by Steven Kent
That actually was one of the only ways you could die in Maniac Mansion. If you pulled off that trick, you would end up as a little tombstone, and then you could move around the game as an invisible ghost-like character.
It was just one of those nice little tricks that was buried in the game, and it was buried so well that they never found it until the first 250,000 copies had sold. When we did the second run, they made us change it.
—Mike Meyers, former product manager, Jaleco
A Holiday for Sequels
As the holiday season approached, Nintendo could not ship in enough inventory to satisfy demands. Orders had been placed for 8.4 million NES consoles. Nintendo was only able to deliver 7 million. Because of the cost of making cartridges, Nintendo executives generally preferred multiple small manufacturing runs and making customers wait for games rather than risking overstocking inventories. This policy made shortages of top products a Nintendo holiday tradition.
Blockbuster releases also generally resulted in holiday shortages. In 1988, Nintendo released two blockbuster games in time for the holidays—the sequels to Super Mario Bros. and The Legend of Zelda. Excitement over the games grew so feverish that some Nintendo outlets took pre-orders. Both games had fundamental changes in their game play that made them unlike their predecessors. Although both games were good, neither lived up to expectations.
Like The Legend of Zelda, Zelda II: The Adventure of Link was an adventure game in which players led a young elf through a sprawling kingdom, exploring dungeons and fighting monsters. The game had many of the same monsters and supposedly took place in the same fantasy world as The Legend of Zelda, but the earlier game was exploration-based while The Adventure of Link focused more on combat.
The second sequel of the 1988 holiday season, Super Mario Bros. 2, was even more dissimilar to its predecessor. The only thing it shared with the original Super Mario Bros. were the lead characters, a few clever puzzles, and the same cute, innocuous sense of humor. The play mechanics of Super Mario Bros. 2 were entirely new. Super Mario Bros. was a fast-moving game of exploration and precision jumping, in which players always raced against the clock. Much of the action occurred in acrophobic environments, where players sped across tall mushrooms or dangling steel girders. There was always a sense of vertigo, as one misstep could cost Mario a life. Super Mario Bros. 2, on the other hand, took place at a slower and more plodding pace. Players located puzzles in the original Super Mario Bros. by jumping and bumping walls and blocks as they ran. Many puzzles in the sequel were hidden under clumps of grass. To find them, players had to pull every plant they passed.
Part of the reason the Super Mario Bros. 2 bore so little resemblance to the original Super Mario Bros. was because it was not a true sequel. The game that was released in the United States as Super Mario Bros. 2 was originally released in Japan as Doki Doki Panic.
Mario 2 was a gap filler. In Japan it was called Doki Doki Panic and it had some little Arabian guy. They just took the Arabian guy out and replaced him with Mario, and I think there were some changes to the girl to make her more like a Mario-ish heroine; but they only made very limited changes.
—Howard Phillips
Shigeru Miyamoto, the man who created Super Mario Bros., had little to do with the making of Doki Doki Panic. He did create a sequel that was released in Japan. Though Miyamoto’s sequel was similar to the original Super Mario Bros., it was determined that the game had elements that might irritate American consumers.
There were two things in the Japanese Super Mario 2 that made it not so palatable. At the time, I didn’t really know if Miyamoto had driven these changes or not, and it made me question whether he just lucked out to begin with.
In the Japanese Super Mario 2, the very first thing that happens is that this mushroom pops out of a block and you think, “Oh, great, go grab it.” It’s a poison mushroom. In the first Mario game, all the things that popped out were good. They added this new jeopardy that when you were looking for something surprising and good, it might be surprisingly bad.
The other thing he did was add in this driving rain. It came at a 45-degree angle so that Mario would be cruising along, and this wind would pick up and it varied with time. Sometimes it would blow slow and you’d move pretty quickly, and then sometimes it’d blow hard. You had to time your jumps to the wind, but again, the winds were unpredictable and you had to guess. Those two things were classically un-Miyamoto, in that [they were] random and out of the player’s control.
Maybe Miyamoto was depressed at the time he made Mario 2, or maybe he delegated somebody else to do some level design, and that person added a couple of developments.
—Howard Phillips
Though it was quite different from the original Super Mario Bros., Super Mario Bros. 2 was a major hit. Nintendo sold 6.76 million copies of the game worldwide.
* In fairness, Donkey Kong 3 was not as impressive a game as the original Donkey Kong or Donkey Kong Junior. The earlier games featured unique challenges; Donkey Kong 3 was little more than a clever adaptation of Space Invaders. Lack of innovation may have hurt the game’s sales.
* In 1998, the help center held a small party to celebrate call number 64 million.
* Nintendo refuses to specify the amount.
* Glass Joe, the first opponent in the game, looked a bit more like Phillips and has the same hair color and length. It is possible that Arakawa was mistaken.
* Ten years after Sega released its 3D Glasses, a number of smaller companies released products that utilized the identical technology to enhance PC games.
