CNET's Iyaz Akhtar joins the show to talk about lawsuits. What are some of the biggest lawsuits in gaming and how have they shaped our world?
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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
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suits, and I am so glad you're here to explain not just what happened and what are the particulars of the case, but why? It's important because Both of these cases took place fairly early on in the era of home video games and as a result would end up really shaping the way video Eames are treated under copyright law yet so up those who don't know I went to law school. I graduated. I passed the barn New York States and I immediately got a job in technology, ended up doing that for the rest of my career, and so is this, this long history of why I became a lawyer in appearance in a first generation American like be be a lawyer or a doctor, so became a law degree, and I commercial property in school it's maddening to try to figure out the differences. Why one
when one way one. Why one another and we'll get all that, but I'm really kick myself because I used to have my my books, my notebooks, I'm like I'll, never need my briefs anymore, as I checked them out, and so here we go talking about two cases that I learned a long time ago. So Is there any errors? I apologize, but we have looked over the cases of several times today. Personally yeah and I've looked at two or three times today and I've written up notes again, I printed out one of 'em the right notes, because that's how I used to do it in the day yeah to the point where you have hard copy in front of you, I literally have my and sold out notes all over based on book briefs who say used to do when I was in school. Well, so the the first of the two cases we're talking about and, as I have pointed out, these have to do with intellectual property with copyright. is a tricky subject right where I've talked about several times on text off and in general. Copyright is about
making, sure someone who creates a work of some sort. Has some sort of protection that that you don't I have to worry about, or rather you have some recourse. If someone were to try and copy that work, you could pursue action against them based upon the copyright. It gives you that that of protection. Add anything that you set down in a fixed, tangible, medium, technically, is protected by copyright. Registering. A copyright, however, is a great idea, because and there is an official record of said, copyright if you should ever have cause to bring that up in court This is one of those things where it really only plays out as soon as there is, is either a lawsuit or the threat of a lawsuit. Otherwise, it's kind of a it's kind of in the background and the four case that we want to talk about was Atari Tory
amusement world which sounds like the most fun. Lawsuit ever definitely the cases from way back in nineteen, eighty one yeah was that the? U S district court in Maryland and at the it's pretty simple idea, so we have two different companies about Atari there, the copper, asteroids yeah, you guys bodies they gave. You probably seen it. You know the saying asteroids, I'm sure you got a picture in your head, there's a little train the ship in there and the rocks flying at you and you blow up right, so I'm gonna go home, get blown up by either a rock or one of the few little enemy spaceships. That would occasionally pop up. So another company called amusement world, which again is a great name as creative as Atari as it might listened to the three part on it's finding out where the names came from like this is pretty awesome to hear so these guys basically saw the idea that we we could make our own game and that are the big things that you gonna get others cases that you can't. You can't have a man
on an idea, so they are free to make a game, Sorry saw this game and elevated. Secondly, strangler shipowner Brock's, you totally stealing our stuff and were soon you right Another thing to keep in mind is this: is early enough in the the era of video games that court had not fully decide that video games were something you could totally copyright. In fact, in the other case, we're going to talk about there's a note. The court's decision that says these the EU gives are not something you can fully copyright, but there are elements of copyright, protection that do extend video games and it gets into particular not cover in this in this but justice, This was kind of a wild West era of both. The home, video game industry and of law, because technology had outpaced. Why the legal system was ready to cover and we see
again and again, not just in video games, obviously, but in all realms of technology in law. You see that with it's like the autonomous cars coming out and people Saying wait a minute. How do we what's wrong? legislation. Do we need to put up to deal with this new reality of technology, and it just turns out that you know the laws, something that has to catch up to our changing world and this case. You know we and we had an an interesting case Fourth, by Atari, saying here are some of the things that we say are the similarities between our game and this other game called meteors. through a meteors I mean are already: has Just with the names you like guys, maybe we should come up with a different title, but they think but I didn't write a bunch of multiple points of similarity now.
