker 1: belt while you're being shot at by enemy spaceships, And
Speaker 1: that must have been a really interesting deliberation to go
Speaker 1: through and say, all right, well, which one elements here
Speaker 1: do we think are essentially universal in the sense that
Speaker 1: anyone who wanted to make a game that represented this
Speaker 1: kind of idea would have to do it this way
Speaker 1: versus which one of these ideas could you do in
Speaker 1: a myriad of other ways. But they chose to copy
Speaker 1: Atari's method, and in this case it ended up um
Speaker 1: kind of a favoring Amusement World. Amusement World UH is
Speaker 1: not found guilty of copy infringement in this case. Because
Speaker 1: there is apparently the idea expression unity is true in
Speaker 1: this particular case. That's what the court's saying. They're saying, look,
Speaker 1: there is like one way to do this. So if
Speaker 1: you had a spaceship and you're going to blow up
Speaker 1: a rock in this in space, those rocks have to
Speaker 1: disappear in one of two or three different ways. Okay,
Speaker 1: it's gonna break up in one piece, two pieces, three pieces.
Speaker 1: That breaks up into a million pieces. The game becomes
Speaker 1: somewhat unplayable because you'll just lose all the time. They're
Speaker 1: saying that both games start off somewhat easy, which is
Speaker 1: to encourage people to play the game. That's something that
Speaker 1: you can't really say. We'll start the game really hard
Speaker 1: and that will be a different game. So there's enough
Speaker 1: elements that in this case, the course saying, look, if
Speaker 1: you're flying around in space and that you're blown up rocks,
Speaker 1: this is kind of the only way to do it,
Speaker 1: because you just there's no way around this. And I
Speaker 1: wanted this quickly mentioned that both of these guys Amusement
Speaker 1: World in Natari both have copyright protection. It's that the
Speaker 1: protection doesn't give them a monopoly because of the idea
Speaker 1: expression unity. That's what the thing is. It's about a
Speaker 1: monopoly on something more so than it is protection, because
Speaker 1: even though these games are very similar and they act
Speaker 1: in a very similar way, they both still have copyrights
Speaker 1: on those products, which is really I mean, this is
Speaker 1: that's mind bending to me, particularly when we get to
Speaker 1: the discussion of the second case, where we start saying,
Speaker 1: wait a minute, I don't on a very like high level,
Speaker 1: it could be hard to distinguish between the two the
Speaker 1: differences that mark one case versus the other, because, as
Speaker 1: it turns out, the court decisions in the second case
Speaker 1: we're going to talk about go in a in a
Speaker 1: different direction than the one we just mentioned. And that's
Speaker 1: that's probably why I mean, I mean, I imagine that's
Speaker 1: why you when you were studying law, you had these
Speaker 1: two cases kind of presented together as a way of,
Speaker 1: uh illustrating this this idea of um, the copyright of
Speaker 1: the expression of an idea versus the idea itself. Yeah,
Speaker 1: like I said in the beginning, this was maddening to
Speaker 1: go back to back with the case. We the next case,
Speaker 1: this is two. It's decided by the United States Court
Speaker 1: of Appeal, Seventh Circuit and the Satari versus North American
Speaker 1: Phillips consumer like Finance Corps. You might know them as
Speaker 1: Phillips in the in the case, they are constantly called
Speaker 1: North American because that's just the shorthand eight two. That's
Speaker 1: just the way it was. And on top of that,
Speaker 1: Phillips happened to be the maker or something called The Odyssey,
Speaker 1: which I'm sure not only have I heard it discussed
Speaker 1: on tech stuff. I kind of remember the Odyssey because
Speaker 1: I remember the actual ads in magazines and I'm like,
Speaker 1: what's an Odyssey? So here's the thing. I think I
Speaker 1: actually owned the game that's in question. Here, Yeah, the
Speaker 1: game of question. Here's uh, there's there's two games, and
Speaker 1: has got the Atari has in this particular world, Atari
Speaker 1: has a Midway have the rights to make a pac
Speaker 1: Man game? Who owns the copyright on Pacman at this
Speaker 1: point Namco? So Namco had the Namco owns the game,
Speaker 1: but uh, Midway and Atari had the United States the
Speaker 1: the exclusive United States rights to pac Man. So you
Speaker 1: could think of Atari almost being a a you know,
Speaker 1: like the representation of Namco in the US. Because of
Speaker 1: the way that games would be published and then distributed globally,
Speaker 1: so while Namco technically is the owner of pac Man,
Speaker 1: Atari could act in that capacity within the United States. Yeah,
Speaker 1: that's like the whole point of copyright. You have the right.
Speaker 1: Namco has the right, and they own this this character.
Speaker 1: They own every derivative work, and they're like, hey, listen,
Speaker 1: now that we have this, we can sell the license
Speaker 1: to somebody else to do something with it. So that's
Speaker 1: one of the reason why people are ferociously fighting about this,
Speaker 1: because they want to have the exclusive right. Atari paid
Speaker 1: money for these rights and they don't. They don't want
Speaker 1: to lose market share because Phillips decides to make a
Speaker 1: better pack Man game. Um, so this this game that
Speaker 1: eventually comes out. It's called Casey Munchkin, a game I
Speaker 1: had never heard of before, and I had not I thought,
Speaker 1: I swore when I saw that you had put this
Speaker 1: as one of the lawsuits we were going to talk about.
Speaker 1: This was before we had decided just to focus on Atari.
Speaker 1: I saw the name Casey Munchkin, and I thought, I've
Speaker 1: never heard of this game. Then I watched a video
Speaker 1: of the gameplay and I said, I think I owned
Speaker 1: this game, but I had no memory of the name
Speaker 1: of it. Yeah, so it's it's amazed game. Let's let'
Speaker 1: let's talk by the little what happened the little facts
Speaker 1: about this this uh infringing work that this is being called.
