brad@looking.on.ca (Brad Templeton) (06/30/90)
Here's an interesting case. Is a device that pactches and modifies a program, creating a derivative work, itself a derivitave work? What if that device only twiddles the variables of a program, and not the code itself -- for example, if the code is in ROM? I would think not, but a judge thought otherwise, as this ClariNet story indicates. Reproduce with permission of course. For more info on ClariNet write to info@clarinet.com From: clarinews@clarinet.com (PAMELA A. MacLEAN) Newsgroups: clari.news.law.civil,clari.tw.computers Subject: Nintendo blocks sale of Galoob `Game Genie' Keywords: civil proceedings, legal, computers, manufacturing, entertainment industry, misc industry SAN FRANCISCO (UPI) -- Nintendo of America won a preliminary injunction in federal court Friday barring Lewis Galoob Toys from marketing its ``Game Genie'' based on Nintendo charges of copyright infringement. Steven Klein, Galoob executive vice president, said the firm will file an emergency appeal to the 9th U.S. Circuit Court of Appeals. South San Francisco-based Galoob had been preparing to market the game in July. The Game Genie is a device designed to attach to popular Nintendo video games, such as ``Super Mario Brothers'' and ``Double Dragon,'' allowing players to customize the games so that characters become invincible with infinite lives and able to change game levels on demand. Characters fight through worlds full of varied combatants, including turtles, toadstools and dragons. Nintendo argues the games would become boring andunmarketable if Game Genie allowed players to defeat all foes at each playing. Nintendo accused Galoob in a June 1 lawsuit of creating a derivative version of Nintendo video games in violation of the copyright laws. U.S. District Judge Robert Schnacke said, ``Although the matter is not entirely black and white, Nintendo will prevail.'' ``The (Galoob) device can solely and only be termed a derivative work,'' he said. ``The right to make changes in the game clearly belongs to Nintendo,'' Schnacke said. Schnacke also refused to stay the injunction against Galoob while it pursues an appeal. Withholding the Galoob product from the market would have far less harm to Galoob than allowing the toy company to intrude on the Nintendo market, he said. William Trautman, Nintendo attorney said the Galoob Game Genie attachment eliminates the fun, challenge and excitement from the Nintendo games. He said Nintendo games are designed for 300 hours of play to reach the end while the Game Genie could reduce that to four hours. Gary Reback, Galoob attorney unsuccessfully argued that the Game Genie was ``simply a tool'' that permits the game user to make adaptations to the Nintendo program. Klein said, ``The choice should be up to the consumer... if they have gotten to the seventh world, they should be allowed to start again at world seven.'' Redmond, Wash.-based Nintendo is the largest video game maker in the country, controlling about 80 percent of the market. The total retail market for games and machines is $5.1 billion a year. Galoob Toys, of South San Francisco, had revenues of $227.6 million in 1989. -- Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473