Essay

“Expressive Code: Videogame Copyright in the Early 1980s”

Introduction

Though still in their infancy in the early 1980s, videogames were already big business. In less than a decade after the introduction of Pong (1972), one of the first commercial videogames, revenues from arcades exceeded $1 billion (Stern, 86; Hemnes, 171). Pac-Man alone accounted for $150 million in sales in 1981. With this rapid influx of profit in a burgeoning medium, competition grew quickly and aggressively. Financial mega-hits such as Pong, Pac-Man, Galaxian, and Space Invaders created a host of imitators eager to collect their share of the cash windfall. Companies producing videogames soon felt threatened by these second-order ‘pirates’ and sought to protect both their programming investments and revenue streams through litigation.

By 1982, there were several important cases tackling the issue of videogame copyright. A survey of court decisions from this time reveals widely inconsistent legal opinion. The only consensus appears to be an inability to apply existing copyright law to a newly emerging media. The courts were aware that videogames (and software in general) posed new problems without clear legal precedents, but they continually sidestepped the deeper problems of the copyright system as a whole by foregrounding aspects of videogames that were more amenable to existing media. Thus these early decisions shoehorned videogames into audiovisual or literary categories, rather than reevaluating the underlying framework of copyright law in general.

Part of what I hope to develop in this paper is a general sense of the language used to describe videogames in the early 1980s, especially as it pertains to copyright law. I argue that a large part of the problem the courts encountered has to do with the multi-layered textuality of the videogame media. It contains a multiplicity of interwoven forms, from narrative to performative, that resist the existing dimensions of copyright law, often in contradictory ways. Furthermore, by attempting to bracket videogames into the models of older media, such as literature or visual arts, the courts reveal many of the hidden assumptions of our current copyright structure. Among them, the foundational idea/expression distinction and roles of authorship break down in light of new media practice.

Case Study: Galaxian vs. Galactic Invaders

In 1981, a copyright infringement case was brought before the U.S. International Trade Commission (ITC) by Midway, the U.S. manufacturer of hit arcade game Galaxian. After the game’s initial success in the States, foreign importers began to unload and duplicate Galaxian ROMs (essentially the game’s source code, stored in non-rewritable hardware chips), then resell the copied game as Galactic Invaders. Midway maintained that these importers were actively participating in piracy, while the importers argued that they were participating in free competition, benefiting the public by driving down prices and broadening supply.

Midway’s proposed claim to copyright was a series of videotaped performances deposited with the Copyright Office. Early arcade games typically had two modes: attract mode and play mode. Attract mode was essentially a demonstration mode intended to ‘attract’ players. The hard-coded routine showed off the game’s basic functions in a short looped performance. Play mode began when a player deposited a quarter and took control of the game. The registration of videotaped attract/play modes was common in the early 1980s, since videogames did not have their own copyright category. Instead, they were registered as audiovisual works, with videotapes serving as a record of their content (Stern, 93).

Midway’s main contention was that their copyright registration covered all possible performances of the game and, by extension, granted copyright for the Galaxian game in its entirely, as an audiovisual work on par with an animated cartoon. Secondarily, they argued that several subroutines present in the game’s code (and manifest in the audiovisual work) constituted identifiable works of authorship (e.g., the distinct semi-circular motion in which the spacecraft would peel away from the horde in order to attack the player’s craft). The importers’ counter-argument was that registration of the attract/play modes protected only those specific performances of the game recorded to videotape, but not the game as a whole. Further, they argued that the only significant work of authorship was the program itself, meaning the actual text of the source code, which was not protected by copyright.

The importers’ distinction between source code and audiovisual representation seems far-fetched when the final result is a duplicate game housed in a rebranded cabinet, but there was specific legal precedent to back this argument. As Hemnes notes in a 1982 University of Pennsylvania Law Review article, courts considering the issue up to that point held that all videogames were “entitled to copyright protection as audiovisual works independent of the underlying programs” (Hemnes, 179). In fact, many ruled that copyright protection did not extend to games as a whole, since their specific ‘methods of play’ fell on the wrong side of the idea/expression formulation. As Stern notes, “To protect a game by copyright would be to protect an idea, rather than just to protect the tangible expression of an idea. The latter is all that copyright may permissibly do” (Stern, 86). In short, the source code and its constituent play mechanics are ideas. Only the resulting audible and visual expressions of those ideas are protected by copyright.

