Retronauts - 728: Video Game Lawsuits-Cloned Games

Episode Date: November 10, 2025

The clones attack, as Kevin Bunch, Diamond Feit, Meredith Rose, and Mollie Patterson discuss the history of court cases around cloning video games like Pac-Man and Street Fighter II. Retronauts is made possible by listener support through Patreon! Support the show to enjoy ad-free early access, better audio quality, and great exclusive content. Learn more at http://www.patreon.com/retronauts 

This week on Retronauts, begun. The Clone Wars have. episode about Star Wars or the Clone Wars, except it's kind of about clone wars of a sort, a lot less laser blasting, a lot more legal filing. So this is the first and what I'm kind of thinking might be a fun series of episodes to do about the world of video game lawsuits, because these are such a rich resource of information about the industry and about its history. And I'm really excited to talk about this particular topic, which is on, you know, lawsuits surrounding game clones.

And before we dig any further into that, I want to introduce the folks I have with me. We'll go alphabetically. It'll make it easy. I think that's me because my name is Diamond Fight. And honestly, the only reason I'm here is because I made an episode about Doom Clones a while back. So if Kevin didn't have me on here, I would sue him for stealing my ideas. It's fair.

It's a proud tradition in copyright law. I'm Meredith Rose. I'm a copyright lawyer and consumer advocate, and I deal a lot with copyright and video games. And I am going to try to contain my glee because I have long threatened to write a first syllabus about all the things you need to know about copyright as taught by video games. And so I promise I will do my best to sit on it. I am happy to just, you know, cut you loose. That's a dangerous promise. And who is our last member here?

Hi, I am Molly Patterson. I have been in this industry for longer than I can remember or want to admit to. I've worked for, like, game fan, GameGo USA, lots other things. I have previously and currently am an EGM person. EGM does still exist. We're doing, still doing things. And I'm on this show because I found a VHS tape. That's why I'm here. It was a pretty good tape, though. Pretty good tape. Let's tease that right front. It's good tape. A tape that if I had known how popular it would have been, I would have actually had plans for the YouTube channel that I put it on when suddenly my popularity skyrocketed and I had nothing else to put on that channel. You know, you just have to find the other tape, I guess. Oh, I wish. I wish. I think it's lost forever. But boy, I wish I could find that tape.

Oh, last. We'll get to the tape, I'm sure, and explain why it's so fun. There's a president. He may or may not have been shot on the tape. I can't say the entire thing. There may be a few other things in there, but we'll, you know. Who could say? We're off to a great start. Very punchy. So I guess I just want to open up, you know, the discussion, like, what is a clone of a video game and when is it legal to have a clone? So that's sort of the multi-million dollar question that courts and video game companies have been contending with since the 1970s. Yeah, I mean, if I could say with any confidence of a copyright lawyer, that the answer, as always is it depends. And it's a proud and story tradition in copyright law to dodge the question.

And yeah, it's a, I don't know, I feel like video games in particular end up in that kind of sweet spot of chaos of things that copyright law just does not know how to deal with very well. So I'm like really excited to see how these, hear how these go. Well, I have an important follow-up question, if I may. Is one term less derogatory than the other clone versus bootleg? because they both sound, you know, a little bit, like, beneath, oh, they cloned our popular game. Oh, it's a bootleg of our popular game. But are both terms are distinct, but are they both derogatory or is one more neutral? I think the problem, and this is a question I was kind of thinking about coming into this podcast, is that I think the era that you ask what you just asked is what changes the answer to that.

Because, okay, because I was thinking, you know, I'm a longtime Apple fan, and I remember the era when Microsoft was absolutely positively stealing from Apple, you know? They were making Windows. It was this new operating system that they had clearly stolen from Apple, who, you know, may or may not have borrowed it from somebody else. But that was like just straight up bootleg in an operating system, right? But I think if you ask that question today, is anybody going to say that Windows is copying Mac OS? Because at this point, we've got these ideas of what the fundamentals of an OS are, and they are so ingrained in what the computers that we use, that of course computers have Windows, of course computers have pointers, of course computers have this and that. So when I was thinking about it in a game term, and I'm trying not to go too far into this conference. conversation to ruin anything that's going to be coming up later. But I think that we, as somebody

who was around for a least part of seeing this stuff, is we went through different stages because there was a point when, not only did we know what X or Y kind of game was or what genre, you know, were, we didn't really know what video games were. And so, you know, if you had said back in the day, like, is this a bootleg or is this a clone of another game, they'd be like asking, okay, is this car company making a clone of another car company? And so I think what's going to be interesting in going through these different cases is that over time, I think our understanding of what a clone, a bootleg, an homage, or just a game is changes because our fundamental understanding of what video games are changes,

because of how new of a hobby and a medium and entertainment they really are. So I think it's hard to answer that just because when you ask is just as important as what you're asking. Well, and it's also wow because we, the history of copyright law, which like for better or for worse, and I would argue a lot of cases for worse, is sort of how we answer the questions of what is sufficiently original enough to be able to go make money off of. like, you know, has historically had such a hard time dealing with anything digital, but, like, video games in particular because they're interactive, and this was, like, kind of the first time that any of these, you know, questions really came up in any meaningful way in court. And so, like, kind of famously, Atari attempted to register a copyright for breakout, you know, way back in the day and was denied, basically on the rationale that, like, oh, these are just basic lines and colors, and you're playing out. paddle game. That's not original. Get out of here. And it's sort of wild to like read the reasoning behind that and just try to imagine like if anybody today went in with even even something like,

you know, 2048 or like a really basic tile game or like Sudoku. And it would just never, it would never be questioned. Like, oh yeah, of course. It's, you know, this is this looks like a game so it gets protection. So yeah, this is definitely a question. It's definitely an issue of when you ask the question and sort of how equipped other people are to answer it. Yeah, there's a few these cases where the judge hearing the case, like, clearly is way in over their head and is just trying to make sense of this question before them that they have really no concept of how to answer. I'm thinking in particular of, you know, that there's an old game journalist Bill Cuncle. He was an expert witness in a few of the cases that we dug up for this particular podcast. And he was remarking in his memoirs, I think it was for the case of Capcom versus Data East where the judge had this storied history of all these major cases.

And here he was listening to a case about like two video games that he clearly had no experience with whatsoever. And he was just like looking at them from a distance like the two machines they wheeled in. It was like, yeah, these look the same. clearly uh clearly this one's a rip off of the other one and then they had to like argue to convince him to keep this thing going yeah yeah yeah because like if you don't know i mean like also not annoying but not caring right it's like would judges back then have even like typically maybe or the legal system or the the society at large have cared you know if break out in alleyway or two different games or you know pong and

breakout or whatever, or if Fighter's history and Street Fighter are two different things, because you know, like, it is interesting because video games are such about the interaction and the how we play them that you really have to get

dig deep into those elements to really start to understand like the differences between two fighting games, especially at that point. So, yeah, it's like how do you even come at that at some of these games back then when Most people still didn't even know what a video game was, period.

Mm-hmm. And, you know, we talk about who's involved in these suits. You mentioned Atari in the breakout one, and Atari's name comes up in so many of these. Like, they, on both ends of the spectrum, too. Like, early on, they were in legal action with Magnavox, not over, like, cloning anything, although that did come up in the lawsuit. because they did kind of clone the tennis game for the Odyssey. But it was like a patent lawsuit with Magnavox.

And as part of that, it came up like, oh, Bushnell, Nolan Bushnell, the head of Atari, he saw this tennis game at a trade show event, and he described it to his staffer as a game to make for the arcade system. And then, you know, they got cloned to hell and back by every other coin op company. They couldn't do anything about it because these other companies had about as much money as they did, if not more. So, like, they just sort of let that one rock. And then on the other hand, like a couple years later, when a smaller company, Grimlin came up with a game called Blockade, Atari cloned it as well as many other companies.

And, you know, Grimlin took one of them Ramtech to court over this, but they didn't touch Atari. At that point, Atari had all the money in the world. They had like border money. What are you going to do at that point? You've got to pick your fights. Yeah. It gets interesting, though, because you know, the need you start to wonder is like at that point, you know, again, it's perception, right? It's the timing of these things.

It's like, if we don't really know what video games are at that point, then are they just seen as these like basic commodities, you know, and is a loaf of bread, a loaf of bread, a loaf of bread, you know? And so, like, back then it's like, oh, well, of course, I'm just making. my version of this thing because it's not it's not art right we're still arguing whether not video games are art yeah we still haven't decided that so it's not art is it is it actually entertainment we don't know and then at the point of entertainment is it like you know it's not a story you know it's not like a painting or a photograph so like what is it that you're trying to protect is it literally this just commodity that somebody made you're making your version of it And I also, I find it very interesting.

And I also, I find it very interesting because you also have the legal system. is a way to try and assert control over, like, whole genres of games. Like, you know, we talked about Capcom versus Data East, and that was kind of over, you know, who gets to make a fighting game that plays kind of like Street Fighter 2. And even before that, you had, like, Data East and Epics in a court lawsuit over a karate fighting game or, or my favorite, you know, Atari taking several companies to court over, like, Pac-Man clones. because they were making home games that were similar to the game that,

oh, Atari had the home rights to and paid a lot of money for. Well, and it's extra wild because I think people kind of tend to lose sight of like what copyright doesn't protect, right? Because we, you know, I think it was Sarah Jong, a tech reporter who had the great line of, we've all been sort of socialized to think of copyright as the way that you reach through a computer screen and punch someone in the face. and you know people really lose sight of what it doesn't cover and like things copyright does not cover it does not cover rules systems so you know don't don't let wizards of the coast tell you otherwise basic rules systems are not protectable by copyright there's this doctrine called sends affair which is like stock characters are not protected by copyright actually famously the the case that decided that had to do with spawn comics um and so

So, like, Judge Posner, who's this very, like, well-regarded, like, you know, jurisprudential mind of his generation sitting in the seventh circuit had, like, you know, it was handed eight, yet he kept it as a souvenir, a cover of, like, a spawn comic that had a very busty woman in a chainmail bikini on it. Like, he kept it on his desk. It's like a souvenir from this, like, a landmark case that he decided. But sense of error is this idea that, like, yeah, if it's a stock character, you can't protect the stock character. You can only protect, like, the original little tidbits that you add on top of it. So copyright doesn't protect systems, which makes it really difficult for games because, you know, the games are arguably built on their mechanics. It doesn't protect anything that's a stock character, which, you know, really kind of comes up in the, like, you know, the Data East case that we were talking about about. Everybody's like, oh, no, no, we didn't copy you.

We just copied everything else in the world. Like, we went out, we too copied the Terminator to put him in our video game. stuff like that. And so, and it also doesn't deal well with, so copyright law, like, fundamentally is premised on this idea of having a physical copy of something. And it's always had a very hard time dealing with software, like all the way back since the 1960s, because software is an electron. It's a bit and a bite. And, you know, Queen Anne, when she passed the first copyright statute back in, like, during her reign in England, never envisioned that there were things such as electrons. let alone the idea that we'd be somehow like giving them, you know, giving a special guild

the ability to multiply electrons. But this idea of like, well, you know, we don't want to, we've twisted ourselves into so many pretzels with these like legal fictions that we just keep stacking on top of each other. And sort of the predominant one right now is that, you know, it's not, it's not the bit and bite that is the physical copy that we're protecting. Really, the physical copy is the like micron of hard disk space that those electrons happen to occupy at any given time. And so you end up in this like, my friend very, I stole this phrase shamelessly, but this idea of like, we're not in pretzels. We're in sort of the Jeremy Barrymy of logic to make any of this work. And all of this. And also, you know, like as Molly

mentioned, video games are interactive, which is a thing that traditionally copyright law has never had to deal with. Like your experience of Balderscape 3 and my experience of balder scape 3 are going to be substantially different from one another. And that, you know, those gaps are just increasing as you get more of this, like, sort of branching narrative storytelling. And, yeah, courts are terrible at this. They're just objectively terrible at this. They're objectively terrible with technology generally. Sort of famously, there was a, you know, a lawsuit between Google and Oracle over re-implementing APIs.