Speaker 1: So there's a game developer's name is Ed Everett and
Speaker 1: a Mr. Stop And in the case, they don't actually
Speaker 1: give Stop a first name, so I don't know what
Speaker 1: his name is. His first name please the head of
Speaker 1: Phillips Home video game development, and that's for the Odyssey.
Speaker 1: So they see pac Man in an airport arcade and
Speaker 1: they decide, hey, we could build a better version for
Speaker 1: the Odyssey home console. Now, Everett had made twenty one
Speaker 1: other video games, so he's he's got a good track
Speaker 1: record when it comes to making games. Let's Stop and
Speaker 1: Everett both decide that, hey, listen, if we had the
Speaker 1: pac Man name on this game, it would do so
Speaker 1: much better. So Average starting to do some development on
Speaker 1: the game North American at this point where Phillips is
Speaker 1: trying to get the license from Midway, So, hey, can
Speaker 1: we just make a game with you guys with the
Speaker 1: license and the company Midway says no, we're not giving
Speaker 1: you a license. So Average kind of building a game
Speaker 1: that's not even done yet. He's told that we don't
Speaker 1: have the license. So Avert continues to build this game,
Speaker 1: and it turns out to be Casey Munchkin, right, the
Speaker 1: idea of being to make a game similar to pac
Speaker 1: Man without being exactly pac Man, and also the idea
Speaker 1: of making this quote unquote better than the arcade version.
Speaker 1: So it was it wasn't built as a clone of
Speaker 1: pac Man, but you know it's undeniable that it shares
Speaker 1: a lot of similarities to pac Man. Yeah, so Avert
Speaker 1: finishes this game called Casey Munchkin. North American says, can
Speaker 1: we review the game? We want to make sure it's
Speaker 1: totally different from pac Man, And so they see the game,
Speaker 1: they go, okay, we need to change some things. First,
Speaker 1: change the protagonist's color. He's not going to be yellow,
Speaker 1: so that that's a big flag. So they change the
Speaker 1: color of Munchkin from the yellow to blue. They also
Speaker 1: told retailers, do not call this pac Man, do not
Speaker 1: reference pac Man. Whatever you do, don't call it pac Man.
Speaker 1: So what actually happens in reality retailers call it Odysse's
Speaker 1: pac Man or a pac Man's pac game because that's
Speaker 1: gonna sell copies to customers and that's what the stores
Speaker 1: are concerned with. They don't the stores aren't concerned with copyright.
Speaker 1: They're concerned with moving inventory. Yeah, so that didn't help anything.
Speaker 1: We fill up because they're like, no, don't do that,
Speaker 1: don't do that. And so Atari gets wind of this,
Speaker 1: they go listen, we're we're suing you because you are
Speaker 1: pringing on our copyright. Here. We have the rights to
Speaker 1: do this. You don't have any rights to do this.
Speaker 1: And they look for a primary injunction to get this
Speaker 1: game off the shelves. They don't want this game being sold.
Speaker 1: And in the first case, Atari loses. Okay, ATORI does
Speaker 1: not get their injunction and to start with, and that's
Speaker 1: how it ends up at the Court of Appeal Seventh Circuit,
Speaker 1: because the Court of Appeals is taking this appeal to
Speaker 1: find out what happens, and they decide it is infringement,
Speaker 1: which will make your head explode as we describe the games,
Speaker 1: because it's very strange why this in this case there
Speaker 1: is infringement versus the Before we get into that, just
Speaker 1: so just so people can kind of understand, I don't
Speaker 1: mean to put you on the spot, id, but can
Speaker 1: you can you sort of give an overview of of
Speaker 1: what the appeals process is in case could because, as
Speaker 1: you pointed out, Atari had lost the case, but then
Speaker 1: was able to take it to another court. Well, I mean,
Speaker 1: so that the first case was adjudicated, and is this
Speaker 1: in this particular case, you have to show you're looking
Speaker 1: for an injunction. You have to show irreparable harm. Okay,
Speaker 1: if you're looking for irreparable harm, you have to explain
Speaker 1: that you cannot be made whole with money. Right, so
Speaker 1: if you have, uh, if you're talking about Apple and Samsung,
Speaker 1: they're like, hey, look, don't sell those phones, and the
Speaker 1: courts like no, you know what if if this stays
Speaker 1: on the shelves, they can just pay you money because
Speaker 1: that's only that's the only thing you're gonna lose. You're
Speaker 1: just gonna lose on profits. Well, that's what they'll pay
Speaker 1: out the same thing with this kind of deal. The court,
Speaker 1: the lower court found, look, there was no irreparable harm here,
Speaker 1: so we're not going to stop this game from being sold. Um.
Speaker 1: Then Atari just basically files a motion for of appeal.
Speaker 1: I mean, that's basically what that works. They file the
Speaker 1: appeal and then this court decides to take a look
Speaker 1: at everything that happened in the first case, and pretty
Speaker 1: much I believe in this. In this appeals process, all
Speaker 1: the facts are pretty much stipulated. So it's not a
Speaker 1: heck of a lot of disagreement, not having like an
Speaker 1: argument about um, oh, you know, these two guys didn't
Speaker 1: see the airport. They saw it somewhere in Atari's headquarters.
Speaker 1: Whatever facts are in that first case are kind of
Speaker 1: taken as as that. It's just like, this is reality.
Speaker 1: We we can't can't look outside of this reality. We
Speaker 1: just decided this was correctly. Uh, if this, if the
Speaker 1: court decision was correct in this case exactly, and they're
Speaker 1: looking at the court abuse discretion they do anything strange.