In cases of of trying to determine whether an author has plagiarized another author, for example, often courts will ask for some third party, preferably in the third party, that has no interest in the outcome of the case too. I identify any points of similarity and then give his case of plagiarism just been coincidence, because, as we're all aware, different people, Come up with similar ideas around the same time and it's not always a case of of plagiarism, So here are some of the points of similarity both games. While the player, shooting and destroying rocks and in both games there. Actually three different sizes of rocks are those box would appear in waves with the initial waves being composed of vigour rocks when you
shoot. They would break into medium sized rocks medium sized rocks would break into small rocks smaller OX would disappear when you shot them and the speed of the rocks. depend upon their size, so large rocks move more slowly than small ones. So, as spinning around with your little ship in both asteroids and meteors, as shoot these rocks, they start getting smaller and they start moving faster. So you are, develop. Your strategy around that and in both, if you got hit by a game over, at least your your player life? For that one ended, you will they get multiple lives per game and both enemy spaceships I spaceships came into different sizes for both games. The bigger ones were worth fewer points then the smaller ones, the idea being that the smaller ones are harder to head, therefore they're worth more points,
the player ships and the enemy spaceships? Could she projectiles impact would be automatic destruction which would be accompanied by? I think they actually said. the symbol of an explosion yeah cause. This is the early days of video games. As you remember like there's, a lot you can do yeah when it comes to graphically representing anything, so we're Talkin, some pretty primitive, looking graphic. So it's this it's getting laid out here and the next gaze, the actually how like we can have so many sides rollers. It just is a bizarre way to go yeah alone that something else there We'll come up in this discussion. Is that part of the reason the cases turned out. The way they did is big again, it's so early on in the era of video games that people had not really will one. The technology had not advanced to the point where you could have very different depictions of
different interpretations of the same basic idea didn't that because the technology itself was limited. So it's not like you could you know I have one that looks like asteroids where you've got this top down view of a little triangle, shooting rocks and the other one. You have a Photo realistic she hoped for space simulator, where you're flying through shooting rocks. So the technology its was limited and thus a lot of people. Figured that the ability to express an idea itself was limited because of that but there's some other similarities. I thought were kind of like what there's no reason that you could argue one game would have to have this particular element versus the other. For example, both games had a two tone: beeping noise that increased in tempo as the game progress like and we just get faster and faster,
both games had scores for players that were displayed in the same sections of the screen. So words like the player, one score would be in the upper left corner in the player to swarthy thou right corner. Both games had thrust button. they would let the player ship move in whatever direction it happened to be facing at the time. I said I asteroids like the arcade version of asteroids. I've actually the home version of of asteroids. I don't think I've ever played it in the arcade actually yeah. The arcade version was a tough one, this would be the home version because it is Atari. I believe it's not the video game version. Maybe it could be the video game version because Atari did have both divisions, but the the These are the asteroids game were what will allow you to turn the ship left turn the ship right or use thrust. Obviously you would just use a day
direction on your joystick. Usually I think pressing up would give you the thrust in the home version. But in both versions, if you released, the thrust then Actually your ship would come to a halt. Although the court did did actually notice that this house, more quickly and meteors and asteroids both games at ten thousand points you get an extra life and each sex as fully completed a wave of rocks, initiate a new wave and new wave has more rocks in it than the previous wave so those were the similarities that the court noticed between two games there, a lot of them. I mean there's the very basic nature of the game seems identical in these cases. Right I mean I, it would be hard for me to argue otherwise. I would think yeah if FR It's kind like modern games, you think call of duty vs any other battlefield game,
think of any any kind of world WAR gave a kind of this, but why is that even allowed and have their differences? two games, meteors and asteroids. So asteroids had this at a black field underneath the actual game. Had he had this starfield at the look of distant stars, and this is kinda really pushing it, because when you're looking at them, have you ever seen the photos of the skit, this game you'll see they're, just basically dots, yeah, that's kinda, neat, Asteroids is black and white, and videos was in Color NOS forty different Media is also had as cheating on the space ship and the rock who can I had more dimension because asteroids is pretty white looking when it comes to ships and rocky? almost like a schematic, drawing like it's it's own or the, abstract in a way, because the rocks all look the same and they all just kind of float at you and then you shoot them their different sized, but they the shape
We still very much the same and they are still floating at you. It's not, there's no real sense of the dimensionality in the original asteroids game, I really like the element that meteors starts off. When you start off the game, isn't animation of you, blasting off of earth? Compare that's! You asked for you to start near just in this in the field time to go right. You ve got. The gave me to yours is act. faster in general and it move and you have a different way of shooting. As well. You could you could shoot a lot more. I think continuously compared to ask what right asteroids was like a burst fire thing: you could fire a few shots, but then you, the weight, is almost like a retard period. Everything else. It as the main. What does the main ones I mean? You know the rules also the fact that the meteors and meteor and meteors rather could tumble like they. They actually, they actually to rotate as they were coming toward you, whereas the if you watch the old
strides game. Those shapes they maintain their same orientation as they move across so there that too. So there were some definite improvements on the game. So oh amusement world, had to defend itself against these claims of copyright infringement they try to couple different tactics are the first thing they did tried was, they said at Atari copyright on a was invalid in this case, because of the they registered their copyright, so they said that Atari unregistered asteroids copyright as an audio visual work. As a literary work and that as well I the copyright wasn't valid. They said that Atari had submitted essentially a film video of one out of a possible infinite variations of a single game, so in other words they
captured, gameplay footage of asteroids and that particular game play but it was being sent as as part of the of the the then a Tory was submitting to get this copyright and I guess amusement world was essentially saying well technically, Wouldn't that just give copyright to that specific film. I thought that's a great argument. It's taking, like you were saying, it's the wild west as the early days of video games, and how are they protected to the idea that the amusement world is pushing us, wait? A second, that's a tape or a recording. You definitely protection for that, but you're suing us about the game yet self and the corpus like we ve, always ok. Now they did put the work in a tangible media. When that happens to be the circuitry yeah and it's not so easy to descend. Us arcade cabinet The way of used to be
yeah, because the rom chip I mean the game is hard coded on a a circuit board, and that circuit boards only useful if you have it connected up to the rest of the the system. So giving you would have to have had a tour. He sinned Oh console, like I mean a fool like a tory cabinet out too, patent office, the or rather the copyright office, and deliver that and say like yours are fixed, tangible medium. Is there. No other people think the laws kind of messed up. It allows for absurd results and if this kind of actual events That's happening right now, we're talking about if they, if Atari had to send an actual cabinet every single time it made a game that would cause Such a ludicrous amount of storage requirements by the government would mean no sense. Imagine filing these much more fun place to work
if they are granted a fantastic break area where you like, we guess guess what, we get this other game hasn't even come out in arcades. Yet repeater to me that this is the The argument I would make with this like, if you were trying to to say like well what is this similar to Let's say that I write a play, and for some reason that cannot even come up with right now I ask I met my play to the copyright office, not by Cindy In a script to to be copied, you to register the copyright, but rather I put the performance of the play, and then if I record the performance on using a video camera whatever, and I sense that in to be copyright, you could argue well your copy writing the performance of this play, but the play itself you still haven't registered
it's kind of argument amusement world was making and ultimately The court dismiss this argue and said, are you for for practicality, sake, just for the same reasons that I, as was reason earlier, we have to draw the line somewhere video depicting gameplay footage is going to differentiation differentiated from a film. In that way, Saying that this one video representation of the game, is the only that is protected under copyright, because this ludicrous but but it could have gone the other where he echoed enough case, where they're saying actually you're right, that is unnecessary and board yeah. Well now we would you right. There's! No cop reputation heck of a lot of things. Clearing derivative works YO if Japan did send in that recording advice, transcribed it and go high.
