Speaker 1: Get in Touch with Technology was tex Stuff from dot com.
Speaker 1: Hey there, and welcome to Tech Stuff. I am your host,
Speaker 1: Jonathan Strickland today over the magic of the Internet. I
Speaker 1: have joining me Mr I as actar, my buddy, my
Speaker 1: co host on other shows like Podcast Without Pretense, and
Speaker 1: of course a big wig over at c net and
Speaker 1: also somebody who knows a thing or two about the law. Yeah. Well,
Speaker 1: thanks for having me back. It was fun doing the
Speaker 1: oppolye tech piece, and now I think because of my
Speaker 1: my strange past, I was asked to discuss some tech lawsuits. Yeah.
Speaker 1: Originally we were going to look at a list like
Speaker 1: four or five big lawsuits in tech, but two of
Speaker 1: the suits that that I has brought up to me
Speaker 1: before we got started, before we really dove into the topic,
Speaker 1: are really fascinating. They also tie into another topic that
Speaker 1: we covered recently on Tech Stuff, that being Atari, when
Speaker 1: we talked about the rise and fall of Atari in
Speaker 1: a epic three part series. So these two lawsuits have
Speaker 1: Atari in common as as one of the the the
Speaker 1: participants in said suits, and I as I'm so glad
Speaker 1: you're here to explain not just what happened and what
Speaker 1: are the particulars of the case, but why it's important
Speaker 1: because both of these cases took place fairly early on
Speaker 1: in the era of home video games, and as a result,
Speaker 1: would end up really shaping the way video games are
Speaker 1: treated under copyright law. Yeah. So for those people who
Speaker 1: don't know, I went to law school. I graduated at
Speaker 1: Past the Barn, New York, States and immediately got a
Speaker 1: job in technolog g ended up doing that for the
Speaker 1: rest of my career. Um. And so there's there's there's
Speaker 1: a long history of why I became a lawyer. You know, parents,
Speaker 1: first generation American like be be a lawyer or a doctor.
Speaker 1: So the game a law degree, um. And I took
Speaker 1: intellectual property in school. And these cases, the ones that
Speaker 1: we're gonna talk about, were presented to me back to
Speaker 1: back and it was just maddening to try to figure
Speaker 1: out the differences why one case went one way and
Speaker 1: went why one another. And we'll get all into that.
Speaker 1: But I'm really kicking myself because I used to have
Speaker 1: my my books, my notebooks. I'm like, I'll never need
Speaker 1: my briefs anymore. So I chucked them out. And so
Speaker 1: here we go talking about two cases that I learned
Speaker 1: a long time ago. So uh, if there are any errors,
Speaker 1: I apologize. But we have looked over the cases of
Speaker 1: several times today personally, and I've looked at two or
Speaker 1: three times today and written up notes again. I printed
Speaker 1: out one of them the right notes, because that's how
Speaker 1: I used to do it back in the day. To
Speaker 1: the point to the point where you have hard copy
Speaker 1: in front of you, I literally have my penciled out
Speaker 1: notes all over based on book briefs, which I used
Speaker 1: to do when I was in school. Wow. So the
Speaker 1: first of the two cases we're talking about, and as
Speaker 1: I has pointed out, these have to do with intellectual property,
Speaker 1: with copyright, which is a tricky subject right. Well, I've
Speaker 1: 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 an affixed tangible medium has some
Speaker 1: sort of protection that that you don't have to worry about,
Speaker 1: or rather you have some recourse if someone were to
Speaker 1: try and copy that work you could pursue action against
Speaker 1: them based upon the copyright. It gives you that that
Speaker 1: level of protection, and anything that you set down in
Speaker 1: a fixed tangible medium technically is protected by copyright. Registering
Speaker 1: a copyright, however, is a great idea because then there's
Speaker 1: an official record of said copyright if you should ever
Speaker 1: 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: in 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 and they held the copyright
Speaker 1: for Asteroids. You guys probably heard that game. You've probably
Speaker 1: seen it, you know, just saying asteroids. I'm sure you
Speaker 1: guys have a picture in your head. There's a little
Speaker 1: triangular ship and there and their rocks flying at you
Speaker 1: and you blow them up right right until you get
Speaker 1: blown up by either a rock or one of the
Speaker 1: few little enemy spaceships that would occasionally pop up. Yeah.
Speaker 1: So another company called Amusement World, which again is a
Speaker 1: great name. It's not as creative as a tari as that.
Speaker 1: When I listened to the three partner on it's already
Speaker 1: finding out where the names came from. I'm like, this
Speaker 1: is pretty awesome to hear. Um. So these guys basically
Speaker 1: saw the idea and they're like, we we could make
Speaker 1: our own game. And uh. One of the big things
Speaker 1: that you're gonna get out of this case is that
Speaker 1: you can't. You can't have a monopoly on an idea.
Speaker 1: So they are free to make a game. But it's
Speaker 1: already saw this game and they're like, wait a second,
Speaker 1: it's Trangler ship. You're blown up ros. You're totally stealing
Speaker 1: our stuff and we're seeing you right. And another thing
Speaker 1: to keep in mind is this is early enough in
Speaker 1: the in the era of video games that the court
Speaker 1: had not fully decided that video games were something you
Speaker 1: could totally copy right. In fact, in the other case
Speaker 1: we're gonna talk about, there's a note in the court's
Speaker 1: decision that says these game video games are not something
Speaker 1: you can fully copy, right, But there are elements of
Speaker 1: copyright protection that do extend to video games. And it
Speaker 1: gets into particulars that we're probably not going to cover
Speaker 1: in this in this podcast, but just to say that
Speaker 1: this was kind of a Wild West era of both
Speaker 1: the home video game industry and of law because technology
Speaker 1: had outpaced what the legal system was ready to cover.
Speaker 1: And we see that again and again, not just in
Speaker 1: video games obviously, but in all realms of technology and law.
Speaker 1: You see that with things like the autonomous cars coming
Speaker 1: out and people saying, wait a minute, how do we
Speaker 1: what sort of legislation do we need to put up
Speaker 1: to deal with this new reality of technology? And it
Speaker 1: just turns out that, you know, the law is something
Speaker 1: 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 with the names.
Speaker 1: You're like, guys, maybe we should come up with a different,
Speaker 1: you know, idole. 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 third party that has no interest in the outcome
Speaker 1: of the case, to identify any points of similarity and
Speaker 1: then give his or her opinion as to whether or
Speaker 1: 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: space ships could shoot projectiles. Impact would be automatic destruction,
Speaker 1: which would be accompanied by I think they actually said
Speaker 1: the symbol of an explosion, because I mean, this is
Speaker 1: this is early days of video games, guys. You remember,
Speaker 1: like there's not a heck of a 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 this 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 it's such a bizarre way to go. Yeah,
Speaker 1: And then that's something else that will come up in
Speaker 1: this discussion is that part of the reason the cases
Speaker 1: turned out the way they did is again it's so
Speaker 1: early on in the era of video games that people
Speaker 1: had not really well, one, the technology had not advanced
Speaker 1: to the point where you could have very different depictions
Speaker 1: of uh, you know, different interpretations of the same basic idea.