Speaker 1: It's a very narrow kind of thing. And so it's
Speaker 1: it's you're not gonna see a lot of if you
Speaker 1: ever wanted to see a court of appeals kind of argument,
Speaker 1: I feel like I really want to. No, it's not
Speaker 1: going to be an exciting defendant plaintiff argument. It's gonna
Speaker 1: be like, well, that's what happened, and that's what happened.
Speaker 1: Mm hmm. That's it pretty well at any rate. The
Speaker 1: other thing to keep in mind is that before we
Speaker 1: talk about how the court described these games, because it
Speaker 1: is pretty awesome. Uh. The the other thing to remember
Speaker 1: is that Casey munch Kid came out on the Odyssey
Speaker 1: before Atari's uh Port, I guess Port is probably being
Speaker 1: way too generous, before Atari's version of pac Man could
Speaker 1: come out for the hundred, So that was also an issue.
Speaker 1: Was that seeing this this other home video game representation
Speaker 1: of a very similar idea come out on a different
Speaker 1: console before Atari could have its version come out on
Speaker 1: the dred that could I'm guessing that also gave Atari
Speaker 1: some some ammunition to say, look, they're even trying to
Speaker 1: to edge us out before we can get our product
Speaker 1: on store shelves. But let's talk about how the court
Speaker 1: described these games. So, uh, these descriptions are written up
Speaker 1: in court documents. You can actually read the full descriptions because, uh,
Speaker 1: they're pretty long, but you pulled out an excerpt that
Speaker 1: I think is pretty awesome for the description of of
Speaker 1: of what pac Man is. So this is directly from
Speaker 1: the court case and they're explaining the copyrighted work in
Speaker 1: this case, pac Man, the copyright version a pac Man
Speaker 1: is an electronic arcade maze chase game. Very basically the
Speaker 1: game board, which appears on a television like screen, consists
Speaker 1: of a fixed maze, a central character parenthesis expressed as
Speaker 1: a gobbler UH or pursuit characters expressed as ghost monsters,
Speaker 1: several hundred evenly spaced pink dots which line the pathways
Speaker 1: of the maze or in large pink dots, power capsules
Speaker 1: approximately located in each of the may His four corners,
Speaker 1: and various colored fruit symbols which appear near the middle
Speaker 1: of the maze during the play of the game. Yeah,
Speaker 1: and it goes on to describe in great detail what
Speaker 1: a pac Man game consists of, even going so far
Speaker 1: as to explain how you accumulate points through uh having
Speaker 1: your gobbler gobble pellets, including the power capsules, having having
Speaker 1: your gobbler gobble, the various fruit symbols, as well as
Speaker 1: having your gobbler gobble the ghosts. Whenever the power capsules
Speaker 1: allow for role reversal and the hunter becomes or hunted
Speaker 1: becomes the hunter, I guess in that case, I really
Speaker 1: I really wish these like I wish these court descriptions
Speaker 1: were like on the back of boxes when you bought
Speaker 1: the game. When this period of vulnerability is about to end,
Speaker 1: The monsters warned the player by flashing alternative alternately blue
Speaker 1: and white, before ma turning to their original colors. To
Speaker 1: be fair, this it sounds a lot like I mean,
Speaker 1: these games when they got them for the home consoles
Speaker 1: came with instruction booklets, and sometimes the descriptions sounded kind
Speaker 1: of like that. So I wrote a little note here
Speaker 1: where because I read the same the same court notes
Speaker 1: as I as did. And I love the fact that
Speaker 1: when they were referencing the Casey Munchkin game, which you know,
Speaker 1: they point out had a lot of the same elements
Speaker 1: as the pac Man game, they said that the ghost monsters,
Speaker 1: the three ghost sponsors and Casey Munchkin, rather than the
Speaker 1: four in pac Man, were quote much spookier in quote
Speaker 1: that's right, because they have like little tentacles or or
Speaker 1: beat or something like that, and they creepily move, and
Speaker 1: they also have antenna, so they're they're they're extra animated.
Speaker 1: I believe that was one of the other things they
Speaker 1: wanted to make sure the game look different, and it
Speaker 1: does look pretty different. There's a cool little corral in
Speaker 1: the middle that changes versus compared to the corral with
Speaker 1: the pac Man. Yeah, yeah, and the pac Man it's
Speaker 1: one box that has the ghosts in, and the ghosts
Speaker 1: all come out at the top of the box. In
Speaker 1: Casey Chikin, all the ghosts are piled on top of
Speaker 1: each other. The box is it's like a three sided box.
Speaker 1: There's a there's one side missing, and it rotates ninety
Speaker 1: degrees every few seconds. So the ghost can only come
Speaker 1: out one direction, depending upon you know, whichever way the
Speaker 1: box is facing at that given moment. That's the only
Speaker 1: way the ghost can come out, which is kind of interesting.
Speaker 1: I guess it could be a strategic benefit depending upon
Speaker 1: where you're munchkin was at that given moment. They also
Speaker 1: said that the Gobbler and Casey Munchkin has a personality,
Speaker 1: and that pact Man didn't, so sick burn. Yeah, that
Speaker 1: that is a pretty interesting Uh what do you call
Speaker 1: expression observation by the court. I'm not exactly sure how
Speaker 1: Casey shows a personality as a somewhat of a diamond
Speaker 1: shaped blue face. Gobbler, well, he he does he if
Speaker 1: he wins, like if you clear out a level, he smiles.
Speaker 1: It turns so that it's facing like the faces facing
Speaker 1: the view were as opposed to being in profile and
Speaker 1: you get a smile. Looks kind of like Kermit the
Speaker 1: Frog smiling. If Kermit also had like little horns or
Speaker 1: antenna on top of his head. And then uh, if
Speaker 1: he got gobbled by a ghost, he frowns before disappearing.
