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