Speaker 1: You 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, space simulator
Speaker 1: where you're flying through shooting rocks. Uh. So the technology
Speaker 1: itself was limited, and thus a lot of people figured
Speaker 1: that the ability to express an idea itself was limited
Speaker 1: because of that. Um. But there's some other similarities that
Speaker 1: I thought were kind of like, well, there's no reason
Speaker 1: that you could argue one game would have to have
Speaker 1: this particular element versus the other. For example, both games
Speaker 1: had a two tone beeping noise that increased in tempo
Speaker 1: as the game progressed, so like, uh, we just get
Speaker 1: faster and faster. Um. Both games had scores for players
Speaker 1: 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 Asteroids. I don't
Speaker 1: 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 direction on your joystick usually I think
Speaker 1: pressing up would give you the thrust in the home version. Ah,
Speaker 1: but in both versions, if you released the thrust, then
Speaker 1: gradually your ship would come to a halt. Although the
Speaker 1: court did did actually notice that this happens more quickly
Speaker 1: in meteors than in Asteroids. Uh. And both games at
Speaker 1: Tindelsan points you'd get an extra life and each successfully
Speaker 1: completed wave of rocks initiates a new wave, and each
Speaker 1: new wave has more rocks in it than the previous wave.
Speaker 1: So those were the similarities that the court noticed between
Speaker 1: these two games, and there are a lot of them.
Speaker 1: I mean, there's the very basic nature of the game
Speaker 1: seems identical in these cases, right, I mean, it would
Speaker 1: be hard for me to argue otherwise I would think, yeah,
Speaker 1: I mean, if if it's kind of like modern games,
Speaker 1: you think of like Call of Duty versus any other
Speaker 1: battlefield game, you think of any any kind of war game,
Speaker 1: they all kind of the same. But why is that
Speaker 1: even allowed? Um, there are differences in these two games
Speaker 1: Meteors and Asteroids. So Asteroids had this, uh at a
Speaker 1: black field underneath the actual game, but in Meteors you
Speaker 1: had this star field and the look of distant stars.
Speaker 1: And this is kind of really pushing it because when
Speaker 1: you're looking at them, if you have seen the photos
Speaker 1: of this this game, you'll see they're just basically dots.
Speaker 1: That's kind of neat. Asteroids is black and white, and
Speaker 1: Meteors was in color, and that was pretty different. Meteors
Speaker 1: also had some shading on the spaceship and the rocks
Speaker 1: so kind of had more dimension because the Asteroids is
Speaker 1: pretty black looking when it comes to ships and rocks,
Speaker 1: almost like a schematic drawing, like it's it's it's or
Speaker 1: almost abstract in a way because the rocks all look
Speaker 1: the same and they all just kind of float at you,
Speaker 1: and then you shoot them and now they're they're different sized,
Speaker 1: but the shapes are still very much the same and
Speaker 1: they're still floating at you. It's not you know, there's
Speaker 1: no real sense of, uh, the dimensionality in the original
Speaker 1: Asteroids game. I really like the element that Meteors starts off.
Speaker 1: When you start off the game, there's an animation of
Speaker 1: you blasting off of Earth. Compare that to Asteroids. You
Speaker 1: just start and you're just in the in the field.
Speaker 1: Time to go, um, you've got the game. Meteors is
Speaker 1: actually faster in general, and it moved, and you have
Speaker 1: a different way of shooting as well. You could can
Speaker 1: you could shoot a lot more, I think continuously compared
Speaker 1: to Asteroids. Right, Asteroids was like a burst fire thing.
Speaker 1: You could fire a few shots, but then you had
Speaker 1: to wait. It's almost like a recharge period. Have been
Speaker 1: missing anything else, So that's the main one that's the
Speaker 1: main ones. I mean, uh, you know, there were There
Speaker 1: was also the fact that the meteors and meteor and
Speaker 1: meteors rather could tumble like they actually they actually seemed
Speaker 1: to rotate as they were coming towards you, whereas the
Speaker 1: if you watch the old Asteroids game, those shapes just
Speaker 1: they maintain their same orientation as they move across. So
Speaker 1: there was that too. So there were some definite improvements
Speaker 1: on the game. So Amusement World had to defend itself
Speaker 1: against these claims of copyright infringement. They tried a couple
Speaker 1: of different tactics. The first thing they tried was, uh,
Speaker 1: they said that Atari's copyright on Asteroids was invalid in
Speaker 1: this case because of the way they registered their copyright.
Speaker 1: So they said that Atari had registered Asteroids copyright as
Speaker 1: an audio visual work, not as a literary work, and
Speaker 1: that as a result, the copyright wasn't valid. They said
Speaker 1: that Atari had submitted essentially a film a video of
Speaker 1: one out of a possible infinite variations of a single game.
Speaker 1: So in other words, they captured gameplay footage of Asteroids,
Speaker 1: and that particular gameplay footage was being sent as as
Speaker 1: part of the the work that Atari was submitting to
Speaker 1: get this copyright, and I guess Amusement World was essentially saying, well, technically,
Speaker 1: wouldn't that just give copyright to that specific film? Like
Speaker 1: that was that's such a great argument. It's taking You
Speaker 1: were saying, this is the wild West, it's the early
Speaker 1: days of video games, and how are they protected to
Speaker 1: the idea that that Amusement World is pushing us. Wait
Speaker 1: a second, that's a tape or recording. You definitely have
Speaker 1: protection for that, but you're suing us about the game itself.