Speaker 1: So there's the fact that he could smile and frowned
Speaker 1: apparently gives him some personality. I think Pacman has got
Speaker 1: a personality just all business. She's like, I got no
Speaker 1: time for smiling, no time for frowning, died. There are
Speaker 1: pellets for chomping, all right, I gotta I gotta end
Speaker 1: up chomping these pellets. There there could be a tricycle
Speaker 1: that shows up at some point that I need to eat.
Speaker 1: Obviously very cautious, you know, fruit keeps disappearing on I mean,
Speaker 1: it might be paranoid. I believe pac Man might be
Speaker 1: a little paranoid. But maybe I'm reading too much. It
Speaker 1: might be you might be projecting on pac Man. Here
Speaker 1: is two. So this is a very it's just fun
Speaker 1: to hear the way they describe these games. They have
Speaker 1: to think of it in the abstract because this is
Speaker 1: partially this is not partially. This is very important to
Speaker 1: determine what parts of this game can be protected by copyright,
Speaker 1: what part isn't. Because again, if there's only one way
Speaker 1: to do something, well it's like the meteor case. And
Speaker 1: if there's more than one way, and I mean like
Speaker 1: in in significant ways it's more than one way to
Speaker 1: do something, well, maybe that's infringement. Yeah. So some of
Speaker 1: the things we need to point out or some of
Speaker 1: the differences between these games, because they sound like they're
Speaker 1: fairly similar, but there were a lot of interesting differences
Speaker 1: between the two. U One was that in in Pact Man,
Speaker 1: you have these hundreds of pellets, presumably depending on depending
Speaker 1: upon how it's depicted. Obviously, the Atari version was a
Speaker 1: lot more limited. The Atari Home game version was a
Speaker 1: lot more limited than the the the Arcade version. But
Speaker 1: Casey Munchkin they had twelve dots per level. The dots
Speaker 1: could actually move through the maze, however, so it gave
Speaker 1: an extra element of challenge. Plus, in the Casey Munchkin maze,
Speaker 1: there was one pathway that would end with a dead end,
Speaker 1: so you had to be careful. If the dot was
Speaker 1: down there and you need to retrieve it, you had
Speaker 1: to make sure you could do so and get out
Speaker 1: before being trapped by a ghost because there's no other
Speaker 1: way out. Um. It also had different different game options
Speaker 1: with Casey Munchkin, including one that would turn the level
Speaker 1: invisible around you whenever you moved, so you had to
Speaker 1: stay still, like if you hit a if you hit
Speaker 1: a wall and you couldn't move any further, you have
Speaker 1: to stop so that it would show up and you
Speaker 1: could see whether you could turn in a different direction
Speaker 1: or if you need to back out or whatever. So
Speaker 1: that was also interesting. They also talked about how the
Speaker 1: pellets would be the power pellets and Casey Munchkin because
Speaker 1: there were power power pellets in that as well. It
Speaker 1: also allowed you to turn the tables on the ghosts
Speaker 1: the three ghosts in Casey Munchkin versus the Foreign pact
Speaker 1: Man and chomp on them for a short amount of time,
Speaker 1: but they were randomly distributed among those twelve pellets as
Speaker 1: opposed to being in the four corners like it was
Speaker 1: with pac Man. Uh So there were a lot of
Speaker 1: differences here, a lot of In fact, I would argue
Speaker 1: there appear to be more significant differences in the basic
Speaker 1: presentation of the game than you saw with asteroids versus meteors.
Speaker 1: If you were standing at an asteroids cabinet and you
Speaker 1: were standing next to a meteor cabinet there next to
Speaker 1: each other, you just standing in front of them, they
Speaker 1: would look really similar. Okay, I'm not even kidding. They
Speaker 1: look extraordinarily similar. Obviously once in color, once in black
Speaker 1: and white. But if you put Casey Munchkin versus pac Man,
Speaker 1: there is a distinct difference. I mean even the actual
Speaker 1: maze when it comes to the styling of the maze.
Speaker 1: Instead of it being this kind of rounded, hollow kind
Speaker 1: of maze, you have these very hard lines their purple
Speaker 1: and you do that moving corral in the middle. That's
Speaker 1: that sounds pretty interesting. And then there is this the
Speaker 1: mention of the dots, like you were saying that move
Speaker 1: in Casey Munchkin Versus Pacman, which are stationary. But there's
Speaker 1: this great line in here. It says, you know, as
Speaker 1: the gobbler ches more dots, the speed of the remaining
Speaker 1: dots progressively increases, and the last dot moves at the
Speaker 1: same speed as the gobbler. And the words of the
Speaker 1: district Court, the last dot cannot be caught by overtaking it.