can sell this because you didn't copyright, the actual script, is derivative of what you've done. So that's it's supposed reward. the content creator, possibly about furthering society, because you, when you write something you protected- can actually enjoy the fruits of, and that's the whole point of copyright them in a nutshell, yeah. It does get complicated. I mean using that other example of the play and shooting a video. Let's say that I haven't sent in the script for copyright, yet I, as comes to a rehearsal of this play that has not yet been copyrighted. He video it's the rehearsal if you read the videotaping now, suddenly he's got a registered copyright assuming that its granted has arisen the copyright. For this thing I haven't, copyright, my script and his illustration would predate anything I would send in which would cause further complications. So now the whole point of This is to try and create, as
clear a record of ownership as possible, but if you don't do your part in that, then you can't expect to have the protection that it would grant you so in this case, I guess it was a good thing that the court said: hey Willie, the the audio visual thing is not not a barrier, it's not something that is going to count against Atari in this case, but amusement world then had to change it's tack. Tax and said that one he was trying to do, was claim copyright protection of The idea of a video in which the player tries to survive, encounters with asteroids and enemy spaceships, who knew that video gaming- could be so litigious and I'll have to do a it. A proposal to this one at some point, because there is more to it, but before we get
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The idea versus the expression of an idea and are you get familiar with this jeweled pendant and what this this thing is. If there, There was one manufacturer of a benefit like or a pen that a person would wear. It was a be the head jewels. so somebody saw that ideas here, that's a really cool idea. I want to make the same thing so. The first person who made the visual to be said: no, I'm suing you for the copyright, that's mine and the court said There's only one way to show a be that's it now granted. We could have a pattern on the actual be but a beef we try to keep it realistic, is going to have the I can yellowish brown and yellow kind of stripes is gonna have wings their elements. You cannot change about this, and these One true way to do this. In that case you do. The first
does have a copyright on that actual item. But it's not exactly tat with strong. Another person can actually make the same thing. Also, copyright on it, which is sounds a little bit bizarre if you think about it, but because you can't copyright the idea this is free to copy and the sub operates is such a weak weak. Be right that it's it's very, very strange unless basically, we get apply to this case this. This idea that ok, so that the aid itself is not that there you can have the reasonable expectation that different people would want create a game based on the same kernel of an idea, it well, how many different ways are there to express that idea? If it turns there's really only one method of doing it. You can't truly have protection of that. because it would be silly right of its?
it's only if there are multiple ways to express that idea that you you could argue well, this person copied you and they didn't. Do they could have express that same idea in a totally different in of a way Therefore they are, they are Tivoli violating your copyright. You have a legitimate, legitimate complaint though, what the court had to decide in this case was, did what the stuff that amusement world did by creating meteors. Did they in fact copy Atari or did they simply employ the same ideas, because there was really only that way to express a game, where you are trying to maneuver spacecraft through an asteroid belt. While you enemy, spaceships, and that
a really interesting deliberation- to go through and say areas which were elements here. Do you think, are essentially universal in the sense that anyone who wanted to make a game that reference this kind of idea would have. to do it this way versus which one of these ideas could you do and a myriad of other ways, but they chose to copy a Tories method this case. It ended up kind of favouring spent world music world is not found guilty of copper infringement case because there is apparently the idea expression, unity is true in this particular case. That's what the court Sanderson look. There is if one way to do this, so if you had a spaceship and you're going to blow up a rock in this in space, those rocks have to disappear at one of two or three different ways. break up into one piece. Two pieces three pieces
it's million pieces, the game becomes somewhat unplayable because you'll just lose all the time. They're saying that both games start off somewhat easy, which is to encourage people to play the game. That's something that you can't really say will start the game really hard and that'll be a different game. So there's enough elements that in this case the court saying look if you're flying around in Space- and this is Kind of the only way to do it because you just there's no we regret this, and I want to do so quickly mention that both of these guys amusing world than a target. Both have copyright protection, its let them action doesn't give them a monopoly because of the idea, expression, nudity, that's what it is but a monopoly on something more So then it is protection, because, even though these games are very similar and they they act in a very similar way, they both still have copyrights on those products.
