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Aug 17, 2005

Comments

1.

In its attempt to essentialize the creative core of Pac-Man, isn't this an early piece of video game criticism?

Yes and no. It's certainly a close reading of the mechanics of both games, and indeed a comparative reading at that. But does that this opinion "compare creative expression" as you suggest? It does not appear to attempt to synthesize either game as speech, but rather simply to identify elements of the game that might individually infringe. What was the final decision based on? Was it the nature of the gobbler character itself, or some other aspect of the gameplay, or a combination?

Furthermore, why is the case Atari v. North American Philips Consumer Electronics? Was the case brought about by Atari to protect their license of Pac-Man for the VCS? If so, the decision would be darkly poetic indeed given that the 2600 version of Pac-Man was widely reviled and, along with E.T., is generally blamed for the videogame crash of 1983.

2.

Hey Ian --

Yes, darkly poetic it was indeed -- I think Atari did sue for essentially that reason (and the fact that Pac-Man fever was in full swing at the time -- was PM really on the cover of Time or is that just an urban legend?). But Pac-Man for the 2600 was an awful game -- though not quite as awful as ET.

Regarding the logic of the comparison, there was much about the game that was deemed unprotectable due to a doctrine in copyright law that permits certain features of a genre to be read out of the analysis. Here's how one commentator explained the logic:

[I]n Atari, Inc. v. North Am. Philips Consumer Elec. Corp., 672 F.2d 607 (7th Cir.), cert. denied, 459 U.S. 880 (1982), the court of appeals found that there was no infringement to the extent that the defendant's computer game "K.C. Munchkin" copied from some of the stock computer ideas contained in plaintiff's "PAC-MAN" game (use of a maze, scoring table, and "dots"). Atari, 672 F.2d at 617. However, the defendant infringed by also copying the expression of the "central figure as a 'gobbler' and the pursuit figures as 'ghost monsters'" (including such elements as size, shape, manner of movement, and the manner of disappearing when captured). Id.

I couldn't find the full opinion online, but you can find other legal summaries with this Google search. You're right that the opinion isn't so much about what Pac-Man is, but it is about what is essentially authorial, creative, legally protectible expression in Pac-Man. But that analysis has to take place within the discourse of the law, not the discourse of literary criticism -- and if you're a textual critic, that's a shortcoming, I admit. :-)

3.

As for Pac-Man on a magazine, I believe it was only a Mad Magazine parody cover, but I could be wrong...

I'm interested in the broader question of how gameplay is legally protectable. If I'm understanding right, the opinion on Pac-Man is really more about the copyright for a videogame gobbler character. It seems more like a trademark infringement perhaps? What about games with no identifiably mimicked character but clearly mimicked rules? For example, all the Bejeweled clones out there. Are there any legal precedents for violations of gameplay copyright? Can abstract rules be subject to copyright?

4.

IANAL, but could embodiment be the area of distinction? Could the similar manifestation of the globber and ghosts be the infringing act?

In the case of Bejewel clones, perhaps jewel designs are not distinctive enough to have distinctive embodiment to be infringed upon and the gameplay is not patented as a process/mechanism to have any legal protection?

As for gameplay copyright, the patent of the "tapping" mechanism used in Magic: the Gathering is the only reference I can recall. Not sure whether it has been tested in court.

Frank

5.

The court in Atari repeatedly said it was doing an "ocular" comparison. The general rule is that copyright protects particular expressions, not abstract ideas, so as the Incredible Techs (Golden Tee) case points out "ideas—as opposed to their expression—are not eligible for copyright protection... protection does not extend to the game itself." You might say the ludologist's emphasis on game rules as the essential core of games is one that would trend against copyright protection (and perhaps toward patent protection).

You can find a copyright office statement on the scope of protection for games at this website, which states:

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.


Of course, if you look at what the court was doing in Atari, rather than what it said it was doing, you see how hard it is to divorce the expression of a game from the rules that animate that expression.

6.

The Court summary of the game integers and mechnics reads pretty much like a patent specification, for that matter: only the claims and drawings are missing!

Whereby it appears that the Court may have been approaching the exercise of reducing the expression of the game to its core, and indeed weighed the merits of the case to determined the extent of the copying (insubstantial and non-infringing vs substantial and infringing), in a 'constructive' manner as opposed to the essentially 'litteral' manner which copyright infringement requires.