Speaker 1: And the court was like, wait, wall, wait a second. Okay,
Speaker 1: now they did h 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 descend us an arcade cabinet. This is
Speaker 1: the way it used to be. Yeah, yeah, because the
Speaker 1: wrong chip. I mean, the game is hard coded on
Speaker 1: a a a circuit board, and that circuit board is
Speaker 1: only useful if you haven't connected up to the rest
Speaker 1: of the system. So you I mean, you would have
Speaker 1: to have had a Torris and a full console like
Speaker 1: I mean, a full like Atari cabinet out to the
Speaker 1: patent office that or rather the copyright office and deliver
Speaker 1: that and say like, here's our fixed tangible medium. And hilariously,
Speaker 1: I know a lot of people think the law is
Speaker 1: 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 would make no sense. It would can
Speaker 1: you imagine filing these arcades? Well, it would have made
Speaker 1: 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 seems 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, they didn't
Speaker 1: send necessarcuit board. Um, well, no, you're right, there's no
Speaker 1: copyright protection and definite your copyright covers a heck of
Speaker 1: a lot of things, include including derivative works. So if
Speaker 1: John Fannits send in that recording, if I transcribed it,
Speaker 1: and go 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 just a 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 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 that, 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. So this is where
Speaker 1: to 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. There's the whole thing about idea
Speaker 1: versus the expression of an idea. And you're gonna get
Speaker 1: familiar with this jeweled be pendant and what this this
Speaker 1: thing is. If there was this lawsuit, I'll do it
Speaker 1: real quick. There was one manufacturer of a thing of
Speaker 1: it like a brooch or a pin that a person
Speaker 1: would wear. It was a B that had jewels on it.
Speaker 1: So somebody saw that idea, Hey, that's a really cool idea.
Speaker 1: I'm gonna make the same thing. So the first person
Speaker 1: who made the be jeweled B said no, I'm suing
Speaker 1: you for for copyright. That's mine, and the court said, listen,
Speaker 1: there's only one way to show a jeweled B. That's it. Now.
Speaker 1: Granted we could have a different pattern on the actual B,
Speaker 1: but a B, if you're trying to keep it realistic,
Speaker 1: is going to have the black and yellow or brown
Speaker 1: and yellow kind of stripes. It's gonna have wings. There
Speaker 1: are elements you cannot change about this, and there's only
Speaker 1: one true way to do this. In that case, you do.
Speaker 1: The first person does have a copyright on that actual item,
Speaker 1: but it's not exactly terribly strong. Another person can actually
Speaker 1: make the same thing also have a copyright on it,
Speaker 1: which sounds a little bit bizarre if you think about it.
Speaker 1: But because you can't copyright the idea, this is free
Speaker 1: to copy, and you know you still have a copyright.
Speaker 1: It's just such a weak, weak copyright that it's it's
Speaker 1: very very strange. And that's basically we gets applied to
Speaker 1: this case. Yeah, yeah, this this idea that okay, so
Speaker 1: the idea itself is not copyrightable. That there you could
Speaker 1: have the reasonable expectation that different people would want to
Speaker 1: create a game based on this same kernel of an idea.
Speaker 1: The argument then becomes, well, how many different ways are
Speaker 1: there to express that idea? If it turns out there's
Speaker 1: really only one method of doing it, you can't truly
Speaker 1: have protection of that because it would be silly, right
Speaker 1: if it's it's only if there are multiple ways to
Speaker 1: express that idea that you you could argue, well, this
Speaker 1: person copied you, and they didn't have to. They could
Speaker 1: have expressed that same idea in a totally different and
Speaker 1: novel way, So therefore they are they are actively violating
Speaker 1: your copyright. You have a legitimate, uh legitimate complaint. So
Speaker 1: what the court had to decide in this case was,
Speaker 1: did what the stuff that Amusement World did by creating Meteors,
Speaker 1: did they in fact copy Atari or did they simply
Speaker 1: employ the same ideas Because there was really only that
Speaker 1: way to express a game where you are trying to
Speaker 1: maneuver a spacecraft through an asteroid bell while you're being
Speaker 1: shot at by enemy spaceships. And that must have been
Speaker 1: a really interesting deliberation to go through and say, all right, well,
Speaker 1: which one elements here do we think are essentially universal
Speaker 1: in the sense that anyone who wanted to make a
Speaker 1: game that represented this kind of idea would have to
Speaker 1: do it this way versus which one of these ideas
Speaker 1: could you do in a myriad of other ways, But
Speaker 1: they chose to copy Atari's method, and in this case
Speaker 1: it ended up um kind of a favoring Amusement World.
Speaker 1: Amusement World UH is not found guilty of copy infringement
Speaker 1: in this case because there is apparently the idea expression
Speaker 1: unity is true in this particular case. That's what the
Speaker 1: court's saying. They're saying, look, there is like one way
Speaker 1: to do this. So if you had a spaceship and
Speaker 1: you're going to blow up a rock in this in space,
Speaker 1: those rocks have to disappear one of two or three
Speaker 1: different ways. Okay, it's gonna break up and one piece,
Speaker 1: two pieces, three pieces that breaks up into a million pieces.
Speaker 1: The game becomes somewhat unplayable because you'll just lose all
Speaker 1: the time. They're saying that both games start off somewhat easy,
Speaker 1: which is to encourage people to play the game. That's
Speaker 1: something that you can't really say, We'll start the game
Speaker 1: really hard and that will be a different game. So
Speaker 1: there's enough elements that in this case the course saying,
Speaker 1: look if you're flying around in space and that you're
Speaker 1: blown up rocks. This is kind of the only way
Speaker 1: to do it, because you just there's no way around this.
Speaker 1: And I want to just quickly mentioned that both of
Speaker 1: these guys Amusement World in Natari both have copyright protection.
Speaker 1: It's that the protection doesn't give them a monopoly because
Speaker 1: of the idea expression unity. That's what the thing is.
Speaker 1: It's about a monopoly on something more so than it
Speaker 1: is protection, because even though these games are very similar
Speaker 1: and they act in a very similar way, they both
Speaker 1: still have copyrights on those products, which is really I mean,
Speaker 1: this is that's mind bending to me, particularly when we
Speaker 1: get to the discussion of the second case, where we
Speaker 1: start saying, wait a minute, I don't on a very
Speaker 1: like high level, it could be hard to distinguish between
Speaker 1: the two the differences that that mark one case versus
Speaker 1: the other, because, as it turns out, the court decisions
Speaker 1: in the second case we're going to talk about go
Speaker 1: in a in a different direction than the one we
Speaker 1: just mentioned. And that's that's probably why I mean, I mean,
Speaker 1: I imagine that's why you when you were studying law,
Speaker 1: you had these two cases kind of presented together as
Speaker 1: a way of uh illustrating this this idea of um
Speaker 1: the copyright of the expression of an idea versus the
Speaker 1: idea itself. Yeah, like I said in the beginning, this
Speaker 1: was maddening to go back to back with the case
Speaker 1: that The next case this is ninety eight two. It's
Speaker 1: decided by the United States Court of Appeal, Seventh Circuit
Speaker 1: and the Satari versus North American Phillips Consumer Electronance Corps.