which is really I mean this is that's mine bending to me, particularly when we get the discussion of the second case, where we third saying wait a minute I dont didn't a very like high level? It can be hard, to distinguish between the two, the differences that that mark one case versus the other as it turns out, court decisions in the second case, we're going to talk about go in in a different direction than the one we just mentioned, and that's that's probably why I mean I mean I imagine that's why you, when you were studying law, you had these two cases: kind of presented together, it's a way of illustrating this idea of the copyright of the expression of an idea versus the idea itself Well, like I said in the beginning, this was maddening to go back to back with the case that the next case
nineteen. Eighty two is decided by the United States Court of appeal: seven Circuit Amis attire. MRS North American Phillips Consumer Electronics Corp, you might know them as Philips and live in the case they they are costly, called North American, because that's just a short and is it an eighty two this is the way was new, and on top of that, Philips happened to be the maker, something called the odyssey which I'm sure now I heard it discussed on textiles I kind of remember the odyssey, because I remember the the actual ads in magazines and I'm like. What's an odyssey, so here's the thing, I think I actually owned the game. That's in question here yet again, the question here is: there's two games are notices, hurries tories got be Atari has in the jail world a nightingale to Atari has a mid way, have the right to make a pack man game. The copyright unpacking NAM Co. Scenario had the name: CO owns the game, but middle in a Tory had the United States that this day
exclusive United States rights to pack man, so you get there of Atari, almost at being a neo like the representation of Namco in the? U S because the way that games would be published and then distributed globally so, while NAM technically is the owner of PAC man. Atari could act in that capacity within the United States gas at the whole point, copyright. You have the right ample, has the right and they own this character. They own every derivative, work and their like: hey, listen! Now that we have this, we can sell the licence to somebody else to do something with it. That's what the reason why people first the fighting about this with they want to have the exclusive right at all. paid money for these rights right. They don't they don't want to have lose market share because Phillips decides to make a better PAC man game to this. This game that eventually comes out
while Kc Munchkin a game I had never heard of before I admit I had not. I thought I swore when I saw that you had put this as one of the the lawsuits we were going to talk about. This was before we had decided just to focus on Atari I saw the name Kc Munchkin and I thought I've never heard of this game. Then I will the video of the gameplay- and I said I think I this game, but I had no memory of the name of it yeah so it's it's amazed, game! Look the supper! The rules, the what happened a little facts about this. This infringing work Everett MR stop and then the case that are actually gives stop a first name. I don't know what his name is: first name, these ahead of of balances, on video game developmental. That's for the odyssey! So they see Batman and and our airport arcade, and they decided hey,
build a better version for the Odyssey Home Council now ever had made twenty one other video game cities is got a good track record when it comes to making games. Let's stop the average both decide that hey listen. If we had the PAC name on this game, it would do so much better, so average starting to do some development on the game North American, at this point or phillips, is a to get the licence for midway taken. We just make a game with you guys with a licence and the company Midway says: no, we're not giving you a licence to ever it's kind of building a game, that's not even that Yet these told that we don't have the license. So ever continues to build this game right and it turns out be Casey. Right, the idea being to make a game similar to PAC man without being Ackley, PAC man and also the idea- taking this quote unquote better than the arcade version
so it was wasn't built as a clone of PAC man, it's undeniable that it shares a lot of similarities to PAC man. this game called Kc Munchkin North American says: can we review the game want to be sure to totally different from Pachmann answered, see the game they go. Okay, we need to change some things. First, change the protagonists. Color is not going to be yellow so that that's a big flag, so they changed the color of of munchkin from yellow to blue. They also told retailers do not call This PAC man do not reference PAC, whatever you do, don't call it pachmann. So what they happens, a reality. Retailers call it odyssey. Pachmann your pack man's happy because that's going to sell copies to customers, that's what the stores are concerned, what they don't the store, Laurent concerned with copyright, their concern with moving inventory. Yet so that didn't help anything we're Philip
is there like? Don't don't do that? Don't do that and so Atari gets wind of this, they go listened worst pursuing you is, you are reprinting on our common. but here we have the right to do this. You don't have the right to do this and they for a preliminary injunction to get this game off the shelves. They don't want this game being sold and, in the first case a loses lose its ok I get their injunction and to start with and that's how ends up at the court of appeal, seven circuit, the court appeals is taking this appeal. find out what happens and they decide it isn't Bridgman, which will make it had. We describe the games because it's very strange why this in this case there is a frame it. The Algerians meteors case, yet never forgetting that just so, just so people can kind of understand can you sort of give an overview of of what the appeals process is
in case could because, as you pointed out, a Tory had lost the case, but then was able to take it to another court by means other than the first case. Was it you repeated, and this in this particular case. You have to show you a different injunction. You have to show irreparable harm. Ok, if you took over operable harm if explained, explain that you cannot be made whole with money right. So if you have, If you take my apple and Samson there like hey, look, don't sell those bones and the course like now. You know what, if This stays on the shelves biggest pay. You money is that's the only that's the only thing you wanna lose. You just can't lose on profits. Well, that's what they'll pay out same thing with this kind of deal the court the lower court found. The look. There was no irreparable harm here, we're not gonna start. This came from being sold, then a basically files emotion for of appeal. Let me that's basic that without works, if only appeal and of this court decides to take a look at
the thing that happened in the first case and pretty much, I believe in this. In this appeals process, all the facts are pretty much stipulated: a lot of disagreement, not having like an argument about. Oh he knows this two guys didn't seated airport. They saw somewhere in a Tories headquarters. Whatever facts are in that first case are kind of taken as is that right. I just like this is reality wheat. We can't can't look outside of this reality. We recognised the sight of this was correctly. If this is the the court decision was correct in this case is actually looking at it abuse. Discretion strange is a very narrow kind of thing and so you're not going to see a lot of. If you ever want, is he a court of appeals. Kind of arguments feel like. I really want to see that no, it's not going to be the exciting defendant, plaintiff argument. It's going to be like. Well, that's what happened and that's what happened
