Kill Screen

David Boni's First Amendment Tee for Kill Screen

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A US Supreme Court opinion declaring video games qualify for First Amendment protection has been pretty popular on gaming sites over the past two weeks (there's even a t-shirt!).

In their opinions, Justices Scalia and Alito wrote some slightly-to-not-so-slightly backhanded things about games (and made a lot of references to Choose Your Own Adventure books). Here are some excerpts (page numbers refer to the PDF page, not the page of the opinion):

Scalia: "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat." (11)

Alito:

Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in "kind" from reading a description of violence in a work of literature.

The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show." (22)

"But the very nature of the print medium makes it impossible for a book to offer anything like the same number of choices as those provided by a video game." (36)

As I'm neither a lawyer nor a pundit, I can't speak to the ramifications of this opinion. What I can do is look at the opinion's sources - Engadget, Kill Screen, a 1982 article from People Magazine about Custer's Revenge, and, like most other legal opinions, many other cases.

I went digging for some of those cases. Opinions from the early 1980s, when the legal questions about video games weren't whether or not they qualified for First Amendment protection, but whether (and what about them) could be copyrighted. Some of their statements are funny, some are kind of snarky, some are questions that still haven't been answered and some are answers that still haven't been questioned.

Highlights of how parts of the US judicial branch described video games in the early 1980s, presented without further comment as I am in no way qualified to do so:

Universal City Studios, Inc. v. Nintendo Co., No. 84-7095 F.2d, 746, 112 (UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT).
(Decided October 4, 1984)

In which the court decides that the name "Donkey Kong" does not infringe on name "King Kong", which is funny in light of more recent cases about the phrase "It's on like Donkey Kong".


Opinion by Judge Meskill:

"Donkey Kong requires the player to maneuver a computerized man named Mario up a set of girders, ladders and elevators to save a blond pigtailed woman from the clutches of a malevolent, yet humorous gorilla, while simultaneously avoiding a series of objects such as barrels and fireballs hurled at him by the impish ape."

The district court conducted a visual inspection of both the Donkey Kong game and the King Kong movies and stated that the differences between them were "great." It found the Donkey Kong game "comical" and the Donkey Kong gorilla character "farcical, childlike and nonsexual." In contrast, the court described the King Kong character and story as "a ferocious gorilla in quest of a beautiful woman."

Atari, Inc. v. North American Philips Consumer Electronics Corp., No. 81-2920 F.2d, 672, 607 (UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT).
(Decided March 2, 1982)

In which Pac-man helps establish that video games can be copyrighted and that K.C. Munchkin was, in fact, infringing.

The copyrighted version of 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 (expressed as a "gobbler"), four pursuit characters (expressed as "ghost monsters"), several hundred evenly spaced pink dots which line the pathways of the maze, four enlarged pink dots ("power capsules") approximately located in each of the maze's four corners, and various colored fruit symbols which appear near the middle of the maze during the play of the game.

Using a "joy stick," the player guides the gobbler through the maze, consuming pink dots along the way. The monsters, which roam independently within the maze, chase the gobbler.

The object of the game is to score as many points as possible by gobbling dots, power capsules, fruit symbols, and monsters.

The PAC-MAN maze has a slightly vertical rectangular shape, and its geometric configuration is drawn in bright blue double lines. Centrally located on the left and right sides of the maze is a tunnel opening. To evade capture by a pursuing monster, the player can cause the central character to exit through one opening and re-enter through the other on the opposite side. In video game parlance this concept is called a "wraparound." In the middle is a rectangular box ("corral") which has a small opening on the upper side.

If a player successfully consumes all of the dots, the entire maze flashes alternately blue and white in victory, and a new maze, replenished with dots, appears on the screen. When the game ends a bright red "game over" sign appears below the corral.

At the start of the game, the gobbler character is located centrally near the bottom of the maze. That figure is expressed as a simple yellow dot, somewhat larger than the power capsules, with a V-shaped aperture which opens and closes in mechanical fashion like a mouth as it travels the maze. Distinctive "gobbling" noises accompany this action. If fate (or a slight miscalculation) causes the gobbler to fall prey to one of the monsters, the action freezes, and the gobbler is deflated, folding back on itself, making a sympathetic whining sound, and disappearing with a star-burst.

The four monster characters are identical except that one is red, one blue, one turquoise, and one orange. They are about equal in size to the gobbler, but are shaped like bell jars. The bottom of each figure is contoured to stimulate three short appendages which move as the monster travels about the maze. Their most distinctive feature is their highly animated eyes, which appear as large white circles with blue irises and which "look" in the direction the monster is moving.