That the Court apparently decided to take an equitable approach (i.e. "it's not, strictly-speaking, copied enough to warrant infringement but the intent/wilful component is manifest so we'll rule towards a finding of infringement") to this case is laudable, but it does make you wonder what would happen if every other developer/publisher of car racing game were ever to consider this precedent to ring-fence the market, a bit like the ongoing '690 case where 3D panning feature in games is concerned...

7.

Steve -- the Incredible Techs case provides the likely answer -- the doctrine of scenes a faire and/or idea/expression would probably step in and state that there are only so many ways to do a racing game. That's basically what Incredible Techs said: there are only so many ways to do a golf game. In some ways, although the Atari court seems to claim that a maze game was also covered under scenes a faire, I think what the opinion effectively did was say "maze + dots + gobbler + monsters + power pill" --> original expression. Golf and racing are different, I think, because there is a game "subject' that is being simulated.

Anyway, your comment on the '690 patent reminded me about the IGDA wiki on IP issues in games, which is worth a link:

http://www.igda.org/wiki/index.php/IP_Rights_SIG/Prior_art

8.

You might say the ludologist's emphasis on game rules as the essential core of games is one that would trend against copyright protection (and perhaps toward patent protection).

Yes, this is precisely the kind of issue I was dancing around. The legal understanding of gameness certainly counts among the critical or cultural understandings of the medium and is worthy of further interrogation. As you suggest Greg, despite the copyright office's claims, the Atari case seems to suggest that the procedural part of the game counts as "literary or pictorial expression."

If I remember correctly, I believe that the typeface portion of fonts are also not protected under copyright. Fonts were recenly affirmed to be software and thus protected under similar copyright -- but only for the files themselves, not for the design of the typeface. This means that it's legal to print out every character of a typeface, scan each, retrace the characters, and rerelease the font under a new name. The problem here seems to be that the artistic design for the letterforms is actually materially bound to the software instructions to draw them. In general, the notion of code as expression seems to be an area of great ignorance in copyright law.

9.

Ian> In general, the notion of code as expression seems to be an area of great ignorance in copyright law.

Well, I wouldn't say "ignorance" really -- smart (legal) people have been thinking about code and copyright for a few decades now. The problem is that they disagree and have trouble getting things sorted out where the rubber hits the road. It is tough making the ongoing business of business, legislation, and litigation mesh with an ideal enlightened theory of how all this should work.

KC Munchkin is an early example of a "look and feel" type infringment analysis that approaches video games (and interactive software generally) as a subspecies of other audiovisual works -- the code is seen to embody a certain audiovisual work, and that work is treated (more or less, in theory) like a movie is treated. In the 7th circuit at least, it is still being cited as a good way to look at infringement in video games. Games as a subspecies of films -- score one for the anti-ludology camp. ;-)

At the same time, computer programs are also subject to protection at the level of source and object code. That wasn't an issue in KCM (I don't think there was any evidence that actual code was copied). The judicial acceptance of copyright in object code wasn't even clear at that time, anyway. The arrival of object code proection is usually associated with Apple v. Franklin -- a 1983 opinion that awarded copyright to Apple's DOS, and effectively gave birth to the empire of Microsoft. (Ironic there, because most people think the absence of Franklin-type Apple clones was what kept Apple in a market niche!) Of course, water has passed under the bridge since then, and you can find plenty of cases and law reviews explaining the law on software and copyright, which, of course, is still in a state of flux, struggling to adapt to a moving target.

See, e.g., http://www.gigalaw.com/articles/2000-all/kirsch-2000-04-all.html

10.

LOLEX... the screenshots did it in for me. I never heard o' K.C. Munchkin before. Thanks for posting this, what a laugh. It's kinda like a parallel dimension in which the ghosts are the heroes... <.<

11.

I just discovered Ross Dannenberg's "The Patent Arcade" today -- it looks like just the kind of blog I wished someone would write: plenty of excerpts from classic and current video game opinions. I will probably do a main page post on it, but I wanted to note here that the KC Munchkin opinion has already been excerpted there:

http://www.patentarcade.com/2005/04/case-atari-v-north-american-phillips.html

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