Speaker 1: You might know them as Phillips in the in the case,
Speaker 1: they are constantly called North American because that's just the
Speaker 1: shorthand eight two. That's just the way it was. And
Speaker 1: on top of that, Phillips happened to be the maker
Speaker 1: or something called The Odyssey, which I'm sure not only
Speaker 1: have I heard it discussed on tech stuff. I kind
Speaker 1: of remember the Odyssey because I remember the actual ads
Speaker 1: in magazines and I'm like, what's an Odyssey? So here's
Speaker 1: the thing. I think I actually owned the game that's
Speaker 1: in question. Here, the game of question. Here's uh, there's
Speaker 1: there's two games and Sari has got the Atari has
Speaker 1: in this particular world, Attari has a Midway have the
Speaker 1: rights to make a pac Man game. Who owns the
Speaker 1: copyright on Pacman at the point, so Namco had the
Speaker 1: Namco owns the game, but uh midway in, Atari had
Speaker 1: the United States the the exclusive United States rights to
Speaker 1: pac Man. So you could think of Atari almost being
Speaker 1: a a you know, like the representation of Namco in
Speaker 1: the US because of the way that games would be
Speaker 1: published and then distributed globally. So while Namco technically is
Speaker 1: the owner of pac Man, Atari could act in that
Speaker 1: capacity within the United States. Yeah, that's like the whole
Speaker 1: point of copyright. You have the right. Namco has the right,
Speaker 1: and they own this this character, they own every derivative work,
Speaker 1: and they're like, hey, listen, now that we have this,
Speaker 1: we can sell the license to somebody else to do
Speaker 1: something with it. So that's one of the reason why
Speaker 1: people are ferociously fighting about this, because they want to
Speaker 1: have the exclusive right. Atari paid money for these rights
Speaker 1: and they don't they don't want to lose market share
Speaker 1: because Philips decides to make a better pac Man game.
Speaker 1: Um so this this game that eventually comes out as
Speaker 1: called Ksey Munchkin, a game I had never heard of before.
Speaker 1: I had not I thought, I swore when I saw
Speaker 1: that you had put this as one of the lawsuits
Speaker 1: we were going to talk about. This was before we
Speaker 1: had decided just to focus on a Torii. I saw
Speaker 1: the name Casey Munchkin, and I thought, I've never heard
Speaker 1: of this game. Then I watched a video of the
Speaker 1: gameplay and I said, I think I owned this game,
Speaker 1: but I had no memory of the name of it. Yeah,
Speaker 1: so it's it's amazed game. Let's le's let's talk about
Speaker 1: the little what happened, the little facts about this this
Speaker 1: uh infringing work sure that this is being called. So
Speaker 1: there's a game developer's name is Ed Everett and a Mr.
Speaker 1: Stop And in the case, they don't actually give stop
Speaker 1: at first name, so I don't know what his name
Speaker 1: is his first name, but he's the head of Phillips's
Speaker 1: home video game development and that's for the Odyssey. So
Speaker 1: they see pac Man in an our airport arcade and
Speaker 1: they decided, 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 in comes to making games. Let's Stop and Everett
Speaker 1: both decide that, hey, listen, if we had the pac
Speaker 1: Man name on this game, it would do so much better.
Speaker 1: So Average starting to do some development on the game.
Speaker 1: North American at this point where Phillips is trying to
Speaker 1: get the license from Midway, So, hey, can we just
Speaker 1: make a game with you guys with the license and
Speaker 1: the company Midway says no, we're not giving you a license.
Speaker 1: So Average kind of building a game that's not even
Speaker 1: done yet. He's told that we don't have the license.
Speaker 1: So Average continues to build this game, and it turns
Speaker 1: out to be Casey Munchkin, right, the idea of being
Speaker 1: to make a game similar to pac Man without being
Speaker 1: exactly pac Man, and also the idea of making this
Speaker 1: quote unquote better than the arcade version. So it was
Speaker 1: it wasn't built as a clone of pac Man, but
Speaker 1: you know it's undeniable that it shares a lot of
Speaker 1: similarities to pac Man. Yeah, so Average finishes this game
Speaker 1: called Casey Munchkin. North American says, can we review the game?
Speaker 1: We want to make sure it's totally different from pac Man,
Speaker 1: and so they see the game, they go, okay, we
Speaker 1: need to change some things. First, change the protagonist's color.
Speaker 1: He's not going to be yellow, so that that's a
Speaker 1: big flag. So they change the color of Munchkin from
Speaker 1: the yellow to blue. They also told retailers, do not
Speaker 1: call this pac Man, do not reference pac Man. Whatever
Speaker 1: you do, don't call it pac Man. So what actually
Speaker 1: happens in reality, retailers call it Odysse's pac Man or
Speaker 1: a pac Man pac game because that's gonna sell copies
Speaker 1: to customers, and that's what the stores are concerned with.
Speaker 1: They don't the stores aren't concerned with copyright. They're concerned
Speaker 1: with moving inventory. Yeah, so that didn't help anything, were Philip,
Speaker 1: because they're like, no, don't do that, don't do that.
Speaker 1: And so Atari gets wind of this, they go, listen,
Speaker 1: we're pursuing you because you are printing on our copyright. Here.
Speaker 1: We have the rights to do this. You don't have
Speaker 1: any rights to do this. And they look for a
Speaker 1: primary injunction to get this game off the shelves. They
Speaker 1: don't want this game being sold. And in the first case,
Speaker 1: Atari loses. Okay, a story does not get their injunction
Speaker 1: and to start with, and that's how it ends up
Speaker 1: at the Court of Appeal Seventh Circuit, because the Court
Speaker 1: of Appeals is taking this appeal to find out what
Speaker 1: happens and they decide it is infringement, which will make
Speaker 1: your head explode as we describe the games, because it's
Speaker 1: very strange why this in this case there is infringement
Speaker 1: versus the before we get into that, just so just
Speaker 1: so people can kind of understand. And I don't mean
Speaker 1: to put you on the spot, I ad 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's the first case was adjudicated, and is this
Speaker 1: in this particular case you have to show you look
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 of appeal. I mean,
Speaker 1: that's basically what that works. They file the appeal, and
Speaker 1: then this court decides to take a look at everything
Speaker 1: that happened in the first case, and pretty much I
Speaker 1: believe in this. In this appeals process, all the facts
Speaker 1: are pretty much stipulated. So it's not a heck of
Speaker 1: a lot of disagreement, not having like an argument about um, oh,
Speaker 1: you know, these two guys didn't see the airport. They
Speaker 1: saw it somewhere in Atari's headquarters. Whatever facts are in
Speaker 1: that first case are kind of taken as as that.