And that stretched for over a decade of litigation. And the judge of the trial court taught himself how to code just so he could understand what an API was. Now, the justices of the Supreme Court did not do this, which left it to lawyers like myself to try to explain by analogy how all of this works. And so, you know, trying to bring any kind of thing like a video game in front of, you know, nowadays we have the first gamer Supreme Court justice will happen any day now. And probably not be a good thing given the current political climate, but like someday it will happen. Yeah. And so, like, you know, trying to, trying to shoehorn these kinds of disputes into a legal system. And in the early days of video games, when it's very funny to be, because these folks are literally operating out of garages. Like, most of these folks didn't even leave contracts behind when they built these games, let alone, like, you know, show up a sophisticated lawyers trying to explain what Pong was in front of a judge. So this is, I feel like this is, this is like a perfect example of all the ways in which this team sort of fails to. keep up. It's just super-duper not made for this stuff. Now I'm just picturing David Suter, like, rolling up to the Supreme Court building with, like, his Apple II floppy discs.

He's like, check out this cool game I made over the weekend. Oh, he would have. Souter out of all of them would have been the guy. He would have been our first gamer justice if given the time. I'm sorry, my brain, I just incurred some serious brain damage because I imagined Supreme Court Justice Jack Thompson as a... Oh, God. Why not? Why would the people in charge right now nominate him? Because he seems to be...

He seems to be an authority on these matters, and he's very loud, you know? Do not manifest that into this world. Don't bring that bad mojo on us. I have no authority in this matter. I am not endorsing this. And I think what complicates it further, though, is that it's not just U.S. copyright law. it's not just U.S. courts, judges, lawyers, everything. It's in the world, too, right?

You know, because it's funny. I was literally just doing a story on the game, The Revenge of Shinobi on Sega Genesis, where in the original version, they straight up had characters that were John Rambo, Spider-Man, Batman, Godzilla, you know, and they didn't think anything about it. They're like, yeah, we're just going to put these characters in there.

The main title screen is literally a reproduction of a promotional photo of Sunny Chiba from a Japanese TV show. Like, they didn't care. They were just doing it. So the clones versus, you know, rip-offs gets a whole lot more complicated when you're then dealing with international developers in different companies to different laws, different standards, socially, morally, and whatever. Mm-hmm. And we're recording this, we're recording this in the midst of a very public feud between two Japanese companies, Nintendo and the people who make Powell World, right? That is a, that's playing out in public because from the moment Powell War came out, everyone in the internet's kind of like, um, dad, dad, are they allowed to do this? Like, everyone, everyone then I became a lawyer for five minutes, like, I think this is a clear violation.

and it's like, it's a video game, and yeah, some of these creatures look a lot like the creatures that Nintendo sells, but ultimately the fight comes down to not the creatures themselves, but how the games operate and certain mechanics, which Nintendo has a patent for, and I believe they're already making changes to remove certain aspects. Like, I think Power World used to have an ability where you could fly with the aid of a creature, and now you can't do that. You can fly with a creature, but the creature can't help you fly. It just, like, flies next to you.

Because if the creature picks you up, I guess that's too much Pokemon. I don't know. Patent lawsuits, see, that that could be its whole episode. I'm sure it will be. I'm sure we'll get that. Just two hours about the Magnavox patents. Um, yeah, Pal World was one of the things that came to Yeah, Pal World was one of the things that, uh, came to mine that sort of made me

think, oh, I should do an episode about this sort of, like, topic. Because one of the things that came up in one of these early lawsuits, the Tari versus North American Phillips, it's the Casey Munchkin lawsuit, and this is the one where Tari got mad that Magnavox put out a Pac-Man clone on console before they did. So they sued them over it. And one of their arguments was that, like, oh, well, Casey Munchkin. himself and, like, all his little creatures, they clearly are just ripping off, you know, Pac-Man. Look, he's just like a little guy, and he's a mouth, and he's got eyes and antenna, and he's

eating dots, and there's little monsters chasing him. That could be perceived as ghosts if you squint at them funny. And in the district court, you know, rightfully said, no, that's really stupid, and gave it to Phillips, and then Atari got an injunction on the appeal. and it never came back to the courts because, you know, everything was melting down. But the fact that this came up, like, just because of, like, this visual similarity, or, you know, that comes up a lot in the Data East Capcom case, too. I love that the claim is, like, this mouse kind of looks like a blob, and the blob looks too similar to a mouse.

And also, they eat dots. And some judge has to be sitting there being, like, are you high? Like, what are we doing here? It's been a while since I've seen a Casey Munchkin Does that look more or less like Pac-Man Than Atari's own Pac-Man Which barely resembles Pac-Man?

You mean the character or the game? I'm saying What Atari put onto cartridges And sold all of us back in 1982 Like It's like As a kid I was like I was very much squinting at my screen like

Yeah it kind of looks like Pac-Man I'm up yeah Sure. If I don't think about it too hard, sure. But see, like, I remember, you know, I was a kid. Casey Munchin was a game I remember. And I just feel like it's interesting because I feel like when we were kids, like said, at that point, we didn't even think about it.

It's like, okay, yeah, it wasn't that, you know, shooters were a genre or maze chases were a genre. It was like Pac-Man was a genre. Space Invaders was a genre, you know? And so, yeah, I was like, okay. this is a new Pac-Man game. And that's all you really thought about it. And we were at the point of thinking, well, wait a minute. These guys are just ripping off somebody else's hard work. You know, you just didn't think about that at that point. So, yeah, I mean, there are so many of these

kind of games that came out. And you're like, yeah, of course, of course it's a Pac-Man, you know, not even clone. It's a new Pac-Man game or it's a new Space Invaders game. Well, yeah, and there's this, there's this concept in trademark law that kind of gets It's sort of like one of the more popular concepts about it's called genericide, which is this idea that if your product gets so popular that it becomes a synonym for just the thing that it is. So like we say Kleenex when we mean tissues. Yeah.

We say Xerox. We mean photocopying, you know, sort of on and on. And I feel like there's a similar situation with, you know, entire genres of game. Like Molly was saying, you know, rogue likes are a thing. And it's not, you know, it, by the way, I was like 30. years old when I learned that rogue likes were named after an actual game named rogue. I thought

that was just some weird. And my poor husband was just staring at me. He's like, you know it's a game, right? Jesus Christ. No, I didn't. But like, yeah, if you're, congratulations, you've been so inventive. You know, it's like Half-Life 2. Sort of like arguably invented the modern first and shooter.

Like, good job, guys. Now everyone's going to copy you. Like, that's the prize that you get for your success. is that everybody in their mother is going to make a knock off of you or if you're valved, they're going to mod your game into oblivion and you're going to end up with like counter strike.

You know, and if you're smart, you'll hire them on and you'll make more games with them. But yeah, it's like this really kind of wild situation to be so successful that then you kind of have a weaker claim in court, right? It's like, I'm so successful. If people are making things like me,

it's like, well, you're so successful that you've created a genre. So, congratulations. Yeah, and if we go back to, we did an episode about Space Invaders not long ago, Kevin and I, and remember we talked about, you know, that game was so big,

and of course it inspired so many direct descendants, you know, companies that were obviously like, okay, we need to get our own space shooter in the arcades now. Because Space Invaders was so massive, like, if Space Invaders hadn't come along and done that,

like how many Japanese video game companies wouldn't even be video game companies. Like, they would, like, so many companies made their own Space Invaders. It basically launched the game industry that we know of it, because almost all of them, either that or breakout. Like between breakout and Space Invaders, knockoffs, clones, bootlegs, if you will. Like, that's got to be the genesis of at least, like, 78% of all Japanese video game companies, you know?

They started with one of those, you know, and that includes Nintendo, because Nintendo had their own Block Kazushi game, you know, in the 70s. You're saying Nintendo wasn't going to become the world, like, breaker that they are now off of their Othello arcade machine? I mean, they tried. It's like money and Hana Foot Cards. Yeah, they tried their, you know, they had their own, they tried to get in the space invaders game with the Radaroscope, and that ended up being a weird turnaround for them. But, of course, the game that came up with Donkey Kong was also kind of based on other things, kind of based on Popeye. And they got sued over the giant monkey they used, or giant ape, excuse me.

but that's another story because that's not a clone lawsuit that's a yeah that's a fun other kind of lawsuit yeah it's funny because I feel like people get really hung up on this when it comes up in video games maybe just because it's like a new art form and so like we haven't kind of internalized it as art to the same degree but like this is just how human creativity always works to some extent like we retell stories that we have been told and we like embellish on them and we reformat them and we do I mean everything is fanfic right I say selfishly as a member of the Organization for Transformative Works and a supporter of the archive of our own. Everything is fanfic.

But yeah, I mean, we, and I feel like this is a lot more intuitive to people when you're talking about like paintings or movies where it's like it's not a rip off. It's an homage. You know, if you're a respected director and you've won awards, you're doing an homage. If you're Darren Aronofsky, you're doing an homage to perfect blue rather than ripping it off. But we really, you know, I don't know if it's. It's the fact that video games are like a newish art form or that there's something about software that kind of throws people off about it. But, you know, I think there's this impulse to treat them differently somehow as opposed to just saying like, no, you know, somebody had a really good idea. They told a really compelling story.

Somebody else was like, I think I can do one better on that. Remixed it. And, you know, we have to square this with copyright law, which I will not go off on my soapbox about how that doesn't comport with how humans create. But, yeah, people get like really hung up on this in the context of software. I feel like way more than they do in other art forms. The double-edged sword to a lot of the kind of cases and stuff that, you know, we listed in the show notes for what we might talk about is that on one hand you say, okay, these people were charting new ground, new territory, and they absolutely deserved to, you know, fight for what they had created. because we were, like, making games out of nothingness at a certain point. But at the other hand, is if some of these cases had won, and, you know, the one especially

near my heart is the street fighter, I mean, Capcom versus Data East, is if Capcom had won that, do we have a fighting game genre at that point? You know, if some of these cases had been run by the original companies, like, gaming gets weird because at a certain point, you have to copy somebody else's work and you should copy somebody else's work because unlike a movie or music or television or whatever you know games are this this interactive thing where you have controls and you have the way we we interface with them and all these things and and there are at times rights and wrongs about some of that stuff and so even on a base level how is a controller work you know um how do menus working games and stuff like this is like some of that stuff has to be copied

because if you're starting fresh every single time, there's never going to be evolution in this hobby, in this industry. Same thing in genres, right? It's like said, there are certain points where if people aren't copying Wolfensine 3D, we don't get first person shooters. We don't maybe get that half-life, you know, at a certain point. People aren't copying space invaders, then we don't get to the point of having, you know,

top-down shooters later on. or horizontal shooters or things like that. And so it's weird where you want to support the artists and you want to support the companies who are doing the groundbreaking work and the stuff. But then aside, we now can realize that, man, if some of these cases had gone a different way, our hobby would be utterly different.

And who knows where we'd be at this point? And honestly, some of these clones, they're pretty good. I would argue maybe even better. than what the lawsuit was about. I mean, I might not say that about Fighter's history versus Street Fighter 2, but Fighter's history is pretty good.