Speaker 1: It must be munched by strategy. So there's an actual
Speaker 1: That's a great line. It's true though, if you have
Speaker 1: if you have to have the strategy elements, you don't
Speaker 1: have the exact same thing in pac Man. You have
Speaker 1: that double wrap around maze where you can just leave
Speaker 1: for the right, show up on the left. This this
Speaker 1: game is so far it sounds very different. And as
Speaker 1: a student, I'm thinking, well, clearly the casey Munchkin ganned gang,
Speaker 1: it's going to be fine. But nope, No, the court
Speaker 1: finds in favor of Atari, and you might say, well,
Speaker 1: how the heck can that happen? Got a little bit
Speaker 1: more to say about the biggest lawsuits in gaming history,
Speaker 1: but first let's take this quick break. So one of
Speaker 1: the elements that came to um Atari's aid not on purpose,
Speaker 1: I mean, this was just something that that ended up
Speaker 1: supporting Atari's argument was that when you're looking at the
Speaker 1: implementation of a a maze chase game, they actually categorized
Speaker 1: it as a maze chase game. The court was able
Speaker 1: to look at other games that are also within the
Speaker 1: category of maze chase games but are designed in a
Speaker 1: very different, distinct way from pac Man, and so the
Speaker 1: argument could be made there are other ways to depict
Speaker 1: this style of game without relying upon the same basic
Speaker 1: design elements that pac Man used, and that ended up
Speaker 1: being the crux of the argument. Right, I think it
Speaker 1: wasn't one of them. I think it's a rally X
Speaker 1: was the name of the game, one of the ones
Speaker 1: that they referenced. So uh, they actually said that because
Speaker 1: they the Casey Munchkin ended up copying elements of pac
Speaker 1: Man that were integral to what pac Man is. You know,
Speaker 1: it wasn't just uh, a facet of pac Man. That
Speaker 1: didn't really matter. If that had been the case, it
Speaker 1: might have gone a different way. They said that it's
Speaker 1: it's fundamentally copying the what what I guess you could
Speaker 1: argue is the essence of pac Man, and that therefore, uh,
Speaker 1: this ended up being Atari had a case, like a
Speaker 1: legitimate case against the Casey Munchkin game, and they even
Speaker 1: said that here's a quote. It is enough that substantial
Speaker 1: parts were lifted. No plagiarist can excuse the wrong by
Speaker 1: showing how much of his work he did not pirate,
Speaker 1: which actually came from a previous case. They use that
Speaker 1: as a precedent to state that it doesn't matter if
Speaker 1: you have a lot of original work that is surrounding
Speaker 1: a kernel, if that colonel has been stolen from someone else,
Speaker 1: if it's a significant part of someone else's work. And
Speaker 1: this starts to kind of creep into the concept of
Speaker 1: fair use as well, because fair use has elements in
Speaker 1: it where you're not just concerned with how much was copied,
Speaker 1: but what was the nature of the copied material. So,
Speaker 1: in other words, if I As right something, and uh,
Speaker 1: and I end up copying only a small amount of
Speaker 1: what i As has written, it's I've written my own article.
Speaker 1: I'm not citing i As so much as I am
Speaker 1: taking something he's written and incorporating it within my own work.
Speaker 1: It may be that I've only taken a couple of
Speaker 1: sentences from i As, and you might think, well, that
Speaker 1: should be fair use because it's a small amount. It's not,
Speaker 1: especially if i As had published a very long piece
Speaker 1: from which I took those couple of sentences. But if
Speaker 1: those couple of sentences are at the very heart of
Speaker 1: what i As was writing about, if that is instrumental
Speaker 1: in the point he was making, a court might say, well, no,
Speaker 1: this is a case of plagiarism. You're not. It doesn't
Speaker 1: matter that it was two sentences. What matters is the
Speaker 1: nature of what was written, and that was part of
Speaker 1: what played into the court's decision in this case, saying
Speaker 1: that the elements that were taken, while you can argue
Speaker 1: they were augmented or tweaked or changed or enhanced or
Speaker 1: however you want to put it, they are the crucial
Speaker 1: elements of what makes pac Man pac Man. Yeah. So
Speaker 1: one of the other big things about this, like there,
Speaker 1: as you were saying, you get copyright protection on lots
Speaker 1: of different things. And if there's a couple of sentences
Speaker 1: you took for me, and it's it's at the essence
Speaker 1: or it's the real crux of what I've been writing,
Speaker 1: that could be taken as pleasureism. But there's a lot
Speaker 1: of things that aren't taken as infringement that there's a
Speaker 1: illegal term for its. It scenes a fair It's basically
Speaker 1: having events that naturally would follow. So if somebody decides
Speaker 1: to have I don't know, like let's say a three
Speaker 1: part story arc where you have like a guy and
Speaker 1: a girl and they meet and act one and then
Speaker 1: the act two they break up, and an act three
Speaker 1: they get back together. You can't copyright that. That structure, right,
Speaker 1: because that's that's natural. Less seems like how things work.
Speaker 1: And if that actually happened, they would only be like
Speaker 1: one rom com right, that the only one romantic comedy,
Speaker 1: that the only ones ever existed, and it could never happen.
Speaker 1: Tom Hanks would have been out of work in the
Speaker 1: late nineties exactly, or he would be doing the reboot
Speaker 1: every two years and they would re license it. Uh.
Speaker 1: And so the scenes of pac Man, the things that
Speaker 1: would make sense that anybody could copy, is what the
Speaker 1: court was saying here. With certain things the maze and
Speaker 1: scoring table or standard game devices, So anybody can have
Speaker 1: a maze and scoring table, nothing wrong with that. The
Speaker 1: tunnel exits are nothing more than commonly used wrap around
Speaker 1: concept adapted to amaze chase games. That's fine. You want
Speaker 1: to use dots, that's fine. And the real problem here
Speaker 1: was the fans of ful creations pac Man and Ghosts
Speaker 1: that they're this gobbling character that just like wanders around
Speaker 1: popping pills and being chased by ghosts. This starting to
Speaker 1: sound like an episode of Breaking Bad. This particular implementation,
Speaker 1: this expression is pac Man, This is you can do anything.
Speaker 1: Riley X is a car game. Do you have a
Speaker 1: car running around, and it's probably trying to pick up
Speaker 1: some kind of points based item, maybe it's gas canisters
Speaker 1: or whatever. The heck, you would have never play their
Speaker 1: pellets pellets as well. I had that game as well.