Speaker 1: It's just like this is reality. We we can't can't
Speaker 1: look outside of this reality. We just decided this was correctly. Uh,
Speaker 1: if this, if the court decision was correct in this case, exactly,
Speaker 1: they're 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 Munchkin came out on the Odyssey before
Speaker 1: atriis uh Port, I guess Port is probably being way
Speaker 1: too generous before Atris version of pac Man could come
Speaker 1: out for the twenty 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 Autari could have its version come out on
Speaker 1: the twenty that could. I'm guessing that also gave Atari
Speaker 1: some some ammunition to say, look, they're even trying to
Speaker 1: um to edge us out before we can get our
Speaker 1: product on store shelves. But let's talk about how the
Speaker 1: court described these games. So, uh, these descriptions are written
Speaker 1: up in court documents. You can actually read the full
Speaker 1: descriptions because uh, they're pretty long, but you you pulled
Speaker 1: out an excerpt that I think is pretty awesome for
Speaker 1: the description of of of what pac Man is. So
Speaker 1: this is directly from the court case and they're explaining
Speaker 1: the copyrighted work in this case, pac Man, the copyright
Speaker 1: version A pac Man is an electronic arcade maze chase game.
Speaker 1: Very basically the game board, which you appers on a
Speaker 1: television like screen, consists of a fixed maze, a central
Speaker 1: character parentheses expressed as a gobbler uh, four pursuit characters
Speaker 1: expressed as ghost monsters, several hundred evenly spaced pink dots
Speaker 1: which line the pathways of the maze or enlarge pink dots,
Speaker 1: power capsules approximately located each of the mazes, 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: really wish these like I wish these court descriptions were
Speaker 1: like on the back of boxes when you bought the
Speaker 1: game with eles. When this period of vulnerability is about
Speaker 1: to end, the monsters warned the player by flashing alternative
Speaker 1: alternately blue and white before my turning to their original colors.
Speaker 1: To be fair, 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 pact 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 pact Man. It's
Speaker 1: one box that has the ghosts in and the ghost
Speaker 1: will come out at the top of the box. In
Speaker 1: Casey Munchkin, 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 pac 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 faced 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 viewer as opposed to being in profile, and you
Speaker 1: get a smile. Looks kind of like Kermit the Frog smiling.
Speaker 1: If Kermit also had like little horns or antenna on
Speaker 1: top of his head. And then uh, if he got
Speaker 1: gobbled by a ghost, he frowns before disappearing. So there's
Speaker 1: the fact that he could smile and frowned apparently gives
Speaker 1: him some personality. I think pac Man's got a personality
Speaker 1: just all business. She's like, I got no time for smiling,
Speaker 1: no time for frowning, died. There are pellets for chomping,
Speaker 1: all right, I gotta I gotta end up chomping these pellets.
Speaker 1: There there could be a tricycle that shows up at
Speaker 1: some point that I need to eat. He very cautious,
Speaker 1: you know, fruit keeps disappearing on I mean it might
Speaker 1: be paranoid. I believe pac Man might be a little paranoid,
Speaker 1: but maybe I'm reading too much. It might be you
Speaker 1: might bet on pac Man here. Two. So this is
Speaker 1: a very it's just fun to hear the way they
Speaker 1: describe these games. They have to think of it in
Speaker 1: the abstract, because this is partially, this is not partially.
Speaker 1: This is very important to determine what parts of this
Speaker 1: game can be protected by copyright and what part isn't.
Speaker 1: Because again, if there's only one way to do something,
Speaker 1: well it's like the meteor case. And if there's more
Speaker 1: than one way, and I mean like in significant ways
Speaker 1: it's more than one way to do something, well maybe
Speaker 1: that's infringement. Yeah. So some of the things we need
Speaker 1: to point out or some of the differences between these games,
Speaker 1: because they sound like they're fairly similar. But there were
Speaker 1: a lot of interesting differences between the two. One was
Speaker 1: that in in pac Man, you have these hundreds of pellets,
Speaker 1: presumably depending on depending upon how it's depicted. Obviously, the
Speaker 1: Atari version was a lot more limited. The Atari home
Speaker 1: game version was a lot more limited than the the
Speaker 1: the Arcade version. But Casey Munchkin, they had twelve dots
Speaker 1: per level. The dots could actually move through the maze, however,
Speaker 1: so it gave an extra element of challenge. Plus in
Speaker 1: the Casey Munchkin maze, there was one pathway that would
Speaker 1: end with a dead end, so you had to be
Speaker 1: careful if the dot was down there and you need
Speaker 1: to retrieve it, you had to make sure you could
Speaker 1: do so and get out before being trapped by a
Speaker 1: ghost because there's no other way out. Um. It also
Speaker 1: had a different different game options with Casey Munchkin, including
Speaker 1: one that would turn the level invisible around you whenever
Speaker 1: you moved, so you had to stay still, like if
Speaker 1: you hit a if you hit a wall and you
Speaker 1: couldn't move any further, you have to stop so that
Speaker 1: it would show up and you could see whether you
Speaker 1: could turn in a different direction or if you need
Speaker 1: to back out or whatever, So that was also interesting.
Speaker 1: They also talked about how the pellets would be the
Speaker 1: power pellets in Casey Munchkin because there were power power
Speaker 1: pellets in that as well. It also allowed you to
Speaker 1: turn the tables on the ghosts the three ghosts in
Speaker 1: Casey Munchkin versus the Foreign pact Man and chomp on
Speaker 1: them for a short amount of time, but they were
Speaker 1: randomly distributed among those twelve pellets as opposed to being
Speaker 1: in the four corners like it was with pac Man.
Speaker 1: Uh So, there were a lot of differences here, a
Speaker 1: lot of In fact, I would argue there appear to
Speaker 1: be more significant differences in the basic presentation of the
Speaker 1: game than you saw with Asteroids versus Meteors. If you
Speaker 1: were standing at an Asteroids cabinet and you were standing
Speaker 1: next to a meteor cabinet there next to each other,
Speaker 1: you just standing up front them, they would look really similar. Okay,
Speaker 1: I'm not even kidding. They look extraordinarily similar obviously once
Speaker 1: in collar, once in black and white. But if you
Speaker 1: put Casey Munchkin versus pac Man, there is a distinct difference.
Speaker 1: I mean even the actual maze when it comes to
Speaker 1: the styling of the maze. Instead of a being this
Speaker 1: kind of rounded, hollow kind of maze, you have these
Speaker 1: very hard lines the purple, and you do that moving
Speaker 1: corral in the middle. That's that sounds pretty interesting. And
Speaker 1: then there is this the mention of the dots, like
Speaker 1: you were saying that move in Casey Munchkin Versus Pacman,
Speaker 1: which are stationary but there's this great line in here.
Speaker 1: He says, you know, as the gobbler munches more dots,
Speaker 1: the speed of the remaining dots progressively increases, and the
Speaker 1: last dot moves at the same speed as the gobbler.
Speaker 1: And the words of the district court, the last dot
Speaker 1: cannot be caught by overtaking it. It must be munched
Speaker 1: by strategy. So there's an actual that's a great line.