It wasn't bad. It wasn't bad. I don't know if it was pretty good, but it wasn't bad. You can combo into grabs. Who among us has not wanted Zankeef to be able to do that? Just saying. I don't want Zankees to be able to do that. I absolutely do not want Zankeith to be able to do that. Who among us?

Who among us, Molly specifically? Or, yeah, like Casey Munchkin, I honestly like Casey Munchkin more than Pac-Man. I will go on the record that it's a more interesting game. It's not as good as Ms. Pac-Man, but, you know, nothing is. I mean, that's what's funny, you know, is, like, some people will say, okay, is Gallagher a space invaders clone, you know? Some people say yes, some people say no. I way prefer Galaga. It's still been my favorite arcade games to this day.

I don't really need to go back on Play Space Invaders Miss Pac-Man technically started as a Pac-Man clone way better game in my mind so it is funny that

at a certain point some of these clones do become the better options and push us then further in genres or gaming yeah and Midway made

the very smart choice to just buy that clone and release it themselves rather than Sue the makers into oblivion. Well, do we feel like digging into any of these particular court cases? Do we feel like we've done enough to set this up? Absolutely.

Let's start spilling the tea, as the kids say. Rock and roll. Yeah, I want to talk about this first one because it's not a case I've really seen come up very often in English language media, but it seems to have been very important in Japan in particular. This is Taito versus World Vending and Fushi Colum, or Colum, I guess, that's how you pronounce it. This was like a joint lawsuit against two companies. Basically, Taito, you know, they made Space Invaders, huge hit. A bunch of companies started bootlegging it because Taito could not meet their demand that existed within Japan for it.

So you had companies like Sega, Nintendo, Konami, Data East, again, ripping it off with varying degrees of similarity. Some of them got a little more wacky with the design, but ultimately they all played more or less the same. Taito themselves started offering licensing agreements to different game companies themselves of the like 230,000 space invaders units that are estimated to have been solved. About 200,000 of those are from Taito and its licensees, and the other 30 are from these unlicensed ones. And they ended up suing World Vending in particular and Fuji column. about this, as well as a, there's a separate lawsuit against Makoto-Denshi for the same topic. That one concluded a little bit after the World Vending case. But basically, World Vending produced world invaders, and Makoto-Densi had super invaders.

They were really inventive names. I'll tell you. And this, I'll go ahead. I was just imagining somebody slapping duct tape over the word space. I'm just sprawling world in, uh, and, uh, and, uh, Sharpie. Honestly, it should be in red pen because we discussed, the space invaders do not invade the space. They're invading our world.

So world invaders, better title. That's true. But this was a really important case when it finally had its final legal ruling, and I think it's around September, 1982, long after the invader boom had ended. But at that point, they were still rolling through it. And this particular ruling was that, yes, video games are subject to copyright law. Before that point, in Japan, there was no real consensus on whether or not you could copyright software. So in this sense, like bootlegging, something like breakout or Space Invaders was technically considered legal until it wasn't. I love the ways that different systems have tried, again, because, like, copyright,

We designed this to deal with, like, a book, like a thing you can hold in your hand. Fun fact, in the U.S. software is considered a literary work. So up until very recently, like the last 10-ish years, I think, is when they changed this, if you wanted to register a software program with the Copyright Office, you had to print out your source code or your object code if you're feeling spicy. Print it out, bind it, and mail it to the Copyright Office. and they would just, like, manually read it. That has only changed in the last, like, decade.

And, yeah, they treat it like a book, like, because reasons. Because they figured it was just sort of easier to shoehorn into our existing system by treating it as a piece of literature rather than creating its own sort of category for it. So it is unsurprising, I guess, that, like, you know, Japanese copyright law was like, what is this thing? I don't know. I guess it's protected now. which honestly seems like a slightly more sane version than we attempted in the U.S. So, kudos to them.

You know, I can't be too mad about the book thing because we did get a couple of Atari games did get preserved because someone was able to just like ask the original author like, hey, can you just like ask the copyright office for a copy of that? Can you send me your deposit copy and it's just a giant three ring binder of object code? Yep. I wonder how many game programs are on goodreads. I'm going to start using that as my video game repository. Can you play Doom on Goodreads? Probably, probably, yeah.

Doom reads. I'm sorry, I'm trying to correct this. So, yeah, like a lot of these Space Invaders clones, like, they're not particularly special, but as of 1982, they were no longer legal to produce. Not that anyone was at that point, but yeah, Makoto Denchie's case concluded in early 83. The court cited that this previous ruling from 82 was like, well, we have precedent now. You're probably not going to succeed on appeal. Tough luck. Give tight oaths of money. And I wonder too, like, I mean, at that point, I have to assume that, you know, outside of those

companies right who were fighting this like did anybody know you know like like anybody just going in somewhere and playing one of these clones it's like did they even think about it did they even realized that was there any thought process because even back then like you know you wouldn't have known the companies you might not even know the name of the game so it's like you know going out and just playing a clone at that point it's like we weren't even at the point of people knowing that such a thing existed you know it was just Like, I went into somewhere, there's this weird machine with the television that I can put a quarter into and play a game. I went somewhere else.

There was what looked like the exact same thing. You know, like, so there would have been, like, zero knowledge on the public's part at this point of clone versus Boo Lake versus any of that. Yeah. I think that sort of, I think that gets described a little bit because there is a, there's an old strategy guide. It's like the first strategy guide for any video game for space invaders. and in the Japanese version of it, there is a whole chapter dedicated specifically to running through all the different clones of space invaders. Wow. Like, talking a little bit about each one and what sets it apart, if anything.

So, like, if you had enough interest in this game that you wanted to actually check out the book, you could understand this thing. But if you were, like, you know, six years old, first they probably would have been really concerned about you spending time at these very cedees. like space invaders cafes, but yeah, you probably wouldn't really know like, which is which. You'd be like, oh, this is the weird one. This is the one that I see everywhere. Yeah, I mean, because I think about my memory, you know, is I played a lot of arcade games

because at a certain point, they become everywhere. I remember playing space invaders at a very specific local movie theater, you know. And I remembered elements of those games, But, like, I didn't know the names from a lot of these games, you know? And later on in life, I'd have to, like, try to hunt them down. It's like, oh, it was the Arkinoid clone with the dinosaurs in it, you know? Or it was, you know, this or that kind of thing.

And so, like, you wouldn't have known going in. And, yeah, so it would have been interesting to, like, talk to people back then as, like, what was the comprehension even of, like, what they were playing? Or just there's these new things and they're just video games. and in a certain point, you know, because we're not even at the point where everything's like a Nintendo, you know, or like everything is, you know, because I was going to say, oh, everything's an iPhone now. But like, we're not even at that point of video games is there's no name at this point. Maybe Space Invaders, but we're not even at Pac-Man yet. So, like, there's almost zero name recognition. And we're probably even at the point where the term video game hadn't fully come to be in, in pop-in, common vernacular yet so yeah the pool hall thrills that was that was my particular favorite term for for like video games from the 70s it's so sordid sounding right yeah I'm just I'm just imagining you know the way you were describing that like someone who saw the the breakout rip off that has

like the Yamato battleship from a space battleship Yamato in there as like something you could hit with the ball and just, like, half remembering this. I want to talk to some, like, 50-something Japanese person about this. I'm like, you played a lot of breakout, right? Do you remember that, like, weird breakout? Well, and I think the thing, too, about that, too, is, you know, we're going to get into an era. And at this point, I'm, I mean, I'm sure with the clones, it's even a little bit of where there's just so many arcade games out there that, like, you might see one game once, right,

in your entire life, and then never see it again. And so, like I was just saying, the Arcanoy clone of the dinosaurs, like, I saw that in one place, and it was the bowling alley near my house, and I've never seen it past that. It's like Gondor or something like that. So, like, that too, I think, kind of gets complicated in terms of the, the, getting the public behind an argument of rip-offs and clones and things like that. It's like, how do you get the people who are playing your games on your side when you have no idea of, if people were ever going to see your game again after the one time they saw it at 7-11 or a laundromat or whatever

and there was no internet there was no you know so many of these games at this point are going to come and go that I think it's going to be hard for companies to kind of drum up our support in terms of fighting for the idea of like if you see those fake space invaders

don't play them play our original you know only play authorized approved space invaders I actually, this is like fascinating because more I think about it, you know, I feel like people have very different reactions to this idea of clone games in an arcade setting where to some extent, they're almost kind of expected, right? Like there is a, there's an arcade, this place I visited the summer and it has the extremely correct for an arcade name of Funorama, which is objectively the most correct Christian name for an arcade in the, the year of our Lord 2025. And in those kinds of settings, again, you're going to get the knockoff dance dance revolution with the corner pads.

Like, you're going to get just all the weird stuff. And that's the sort of part and parcel of the arcade experience. And I feel like people feel different about it in those situations than they do in like home console gaming. And then this sort of rash, you know, and I think where we've seen a lot of the clones pop up more recently is mobile gaming. Everybody's got very strong

opinions about clones in mobile gaming. It's too strong, I would argue, in some cases. Yeah, and it's funny because just contextually where those things are like almost physically located seems to like really impact vibe check on PLP fully about them. Are there clones in mobile gaming? I haven't heard about this. Are there

other companies just like one or two? Yeah. Yeah, a couple little ones out there. I actually have one of those cases on this list. If we get that far into the 2000s, we'll get to it. Also, I just wanted to give a public apology to all the Pump It Up fans out there for Meredith calling the DDR clone with the corner arrows, a weird knockoff. I did not say that. None of the other host said that.

It was her, so. It was me. I am a DDR peerist. So when the K-pop stands come after this podcast, I want them to know who did go after. You know, I'm fine with the corner arrows. I draw the line at the center button. Like, that's when, you know, the corner arrows, I can rotate myself 45 degrees and, like, kind of make it work. But, like, when you put a center button in the mix, like, no, that's too much.

That's a bridge too far. I've never been any good at DDR, but I'm really not good at pump it up. That's five buttons. That's a 25% more buttons than I signed up for. So since we're, you know, touching on American outlets in arcades, I guess we can get into some of the American lawsuits, because that's the only foreign one that I was able to pull together for this. I'm sure there's many more, but I do not read Japanese or French or what have you.

So I wanted to bring up Atari versus Williams. This was sort of the companion to the North American Philip suit over Casey Munchkin. Only this time they were suing Ken and Roberta Williams and their company Online Systems, which became Sierra, because they published in 1981 two Pac-Man clones for computers. There was Gobbler for the Apple II and Jawbreaker for the Atari 400 and 800. So Atari, which was later joined by Midway, which had the coin-op rights in the West for Pac-Man.

They claimed that, you see, companies were infringing on their Pac-Man home rights. And, you know, this is kind of true for Gobler, I guess, because Gobbler, if you've ever seen it in action, is pretty much just Pac-Man. And I guess, like, this led to Jawbreaker getting changed up quite a bit. Because, like, Atari threatened the Sierra folks over Gobler. They decided to, like, pull it from the shelves without admitting any kind of fault. Like, we're just taking this off the shelf. Sure, it's selling well, but maybe. maybe we don't need it. So they did some graphical changes for Jobbreaker. It, like, has a fun little Candyman tune in there, if I remember. But they still ended up getting sued by Atari anyway, over both games. And my favorite part of this is that, like, Atari did not win this. Like, they got thrown out.

And it got thrown out again on appeal. So they ended up settling and doing a licensing agreement just to sort this whole thing out. But basically the winning argument for the Williams was that Pac-Man itself was predated by a game called Head-on by Grimlin, later Sega Gremlin, when the two companies merged, where you run around a maze as a car collecting dots, avoiding another car that's trying to, like, catch you. And that, therefore, going around a maze, avoiding monsters in collecting dots, could have likely been copied off of that. which, you know, Nabco is never admitted to this, although, if I remember right, their company president, Nakamura did see head-on before it came out when they were in talks to buy up Gremlin. So whether or not that's any direct correlation, who knows, but either way, they were like, you know what, Pac-Man's already kind of ripping this off to the same extent we're ripping off Pac-Man. we didn't take any game code from Pac-Man. So what's the big problem here?