Throughout the play of PAC-MAN, a variety of distinctive musical sounds comprise the audio component of the game. Those sounds coincide with the various character movements and events occurring during the game and add to the excitement of the play.

K. C. Munchkin's maze also is rectangular, has two tunnel exits and a centrally located corral, and flashes different colors after the gobbler consumes all of the dots. But the maze, drawn in single, subdued purple lines, is more simple in overall appearance. Because it appears on a home television screen, the maze looks broader than it is tall. Unlike that in PAC-MAN, the maze has one dead-end passageway, which adds an element of risk and strategy.

The gobbler in K. C. Munchkin initially faces the viewer and appears as a round blue-green figure with horns and eyes. The gobbler normally has an impish smile, but when a monster attacks it, its smile appropriately turns to a frown.

Video games, unlike an artist's painting or even other audiovisual works, appeal 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 "would be disposed to overlook" many of the minor differences in detail and "regard their aesthetic appeal as the same."

Midway Manufacturing Company v. Arctic International Inc., No. 82-1607 F.2d, 704, 1009 (UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT).
(Decided April 11,1983)

In which circuit boards speed up video games and a comparison is made between gaming and channel surfing.


Opinion by Judge Cummings:

Strictly speaking, the particular sequence of images that appears on the screen of a video game machine when the game is played is not the same work as the set of images stored in the machine's circuit boards. The person playing the game can vary the order in which the stored images appear on the screen by moving the machine's control lever. That makes playing a video game a little like arranging words in a dictionary into sentences or paints on a palette into a painting. The question is whether the creative effort in playing a video game is enough like writing or painting to make each performance of a video game the work of the player and not the game's inventor.

We think it is not. Television viewers may vary the order of images transmitted on the same signal but broadcast on different channels by pressing a button that changes the channel on their television. In the WGN case, we held that the creative effort required to do that did not make the sequence of images appearing on a viewer's television screen the work of the viewer and not of the television station that transmitted the images. Playing a video game is more like changing channels on a television than it is like writing a novel or painting a picture. The player of a video game does not have control over the sequence of images that appears on the video game screen. He cannot create any sequence he wants out of the images stored on the game's circuit boards. The most he can do is choose one of the limited number of sequences the game allows him to choose. He is unlike a writer or a painter because the video game in effect writes the sentences and paints the painting for him; he merely chooses one of the sentences stored in its memory, one of the paintings stored in its collection.

The final argument of defendant's that we address is that selling plaintiff's licensees circuit boards that speed up the rate of play of plaintiff's video games is not an infringement of plaintiff's copyrights. Speeding up the rate of play of a video game is a little like playing at 45 or 78 revolutions per minute ("RPM's") a phonograph record recorded at 33 RPM's. If a discotheque licensee did that, it would probably not be an infringement of the record company's copyright in the record. One might argue by analogy that it is not a copyright infringement for video game licensees to speed up the rate of play of video games, and that it is not a contributory infringement for the defendant to sell licensees circuit boards that enable them to do that.

There is this critical difference between playing records at a faster than recorded speed and playing video games at a faster than manufactured rate: there is an enormous demand for speeded-up video games but there is little if any demand for speeded-up records. Not many people want to hear 33 RPM records played at 45 and 78 RPM's so that record licensors would not care if their licensees play them at that speed. But there is a big demand for speeded-up video games. Speeding up a video game's action makes the game more challenging and exciting and increases the licensee's revenue per game. Speeded-up games end sooner than normal games and consequently if players are willing to pay an additional price-per-minute in exchange for the challenge and excitement of a faster game, licensees will take in greater total revenues. Video game copyright owners would undoubtedly like to lay their hands on some of that extra revenue and therefore it cannot be assumed that licensees are implicitly authorized to use speeded-up circuit boards in the machines plaintiff supplies.

These earlier judges, like Alito and Scalia, clearly have their ideas of what video games are and how they work. I especially like the idea that images are stored within the game and then played back depending on player interaction. And their use of the word "impish". And the idea of grown adults in somber black robes (even though it was likely an assistant) discussing the specific visuals of Pac-Man.

Legal-speak has a reputation of being obtuse and nonpractical, but it's an attempt at specificity in language. Legal code doesn't have the luxury (or maybe the restriction) of source code; there's no compiler that crashes on ambiguity. But that parallel (and the one between lawyers and programmers) is for another day.