that's it pretty well, at any rate, the other thing to keep in mind is that before we about how the court described these games cause. It is brave awesome. The hit the earth thing to remember is that Casey Munchkin came out on the odyssey before A Tories port- I guess Port- is probably being way too. As before Atari's version of PAC man could come out for the twenty six hundred so the it's also an issue as that. Seeing this this other home video game representation of a very similar idea come out on a different console before Atari could have its version come out on the entire tween six hundred that could I'm guessing. That also gave a tory some some Emily. To say, look there even trying to two edges out before we can get our product on store shelves, but
Let's talk about how the court described these games, so the these descriptions are written up in court. Documents can actually read the full descriptions because they're pretty law but you, you pulled out an excerpt that I think is pretty awesome for the description of of of what pack man is yet. This is directly from the court case in their explaining the copyright at work. In this case back then, the copyright version, pack man is an electronic arcade maize. Cheesecake. Very basically, the Game Board, which appears on a television like screen, consists of a fixed maize, essential character parentheses expressed as a gobbler or pursuit characters expressed, as ghost monsters. Several hundred evenly spaced pink dots, which line the pathways of them. It is, or in large, pink dots power capsules, approximately located each other maize's four corners and various colored prison
both which appear near the middle of the maize during the play of the game, yeah, and he goes on to describe in great detail what a pack man in consists of even going so far as to explain how you accumulate points through having your gavel. Her gobble pellets clean the power capsules having it when your gobbler gobble the various fruit symbols, as well as having gobble gobble the ghosts whenever the power capsules allow for role reversal and the. becomes hunted becomes the hunter. I guess in that case I really really wish these in. Like I, these court descriptions were like on the back of boxes when you bought the game, When does
fear this dead sounds a lot like. I mean these games when they got him for the home. Consuls came with instruction booklets, and sometimes the description sounded kind of like that. So I wrote a little note here where I guess I read the same. The same court notes as I as dead, and I love The fact that when they were, Referencing be Casey Munchkin Game, which we all they point. Had a lot of the same elements as the PAC man game. they said that he goes to monsters. The three GO sponsors and Casey Munchkin rather than the foreign pachmann were quote much spook year in cooked that's right, because they have like little tentacles or or beat, or something like that a creepily move- I have antenna so there there there extra animated. I believed that was one of the other things they wanted to make sure the game look different and it does look pretty difference here.
The court little corral in the middle ages. Verses compared to the corral with the pack met, the pact. Man is one box that has the ghosts and, in the ghosts all come out of the top of the Box in Casey Munchkin. All the sir piled on top of each other, the box is It's like a three sided box. There's a there's one side missing and it rotates ninety degrees every few seconds, so it goes I only come out one direction depending upon. Whichever way the box is facing at that given moment, that's the only way the ghosts can come out which is kind of interesting. I guess it could be teaching benefit depending upon where you're Munchkin was that given moment, they also said that the gambler and Casey Munchkin, the personality and pack PAC man didn't so sick burn That is a pretty interesting. What we to expression of observation by core and exactly sure how Casey shows a personality as a somewhat
the diamond shaped blue face gobbler, but as if he wins like clear out a level he smiles at your turn so that its facing, like that the faces facing the viewer, as opposed to being in profile, you get a smile was colic Kermit. The frog smiling if Kermit also had like little horns around ten on top of his head and then, if he got, doubled by a ghost he frowns before disappearing, so there's the fact that he could smile and frowned apparently gives them some personality. I think pact has got a personality, just all business. Peace is like. I got no time for smiling here. Tamper frown, introduce died. There are pellets for chomping right. I gather in the chopping these pellets or there could be a tricycle that shows up at some point that I need to eat is also very cautious. Route keeps disappear it might be paranoid. I believe Hackmen might be a little bit
Moreover, maybe everything to my humanely, you might be projecting on back man here. Nineteen dollars is nineteen, eighty two. So this is a very its funding here. The way described these games. They had to think of it in the abstract, because this is partially. This is not part of. This is very important to determine what parts of this game can be protected by copyright. What part is because, if there's only one way to do something and he has more than one way- and I mean like in begin ways it in more than one way to do something. Well, maybe that's improvement. yeah, so some of the things we need to point out are some of the differences between these games because they sound like they're fairly similar, but there were a lot of interesting differences between the two. Al one was that in in pack man, you have these hundreds of pellets, presumably depending on giving upon how its depicted, obviously being.
Atari version was a lot more limited. The Atari home Game version was a lot more limited than the the the arcade version, but at Kc Munchkin. They had twelve dots per level, the da could actually move through the maze. However, so it gave an extra element of challenge plus in Casey, Munchkin maize. There was one pathway that would end with a dead end, so you had to be careful if the dot was down there and you need to retrieve it, you had make sure you could do so and get out before being trapped by a ghost, because there is no other way out and It also had a different different game options with Kc Munchkin, including one that would turn The level invisible around you whenever you moved so you had to stay like, if you hit a if you hit a wall and you could move any further, you have to stop so that it would show up, and you could see what could turn in a different direction or if you need to back out or whatever So that was also interesting. Are they
also talked about how the colleagues would be the power pellets in Casey Munchkin, because there were power power pellets in as well. It also allowed you to turn the tables It ghosts the three ghosts in Kc Munchkin, VS, the foreign PAC and chomp on them for a short amount of time, but they they were right. the distributed among those twelve pellets, as opposed to being in the four corners like it was with PAC man So there were a lot of differences here, a lot of it. In fact, I would argue there appear to be more significant. Differences in the basic presence patients of the game than you saw with asteroids verses meteors. If you were standing at and asteroids cabinet and you are sending experts to a meteor cabinet next to each other. Just standing environment, they would look really similar. Okay, I'm not even kidding look store narrowly similar, I wasn't wanton collar was in black and white, but if you put Casey Munchkin versus Pachmann, there is a distinct differ.