I mean, at a point when we as an industry still don't know what copying is, what cloning is, what video games necessarily are, you know, all this kind of stuff. Like, that's not a bad argument, really. Is, you know, the point is like, okay, if a ship at the bottom of the screen is shooting enemies at the top of the screen, like, does that become? something that then nobody else can do. And if so, then a player character going through a maze collecting dots, running away from enemies, that sure seems like that's what Pac-Man was. And if Pac-Man was okay stealing that, then why can't these other games steal it too? So, yeah, I mean, that's a pretty good argument, at least from somebody who knows nothing about legal arguments. it's also I think particularly for video games like so many video games I mean every I mean art in general does this too but I think video games especially do this like it's all based on something you know like Space Invaders essentially came from breakout it just came it took a long way to get there but Space Invaders kind of came from breakout and you know Pac-Ban wasn't the first maze game Street Fighter wasn't I mean Street Fighter 2 certainly because it's number two but Street Fighter wasn't the first

fighting game. You know what I mean? Like, all these games came from somewhere, so it's kind of funny that at any point when someone becomes popular, it's like, hey, you're ripping me off almost, in almost every case, I think the defendant has a chance to say, okay, where'd you get your ideas from, buddy? Because they didn't come from your head.

Of course not. They came from manga and anime. Yes. And I think another element to a bit about this case, that's really interesting, is that unlike Space Invaders, this suddenly has a totally new unique aspect, and that is people want these games at home, right?

It's not just about somebody's trying to make a clone machine to get into arcades as fast as again to get some of those quarters that are going into Space Invaders. Suddenly now, there is this demand to play the same games at home that you were playing in the arcade. And if I'm from the player's side, And I'm saying, okay, well, the people who made Pac-Man, they're not giving me Pac-Man on the Apple 2. They're not giving me Pac-Man on the Atari 400.

So why can't somebody else do it? You know, and we go from, I think, the players not knowing about clones to almost wanting them to exist so that they can get those games. it, you know, so they can have that game at home because, again, you don't know. I mean, well, okay, Pac-Man, you're going to find Pac-Man everywhere, right? But even as a kid, right? You know, talk to my mom and to buy me a cartridge

that I can play all the time versus asking for quarter after quarter. It seems like a better, you know, bargain in the end. So that completely changes the dynamic of this whole talk about clones and bootlakes and stuff where it's now, there is legitimate, not demand from just the businesses who want the quarters, but there is now consumer demand, customer demand for these games, and if the quote unquote legit company is not going to fulfill that demand, then somebody else is going to walk in and try to do it for them.

And that's kind of what you saw in like the 70s with these clones of, you know, Pong and Space Invaders and breakout. Like you're not meeting the demand. In that case, it was just pure number demand of people. who wanted it. So someone else is going to come in and do the same basic concept and get some money off of it. I do think you're right, though. I feel like clones are much more prevalent in home systems, particularly home computers at this point. Because God, there's so many clones of games on like the Commodore 64 and the Zetex spectrum and whatnot that probably like

fully half of the libraries. Yeah, well, I'm sure it's, you know, once you move to home systems, it's cheaper to manufacture these things and cheaper to just make the clones. And maybe that's why we're, you know, talking about mobile games. Like, the easiest format we've developed yet in order to, you know, it doesn't have to be a good game, but like the barrier to entry is pretty low. Yeah. I do want to flag, actually, one of the, the Casey Munchkin sequel, Crazy Chase, one of my favorite things about this is that it is. one of a proud tradition in creative works of clapping back at someone who tried to give you a hard time. Because the antagonist that you have to fight against in Crazy Chase basically is a clone of the Atari Centipede.

And so you have to go around trying to kill the Atari Centipede as like kind of a little nice little middle finger. This is actually the best example of this If you go all the way back to There were a bunch of unauthorized sequels to Don Quixote So if you go like all the way back to the 17th century There was one that got kind of popular And the only reason we really know that this thing even existed Is because Cervantes was so mad about this

Specifically about this one unauthorized sequel That like he actually wrote a follow-up Like an official follow-up to Don Quixote This is before copyright wasn't existed and all he did was just constantly smack talk, the fake Kejode, through the main character. So he still go around and clean up the messes left by the fake Kejones in the other sequel. So I see this as like, this is my favorite kind of way of climbing back at people. It's like canonically sticking a middle finger to them somehow in the sequel of your game.

And I'm just, I'm glad to know that as an English major, I like to see that continue in the modern tradition. Now I'm just imagining all these, like, Don Quixote, unofficial sequels, like, showing up on A-O-3. Like, someone needs to start uploading the surviving copies. You know what? The Don's Quixote? Yeah. Yes. This reminds me of S&K Neo Geo, how they named the bad guys in the second sort of K-O-F story arc.

The bad guys were called Weirs because the... Oh, in Battle Coliseum, that's right. Right. Because all, you know, because in the late 90s, 2000s when emulation exploded, like all these websites were, you know, distributing, you know, the key word to look for were ROMs and wares. So that's, was a huge impact of their business. Like, oh, geez, we're getting, you know, these are the villains of our, of our reality. So let's put them in our video game as bad guys.

That's right. And now that you're mentioning it, I remembering that games, like, whole thing was that the final bosses were bootleg clones of, like, final bosses from actual, like, S&K. games. So you had like the knockoff Orochi and whatnot. Yeah. Yeah, they were definitely working through some things on that game. We're going to be.

Since you brought crazy chase, yeah, like we, there's Atari versus North American Phillips, we've kind of run through this one of it. I do want to note, again, Bill Kunkle was the expert witness here, as he was for Capcom and Data East. And he was like kind of concerned going into this that he was going to burn a bunch of bridges with Atari, who apparently took this all in very good, uh, took this very well, him, like, basically coming out and telling him that they had no business doing what they're doing. But basically, like, he had this background in comics, and he, therefore, was very aware of, like, the legal action between, you know, D.C.'s parent company and Fawcett comics over Superman and Captain Marvel at the time, Shazam now, where D.C. was trying to argue that, oh, like, he's just a rip-off of our character. and Fawcett won the legal battle, but, you know, it cost him a lot of money, and eventually DC bought them out anyway. So he just, he was like, yeah, I don't want to see anyone try and, like,

Bogart an entire, like, industry like that. So he basically went up on the stand and was like, all right, Casey Munchkin, they took great pains to avoid the look and feel of Pac-Man, which, you know, look and feel is kind of the big test for a lot of these video games. in these copyright issues. So, like, yeah, it's a maze game, and you're, like, a little guy going around the maze, but, like, the dots are moving around. You have to chase after them.

The maze, like, you can change the layout. You can design your own, et cetera. So, like, it's a fundamentally, it's a different game, even if it has a lot of the same elements. It worked for a little while, anyway, until the appeals court shrugged it off. But what are you going to do? So much of, like, copyright law. I'm just collapsing into a sniff test, like, especially when judges are kind of like a little bit out of their league.

You know, it's funny because when you watch them debate like novels, then all of a sudden they become like English majors, you know, and then they'll start talking about like motifs and character arcs and blah, blah, blah, blah. And if you hand them a video game, they're like, I don't know, this looks like a Pac-Man. And that's sort of like the beginning and end of it, right? And so it's always kind of wild when you can get these like two completely different takes, you know, and it's that question between like, how much are you analyzing similarities on like a kind of a detail level? Like, are you copying the like the map layout of a level? Are you copying the character design? Is the music close? Is the, or the mechanics? Again, mechanics not protectable, but when they're packages and everything else can be an indication of copying versus like, I don't know. it's got the right vibe the vibes

are too similar and therefore and we see this happen a lot in music in large part because music it's like litigated a lot more like the record industry is notoriously litigious

if anybody at home has ever heard of the blurred lines case this was like the sort of notorious high watermark for vibes based copyright rulings, where essentially the estate of Marvin Gay brought a lawsuit against Robin Thick and Ferrell Williams, accusing them of infringing some Marvin Gay, not actually infringing on a specific Marvin Gay work, but just trying to evoke him a little too well in blurred lines.

And it was this like perfect storm of like, yeah, that song is creepy. And Robin Thick sucks, and nobody likes him. And he was like the most unsympathetic defendant of all time. And like Marvin Gay is a sort of legendary figure. And it really just boiled down to, you had like dueling musicologists coming up and being like, well, in the, you know, West African traditions that informed like modern. Like hand to God, you just, it was like, well, you know, you could write out the music. You could write at the music in like notation, and they were two completely different baselines, but it was still enough for the jury to be like, oh, yeah, the vibes are pretty close. So they just, they were like, yeah, it's in fringes. And it got upheld on appeal. And it's just sort of this like high water mark of like, I don't know. It seems close enough. And it's always wild when you get like, you know, it's a kind of a really interesting exercise and goalpost shifting, sort of like motivated. reasoning when a judge is like trying to decide like I don't know this kind of seems similar all of a

sudden all the factors that they're analysis will shift one way versus if they really want to get into the granular detail but like what color are the pills that the Pac-Man thing is eating you know and they'll go all the other way and there's no sort of unifying standard I mean in theory there's standards for like where you're supposed to set the level of granularity but it's all it's all just kind of a sniff test the end of the day I say this as if under standing that sniff test is not what pays my bills. It's going to say, like, vibes based of ruling in video game copyright law,

very, very consistently true. Such as I feel it is with this next one, Atari versus amusement world, which full disclosure, this was the other reason why this podcast came to mind as a topic idea for me, because this is the case

where Atari sued a small company out of Maryland called an amusement world, run by a fellow named Stephen Holnaker, over his asteroids clone, Meteors, which, you know, plays kind of similarly. It's like an overhead sort of view. You're flying around, you're shooting asteroids that break into smaller pieces. Occasionally, UFOs come by to, like, hassle you. But, you know, Graphically, it doesn't look anything like asteroids. Moment-to-moment play-wise, it does not play like asteroids. If you are in the Baltimore region, there is a machine at the dugout arcade in Baltimore, which is owned by Holdeker's son.

And it's one of like three known cabinets for this game to still exist. You can try it out and you'll come away thinking like, wow, that is, it's not quite there as far. compared to asteroids, but it sure is its own game. So I don't know about this one. So what does it look like compared to asteroids? It looks a lot like, I think Kevin's being a little generous here. It looks a lot like asteroids. You've got a small ship, the rocks in space,

which, by the way, rocks in space are not meteors. That's not what a meteor is. Whatever. But you've got rocks flying in space. You've got a small spaceship. You've got two buttons to turn your ship one way or the other. You've got a thrust button and you've got a fire button. There's no hyperspace button.