Speaker 1: So you've got pellets. But and you're gonna have a
Speaker 1: scoring table on the top left. Nobody's saying you can't
Speaker 1: have a scoring table. My scoring table in the middle
Speaker 1: of the screen where so you can't see it. That'd
Speaker 1: be ridiculous. There's lots of different elements that you can
Speaker 1: do in a similar game. But if you're just a ghost,
Speaker 1: that's not ghost. If you're if you're a gobbler, you
Speaker 1: better look a little different as a gobbler. That's basically
Speaker 1: the point and the monster. The monster is coming after
Speaker 1: you better not be ghost monsters if you If if
Speaker 1: those elements are similar enough to pac Man, then it's
Speaker 1: very hard for you to make a commencing argument that
Speaker 1: you weren't copying pac Man in This could be a
Speaker 1: Frankenstein game, right. You can have Frankenstein's monster running around
Speaker 1: he's trying to get pellets or I don't know, other
Speaker 1: body parts might be a little bit disturbing at that
Speaker 1: level of game being chased by villagers. That would be
Speaker 1: effectively similar. Right, it sounds like a pac Man game
Speaker 1: to me, but the expression is very different. Not granted,
Speaker 1: it would require all kinds of other licenses. Potentially, uh
Speaker 1: if if there was a movie out at the time
Speaker 1: or whatever is going on, and the Court's like, listen,
Speaker 1: this is going to cause Atari a reparable harm. Atari
Speaker 1: doesn't even have the game out, and you have something
Speaker 1: that looks just like, well, it's something that's the very
Speaker 1: very similar to the point where there is infringement. You're
Speaker 1: infringing on Atari's copyright. If they don't have this game stopped,
Speaker 1: they're gonna lose market share. This could be damaging. And
Speaker 1: the court makes mention it's kind of funny to even
Speaker 1: read something like this. They know the Odyssey games cannot
Speaker 1: be played in an Atari, nor vice versa. It's like, well, yeah,
Speaker 1: of course not. But this was a concept that was
Speaker 1: kind of important because if Atari wasn't losing sales of
Speaker 1: its console, that would be very different. Actually might be
Speaker 1: a little different, but in this case that look, you
Speaker 1: can't sell this game right now because you're causing them
Speaker 1: huge harm. And I guess sent back to the lower
Speaker 1: court to follow along with this to issue the injunction. Yeah,
Speaker 1: and in fact, here's another quote from the court finding
Speaker 1: which does not necessarily put gamers in a very good light.
Speaker 1: It's kind of a backhanded comment. Video games, unlike an
Speaker 1: artist's painting or even other audio visual works, appealed to
Speaker 1: an audience that is fairly undiscriminating insofar as their concern
Speaker 1: about more subtle differences in artistic expression. The main attraction
Speaker 1: of a game such as Pac Man lies in the
Speaker 1: stimulation provided by the intensity of the competition. A person
Speaker 1: who is entranced by the play of the game quote
Speaker 1: would be disposed to overlook end quote. Many of the
Speaker 1: minor differences in detail and quote regard their aesthetic appeal
Speaker 1: as the same end quote. That does sound very damning
Speaker 1: to the general video game playing public of two Like
Speaker 1: you guys, don't you guys don't care about the details.
Speaker 1: You just want the feeling you get when you play
Speaker 1: a game like this. Well, I mean, as you were
Speaker 1: reading that back, and I've seen that line a bunch
Speaker 1: of times, it just struck me. Now, you know, the
Speaker 1: whole think about everything that people when when Apple gets
Speaker 1: upset of people, they're like, hey, look, you're copying our
Speaker 1: stuff and they're not going to care that it's not us.
Speaker 1: That's effectively the same argument, isn't it. They're saying, wait
Speaker 1: a minute, wait a minute, they're gonna buy your thing
Speaker 1: because it looks like my thing, and then they don't
Speaker 1: really care that it's actually ours, And effectively it's the
Speaker 1: same argument that the court says there, although it does
Speaker 1: seriously sound patronizing. Yeah, the undiscriminating the one I want
Speaker 1: to say, the unwashed masses who play video games and
Speaker 1: the pizza parlors can't appreciate. You can't appreciate here kids.
Speaker 1: So another another thing that I think is kind of funny.
Speaker 1: It's it's sort of um uh, you know, tragically ironic
Speaker 1: when you get onto it is. Ultimately, Atari's pac Man
Speaker 1: version for the was awful and is often cited as
Speaker 1: one of the many reasons why the company suffered so
Speaker 1: much uh so many setbacks bree and partly why the
Speaker 1: video game crash the home video game crash three happened.
Speaker 1: It was that they had spent a lot of money
Speaker 1: two create this pac Man game. They rushed it so
Speaker 1: that they could get it out in time for the
Speaker 1: Christmas season it came out, and it was a huge
Speaker 1: letdown because it was such a pale comparison to the
Speaker 1: Arcade experience that it was the actual pac Man game
Speaker 1: that Attari made ultimately is what damaged the company's actual, uh,
Speaker 1: you know, reputation. It wasn't that some other game company
Speaker 1: created a game like pac Man and that damaged Attari's reputation.
Speaker 1: It was Atari's own actions that ultimately damaged its reputation.
Speaker 1: Now that is immaterial for this case, has nothing to
Speaker 1: do with this case. It's just an interesting little side note.
Speaker 1: I'm very curious if I have to look this up.
Speaker 1: I should have looked this up before this show. If
Speaker 1: Atari ever tried to reach out to Phillips after they
Speaker 1: saw the progress of the pac Man game where they
Speaker 1: have dashes instead of dots. It's like, clearly average when
Speaker 1: he's making his game for Phillips, he knows how to
Speaker 1: put dots there. So I don't know why pac Man
Speaker 1: didn't have it. This kind of curious why they weren't like, hey, buddy,
Speaker 1: how about we give you a license now ours looks horrible.