Speaker 1: That's true. Though if you have if you have to
Speaker 1: have the strategy elements, you don't have the exact same
Speaker 1: thing in Pact Man. You have that double wrap around
Speaker 1: maze where you can just leave for the right, show
Speaker 1: up on the left. This this game is so far
Speaker 1: it sounds very different. And as a student, I'm thinking, well,
Speaker 1: clearly the Casey Munchkin ganned gang, it's going to be fine.
Speaker 1: But nope, the court finds in favor of a and
Speaker 1: you might say, well, how the heck can that happen.
Speaker 1: So one of the elements that came to um Atari's
Speaker 1: aid not on purpose, I mean, this was just something
Speaker 1: that that ended up supporting Atari's argument was that when
Speaker 1: you're looking at the implementation of a a maze chase game,
Speaker 1: they actually categorized it as a maze chase game. The
Speaker 1: court was able to look at other games that are
Speaker 1: also within the category of maze chase games, but are
Speaker 1: designed in a very different, distinct way from pac Man,
Speaker 1: and so the argument could be made there are other
Speaker 1: ways to depict this style of game without relying upon
Speaker 1: the same basic design elements that pac Man used, and
Speaker 1: that ended up being the crux of the argument, right,
Speaker 1: I think it wasn't one of them. I think it's
Speaker 1: a rally X was the name of the game, one
Speaker 1: of the ones that they referenced. So, uh, they actually
Speaker 1: said that because they the Casey Munchkin ended up copying
Speaker 1: elements of pac Man that were integral to what pac
Speaker 1: Man is. You know, it wasn't just uh, a facet
Speaker 1: of pac Man. That didn't really matter. If that had
Speaker 1: been the case, it might have gone a different way.
Speaker 1: They said that it's it's fundamentally copying the what what
Speaker 1: I guess you could argue is the essence of pac Man,
Speaker 1: and that therefore, uh, this ended up being Atari had
Speaker 1: a case, like a legitimate case against the Casey Munchkin game,
Speaker 1: and they even said that, um, here's a quote. It
Speaker 1: is enough that substantial parts were lifted. No plagiarists can
Speaker 1: excuse the wrong by showing how much of his work
Speaker 1: he did not pirate, which actually came from a previous case.
Speaker 1: They used that as a precedent to state that it
Speaker 1: doesn't matter if you have a lot of original work
Speaker 1: that is surrounding a kernel, if that kernel has been
Speaker 1: stolen from someone else, if it's a significant part of
Speaker 1: someone else's work. And this starts to kind of creep
Speaker 1: into the concept of fair use as well, because fair
Speaker 1: use has elements in it where you're not just concerned
Speaker 1: with how much was copied, but what was the nature
Speaker 1: of the copied material. So, in other words, if i
Speaker 1: As right something, and uh, and I end up copying
Speaker 1: only a small amount of what i As has written,
Speaker 1: it's I've written my own article. I'm not citing i
Speaker 1: As so much as I am taking something he's written
Speaker 1: and incorporating it within my own work. It may be
Speaker 1: that I've only taken a couple of sentences from i As,
Speaker 1: and you might think, well, that should be fair use
Speaker 1: because it's a small amount. It's not, especially if i
Speaker 1: As had published a very long piece from which I
Speaker 1: took those couple of sentences. But if those couple of
Speaker 1: sentences are at the very heart of what I as
Speaker 1: was writing about, if that is instrumental in the point
Speaker 1: he was making, a court might say, well, no, this
Speaker 1: is a case of plagiarism. You're not. It doesn't matter
Speaker 1: that it was two sentences. What matters is the nature
Speaker 1: of what was written. And that was part of what
Speaker 1: played into the court's decision in this case, saying that
Speaker 1: the elements that were taken, while you can argue they
Speaker 1: were augmented or tweaked or changed or enhanced or however
Speaker 1: you want to put it, they are the crucial elements
Speaker 1: of what makes pac Man pac Man. Yeah. One of
Speaker 1: the other big things about this, like there, as you
Speaker 1: were saying, you get copyright protection on lots of different things.
Speaker 1: And if there's a couple of sentences you took for me,
Speaker 1: and it's it's at the essence or it's the real
Speaker 1: crux of what I've been writing, that could be taken
Speaker 1: as plasireism. But there's a lot of things that aren't
Speaker 1: taken as infringement that there's a illegal term for its.
Speaker 1: It seems a fair it's basically having events that naturally
Speaker 1: would follow, so if somebody decides to have of I
Speaker 1: don't know, like, let's say a three part story arc
Speaker 1: where you have like a guy and a girl and
Speaker 1: they meet and act one and then the act two
Speaker 1: they break up, and then act three they get back together.
Speaker 1: You can't copyright that that structure, right, because that's that's
Speaker 1: natural less seems like how things work. And if that
Speaker 1: actually happened, they would only be like one rom com
Speaker 1: right there, the only one romantic comedy that the only
Speaker 1: ones ever existed, and it could never happen. Tom Hanks
Speaker 1: would have been out of work in the late nineties exactly,
Speaker 1: or he would be doing the reboot every two years
Speaker 1: and they would re license it. Uh. And so the
Speaker 1: scenes of pac Man, the things that would make sense
Speaker 1: that anybody could copy is what the court was saying
Speaker 1: here with certain things the maze and scoring table or
Speaker 1: standard game devices, So anybody can have a maze and
Speaker 1: scoring table, nothing wrong with that. The tunnel exits are
Speaker 1: nothing more than commonly used wraparound concept adapted to amaze
Speaker 1: chase games. That's fine. You want to use dots, that's fine.
Speaker 1: And the real problem here was the fans offul creations
Speaker 1: pac Man and ghosts that they're this gobbling character that
Speaker 1: just like wanders around popping pills and being chased by ghosts.
Speaker 1: This starting to sound like an episode of Breaking Bad.
Speaker 1: This particular implementation this expression is pac Man. This is
Speaker 1: you could do anything. Riley X is a car game.
Speaker 1: Do you have a car running around and it's probably
Speaker 1: trying to pick up some kind of points based item,
Speaker 1: maybe it's gas canisters or whatever. The heck, you would
Speaker 1: have never play their pellets pellets as well. I had
Speaker 1: that game as well. So you've got pellets. But and
Speaker 1: you're gonna have a scoring table on the top left.
Speaker 1: Nobody's saying you can't have a scoring table my scoring
Speaker 1: table in the middle of the screen where so you
Speaker 1: can't see it. That'd be ridiculous. There's lots of different
Speaker 1: elements that you can do in a similar game. But
Speaker 1: if you're just a ghost, that's not ghosts. If you're
Speaker 1: if you're a gobbler, you better look a little different
Speaker 1: as a gobbler. That's basically the point. And the monster,
Speaker 1: the monster is coming after you better not be ghost
Speaker 1: monsters if you If if those elements are similar enough
Speaker 1: to pac Man, then it's very hard for you to
Speaker 1: make a commencing argument that you weren't copying pac Man.