He did not copy a hyperspace button. Legally distinct. Yes. But otherwise, you know, you're turning, you're shooting. Every time you shoot a big rock, it turns into a smaller rock. And, yeah, the spaceship comes up. So, like, gameplay-wise, it's very much in the vein of asteroids. But, and this is important, I think, certainly from a presentation standpoint,

it's all what looks like sprite-based, you know? Yeah, okay, yeah, I'm looking at now, yeah. So it's more, that's what I'm saying. It's like, it's sprites versus like the vector graphics. Right. So visually, it's certainly visually distinct, but it's also very much like, oh, yeah, this is, yeah, there's no question as to what, you know, thought processes led from step A to step B here. But it is its own game in every, in every strict, I think strictly speaking, which, you know, we're talking. the lawsuits. I think you might as well be strict. Like, it is its own game, but let's not pretend

it's not unrelated. It's, it's kind of fascinating to play, too, because, like, you don't move like you do in asteroids or, or, because it's, I think, because it's a sprite-based and not vector-based, like, when you're turning, you're turning by like big steps as opposed to that sort of smooth vector radius. When you thrust, you don't sort of like drift around with a lot of momentum. There is momentum, but you kind of just like, you're zoom in and then you're like come to a pretty rapid stop. It's like really awkward to fly around, which does make it feel different, even though

it's very much just like, all right, here's asteroids, but not as, not as clean. But, you know, this is it's a, oh, go ahead. No, so that's where things are complicated, right? Is the, you know, the fine, I'll do it myself. Are you doing it yourself because somebody else isn't doing it? or are you doing it yourself because you don't want to pay for somebody else's work on that thing? That's where it gets, you know, that's where it gets a little murky and something like this. It's like, if it's the same game and everything but visuals, then like, is it the same game, you know?

Yeah. And that's where I think you get less support for, from the player base of, like, okay, you know, you're not necessarily maybe trying to do something new here. You're just trying to do the other thing that existed and get away with it by saying that you kind of, it changed the you know the paint job on it which of course you know that's why Atari sued they're very very similar games and uh you know Atari to maybe not their credit argued that all the differences were very superficial um and Holdaker was able to point out it was like well no these are different you know games in terms of how they play to a degree and and my favorite was that he was just like a kind of a

stone wall as a witness by the legal documents, which, you know, by the way, the National Archives does have a whole article about this game, because it was like a big precedent setter case for, you know, video game copyright law. And basically he's like, you know, I knew of asteroids, but I didn't use Atari's code. I didn't use their same, like, graphical hardware or anything of that. All the ideas within this game came up in other games other than apps. So you can't claim that they're just, like, exclusively the domain of asteroids. They just, I just put them all into this one together. And, like, Atari's lawyers couldn't get him to admit that he'd ever, like, sat down with asteroids and, you know, worked to clone it.

So it ended up working out in his favor. And that's going to become, I think, one of the important parts of the arguments in video games, you know, across the years, right? is like there is a difference even if even if it looks like that you are just sitting down and copying them there is a difference between i literally did just sit down to make my own asteroids so i didn't have to pay for asteroids versus i heard of it or i had all the ideas and i built my own version from there because whenever you do that you know thinking about just it's a funny thing for me to think about as a web designer is that a lot of web design sometimes is you'll see a site that you really love and you look at it for a while and then you're like, okay, can I copy that site on my own? But then in doing that without looking at it

while you're trying to copy it, you're going to start inputting your own ideas and your own creativity and your own vision into that and then it's going to grow into something totally different. And we're going to see that across the years and years of video game creation is where

that kind of thing then blossoms into these brand new games that then do go their own ways. So that's Meteors. I definitely would say check it out if you get the chance. I know, like, Holdaker's other copy of Meteors, he has two of them of the three, I think the third one's in like California or something. He brings that one to events every now and then.

Like, I saw it at Magfest this last January. So, you know, if you see it, it's worth trying out. Just get a little piece of legal history there. well now I'm definitely going to have to go I also marked on here Stern versus Kaufman which is like over a Konami Scramble game and this one is like very firmly

more in the bootleg territory but it gets cited in like later copyright cases over clone games so like I had to mark it in here this one makes me laugh I'm sorry the details the one makes me laugh it's very funny it's very funny

so like Stern licensed Konami's Scramble Arcade game, which would go on to be a huge hit for them. And then this other company, Omni, ran by Harold Kaufman, started marketing an extremely similar game, also called Scramble. They used the same name? They used the same name, because, as Kaufman argued, Scramble was a common word and therefore could not be trademarked.

Oh, that's not how trademarks work. It sure isn't. It causes me physical pain. Also, they did not copy the underlying. code to Scramble. So therefore, the game was legally clear, even though it plays exactly like Scramble. Uh, also not a thing.

I also love that during the fight, at one point, they decided to call their game Scramble 2. It's like, oh, no, it's not scramble. It's scrambled, too. Man, just not helping yourself. Just change a vowel, man. Just go with scramble or scrumble.

Scramble. Come on. Minimum effort. Minimum effort here. Which, as far as I could tell, Omni, like, this is not the only game they did this with, but this is the one that they kind of got walloped for. And then they changed their name to Zinga. Allegedly. Allegedly.

Allegedly. Yes. Allegedly. We should make that clear. Do not come to retronauts for any of your legal advice. So, yeah, Omni got walloped with an injunction in district court. They appealed it. The Second Circuit, you know, not only affirmed it,

straight up, it's like, all right, you can't sell any more copies, period. So that was that. Eventually, it got to the market. Like, they tweaked it some more as strafe bomb, I think. Like, it looks a lot like this, so I'm calling it. Yeah, if you look online today, like, it was really hard to find video of anyone playing Omni Scramble, because if you look up Scramble, all you get is, you know, the other Scramble. But I found a couple videos that called a Strafe Bomb.

Then if you look up Strafe Bomb, like, that has a lot more hits. So I think, because it was blocked by court. So I think whatever copies of Scramble that might exist, Omni Scramble, I think are probably gone. But Strafebom has a longer legacy. And you look at it, it's like, it's definitely the same kind of game. But at least like, yeah, the ship is different. The things you're shooting are different. And most importantly, in Strafebomb, you don't need fuel.

You need oil. Very important. That's right. Your spaceship's running on oil. Yes. It's running on kerosene. Kerosene-based spaceflight. The key distinction is whether we have, in fact, left fossil fuels behind or not.

This is the future that America apparently wants at the moment. Omni was just ahead of its time. So then we're getting into the data east, uh, you know, lineup here. Everyone's favorite companies back from their bootlegging of space invaders. First, we have Data East versus Epics, where they had developed an arcade game called Karate Champ, and they filed a lawsuit against Epics over a game they sold as World Championship karate. I believe it was originally called International Karate, and they just sort of licensed it out, or however that worked. And they claimed that this infringed on Karate Champ. So they

We're essentially trying to claim ownership over, you know, karate fighting games. So I have a question about this. I don't know if anybody in this panel knows this answer, but what is this significance? Because this, I think, is part of what came into it possibly. What is the significance between the white ghee and the red? I mean, I just, I tend to think of, like, just looking around at Japanese, Japanese culture, or in general, I feel like white and red are sort of like your default, your default two teams, you know, like kids at school split themselves into white and red teams. You've got the

Kohaku, you know, singing competition at the end of the year every year. So I feel like white and red are just sort of these, like, they're not literally opposite colors, but I feel like they're often split into pairs. So like, Day to East game, of course, you have white and red, but in the epics games, at least the ones I viewed, I think they were white and blue or white and teal. I thought they were white and red as well. Maybe I'm wrong, because I was thinking that they were right and red in international karate as well. Maybe the initial version, they were white and red that decided, oh, wait, maybe we better change these colors. I mean...

That could have been, yeah, because that, you are right, and thinking about, like, the kind of Japanese two-team colors, right? But that's where I was, like, going to ask is, like, is there a better significance to those two colors where then epics could say, you know, Because, I mean, because me thinking about those two games, as a casual spectator, I might think that it's a complete ripoff of, you know, of karate champ. And so I was going to say, like, if there was an argument to why the colors were white and red, because then thinking, obviously, Street Fighter comes along and we get the same thing, right? White, white and red. And so I was like, if there was a more significant meaning to karate itself, then that could have explained. one of what I'm assuming would be the big points of argument

for why this is a one is copying the other, or was it literally, those are kind of the two, you know, a Japanese company has to pick two colors. They pick white and red because of the kind of Japanese team colors thing that often goes on.

And then epics potentially or, you know, the developer, not understanding that, then just assumes there is some relation to karate for why it's white and red. They do the same thing, and then day to east can say, you obviously copied us because this is not something that would have been normal to the sport. Yeah, that's interesting, because it sounds like the American equivalent of that is just

red team, blue team, right? That's whenever you're splitting into any kind of multiplayer situation, you usually have a blue-tinged and a red-tinged option. So, yeah, no, that's really interesting. I hadn't thought about that. Yeah, looking it up, world championship karate did have a white and red ghee, so, yeah, they did do the same thing. Whether or not that was from Data East or just part of karate as a sport, I'm not too familiar. Because it's one of those, like, tricky things, right?

It's like when you intend, not necessarily intentionally, but when you do something in your creation that makes sense to you, but then would not make sense to the person copying. your creation for them to do it as well, you know, like a misspelling or, or, you know, this or that kind of thing. And so that's where I was wondering, like, if that was one of the kind of catch points to it, it's like, okay, well, why did the American company or the Western company use those same two colors of ghee? Because at this point, that to me would be like a pretty big argument in the case. It's like, if I'm saying they're copying off me, it's like, okay, well, then why did you use white and red? Yeah. I feel like

my friends who are black belts will probably be ripping their hair out at this part of the conversation over whether or not this is a real thing or just something Data East did that epics aped. But also, you know, leading up to what the next court case is going to be, with remember that at this point, like, fighting games didn't exist, right? like I mean karate champ basically

I mean you could also argue you know ER Kung Fu is kind of lays some of the groundwork as well for what a fighting game is going to be common and then like the different characters and bosses and stuff but the fighting game genre doesn't exist at this point so it

it is also a little interesting that we have karate champ and then right after if somebody's making their own fighting game it is a karate fighting game right it's like for all the options you could have of all the choices like there's so few fighting games at this point but it does also kind of help feel the argument of like okay this would not exist if you weren't just trying to ape off of the game that we made yeah but you know I think it does work the epics as favor because ultimately they point out that karate exists like karate is a real sport right so yeah much like you know everyone in 19 in the 1980s was trying to make their own version of baseball, make their own version of golf, make the old version of all the other sports.

Like, Epics, I think, eventually arguments like, hey, look, it's just, it's a karate game because that's what karate is a sport that looks cool. And while I would, well, I would agree that if you look at the Epic game, it is very visually similar to the day to East game, technology notwithstanding between arcade and home versions, but like, there's a lot of similar moves going on. There's a judge back there who's calling the scores. The fact that they go through what looked like international places, you know, the different backgrounds, there is bonus modes, but notably there's no bullfighting in

the epics game, which I think is, if they copied that, I think they'd be in more trouble. They didn't copy the bullfighting, thank goodness. But they also didn't copy the control scheme, which I think is also important, because Karate Champ, of course, had a very distinct two joystick thing going on where you had to use both sticks in conjunction to do your moves. and the epics game does not do that. So I think that was probably a good, an argument in their favorite.

It's like, look, look, we took, karate is karate. We wanted to make karate, but we didn't make it like they made it. We made our own version of karate. No, it is funny because on the one hand, when I say that there were almost no other fighting games, so it's interesting that you're making a karate game.

On the other hand, you could indeed make the argument that, well, if I am making a fighting game, what would I obviously make it after, you know? but, I mean, you could potentially then say, like, okay, you could make like a boxing game, but that wouldn't really be in the same kind of vein. So at that point, with no genre established, then that would be kind of one of the most obvious routes to take it. So it is, it's funny that the argument kind of can go both ways, is there's no fighting game genres. So if you're making your own fighting game, why are you just copying off the one that already exists?

On the other hand, you could say, well, that because that's the instantly obvious thing to base our new game off of. Right. And also, how many boxing games were there by 1985 already, like, a bunch? Yeah. You can't stand out with a boxing game by the mid-80s, unless you do something wacky, like punch it out.

Yeah, so there's a fun the copyright lesson of this case. There's this doctrine called the merger doctrine, right? Which is basically this idea that if you are trying to depict something, sometimes there's only so many ways you can do it intelligibly.