So, maybe even the actual maze when it comes to the star. of the maize instead of being this kind of rounded a hollow kind of maize, you have these various hard line than purple. indeed that moving around the middle ties. That sounds pretty interesting, and then there is the mention of the dots like you're saying that move in case he munchkin versus Pachmann. What your stationary, but this is Great line in here. This isn't it Goblin Munch, more dots, the speed there are many dots progressively increases and the last that moves at the same speed gobbler in the world. the district court, the last start cannot be caught by overtaking it. It must be munched by strategy, but there's a factual, that's a great line. It's true, though, if you had, if we have to have the strategy element, you don't have the exact same thing in man you have that double wraparound maize written is leave for the rice shop on the left. This this game is so bar? It sounds very different and as a student thinking, while clearly they
Kc munchkin again gang is going to be fine, but I don't know that finds in favour of Atari, and you might say well how the hell can that happen. Little bit more to say about the biggest lawsuits in gaming history. But first, let's take this quick break, If you are a major transit system with billions of passengers taking millions of trips every year, you are about to let any cyber attack slow you down, so you pay. no. If I began to build a security architecture to keep your data network and applications protected now, you can tackle threat, so they don't bring you to a grinding halt, and everyone's going places, including you, let's create cyber security that keeps your business on track idea. Let's create learn more at I b m dot com fortune, favors the bold, the strong, the brave for your. Does business to break out of anything holding you back, you need business checking as brave as you are
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was that when you're looking at the implementation of a chair, a maze chase game, they they actually categorized it as a maze chase game. Court was able to look at other games that are also within the category of please Chase games, but are designed a very different, distinct way from PAC man. and so the argument could be made, there are other ways to depict this style of game, without relying upon the same basic design elements that pact man used an that ended up being the crux of the argument right, I think I wasn't one of them. I think it's a rally x was the name of the game at one of the ones that they they referenced. So they actually said that, because they ve Casey Munchkin ended up copying elements of
man that were integral to what pack man is NEO, wasn't just a fast if PAC man that didn't really matter, if that in the case, it might have gone a different way. They said that its it's fun. The mentally copying the What I guess you could argue is the essence of PAC man and that, therefore, this ended up being Atari had a case like a legitimate case against the Kc Munchkin game. And they even said that here's a quote it is enough that substantial parts were lifted, no plagiarists, can excuse the wrong by showing how much of his work he did not pirate, which actually came from a previous case, the use that as a precedent to stay, that it doesn't matter if you a lot of original work that is, surrounding a kernel if that current
has been stolen from someone else. If it's a significant part of someone else's work, It starts to kind of creep into the concept of fair use as well, because fair use has elements in it where you, You're not just concerned with how much was copied, but what was the nature of the copied material, so, in other words, if I am right something and and I ended up copying only a small amount of what I as is written answer. I reckon my own article, I'm nuts, citing I as so much as I am taking something he's written and incorporating it within my own work maybe that I've only taken a couple of sentences from, as an you, might think. Well, that should be fair use because it's a small amount. It's not especially if I said Papa The very long piece from which I took those couple of sentences but Those couple senses are at the very heart of what,
as was writing about, if that is the instant, mental in the point he was making a court. might say well, no, this is a case of plagiarism it doesn't matter that it was two sentences. What matters is the nature of what was written, and that was part of what played into the court's decision in this case, saying that the that were taken: you can argue, they were augment the crucial elements of what makes PAC man PAC man as one when the other big things about this like there are, as you are saying you get copyright protection on lots of different things and if there's a couple of scented you suck for me and it's as if the essence of the real crux of what I've been writing that can be in his pleasures, but there's a lot of things that aren't taken as infringement there's a illegal to imports of scenes a it's basically having events that naturally, would
although so, if somebody decides to have another look at three parts story arc where You have a good guy, the girl and they meet, and at one and the act to they break up and that actually they get back together. You can't copyright that that structure, because that's that's natural lessons, accounting work, and if that actually happened, there were only like one wrong. Come right, we won remain reality- is the only ones ever existed and it can. Perhaps Tom Hanks would have been out of work in the late nineties. exactly or he would be doing the reboot every two years, every license it and so the the scenes of Pacman the things that would make sense that anybody could copy is what's at the court, and he was certain things: the maize and scoring table standard game devices. So but it can have a maze and scorn tabled nothing wrong with that. The tall exits,
I think more than common use, wrap around concept adapted to amaze Chase games that spine the one who's dots, that's fine and the real problem here was the fanciful creations PAC man and ghosts that there this goblin character, that just like wanders around popping pills, they end being chased by ghosts. This sorry didn't like it up a sort of breaking bad. This particular implementation. This expression is packing. this is you could do anything really? Acts is a car game theory of a car running around and is probably trying to pick up some kind of points based item. Maybe it's gas canisters wherever the heck you their pellets pellets as well. I have that game as well, so you got pellets, you're going to have a scoring table in the top left, nobody's saying you,
and have a scoring table, and when we were scoring table, the middle of the screen was that you can't see it that'd be ridiculous right that there's lots of different elements that you can do in a similar game, but if you're just a ghost- that's not go severe if you're a gobbler you'd better. Look a little different as Robert Basically, the point and the monsters the monsters coming after you better, not be ghost monsters, if you, if, if those events are similar enough to PAC man. Then it's very hard for you to make a convincing argument that you weren't copying. Pac man minutes will be a Frankenstein game where'd you get Frankenstein's monster. Running around trying to get pellet I don't know other body parts by people bid disturbing at that level, a game being chased by villagers that would be effectively so but right it sounded a pact may gave to me, but the expression is very different neglected. It would require all kinds of other licences. Potentially, if if there was a movie out at the time or whatever is going on,
courts like listen. This is going to cause Atari a harm. Ok sorry, doesn't even have game out and you have something, looks just like well something that's. Very, very similar to the point where there is infringing. If they have this game, stopped they're lose right. This could be damaging their. The court makes mention and funded even read, something like this the odyssey games, cannot be played in an Atari, nor vice versa, like well yeah, of course, not this was a concept that was kind of important, because, if Atari was losing, sales of the console, that would be very different, actually might be a little different. But in this case that look, you can't sell this game right now, because you're causing them huge harm and it gets sent back to the lower court to follow along with this issue? The injunction yeah and, in fact here's another quote from the court finding which not necessarily put gamers in a very good light. It's kind of a comment
video games, unlike and artists, painting or even other audiovisual works appeal to an audience that is fairly and discriminating in so far as they're concerned about more subtle differences in artistic expression. The main interaction of a game such as pack, man lie, is in the stimulation provided by the intensity of the competition A person who is entranced by the play of the game quote would be dispelled to overlook. End quote many of the minor differences in detail and quote regard their aesthetic appeal as the same quote that the sound, very damaging to the general video game playing public right in eighty two, like you guys, don't you guys don't care about the details? You just want the feeling you get when you play a game like this for us, as you were reading that back and I've seen them.