Speaker 1: This could be a Frankenstein game, right, You can Frankenstein's
Speaker 1: monster running around he's trying to get pellets or I
Speaker 1: don't know, other body parts might be a little bit
Speaker 1: disturbing at that level of game, being chased by villagers.
Speaker 1: That would be effectively similar. Right. It sounds like a
Speaker 1: pac Man game to me, but the expression is very different. Now,
Speaker 1: granted it would require all kinds of other licenses. Potentially,
Speaker 1: Uh if if there was a movie out at the
Speaker 1: time 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. But this could be damaging.
Speaker 1: And the court makes mention it's kind of funny to
Speaker 1: even read something like this. They know the Odyssey games
Speaker 1: cannot be played in an Atari, nor vice persa like, well, yeah,
Speaker 1: of course not. But this was a concept that was
Speaker 1: kind of important because if it's are you wasn't losing
Speaker 1: sales of its console, that would be very different, actually
Speaker 1: might be a little different. But in this case that look,
Speaker 1: you can't sell this game right now because you're causing
Speaker 1: them huge harm. And I guess sent back to the
Speaker 1: lower 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 going to buy your
Speaker 1: thing because it looks like my thing, and then they
Speaker 1: don't really care that it's actually ours, And effectively it's
Speaker 1: the same argument that the court says there, although it
Speaker 1: does seriously sound patronizing. Yeah, the undiscriminating the one I
Speaker 1: want to say, the unwashed masses who play video games
Speaker 1: and the pizza parlors can't appreciate you can't appreciate 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 down to it. Is Ultimately, Atari's pac
Speaker 1: Man version for the was awful, and it is often
Speaker 1: cited as one of the many reasons why the company
Speaker 1: suffered so much, h so many setbacks, Bree and partly
Speaker 1: why the video game crash, the home video game crash
Speaker 1: three happened, it was that they had spent a lot
Speaker 1: of money two create this pac Man game. They rushed
Speaker 1: it so that they could get it out in time
Speaker 1: for the Christmas season. It came out, and it was
Speaker 1: a huge letdown because it was such a pale comparison
Speaker 1: to the arcade experience that it was the actual pac
Speaker 1: Man game that Attari made ultimately is what damaged the
Speaker 1: company's actual, uh you know, um reputation. It wasn't that
Speaker 1: some other game company created a game like pac Man
Speaker 1: and that damaged Attari's reputation. It was Atari's own actions
Speaker 1: that ultimately damaged its reputation. Now that is immaterial for
Speaker 1: this case, has nothing to do with this case. It's
Speaker 1: just an interesting little side note. I'm very curious if
Speaker 1: I have to look this up. I should have looked
Speaker 1: this up before this show. If Atari ever tried to
Speaker 1: reach out to Phillips after they saw the progress of
Speaker 1: the pac Man game where they have dashes instead of dots,
Speaker 1: it's like, clearly average. When he's making his game for Phillips,
Speaker 1: he knows how to put dots there, So I don't
Speaker 1: know why pac Man didn't have it. Just kind of
Speaker 1: curious why they weren't, like, hey, buddy, how about we
Speaker 1: give you a license now ours looks horrible. We're really
Speaker 1: sorry about that whole doing you thing. Yeah, maybe we'll
Speaker 1: have Casey Munchkin come on over and be renamed pac
Speaker 1: Man for the at and yeah, and also here's something
Speaker 1: else those I'm kind of curious about. So we we
Speaker 1: established in the Asteroids versus Meteor's case, the court had
Speaker 1: decided that the expression of the idea was limited to
Speaker 1: the version that was in both games, and that therefore
Speaker 1: the copyright claim did not hold up, or at least
Speaker 1: did not. It wasn't an infringement because the expression was
Speaker 1: limited by what we could do, and that in the
Speaker 1: pac Man versus the Casey Munchkin one, it was different
Speaker 1: in that the expression of the idea could have taken
Speaker 1: different forms, as evidenced by these other Maze Chase games,
Speaker 1: and therefore the claim of copyright infringement was valid. What
Speaker 1: 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 a an asteroid
Speaker 1: that's heading towards you, so that you can maneuver the
Speaker 1: ship 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,
Speaker 1: be yours asteroids whatever you want to call them, space
Speaker 1: debris still coming at you. So you can even see
Speaker 1: these two games is fictional game we're making up now
Speaker 1: that one could be sued based on the concept of, Hey,
Speaker 1: you're taking our concept. People are not going to be discriminating.
Speaker 1: You're you're in a field. You're taking on asteroids. That's asteroids. Man,
Speaker 1: you're taking our game. So I'm I don't know if
Speaker 1: the case would have been decided differently because it's also
Speaker 1: it's so early. I don't think the court might have
Speaker 1: had the foresight to even think of a first person
Speaker 1: experience in general. And you're talking about a primitive version
Speaker 1: if it if it's so primitive that you have like
Speaker 1: several 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 if you're like a primitive star Fox. Would that
Speaker 1: have worked. I'm just very curious because when I saw
Speaker 1: this case way back when, the first thing I thought
Speaker 1: of was Our Type, I don't know if you played
Speaker 1: Our Type as a game, I'm like, that's like asteroids
Speaker 1: accept it. So it's roller and they have awesome alien ships,
Speaker 1: and actually it's kind of the same game. After I
Speaker 1: started thinking about it, well, yeah, I think, I mean,
Speaker 1: 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 call are
Speaker 1: instead of a gobbler, because you're saying, well, it's the
Speaker 1: exact same experience. You're you're navigating a piece through a
Speaker 1: maze being chased down by enemies. I mean, because this
Speaker 1: is the kind of stuff that drives me nuts about
Speaker 1: copyright cases because it almost seems arbitrary. Uh, when you
Speaker 1: go case by case like this and say, well, the
Speaker 1: logic that's being applied in this one case seems like
Speaker 1: it's not being applied in this other case. Now, in
Speaker 1: the ones we've talked about, I understand the perspectives, and
Speaker 1: I even agree to a certain extent, especially putting myself
Speaker 1: in the place of the time right and the limitations
Speaker 1: of the technology, but it still is one of the
Speaker 1: things that can be a real head scratcher. And ultimately,
Speaker 1: law is something that people have made, so therefore it
Speaker 1: is going to have the same sort of limitations and
Speaker 1: failings as people. Yeah, this has to be applied ad hoc.