This comes up a lot in software for like obvious reasons. This is a big part of the Google Oracle case. Like there's only so many ways you can get a computer to do math functions. Like, and if we're going to make you do it in original way, it's just going to be this like hugely wasteful roundabout mandate that we're putting on folks. And so this idea of like, yeah, if you're doing a karate game, there's only so many kinds of moves that you can represent that are, still karate moves. There's only so many different kinds of costumes that you can represent

and still be accurate karate costumes. And so, you know, this idea of like, well, if it's going to be a karate game, it's got to have some certain things in common to other karate games. And so it's this like, it's a thing that we kind of like run into over and over again because it really bounces up against like, what's the limit of the, like, how do you define the genre, right? So are you trying to make a fighting game? Because if it's a fighting game, you've got a lot more options. But if you're defining the genre as karate game, then, like, yeah, you kind of have to do certain kind of set pieces in order for it to register as being a karate game. And so this is a, you know, the fight also, you know, ultimately kind of falls down to like, where do you want to draw the boundaries around the genre, which is, you know, that's the core question in all of these sort of cloning instances, really.

Yeah, this is kind of bounced around a little bit. Like, the district court went for Data East an argument, claiming that they were essentially identical other than the graphical changes. And then the Ninth Circuit reversed it pretty much completely. They're like, yeah, they never had access to Data East's work. Or if you've ruled for Data East, this would be very overbroad and vague because of exactly that reason. Like, this is what a karate game's going to look like. You can't, you can only do so much with that. Well, and if you're at court and you've never seen a karate game before this case comes before you,

and suddenly you're looking at the first two karate games you've ever seen in your life, you're going to go, hmm, these look a lot of like, I don't know, seems kind of shady to me. I wonder, I mean, at that point, it's so early in American awareness and martial arts, I wonder if they had to explain to the judge, like, Your Honor, karate is a form of Chinese boxing, you know? somebody unironically being like the Japanese art of karate Where are the devs We need to pour over the court records to find if someone actually said that out loud Well the correct kid came out in

1984 so Oh true true true that's true And uh you know The epics people are still floating around clearly we just need to dig in on this We're going to be able to be. I'm sorry. I don't know what I'm going to do.

I'm going to be. I'm going to be. I don't know. I'm sorry. I don't know. I'm not. I'm not. I'm not.

I don't know. I'm going to be able to be. I'm going to be. And, yeah, that led directly to the next case, because Data East ended up citing their loss here as precedent, which is my absolute favorite thing. It's like, well, we lost that time, but maybe we can turn this to our advantage. Dear Judge, please see how badly we got owned in the last case. Don't let it be for nothing. And this one is Capcom versus Data East.

This is the big Street Fighter 2 Fighters history case over, you know, fighting games. And a lot of great stuff's come up recently online over it. You know, Molly, top of the show, was talking about a certain videotape if you want to dig into that. that I've had for, I think, like almost 30 years now. No, it's funny because, you know, because I went and worked at game fan back in the day, and the offices were just full of all these things that the company had received and whatnot.

And I don't remember if somebody pointed it out to me or if I just kind of found it on my own, but I had remembered seeing this tape of the data east trying to make the argument that their fighting game fighters' history was not a copy of Street Fighter too. And I had just always found to be a fascinating video. And at certain point, some things

happen with a game fan and people started just taking random things home that they want to take home. I had taken it home. I had put it in a box and it had just forgotten where I'd put it for years and years and years. And then finally, like, I'd come across it again. And I was so excited because I remember this being like such an interesting thing. And it is. It wasn't the whole that I was hoping it was, but it's this kind of argument from day to east side about why their game, Fighter's History, is not a clone of Street Fighter 2. And it's funny in some ways, and some of the things seem completely pedantic, you know, and stuff. But it's so rarely, I think, we get to look at like those kind of pieces of history from these kind of cases. And so I was really

excited to have kept that tape and had it still, I could put up on YouTube. But it was, it was just a funny argument because, you know, if, like I would say before, if Capcom wins this, then fighting games are, like, who knows, right? Like, who knows where fighting games would be at this point? And it's especially funny to look at Capcom's argument when, on, on, like, one hand, they mentioned this in the tape and the evidence tape that Capcom has submitted like one piece of artwork for each one of their characters to prove. And it's these, um, these just, I'll say it, god-awful, like, pieces of American side art for from a company that has these legendary artists who have worked for them over the years.

And like, these are the one sources of evidence that you're submitting for your characters. And also, yeah, it's like, it's like the artwork I think about of like the, when they made the G.I. Joe Street Fighter figures, like on the box art, like that kind of stuff. But then also it's just like, when you start to think about it more is is, is Capcom is making the argument that Data East is basically just ripping them off in terms of the character designs and the kind of styles and the moves. But on one hand, it's like, when you learn all of the sources, that Capcom took from to make those Street Fighter characters. It's like, how dare you, Capcom? It's like, of all the things you could argue, it's like, you have

no space to argue that somebody's ripping your characters off when I can find an anime still or a manga page that will show each and every one of your characters pretty much where their sources

and inspiration came from. But no, I mean, like, it's in the bigger picture. It's like if Calcom had won that, you know, could other fighting games have fireballs, you know? Could they have attacks in special moves in the way we think of them today? You know, like what would be changed? What would be different about fighting games if Calcom had won? Yeah, it's really funny that you brought up the anime and manga stuff because once again, Bill Conkel was brought in as an expert witness.

And once again, he is a comics nerd. So he was familiar with Japanese comics as well, a rare thing in, you know, 1993. But as part of his, you know, expert witness duties, he pointed out that, you know, Capcom was plundering these character designs from these other works. So, like, who are they to stand out a leg on this particular case? God, how do I get that job, honestly? Just like being an expert witness for being like too online. Like this is, like, you know, expert witness meme explainer.

I feel like this is like an underrepresented calling. Boy, I sure hope I sure hope Bill Kunkle back in 1990, whatever, got to explain Jojo's Bar venture to a judge. I hope so. Right. I wish I was in court. Yeah, can you imagine, can you imagine like what that conversation? would be back then.

Your Honor, see, they breathe a certain way. And by breathe a certain way, they channel power into their body. You know what? It's funny because I do recall, because Drew Mackey, he recently uploaded, like, two weeks ago, a bunch of court documents, and he donated the copies he got from the National Archives to the Video Game History Foundation, so they're on, like, their website as well. But in there, it's like, yeah,

He had to explain the concept of, like, Chi to this judge who just wanted to, like, rule for Capcom and go home. But after he, like, came in on, like, the first day, and Data East's lawyers, like, convinced him to let them, like, do a little bit of the court case. It's when he finally realized, like, oh, there's actually something here. But it just cracks me up. And it is wild. It is wild to see that Akira Nishita, at least in some capacity, asserted that the characters in Street Fighter 2 were all, like, except from the ones that came from Street Fighter 1,

the assertion that all of Street Fighter 2 characters were wholly original. I could... Yeah. I've never seen these characters before in my life. I like the claim that they didn't go after Mortal Kombat because Street Fighter is a realistic fighting game, and Mortal Kombat is a fantasy game with fantasy characters. But it's interesting, though. And not at all because, you know, Midway had a lot of money and could take them to the cleaners.

It is interesting, though, because if you talk about, like, from a gameplay standpoint and certainly, like, a command standpoint, Moral Combat certainly went out of its way to give their characters unique commands, you know? Yeah. Like, Moral Combat, at least Moral Kombat 1, I mean, the initial Mortal Kombat's in general, but especially Mortal Kombat 1, like, that game did not play, like, Street Fighter 2 at all, you know? Like, those commands were very different. And similarly, I would say, you know, like, you go with something with, like, Primal Rage. Primal Rage was also, like, a really weird control scheme for a fighting game at the time.

And I think it's telling how one control scheme kind of took over, and it's kind of the standard today, whereas the other ones, the weird ones kind of just went away. It's like, no, we're not going to hold, we're not going to hold buttons and move joysticks anymore. We're not doing that. We've decided. Yeah, save that for your 3D games. Yeah, I mean, to be fair, back then, like, you know, I remember when Fighting Fighters history showed up in the arcade, our local arcade, and everybody called it a Street Fighter 2 clone, you know? I mean, like, let's be honest, it was, it was, it was. But was it uniquely a clone? Was it uniquely different than anything else? I don't think so, you know, there were so many already. Yeah, I mean, the thing is, it's like, like, there were clones and there were copies, right? And, like, I don't think of any of us would have ever called it a Street Fighter 2 copy, you know, or a rip-off, but,

Um, it was absolutely a clone and, and we understood, we, we, we, you know, something like, World Combat, you could argue, okay, it exists because of the success of Street Fighter, but this is a project where clearly they have put a lot of work into making their own thing, you know, and you could even say maybe it's the case of they got, they finally got the courage to try because they saw Street Fighter's success, you know, um, fighters history, I, I, I think, 100% it existed because Tree Fighter 2 existed because Street Fighter 2 is popular and Data East saw an opening, you know.

But that doesn't mean they just ripped off Capcom and they ripped off Street Fighter and said with the video that I posted, we're only obviously seeing Data East side of the argument. You're not seeing the full thing. But, you know, when you look at kind of some of the arguments of like who is

being said to be a ripoff or a clone or a comparison to who, just some of it doesn't make sense, you know, and it's a certain level where, yeah, unless you're going to say nobody, again, can ever do fireballs, nobody ever can do like a jackknife kind of kick, stuff like that, you know, unless we're saying that, then, then you can't say it's a copy or ripping off Street Fighter. It, 100%, 100% exists because of Street Fighter 2 and because they wanted that Street Fighter 2 money, but it's not just stealing Tree Fighter 2 stuff.

Yeah, and like the special moves, like, you know, that is a big point of differentiation with Mortal Kombat and to Capcom's credit, their expert witness, which was a kid named Glenn Rubinstein. He was like 18 at the time, I think. His argument was

that Mortal Kombat was too dissimilar to be of any consequence to this case. And in the case of fighters history, like the way that Cuncle sort of ran through it, and the Data East lawyers is like, look, the control scheme Street Fighter 2 uses is, for these special moves, is very intuitive. Like, you're kind of following the motions of what these characters are doing when you're

doing these moves. Like, Capcom brought up Giles Flashkick, which is like his, you know, down-up somersault kick as one of their, like, arguments as a move that they ripped off. and the Dated East folks were like, well, let's look at what he's doing. You're holding down, he's crouching down, then you push up, and you push kick. And then he jumps into the air and he's kicking. Like, you're just following the motion of what he's doing. And it wouldn't make any sense if you had to, like, hold up and then press down and make him do it. Or, you know, go back to forward or something like that.

And that was apparently very convincing to the judge. Yeah. And I mean, there is, and there is like, even at, outside of video games, like, there's a thread that runs through a lot of copyright case law that basically says, like, for things like control schema and menu layouts, it's like, well, somebody kind of figured it out. And now it's okay to copy because it, it eases the barriers to entry for new users. And so, you know, there's a reason, you know, that, like, the right trigger is the fire button on it. Like, every first person shooter now, right? It's like, it's because it, it's because it. works and it's what we've been trained to expect. And so that's not a grounds on which you can like come after somebody for copying like your exact control scheme on some of these things. Now having said that, you know, Dera O'Brien has a great comment about every time you play a new game, you spend like 10 minutes trying to figure out which of these buttons isn't crouch.

And, you know, and it's like a super common frustration. And so it's just funny to like go back, you know, and read this case from a time period where we hadn't really. come to acknowledge that, like, no, actually, like, you know, sort of directly mapable control schemas are actually great because it means that people pick up your game a lot faster because they've been trained on somebody else's. Well, and as I'm kind of mentioned a few minutes ago, there would be fighting games that would try kind of like vastly different control schemes, and we don't have them anymore because they just didn't work and they were just crazy.