Speaker 1: We're really sorry about that whole doing you thing. Yeah,
Speaker 1: maybe we'll have Casey Munchkin, come on over and be
Speaker 1: renamed pac Man for the at and yeah, and also
Speaker 1: here's something else those I'm kind of curious about. So
Speaker 1: we we established in the Asteroids versus Meteor's case, the
Speaker 1: court had decided that the express of the idea was
Speaker 1: limited to the version that was in both games, and
Speaker 1: that therefore the copyright claim did not hold up, or
Speaker 1: at least did not. It wasn't an infringement because the
Speaker 1: expression was limited by what we could do, and that
Speaker 1: in the pac Man versus the Casey Munchkin one, it
Speaker 1: was different in that the expression of the idea could
Speaker 1: have taken different forms, as evidenced by these other Maze
Speaker 1: Chase games, and therefore the claim of copyright infringement was valid.
Speaker 1: What I wonder is that if there had been a game,
Speaker 1: no matter how primitive, that had a similar premise to Asteroids,
Speaker 1: and that you are commanding a spaceship through an asteroid belt,
Speaker 1: and there are also enemy spaceships, and you have to
Speaker 1: avoid both the asteroids and the enemies, but it was
Speaker 1: in a different a different style, like let's say, it
Speaker 1: isn't that first person view where you're inside a cockpit
Speaker 1: and you're seeing the asteroids from the point of view
Speaker 1: of the spaceship, and maybe you have some other elements
Speaker 1: in the game that can alert you if if another
Speaker 1: craft is either approaching you or there's an asteroid that's
Speaker 1: heading towards you, so that you can maneuver the ship
Speaker 1: out of the way and turn and fire on it.
Speaker 1: If that had been the case, then the court would
Speaker 1: be able to say, well, wait this. These two games
Speaker 1: have the same basic premise of navigating a ship through
Speaker 1: asteroids firing an enemy spacecraft, but have two very different
Speaker 1: means of expression. In that case, I would imagine the
Speaker 1: court would have had to have found Meteors guilty of
Speaker 1: copyright infringement. Maybe not. And if Meteors is if okay,
Speaker 1: there's how many different ways you can you show it?
Speaker 1: You're saying the first person version. If you go first person,
Speaker 1: you still have a field of rocks coming at you, Meteors, asteroids,
Speaker 1: whatever you want to call them, space debreed still coming
Speaker 1: at you. So you can even see these two games
Speaker 1: is fictional game we're making up now that one could
Speaker 1: be sued based on the concept of Hey, you're taking
Speaker 1: our concept. People are not going to be discriminating you're
Speaker 1: you're in a field, you're taking on Asteroids. That's Asteroids, man,
Speaker 1: you're taking our game. So I don't know if the
Speaker 1: case would have been decided differently because it's also it's
Speaker 1: so early. I don't think the court might have had
Speaker 1: the foresight to even think of a first person experience
Speaker 1: in general. And you're talking about a primitive version if
Speaker 1: it if it's so primitive that you have like several
Speaker 1: lines to depict the cockpit, I'm just thinking, like, like,
Speaker 1: what star Fox, that's a game that basically is that right,
Speaker 1: it's super If you're like a primitive star Fox, would
Speaker 1: that have worked. I'm just very curious because when I
Speaker 1: saw this case way back when, the first thing I
Speaker 1: thought of was Our Type. I don't know if you
Speaker 1: played Our Type as a game, I'm like, that's like
Speaker 1: Asteroids accept its side scroller and they have awesome alien
Speaker 1: ships and actually it's kind of the same game as
Speaker 1: After I started thinking about it, well, yeah, I think
Speaker 1: I mean, if you could successfully make the argument of oh, sure,
Speaker 1: we have the same idea as Asteroids, but our version
Speaker 1: is a completely different expression of that idea than I
Speaker 1: think you could follow into the category that meteors ultimately
Speaker 1: fell into um that you well, except well, no, in
Speaker 1: that case, actually you would say that you weren't. You
Speaker 1: weren't infringing upon copyright at all, because you had you
Speaker 1: had taken you know, you can't copyright that original idea.
Speaker 1: So therefore, like your expression of that idea and our
Speaker 1: expression of this idea are so fundamentally different from one
Speaker 1: another that there's no copyright infringement, that these are two
Speaker 1: very different game experiences that call upon the same thing.
Speaker 1: Because otherwise the maze chase games, whichever one came first,
Speaker 1: would be able to claim copyright infringement on all the others.
Speaker 1: It wouldn't matter if the design was a car instead
Speaker 1: of a gobbler, because you're saying, well, it's the exact
Speaker 1: same experience. You're you're navigating a piece through a maze
Speaker 1: being chased down by enemies. I mean, because this is
Speaker 1: the kind of stuff that drives me nuts about copyright cases,
Speaker 1: because it almost seems arbitrary. Uh, when you go case
Speaker 1: by case like this and say, well, the logic that's
Speaker 1: being applied in this one case seems like it's not
Speaker 1: being applied in this other case. Now, in the ones
Speaker 1: we've talked about. I understand the perspectives, and I even
Speaker 1: agree to a certain extent, especially putting myself in the
Speaker 1: place of the time right and the limitations of the technology,
Speaker 1: but it still is one of the things that can
Speaker 1: be a real head scratcher. And ultimately, law is something
Speaker 1: that people have made, so therefore it is going to
Speaker 1: have the same sort of limitations and failings as people. Yeah,
Speaker 1: these these has to be applied ad hoc. That's the
Speaker 1: way this is supposed to be in And I joined
Speaker 1: you in the in the confusion slash rage. When I
Speaker 1: first saw this, I was just like, I don't understand
Speaker 1: how this can be. And the fun thing about law
Speaker 1: is that you have to make both of these things
Speaker 1: that seemed completely opposite. You have to somehow harmonize them.