Speaker 1: That's the way this is supposed to be in And
Speaker 1: I joined you in the in the confusion slash rage.
Speaker 1: When I first saw this, I was just like, I
Speaker 1: don't understand how this can be. And the fun thing
Speaker 1: about law is that you have to make both of
Speaker 1: these things that seemed completely opposite. You have to somehow
Speaker 1: harmonize them. When you figure out how to harmonize them,
Speaker 1: that's how you're building your rules. When it comes to
Speaker 1: all of this stuff. So the only way this really
Speaker 1: works is saying, okay, there's These are two different examples
Speaker 1: of the idea expression unity. Is there an idea expression
Speaker 1: unity when it comes to meteors? Yes? Is that the
Speaker 1: case when it comes to pac Man? No? Because this
Speaker 1: is where the line is. Even though these games looked
Speaker 1: very different, I thought from just a they called it
Speaker 1: an ordinary observer point of view. To me, that just
Speaker 1: seems like any human being to take a look at it.
Speaker 1: They don't actually want you to dissect things either, which
Speaker 1: is kind of an interesting idea. If you just looked
Speaker 1: at them, you wouldn't think Casey Munchkin is the same
Speaker 1: name as pac Man. It's just it. You wouldn't be
Speaker 1: that confused. But you would say asteroids and meteors are
Speaker 1: the same. But this, this is just the way this
Speaker 1: stuff turned out over time, because otherwise we would never
Speaker 1: have things like Mario and Sonic and Bunk Like. They're
Speaker 1: all side scrollers right there, all this this little cute
Speaker 1: mascot character. They get powered up. They're collecting something of
Speaker 1: some sort. Once got rings, once got coins. How are
Speaker 1: they getting about it? Once breaking it with his hand
Speaker 1: above his head. Another one is breaking it as he
Speaker 1: spins into a ball. The fact that they're expressed so
Speaker 1: differently is actually important, because if we don't have that,
Speaker 1: we would just have a bunch of clone games where
Speaker 1: they Okay, here's your plumber. I mean, I guess the question.
Speaker 1: I would love to see that lawsuit of somebody breaking
Speaker 1: down Super Mario. It's like, okay, how how many ways
Speaker 1: can you express an avenging plumber? Only one good one?
Speaker 1: It's the only one good one. But yeah, this was
Speaker 1: a lot of fun to look into. It was definitely
Speaker 1: outside of my normal zone. So I gotta thank you
Speaker 1: I as for for joining me, and not just joining me,
Speaker 1: but for being the one to suggest these two cases
Speaker 1: in particular as the subject for this episode, because it
Speaker 1: turned out to be a really fascinating kind of discussion,
Speaker 1: both of the the legal status of video games and
Speaker 1: just the weird mind bending logic you have to apply
Speaker 1: when it comes to copyright. Well, thanks for having me.
Speaker 1: And I probably was influenced by listening to the HR
Speaker 1: three partner because I was like, oh, that's the bizarre
Speaker 1: all right there? Game kind of sucked. Never minded these cases,
Speaker 1: the two cases that drove me insane. Here they are
Speaker 1: and they brought it back, these these these horrible ideas.
Speaker 1: And one of the reasons why I never went into
Speaker 1: intellectual property law as an aside was because of cases
Speaker 1: like this. It was some of it does seem arbitrary
Speaker 1: and it could drive a person crazy. So I decided
Speaker 1: I don't feel like doing that and ended up on
Speaker 1: this podcast today, and and now here we are. So
Speaker 1: I as an I plan on doing another episode about
Speaker 1: a lawsuit in tech, specifically actually a series of lawsuits
Speaker 1: the the we mentioned it earlier, the Apple Samsung battles,
Speaker 1: and we were originally going to include that in our
Speaker 1: discussion today, but then it just it was it became
Speaker 1: obvious very early on that that would have been we
Speaker 1: would have been either super truncating all the discussion and
Speaker 1: thus not really illustrating anything useful, or it would go
Speaker 1: on so long that it would have had to have
Speaker 1: been split up into multiple episodes. Anyway, So I AS
Speaker 1: is going to come back at a later date that
Speaker 1: we will have to determine when our schedules will allow
Speaker 1: us to do this again. Uh, and what we will
Speaker 1: talk about that We've already started the notes on that,
Speaker 1: so they the I guess the way of depending on
Speaker 1: how you look at it. The nice thing about that
Speaker 1: story is it's still developing from the from now. It's
Speaker 1: an ongoing war that and the funny thing about it
Speaker 1: is still as an aside is the fact that they
Speaker 1: are partners in a number of ventures when it comes
Speaker 1: to components inside of iPhones, of Apple devices, etcetera. The
Speaker 1: fact that Samsung is their partner in some degrees, and
Speaker 1: also they're stabbing their partner. It's just a very strange
Speaker 1: concept of like, hey, I love you, now let me
Speaker 1: kill you. It's what they both are doing. Yeah, and
Speaker 1: and they're they're fairly recent developments on that front as well,
Speaker 1: with Apple looking into potential other microchip processors that kind
Speaker 1: of are are manufacturers rather and and other component manufacturers
Speaker 1: and 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: So we will talk about that at a on a
Speaker 1: future episode of tech Stuff. I as thank you once
Speaker 1: again for joining me. Where can people find your stuff?
Speaker 1: You can find my stuff easiest is on Twitter, Twitter
Speaker 1: dot com slash I S. That's I y a Zy.
Speaker 1: I'm not the singer that is at I S Live.
Speaker 1: If you want to go find him. You can also
Speaker 1: find my work at seen dot dot com. I'm doing
Speaker 1: a couple of shows here. I also do a fun
Speaker 1: show with Jonathan Strickland and Eric Sandean called Podcast Without Pretense,
Speaker 1: available at GQ network dot com. So I'm everywhere, and
Speaker 1: it's so fun to be a part of this show
Speaker 1: again because this was a trip down memory lane. Yeah yeah,
Speaker 1: and it'll help make up for how painful the Samsung
Speaker 1: Apple one will be because that's just a I mean,
Speaker 1: there's just a whole bunch of good old fashioned hayte
Speaker 1: in that episode. Well, guys, if you want to get
Speaker 1: in touch with me and suggest future topics for episodes,
Speaker 1: or even a guest host or someone I should interview,
Speaker 1: please drop me a line let me know what you think.
Speaker 1: The address is tech stuff at how stuff Works dot com,
Speaker 1: or you can send me a message on Twitter or
Speaker 1: Facebook or Tumbler. They handled all three of those. Is
Speaker 1: text stuff h s W and we you will talk
Speaker 1: to you again really soon for more on this and
Speaker 1: thousands of other topics. Because at how Stuff Works dot
Speaker 1: com