You know, I mean, unless you're an S&K fan and you're still trying to perform some of those special moves that still do not make sense in the year 2025. Yeah, you know, like, it really was a case of this stuff just was copied because it makes sense, not because they were just copying Street Fighter 2. I'll be deep in the cold, cold ground before you take away my geese pretzel motions. Yeah, I'm going to push like down, back, forward, up, down, forward, you know, left. It's just, yeah. You're going for the Duck King

Super, I see. Charge up, stupid. Charge up. I remember when we thought like Capcom's, you know, dual 360s were a hard thing to perform, then you started getting some of those S&K fighting games.

I just, before we move on, I just have to say out loud, shout out to Etzko Otelman. I don't know where she is today. I hope she's doing well because her performance in the videotape is just extraordinary. She is so mellow, she is so just control, and in control of herself, 90s fashion icon, I hope she,

I hope she's all right. I tried Googling her to, like, just, I had to know, but Google does not help. Yeah, yeah, I couldn't find anything about, like, you know, where she was at now, or, and they passed this. Yeah, and man, I said, I wish I had that second part of this tape, because there was the, the way they went more into the moves and stuff like that. But no, like, it was, like, I was really happy to find this, that video, and it said it's, Really neat, just because, like, in our age now, right, we expect so much this kind of stuff to still exist and still be around and everything. But, you know, this tape was made in, in 1993, I think it was. And so much, you know, I mean, I'm assuming they sent it to the game fan offices.

Everybody sat around and watched it once and like, yeah, that's pretty funny and interesting, you know, and then that was it. Like, they might, you know, there wasn't even like a website at that point to write a new story on. there was no way you were going to upload this video to or anything. So, like, that might be, like, the only existing copy of that video that still was around today. So, like, I was so happy to find it. And I wish we could find more of that kind of, like, historical stuff on things like this. Because it's just so fascinating to be able to watch. Yeah.

So there you go. If anyone has part two of this tape out there, you got to get it online. We got to know. Also, if you know at scope, please. Give her our number. We need to talk to her. Let's go. Where are you?

I just know you're okay. It's true. We could do an interview about the confidence she put forth talking about these two machines. So this was like, I don't know, the last big one I could find for a while, as far as, like, game lawsuits, I feel like this sort of set a very solid precedent that no one was really digging into too badly for a while there, unless anyone else has any that spring to mine. no. So we'll jump ahead to a 2012 district court case. Tetris Holding versus Shio Interactive. It's XIO. I don't know how you pronounce that. It's about mobile games.

Surprise. They're here. We've arrived. This is about a mobile game called Meno. That was effectively an online multiplayer version of Tetris for up to five players. It had two modes. One, mostly played like Tetris, but it had like a slow function that you could like build up the meter by clearing lines.

And it had like an alternative mode where you could like, you had a freeze mechanic. You could freeze the screen and had like garbage blocks pop up. But it's like, it plays like Tetris. It's, you know, line up blocks make him disappear. Had the same block shapes and everything. Same basic visual language to. where everything's made up of squares. So Tetris, the Tetris Company, was very active blocking Tetris clothes that got a little too similar.

So I guess, like, you have that going on post-Data East and probably pre-Data East. And sort of, this one kind of, this one's interesting because this was developed by one person, Desiree Golden. I believe she had just, like, gotten out of university. she talked openly about Tetris being an influence on this game, which was probably not the smartest choice when making a Tetris clone. I mean, I just, I know you have to try to protect your interests, but I cannot imagine standing up in front of a lawyer and saying, so is your game based on Tetris?

Are you familiar with Tetris? And she's saying, Tetris, what? Yeah. Never heard of her. I just, you mean, the exact same shapes and the exact same blocks, the exact same playfield? I'd know. I'd say it's parallel thinking,

Your Honor. Fifteen years later. Independent creation. Yeah, there are elements of Tetris that like are not subject to copyright because like it's based on an actual game.

Just like a computer version of that. But I just I'm sorry, it just hit me. I was like, why did they call it Meno? Are they big fans of the small suburban town in Osaka? No, no, no. It's because the original blocks were called Tetramino's. Oh, right. So it's like, it's not

Tetris, it's Mino. It's like, I just forget it out on air. Oh, my gosh. Desiree is more clever than we expected. I wonder if the judge thought of that one. Maybe not. Basically, their argument was that the elements they copied from Tetris couldn't be covered by copyright because they were part of the rules and the function and expression

of the gameplay, which they were claiming could not be protected. The courts basically said, well, these two games are basically indistinguishable in most audiovisual respects, unless you knew which one's which. And like, there's images in the documents here of just like, here's the two games side by side. Can you tell which one is which? And probably not. And then, you know, you had other aspects like the playfields. size is exactly the same as Tetris.

Like, the little shadow pieces showing where your blocks are going to fall, those are the same. The display showing your next piece is the same. When you game over and the screen fills up with blocks and all the gaps, that's the same. So, it's like, you come into this and you're like, wow, they just like went right against all this precedent that was sort of supporting these people, like, making quote-unquote clones. But then you sort of dig into it and you're like, wow, this was a bridge too far. This is what lawyers call bad facts. This is, and you know, the other thing is like, we talked about this a little bit earlier

about how differently people react to it. And like at the end of the day, like judges are people, right? They exist in the world as much as they hate to admit it. And this idea of like cloning an arcade cabinet game in the 70s in the early 80s, is one thing, and then you get this, like, kind of evolution towards more of a vibes-based look and feel sort of situation by the time we get to mobile games. And, you know, we're seeing this right now actually play out in like generative AI situations where a lot of the ways that we have thought about what constitutes copyright infringement and what constitutes fair use

are really informed by, and never explicitly, but they're implicitly sort of informed by this question of how easy is it for someone to get in and start doing something like this at scale? And so when you've got like a handful of very small players, I mean, this is like early software, right? It's like you've got a lot of folks out there like making operating systems or whatever. Like the capacity just wasn't out there as much.

And so there tended to be a lot more like, oh, well, okay, we're not super worried about infringement. Like you can get a little bit more leeway on these things. But now that everyone, you know, it's like such crazy low barriers to entry, there's this sort of unspoken, like, well, if we don't tamp down on this now, then it's going to run amok. So we need to be a little stricter with it. And, you know, the Copyright Office released this report on generative AI and like training using copyrighted materials in the training set. And like, you know, it's a complex report. There's like 110 pages of like up to your eyeballs and fair use of jurisprudence.

But like running throughout that is basically like this is a tool that now anybody can use to start producing, you know, works that sort of look, you know, are passively human generated at scale. And so that like a difference in scale means a difference in kind. And we need to start thinking about these things differently, even though that's not ever a thing that we've ever like explicitly baked into the calculus, right? It's just sort of this quiet undercurrent that we've always had there. And so I, you know, I kind of wonder, like, as we've seen video games mature and start, like, you know, going through growing pains and becoming this enormous industry that they're in nowadays, all of a sudden, you know, partly it's anybody can come in and make a knock off and that kind of makes judges break out in a cold sweat a little bit. And also, it's like a multi-billion dollar industry right now. Like, there's a lot of very, very wealthy companies with a lot at stake. And judges tend to be very hesitant to, like, you know, tip over the dominoes on anything that's quite that valuable.

And so it's kind of interesting to watch how that's affected the way, you know, the more the willingness now of judges to go with more of a like, well, it's sort of a look and feel vibes-based jurisprudence as opposed to this very regent, like, regimented sort of analysis that in theory they are supposed to be doing under the statute. In theory. In theory. A lot of that going around.

these days. I was, you know, I was just curious because, like, thinking about this whole mobile market and I got into mobile games for a little bit. I don't play very many, but there was a couple. I'm just, you very quickly, when seeing ads and stuff, see, like, how many, like, boy, I recognize that game. I recognize that game, but it's a completely different name and stuff like that. So I did a quick, I did a quick search for Tetris on the Apple App Store.

And I think this is just a perfect thing for me to find is just, like, a few things down. I find this Tetris clone and one of the very first screenshots of it is they have with the Tetris pieces they have built the Mario Sprite from Super

Mario that you have to get rid of with the falling Tetris pieces and it's just that to me is just a perfect encapsulation of what the mobile skinny market is at this point Yeah Yeah

That's wild It's telling that, like, there's another lawsuit that I came across, but, like, there was no point really digging into it too much because it's basically just, like, the same basic premise as this, uh, this Shio holding or Shio interactive piece. Uh, it's like, oh, mobile game, ripping off Tetris, settled out of court. But, I mean, you know, like, like, what Meredith was just saying about the fact of, like, you know, wanting to get ahead of the, the tide that's coming, like, I don't even know if, if we can stop the tight anymore. I don't know if we're just way past that point because I said if you look on even our consoles, right? If you look in like the PlayStation store or the Xbox marketplace or whatever like that, even there, you'll see games. It's like, wait a minute, how does this exist? Like, how is this up there?

Like, why is this allowed to be there? I mean, that's like, I don't shop at Amazon anymore in part just because you go on there. And it's like, okay, this is clearly not the legit product. Is somebody just knocking it off? And, you know, like, what point does that end? And so, you know, we went from a beginning of this story to it's like, we don't even know what video games are. And if we're trying to fight for protecting them, we're stopping the entire industry from existing past this point, from genres existing. Now to a point it's like, is it just everybody for themselves?

Is it just do what you want? Is, are there no rules anymore? Or is somebody going to stop these, these little knockoffs from continually popping up? And are they not stopping them because it's still making somebody money somewhere, you know? And the eternal question is, who's the one responsible for stopping them, right? And that's when you start getting into things like, do app stores have to, you know, how much proactive monitoring do app stores have to put in there? You know, it's not a question of like, can you sue all the little knockoff developers into existence? because that's like, you know, arguably an infinite field.

So like, who's the one who prevents that stuff from getting to market? And that's when you get into like all the problems of, you know, app stores and like all the competition problems that come up in that. And like, well, if you've only got a, you know, a two app store ecosystem, if you're either running on Android or you're running on iOS, like, you know, one of them's got a slightly more open app development window than the other, but you know, you fundamentally have two options and what kind of problems does that create? So now we're getting into my day job. It's time. It's time to reopen the burn convention and answer all these questions.

Look, if I had a time machine, I would go back and destroy the Contuit report in 1960s, which is what gave us the idea that software is really just a novel. So, you know, I'm very clear about where I stand up these places. Diamond, you were about to say something a little bit ago. Do you remember what that was? I just wanted to put out that I suspect that the company that Tetris Holden defeated, it might be called Cross I.O. Interactive? No.

Cross I can see that. It's not really funny or irrelevant anymore. Sorry. Yeah. I just feel kind of bad because, like, she insisted that, like, all this stuff is what her legal counsel, like, told her was allowed under copyright law as far as like making a Tetris clone

and I feel like her legal counsel was not very good in this particular instance. That's a real Lytle Hutz moment. Yeah. That's why you don't get your lawyers out of the mall, especially if they also double as a shoemaker. No, comma, infringement, exclamation. Yeah, yeah, yeah.

But if it says no Tetris clone, it says, no, Tetris clone. Spar Association logo shouldn't be here either. well anyone have any final thoughts uh let's go around uh start with uh molly since you were the last up at the beginning i was going to see what everyone else's final thoughts were and then think of my own final thought no you know um clones right what are you going to do with them uh i think you know at the end of the day as somebody who does writing who does design who does create things who has friends who create things

you want to protect your work you know you don't want to be everybody just out there ripping you off and ripping off your hard work and stuff but the reality is video games we have to have some amount of copying you know good artists copy great artists steal or whatever it is

if we're not doing that in video games and video games aren't existing and video games aren't going on and on you know even these days I mean you get to a point where you'd say okay all the games never going to exist have been created. We know all our genres and everything.