Speaker 1: When you figure out how to harmonize them, that's how
Speaker 1: you're building your rules when it comes to all of
Speaker 1: this stuff. So the only way this really works is saying, okay,
Speaker 1: there's These are two different examples of the idea expression unity.
Speaker 1: Is there an idea expression unity when it comes to
Speaker 1: Meteors Yes? Is that the case when it comes to
Speaker 1: pac Man No? Because this is where the line is
Speaker 1: even though these games looked very different, I thought from
Speaker 1: just a They called it an ordinary observer point of view.
Speaker 1: To me, that just seems like any human being to
Speaker 1: take a look at it. They don't actually want you
Speaker 1: to dissect things either, which is kind of an interesting idea.
Speaker 1: If you just looked at them, you wouldn't think Casey
Speaker 1: Muchgan is the same MS pac Man, It's just it.
Speaker 1: You wouldn't be that confused, but you would say asteroids
Speaker 1: and meteors are the same. But this, this is just
Speaker 1: the way this stuff turned out over time, because otherwise
Speaker 1: we would never have things like Mario and Sonic and
Speaker 1: Bunk Like. They're all side scrollers, right for all this
Speaker 1: this little cute mascot character. They get powered up. They're
Speaker 1: collecting something of some sort. Once got rings, once got coins.
Speaker 1: How are they getting about it? Once breaking it with
Speaker 1: his hand above his head. Another one is breaking it
Speaker 1: as he spins into a ball. The fact that they're
Speaker 1: expressed so differently is actually important, because if we don't
Speaker 1: have that, we would just have a bunch of clone
Speaker 1: games where they Okay, here's your plumber. I mean, I
Speaker 1: guess the question. I would love to see that lawsuit
Speaker 1: of somebody breaking down Super Mario. It's like, Okay, how
Speaker 1: how many ways can you express an avenging plumber? Only
Speaker 1: one good one? It's the only one good one. But yeah,
Speaker 1: this was a lot of fun to look into. It
Speaker 1: was definitely outside of my normal zone. So I gotta
Speaker 1: thank you I as for for joining me, and not
Speaker 1: just joining me, but for being the one to suggest
Speaker 1: these two cases in particular as the subject for this episode,
Speaker 1: because it turned out to be a really fascinating kind
Speaker 1: of discussion both of the legal status of video games
Speaker 1: and just the weird mind bending logic you have to
Speaker 1: apply when it comes to copyright. Well, thanks for having me.
Speaker 1: And I probably was influenced by listening to the at
Speaker 1: R three partner because I was like, oh, that's the
Speaker 1: bizarre all right there, game kind of sucked. Never minded
Speaker 1: these cases, the two cases that drove me insane. Here
Speaker 1: they are and they brought it back. These these these
Speaker 1: horrible ideas. And one of the reasons why I never
Speaker 1: went into intellectual property law as an aside was because
Speaker 1: of cases like this. It was some of it does
Speaker 1: seem arbitrary and it could drive a person crazy. So
Speaker 1: I decided I don't feel like doing that and ended
Speaker 1: up on this podcast today and and now here we are.
Speaker 1: So I as an I plan on doing another episode
Speaker 1: about a lawsuit in tech, specifically actually a series of
Speaker 1: lawsuits the the we mentioned it earlier, the Apple Samsung battles,
Speaker 1: and we were originally going to in flude that in
Speaker 1: our discussion today, but then it just it was it
Speaker 1: became obvious very early on that that would have been
Speaker 1: we would have been either super trunky ing all the
Speaker 1: discussion and thus not really illustrating anything useful, or it
Speaker 1: would go on so long that it would have had
Speaker 1: to have been split up into multiple episodes. Anyway, So
Speaker 1: I AS is going to come back at a later
Speaker 1: date that we will have to determine when our schedules
Speaker 1: will allow us to do this again. Uh, and what
Speaker 1: we will talk about that we've already started the notes
Speaker 1: on that, so they the I guess the way of
Speaker 1: depending on how you look at it. The nice thing
Speaker 1: about that story is it's still developing from from now.
Speaker 1: It's an ongoing war that and the funny thing about
Speaker 1: it is still as an aside is the fact that
Speaker 1: they are partners in a number of ventures when it
Speaker 1: comes to components inside of iPhones of Apple devices, etcetera.
Speaker 1: The fact that Samsung was set their partner in some degrees,
Speaker 1: and also they're stabbing their partner. It's just a very
Speaker 1: strange concept of like, hey, I love you, now let
Speaker 1: me kill you. Are doing yeah, and and they're they're
Speaker 1: fairly recent developments on that front as well, with Apple
Speaker 1: looking into potential other uh microchip processors that kind of
Speaker 1: are are manufacturers rather and and other component manufacturers and
Speaker 1: kind of getting away from some of the Samsung stuff.
Speaker 1: So that I'm sure that has no I'm sure it
Speaker 1: has to do with a lot of different factors, one
Speaker 1: of them being the massive number of lawsuits between the two.
Speaker 1: And that's it from that classic episode. As I was saying,
Speaker 1: I'll have to do a follow up to it, because
Speaker 1: since there have been some other major lawsuits, A big
Speaker 1: one that leaps to mind is between Epic and Apple,
Speaker 1: which is playing out to a pretty dramatic uh series
Speaker 1: of events since those initial lawsuits. So yes, I will
Speaker 1: have do a follow up at some point. But if
Speaker 1: you have suggestions on other topics I should cover in
Speaker 1: the future, please reach out to me on Twitter the
Speaker 1: handle that you should use as tech stuff hs W
Speaker 1: and I'll talk to you again and re listen. Text
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