at budget time to distract me now. You know the whole thinking about everything that people when, when Apple gets upset, people are like hey, look, you're copying our stuff and they're, not going to care that it's not us as effectively the same argument. Isn't it they're saying wait a minute a minute here then by your thing, because it looks like my thing and they don't really care that it's actually hours and effectively. If the same argument that the court says there, although it seriously sound paralyzing. Yet the in discriminating or the noise will say the unwashed masses who play video games pizza, parlors, look these yahoos can appreciate, can appreciate art, it's so another another thing that I think is kind of funny. It's it's sort of an a you know, a tragically ironic when you get down to it is
Ultimately, a Tories, PAC man version for the twenty six hundred was awful and is often cited as one of the many reasons why the company suffered so much so many setbacks by nineteen eighty three and partly why the video game crash the home video game crash in nineteen. Eighty: three, it happened, it was that they had spent a lot of money to create this PAC man game. They rushed it so that they could get it out in time. For the Christmas season it came out and it was a huge let down, because it was such a pale comparison to the arcade experience that it was the actual PAC man game that Atari made mentally is what damage the companies? Would you know reboot issue, and it wasn't that some
their game. Company created a game like pack, man that damage the Tories reputation. It was it raise own actions that ultimately damage its reputation of that is immaterial for this case has now do with this case is. An interesting little side. Note a very curious if this up, I should have this up before this show. if Atari ever try to reach out to Phillips after saw the progress of the pack man game where they have dashes. Instead of dots is clearly average he's making his game, for he knows how to dots there. So I dunno pack, man didn't have it discredits years, where they weren't, like hey Buddy, how about we give you a license now. Ours looks horrible. Sorry about that. Assuming suing your thing here, maybe we'll have Kc Munchkin come on over and be renamed PAC man for the Atari two thousand six hundred and yeah and also hear something else, those I'm kind of curious about. So we
We established in the asteroids vs meteors case. The court had decided that the, expression of the idea was limited to the version that was in both games and that, therefore, the copyright claimed did not hold up early stood. Not there wasn't an infringement because the expression was limited by what we could do and that in the pack, man Ursus the Casey Munchkin one it was different and that the Expression of the idea could have taken different forms, as evidenced by these other maze, Chase games and for the claim of copyright. Infringement was valid. What I wonder is that if there had been a game, no matter how perimeter if that had a similar premise to asteroids and that you are commanding a spaceship through asteroid belt, and
are also enemy spaceships and you have to avoid both the asteroids and the enemies, but it was in a different, a different sites, like. Let's say it is in that first person view where inside the cockpit and you're, seeing the asteroids from the point of view the spaceship and maybe you have some other element in the game that can alert you if, if another craft is, is either approaching you or there's a house asteroid, that's heading towards you, so that you can maneuver the ship out of the way and turn and fire on it. If that in the case than the court would be able to say will wait. These two games have the same basic premise of navigating a ship through asteroid firing at enemy spacecraft, but I have to- the different means of expression. In that case, imagine the court would have had to have found meteors guilty of copyright. Infringement
maybe not if meteors is. If we is how many different ways you can? You show the first person version? If you first person, you still have a field of rocks coming at you the elder asteroids, where we want to call them space debris still coming at you, so you can even see these who gave the special game we're making up now that one could be sued based on the concept of pay you taking our concept. People are not clearly discriminating. You you're in a field you're taking on asteroids. Asteroids man you've taken our game, so I I don't know if the case would have a differently, as is also its so early. I don't think the court might have had the foresight to even think of a first. Experience in general, you talking about a primitive version if it, if it's so premiere, there you have lake several lines to depict the cockpit mistake or what STAR Fox that's a game it Is that really what browser out you're too, if you like a primitive star Fox without a word, is very
here. Is the wise others case way back when first thing I thought of was our type and if you play our tape as it gave a like, that's asteroids summits, stroller and they have also malian ships and actually the same game as after I serve taken about it. Why? I think I mean, if you can successfully make the argue, of. Oh sure we had the same idea as asteroids, but our version is a completely different expression of that idea than I think you could follow into the category, that meteors ultimately fell into that. While accepting that noise is that case actually would say that you weren't you weren't, infringing on copyright at all, because you had you had taken copyright. That original idea so therefore, like yours, expression of that idea and are especially with this idea, are so fundamentally different from another that there's no copyright infringement, that these are two very different game experiences that call upon same thing, because otherwise the
his choice games, whichever one came first, would be able to claim copyright infringement on all the others. It wouldn't matter if the design was a car instead of a gobbler because you're saying well, it's exact same experience. You're you're navigating the pie through a maze being he's down by enemies. I mean because This is the kind of stuff that drives me nuts about copyright cases, because it almost seems arbitrary. When you go, case by case like this and say well the the logic, it's being applied in this one case seems like it's not being applied in this other case in the ones talked about. I understand spectres, nay, even agree to a certain extent, especially putting myself in the place of the time right and the limitations of the technology, but still one of the things that can be a real head, scratch her and yet