The Legal Game
A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
—United States Congress1
All computer software exists as electrical pulses, yet Congress explicitly extended copyright protection to computer software as a literary work.2
—Judge Fern M. Smith, District Court, North District of California
If you stack the notes from my appearances in court and measure them end-to-end, that stack would probably be about two feet long. If you take all of the paperwork from all of Magnavox’s cases, it would be at least 200 feet, enough to fill two storage rooms in a private storage facility in Chicago.
—Ralph Baer, former manager, Equipment Design Division, Sanders Associates
Lasting Decisions
Video game companies began taking each other to court before the term video game was even coined. Magnavox, the first console manufacturer, sued Atari, the first commercially successful arcade company, as early as 1973, coming the year after the introduction of Pong. At the time, people did not know whether to call Pong a “computer game” or a “television game.”
There have been hundreds of legal actions throughout the history of video games. Many of these actions, such as Magnavox’s protection of its technology patents, have resulted in insignificant trials or out-of-court settlements. Other cases have had important ramifications for future copyright protection and antitrust actions.
Data East v. Epyx
In 1984, Data East released a game titled Karate Champ. Though it was not the first two-player fighting game,* it was the first two-player martial arts tournament game and the progenitor of a genre that in the early 1990s would become extremely popular. In Karate Champ, players controlled a martial artist as he battled computer-controlled fighters in tournament-style combat. (Karate Champ had two-player simultaneous action as well.) It featured several realistic blocks, kicks, and punches and had large, relatively human-looking characters. The game was a modest hit in the arcades.
In October 1985, Data East released a home version of Karate Champ for the Commodore 64 computer. One month later, the British company System III released a similar game titled International Karate. When California-based Epyx, Inc., licensed the game and released it as World Karate Championship for the Commodore 64 in April 1986, Data East took Epyx to co
urt, claiming that the “overall appearance, compilation, and sequence of the audio visual display of the video game World Karate Championship infringed upon Karate Champ.” Data East also claimed that World Karate Championship infringed upon its trademark and trade dress. The case went before Judge William A. Ingram of the United States District Court for the Northern District of California.
Upon looking at both games, Ingram found several areas of similarity to support Data East’s claim:
Each game has fourteen moves.
Each game has a two-player option.
Each game has a one-player option.
Each game has forward and backward somersault moves and about-face moves.
Each game has a squatting reverse punch wherein the heel is not on the ground.
Each game has an upper-lunge punch.
Each game has a back-foot sweep.
Each game has a jumping sidekick.
Each game has a low kick.
Each game has a walk-backwards position.
Each game has changing background scenes.
Each game has 30-second countdown rounds.
Each game uses one referee.
In each game the referee says, “begin,” “stop,” “white,” “red,” which is depicted by a cartoon-style speech balloon.
Each game has a provision for 100 bonus points per remaining second.3
World Karate Championship borrowed other elements from Karate Champ. Both games featured fighters in either red or white karate gis, and both featured bonus rounds in which players earned extra points by breaking bricks or dodging dangers. The court recognized that as both games depicted karate tournaments, some duplication was inevitable. Karate in general, and karate tournaments in particular, included standard features such as karate gis, certain moves, and referees. Matches at karate tournaments involve two fighters earning points by performing combat maneuvers. The fights are scored by referees who award certain points for various moves. In his decision, Judge Ingram also noted that both games were made for the Commodore computer and that various constraints were inherent in the use of that computer. Even granting these constraints, the judge found too many similarities to ignore.
The district court found that except for the graphic quality of Epyx’s expressions, part of the scoreboard, the referee’s physical appearance, and minor particulars in the “bonus phases,” Data East’s and Epyx’s games are qualitatively identical.4
Based on these findings, Judge Ingram ordered Epyx to recall World Karate Championship and International Karate. His decision was overturned, however, by Judge Stephen S. Trott of the United States Court of Appeals, Ninth Circuit.
To establish copyright infringement, Data East must prove ownership of a valid copyright and “copying” by Epyx of the copyrighted work. It is undisputed that Data East is the registered copyright owner of the audio-visual work for each version of “Karate Champ.” Thus we need only determine whether Epyx copied “Karate Champ.” This sounds simple and straightforward. It is not.5
According to Trott, there was no direct evidence that System III, the original creator of International Karate, had access to the Commodore computer version of Karate Champ. He listed Judge Ingram’s 15 similarities and identified them as inherent to the sport of karate. According to Trott, “karate is not susceptible of [sic] a wholly fanciful presentation.”* In his decision, the judge stated that the only parts of the game that could be protected by a copyright were the areas in which Data East made creative contributions—namely the scoreboard and the background scenes. These, however, were the areas in which Karate Champ and World Karate Championship were most different.