And then along comes a Dark Souls, you know, or along comes something else. I was going to say Bellatro. I haven't played Bellatra. I have no idea what Bellotro is. All I know is that and that Blueprints game everybody's playing, so maybe those are going to create something. I don't know. But you have these games that will come along and then just completely redefine things.

And even if it's not making a whole new genre, it's teaching us new things about games and new things that we want from games and new ways that we can interpret things in games. And sometimes we say, you know, well, you can't just copy that and put in something else, but if we didn't do that, then we would have absolutely no platformers beyond Mario that had good physics in them at all. You know, we would have no puzzle games, period. We wouldn't have fighting games other than the Street Fighter.

You know, we wouldn't have all these other kind of things. Survival horror, right? could Resident Evil have existed if the team behind alone in the dark, you know, said, hey, this is too close to our game. Watch what you're doing. You know, so at a certain point, like the cloning, the copying, even sometimes just trying to make a knockoff, it produces something brand new, and that can grow into something wonderful and fun and exciting, and then that can create new things, and then that can give new inspirations to new

developers and designers and players and whatever else. So like it's that's the that's the reality is our medium is one where interactivity is really important and it's not just about looking at something or reading something or listening to something and that interactivity makes things a lot more complicated but also means that once we've figured out that a trigger button should be the thing that does a

gas in your car or this button should be canceled and this button should be except even if Nintendo wants to always do it backwards you know that's the way things are supposed to

happen and this little stick is supposed to move me and this little stick is supposed to do the camera we don't need

to reinvent those things over and over again and at the end of the day the cloning and stuff

has been a bigger benefit than a negative until we get to this era of mobile gaming and everything's going to just

eat itself and there's going to be no more games because everything's going to be copied 100 million times and it's going to suck anyway. So just enjoy your games while you can. And the rest of the world burns

around you. And that's my final thought, I guess. I took a bit of a turn. We get slowly eaten by slop. We're all dead. You're dying. We're all dying. Every second of you're alive is one second closer to your death. Enjoy. Entropy always wins. Meredith. What about you? Big, big 20-25 mood. Yeah. I mean, I think, like, just plus one to absolutely everything Molly said. I think it's, you know, the difference between an homage and a knockoff is just really how aggressive the lawyers involved are at the end of the day. And this is the thing, like, people ask like, oh, well, is this going to be like kosher under

copyright law? And I think, you know, there's a bunch of different ways to think about human creativity, right? I think we tend to assume that everybody is thinking in terms, like, with copyright law the back of their brain and they're not because again that's a most people don't understand it and frankly as a copyright lawyer i often include myself in that bucket and it's not it's not a framework that's designed around the contours of how people actually create and make culture and so i think like it is sort of an ongoing dialogue and the idea that folks are cloning You know, again, you can call it cloning, you can call it knocking off, you can call it homage, you can call it sort of like iterative development on genres and ideas is like a good thing.

And I think the thing that ends up controlling more than anything else in video games is that the industry still has a very strong culture around this that has not been completely subsumed by attorneys yet. my fellow bloodsuckers have not completely gotten our hands on the ship of state here but there is I think there are norms within folks who develop video games

and there's norms of what you take like where the lines are what's okay to borrow and what's not okay to borrow and we only ever kind of hear about the cases where somebody crosses that line right because they're the ones that surface into court records if you get to a court record something has

gone very, very wrong. And somebody has crossed some invisible line somewhere. But, you know, that kind of, like, that sort of elasticity of expression is something that folks navigate every day when they're creating all kinds of art, not just video games. And so the end result is, like, you're going to have iterative storytelling. Like, I'm a romance novel fan. And you want to talk about, like, iteration on the same ideas all the time. You know, people actively organize their preferences around repeated,

tropes. Like, we are all just finding our favorite tag on AO3 and just reading through it top to bottom all the time. And I think like, you know, video games are not an exception to this. And so it's going to be really interesting to see how, you know, these new games that periodically come

out, like Molly pointed out, like we get dark souls, we get a, or I guess technically Demon Souls is probably the first one of those. But like, you know, we get one of those, or we get a blueprints or we get a balatro or we get like journey. And then all of a sudden, and everything's kind of like, oh, we haven't thought about doing that before. And suddenly there's a new genre out in the world.

And so I think it's going to be interesting to keep watching. And I'm going to be really curious to see how much the old norms and the old both like social and legal end up holding up as more and more people, you know, have access to tools to make these things. And Diamond, how about you? I mean, I get, I get, I get, I get why people get so. passionate with this, because I feel like, even if you're not a creative person, which I like to think I am, I do feel like when we go outside in the world, we're always hoping to see something exciting, you know? Even if, you know, like right of said, like people want things. Like if you go outside, you want a cheeseburger, you're going to look for things that, you know,

cheeseburger-shaped food, right? But there's something really disappointing when you go on, especially today when you go online and you just see like, oh, there's five different things that look like one popular thing, you know, it just feels, it feels like someone's cheating. And I think like everyone, I think every one of us wants, we have some idea in the back of my head about what's, what's fair and what's right. And when we see people who are, you know, in our eyes, cheating, we get upset about it. So, you know, when I look at, when I open a video game storefront, and I see, uh, I believe it was called, I want to say it was called intense mouthwashing with a close up of a, of a face wrapped in bandages, I'm like, oh, great.

So you really, you loved, you loved mouthwashing last year so much. You had to make intense mouthwashing with another guy with bandages on his face. Good, good job. And like, is that, is that game interesting? Does it do anything remarkable? I have no idea. But I'm kind of angry when I look at it, which is just not a great feeling, you know? I don't like that feeling.

So, yeah, video games, to some degree, have to borrow from one another. We got to learn. We were learning together. We're growing together. And certainly when you play, video games, I'm always going to look for something I want to play for whatever reason, you know? But boy, sometimes you get really disappointed when you see what happens and how people

try to make their money, even though we're all kind of trying to make money for the same reasons because we all need our money. It's just, I don't know. Is there a moral here? I don't think so. The moral is that you're saying you want mouth-washing souls is what you're saying. I need mouth-washing slop, I guess, is what you're saying. It's coming.

Well, as for me, I pretty much agree with what everyone was saying here. But, yeah, for me, it's really one of those things where up until sort of the early 20th century, the idea of just like taking what someone else has done and sort of iterating on it or just, you know, outright ripping it off for something you want to do. Like, that was pretty normalized. And then you sort of had modern copyright law move in. And all of a sudden, no, now you can't just, you know, play other people's songs. You have to always write your own songs. You can't just remake someone else's, you know, book is like a movie or whatever. You have to come up with your own works or pay them money.

And, you know, video games, they're very much like that they've come up well into this era. and I don't know if it's necessarily to their benefit, but it kind of is what it is. I have mixed feelings about it. Like, I enjoy when a clone is doing something, you know, interesting and iterative. Even if it's not, like, great, like, you know, Fighter's History, it's neat. It's got Karnov there, but, like, it's not amazing, but, like, it leads to better things. like fighters history dynamite you know card off revenge that's a pretty solid game like I like that game a lot it's really good and you wouldn't get there without the first

fighter's history game which you wouldn't get without Street Fighter 2 which you wouldn't get etc etc so I don't know I'm in favor of clones as long as they're not going to the point where they're like oh yeah this is the exact same thing you want only you know it's a little bit cheaper and don't look too closely at the fine print. It's the, it's the, oh, there's a new Disney movie out, so here's the, here's the knockoff version of, you know, Aladdin that you could find at the checkout aisle of your local grocery store. on the way I'm too darker

He's on the line We'll take incubation Another day So with that This has been Retronauts And this is a Patreon-supported show If you are already part of our Patreon That's wonderful

We love you Thank you very much And if you are not part of the Patreon You can join at patreon.com slash Retronauts At the $3 level, you get each episode one week early at a higher bit rate, and at a $5 level, you get access to the Friday bonus episodes, you get access to Diamond's weekly columns and monthly podcasts, the community podcasts, good times, and the Retronauts Discord server. So I absolutely recommend you do that if you will like this show and want to keep us going. And where can we find you?

We'll start with Meredith. Yeah, so I am on Blue Sky. My handle is M.rose.Inck. And that's pretty much silly social media I use nowadays. All right. That's probably for the best for everyone's mental health. Would that I could be so smart. Diamond, how about you?

Well, you can find me in real life in Meno tonight. I'm going to the movies over in Meno. But on the internet, you can find me at my website, fightclub.me, F-E-I-T, that's my last name, C-L-U-B, that's an English word, free word, you can, no copyright in that word, dot m-E. You know, I often wonder if Chuck Pollanick got mad at me if he could try to sue me. I don't think so, but maybe he would. Anyway, fightclub.mee and also FightClub on most other services. I've been streaming. I've been skiing. I don't know what the, we haven't fict of her for that website yet. Yeah, but I'm active in Kevin already talked about most of I write, so yeah,

enjoy. Thank you for having me. And Molly. If any of my nonsense on this show was interesting to you, you can follow me on Blue Sky. Just search for M-O-L-L-I-P-E-N. If you search for me on there, you'll find me. It's whatever the basic Blue Sky names are. But that, But also, if you want to go check out 30-plus years of my work, I've got writings, I've got reviews, previews, interviews, like a two-hour interview with someone named Hideo-Kujima, for example,

tons of other interviews up there. My design work, I've still got lots more going up than I'm putting up month by month, but it's a great archive for my work. Once again, M-O-L-L-I-P-E-N.com. you to my site. The site URL is actually my full name, but that's a quick link you could take to find me. And once you get there, if you need my blue sky from there, you can do that or find my other socials. But I am also a blue sky person now. I'm all in, and that's where I'm at. So, yeah, go check those stuff out and see what I've done. Now, Hideo Kojima, that's a

great example of a guy whose every single character has just formed completely wholly inside his head. Zero zero inspiration is taken from the outside world. The man is a super genius levels we can't even comprehend. Well, you know, I heard that he had a lot of respect for Quentin Tarantino and he really wanted to follow him in Quentin's

footsteps, you know, so they are both two men dedicated to never, ever, ever using any ideas from any outside sources. They may have ever seen heard. God bless and protect him. Koshima just came up in a Faraday cage. That's all there is to it. Famously not influenced by

anything. Yes. And as for myself, you can find me. I have a website, Atariarchive.org, which is also my username on Blue Sky. Atari Archive is also the name of my YouTube channel, where I've been going through the history of the Atari 2,600 platform in chronological order through its releases. But really, it's about the broader history of video games, using these is jumping off point. And if you like that, I also have a book that's for sale through limited run games and on Amazon, if you want to buy things through Amazon for some reason. And that is Atari Archive, Volume 1.

Sneak and peek, hidden jam or complete trash? Sneak and peek. You know what? That is coming up in my video series. It's like three episodes away. At this point, I think it's kind of trash, but we'll see. see where I land, but I actually, like, sit down with it and drag another player in. You mean that a Atari 2600 video game based on hide and seek, where you have to get

the second player to turn around and not look at the screen while you're hiding, in a world where, for some reason, you can hide in the sidewalk outside of your house is complete trash. I will not stand for that. You know, what's the big difference between that and golden eye when you come down to it? You're just screen watching, right? Um, so yeah, you can find me and all that. Uh, and with that, thank you all, uh, for joining me, and thank you for listening. Good night.

I'm all alone, so are we all. We're all clones. All are one and one are all. Oh