ultimately, law is something that people have made. So therefore, it is going to have the same sort of limitations and failings as people yeah these the sensors to be applied ad hoc. That's the way this goes to bed, and I join you in these. In the confusion last rage. When I first saw this, I was just like. I don't understand how this can be and one thing about law is that you have to make both of these things at seem completely opposite. You ve, just somehow harmonised when you figure out. how to harmonise them. That's how you building your rules when it comes to all the stuff tat, only It is really worth saying: ok, there's this! These are two different examples, the idea, expression, unity. Is there an idea? expression, unity when it comes Two meteors? Yes, is that the case when it comes to Oh, because this is line is even though these games very different. I thought from They called it an ordinary observer point of view to meet it
it seems like any human being to take a look at it. They don't actually want you to dissect things either, which is kind of an interesting idea. If just looked at them, you wouldn't think Kc Munchkin has the same name as Pacman. It's just it. You wouldn't be that confused but you would say asteroids meteors at the same level this this is just the way the stuff turned out over time is otherwise We would never have things like Mario and Sonic and bunk, besides growers right right, you're, all there's this little cute mass got character. They get powered up there, letting something of some sort one's got rings was that coins or they getting about it once breaking it with his hand above his head and other one is breaking it as he spends into a ball the fact of it. spread so differently is actually important, because if we don't have it We would have a bunch of cloned games with it. Okay, here's your plumber, may I guess
I should I would love to see that lawsuit of somebody breaking down Super Mario, it's like okay, helm. How many ways can you express an avenging planner, only one good one, the only one good one, but the this was a lot of fun to look into. It was definitely outside of my normal zone. So I got thank you as for for joining me, not just joining me before being the one to suggest these two cases, in particular as the subject for the set aside, because it turned out to be a really fascinating kind of discussion both of these. the legal status of video games and just the the the weird my bending logic you have to apply when it comes to copyright, thanks, I probably was influenced by listening to the authority reporter behaves like knowing that the bizarre alright their game can assert their most of these cases.
Cases. They drove me insane here they are. They are brought about this. This is horrible idea, and what are the reasons why I never went into intellectual property law, as an aside was because of cases like this, it was some of it does seem arbitrary and it could drive a person crazy. So I decided don't feel like doing that and ended up on this podcast today Now here we are so I, as I plan on doing another episode about a lawsuit in specifically, actually a series of lawsuits. The the we mentioned it clear the Apple Samsung battles, and we were- going to include that in our discussion today, but then it was obvious very early on that that would have been. We would have, neither either super truncating all the discussion and thus not really illustrating aiding useful.
Or it would go on so long that it would have had to have been split up into multiple anyway, So I, as is going to come back at a later date that we will have to determine when our schedules will allow us to do this again. And we will talk about that- we've already started the notes on that. So they I guess the way depending on how you look at it, the nice thing about that story, is it still developing for twenty years and now it's an ongoing war that, and the funny thing about it is still as an aside is the fact that they are. Partners get a number of venture is when it comes to components, excited by phones, apple devices, etc. The fact the Samson set its there partner and some degrees, and also their stabbing their partner it. This is a very strange concept of thy hey. I love you, don't let me kill you right. What about?
there again and under their root fairly recent developments on that front, as well with apple looking into potential other microbes, the processors that cannot or of manufacturers rather in and other component manufacturers can a getting away from some of the Samsung stuff. So that that I'm sure that has no I'm sure it has to do with a lot of different factors, one of them being the massive number of lawsuits between the two and that's it for that classic episode, as I was saying, I'll have to do a follow up to it, because since two thousand and fifteen there have been some other major lawsuits, a big one that leads to mind is between epic, an apple which is playing out. To a pretty dramatic series of events, since those initial lawsuits. So, yes, I will have do a follow up at some point, but if you have Judges on other topics- I should cover in the future, please reach out to me on twitter
they can do that. You should use this tech stocks Hs W and I'll talk to you again. The tech stuff is an I heart, radio production for more podcasts from I heart radio visit, the Iheartradio radio, app apple podcasts or wherever you listen to your favorite, shows It. Mazda believes we all need more nature in our lives because you're in riches humans, but on average we spend less than eight percent of our time outdoors, american children Fourthly, spend less than ten minutes a day outside now, with the covered pandemic, people are spending even less time outdoors, yet we mean nature in our lives more than ever. The first ever Mazda see Ex fifty is an all new crossover, as you ve, that is built from the ground up,
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Transcript generated on 2022-03-28.