Based upon these two features, a discerning 17.5-year-old boy could not regard the works as substantially similar. Accordingly, Data East’s copyright was not infringed on this basis either.6
Trott found in favor of Epyx and reversed Ingram’s decision. Epyx was allowed to market World Karate Championship. This decision would have a decisive impact on several future decisions, including another case with Data East. In 1993, Capcom released the game Street Fighter II, which became an international arcade sensation. Shortly after the game was released for home systems, Data East released the fighting game Fighter’s History, which had similar combatants and moves. Capcom took Data East to court, claiming infringement, but the courts ruled in Data East’s favor.
Atari Games Corporation v. Nintendo of America
In 1985, Steven Ross, president of Warner Communications, divided Atari into two companies and sold off shares of each. He sold 75 percent of Atari Corporation, formerly known as the consumer division, to Jack Tramiel. He kept 40 percent of Atari Games Corporation, the arcade division, and sold the rest to Masaya Nakamura, founder of Namco. Nakamura had hoped to develop synergy between the two companies. Instead, he found the arrangement unsatisfactory and decided to sell his stake in Atari. Backed by a group of employees and Time Warner, Hideyuki Nakajima, the man Nakamura sent to manage Namco’s American operations, bought Atari Games in 1987.
Nakajima is generally remembered as a smart and extremely likable man with a long history in the video game industry.* When Nolan Bushnell first opened Atari Japan, in 1973, he hired Nakajima to manage it. One year later, Bushnell sold the operation to Namco and Nakamura hired Nakajima to continue running the company.
He was very “American” for a Japanese man. Culturally, they are different people, but he was almost like an American with a Japanese accent. Just a really neat man. I remember I was at an Atari convention down in Hilton Head, and I asked him some sort of a philosophical question about the industry and he looked at me and said something like, “That is a strange question for the preacher to be asking.”
I really got a kick out of that. Here was this big deal from Namco and Atari calling me “the preacher.”
—Eddie Adlum, publisher, RePlay
Shortly after taking over Atari, Nakajima decided to leverage some of Atari’s arcade games as consumer products. He could not publish the games under the Atari banner because the consumer rights to the Atari name belonged to Atari Corporation. Instead, Nakajima created a wholly owned subsidiary of Atari Games called Tengen.*
At the time, the only viable outlet for video games was the hugely lucrative Nintendo Entertainment System (NES) market. Sega was not licensing games for the Master System, and the Atari 7800 had barely made a dent in the market. To break into the market, Nakajima knew he would need to become a licensee of Nintendo, so he met with Nintendo president Minoru Arakawa and senior vice president Howard Lincoln in 1987 to discuss the terms of their licensing agreement.
Nakajima wanted special privileges that had not been granted to other licensees.** As the only company with access to the Atari library, he felt Tengen had more to contribute, but Arakawa insisted that all licensees receive the same terms. Nakajima ultimately agreed to Nintendo’s terms and signed on as a licensee in December 1987. What Arakawa and Lincoln did not realize was that they were entering into a trap.
It is not known if Nakajima ever planned to honor the licensing agreement, but Atari engineers began trying to discover ways around the security devices in the Nintendo Entertainment System a full year before he signed the agreement. (The NES had a custom-designed security chip containing a protocol called “10NES programming” that detected unlicensed cartridges and prevented them from working on the console.)
Atari first attempted to analyze and replicate the NES security system in 1986. Atari could not break the 10NES program by monitoring the communication between the master and slave chips themselves. Atari analysts chemically peeled layers from the NES chips to allow microscopic examination of the object code.*** Nonetheless, Atari still could not decipher the code sufficiently to replicate the NES security system.7
—Judge Fern M. Smith
Nintendo Co, Ltd., did not have this security system when the Famicom was released in Japan. The system was designed for the NES, and it was built around a special chip that was placed in
all consoles and cartridges. The chips worked like a lock and key, communicating signals in an initialization process. The NES simply ignored cartridges that lacked the security chip, and Atari’s engineers were unable to duplicate it.
In 1988, as Nakajima agreed to release licensed versions of Pac-Man, RBI Baseball, and Gauntlet, his lawyers found another method of analyzing the security chip. They illegally obtained a reproduction of the 10NES program through the Copyright Office by signing a false affidavit stating that they needed it for use in a copyright infringement suit Nintendo had filed against them. The suit was entirely fictional.
After deciphering the 10NES program, Atari developed its own program—the Rabbit program—to unlock the NES. The Rabbit program generates signals indistinguishable from the 10NES program…. The Rabbit gave Atari access to NES owners without Nintendo’s strict license conditions.8
—Judge Fern M. Smith
Submitting the false affidavit was a mistake that would haunt Atari in future court actions. According to several accounts, a team of Atari engineers running a “Clean Room” operation was close to breaking the 10NES code. By illegally obtaining a reproduction of the code from the Copyright Office, Atari tainted the operation.
Some paralegal went to the copyright office, got the information and showed it to somebody at Atari. The fact that he had access to it basically means that somebody had the information and showed somebody at Atari, [which] basically means that we had knowledge of it. So, some paralegal fucked up!