The ITC ruled accordingly, affirming Midway’s claim to copyright infringement over the specific attract/play mode sequence, but not the game as a whole. Specifically, they called them ‘modes of expression,’ reinforcing the distinction between a fixed repetition of images (again, like a cartoon) and the actual code that produced them. The importers’ attract mode was identical to Midway’s (since their hardware ROM was copied wholesale), and that was enough to rule in favor of infringement. Stern argues that the ITC sidestepped more nuanced problems by focusing on the audiovisual aspects alone. For instance, questions of human/computer co-authorship (in the game’s performance), the statistical improbability of duplicating the original videotaped playthrough, and duplication of machine hardware, were ultimately left unresolved. These are a few of the questions I will address in the following section.

The Multi-Layered Text

A single case study cannot encompass the wide variance in early videogame copyright law. However, it does serves as an illustrative case for examining the key ways in which the medium was contextualized in light of other similar media and the language of copyright in general. As we have seen, videogames are texts with multiple layers. [1] They contain a mixture of various media, so tracing their contours will give us a better perspective on the ways that videogames both challenge and contradict the fundamental assumptions of copyright law. I want to address each of these layers in turn, both in relation to the previous case study, but also to ideas of copyright in general.

We’ll begin with the narrative layer. In 1981, videogame narrative was minimal, at least in arcade games. Hardware limitations curbed the development of intricate storylines in favor of single-screen action sequences, favoring memorization and quick reflexes. The arcade strategy (from an economic perspective) was one of quick deaths and escalating challenges, the perfect recipe for rapid quarter consumption. Narrative nuance had no place in the sensory-overloading arcade environment. Console and mainframe videogames fostered a bit more sophistication, but some of the best examples (e.g. Zork) were text-only adventures. Most narrative-oriented justifications for videogames came after the fact and worked in general abstractions such as: ‘You must defend x from the evil forces of y.’

Consequently, the narrative layer did not factor into the Galaxian case. The narratives were obviously identical in both Galaxian and Galactic Invaders (since they were copies of the same hardware), but a copyright claim on those grounds would have proven futile. Their narratives operate more in the realm of genre (e.g. space shooter, science fiction) than literary specifics. Genre would fall under the rubric of idea and consequently fall short of copyright protection. Stern does note, however, that there was at least an implied metaphor of narrative present in Midway’s infringement argument. He says, “[T]he argument was that the play-mode program was a ‘book’ and that the subroutines were ‘chapters.’ Any performance of the ‘book’ containing any of these ‘chapters’ was therefore an infringement of the copyright covering the particular ‘chapters’” (Stern, 86). The narrative link is unconventional, but still present in concept.

I call the second layer graphic, to denote that which is drawn or displayed on the videogame’s projection surface, typically a screen. Though the link is more difficult to discern in modern games, the graphic and narrative layers were very closely linked in the early era of videogames. Stern describes early videogame images as “very small and primitive cartoons—rough approximations of such things as a rocket ship, person, animal, or other creature” (Stern, 92). Under such strict limitations, narrative is defined by the scope of the hardware’s graphic capabilities. The inability to render a convincing human abstraction, for example, curtails numerous narrative possibilities. Yet those objects that transfer readily to abstraction (e.g. spaceships) drive the proliferation of their related genres.

More importantly, the primitive nature of early graphics did not hinder their recognizability. In fact, quite the contrary; the abstraction of complex objects led to numerous iconic designs, characters, and personalities. [2] This iconic quality, combined with the fact that audiovisual elements are the primary means of presentation in videogames, contributed to the general primacy of this textual layer. The courts had few problems counting similarities between graphic or sound elements. The exhibits in the Galaxian case were identical, so that became the sole grounds of infringement. The audiovisual element was also the simplest to judge in terms of preexisting media, which explains the early emphasis on registering videotaped sessions of graphic and sound elements; the handy comparison of videogames to animation, paintings, or cinema; and the denigration of other textual layers in favor of the audiovisual. Isolating a single layer of the videogame freed the courts from revising copyright law in order to accommodate new modes of expression.

A clearer problem with the pigeon-holing of videogames as ‘audiovisual only’ is how this category breaks down in relation to our next layer: the procedural. I use this term to describe not only the source code, which is text in its literal definition, but also the rules, methods, and/or algorithms inherent in and described by that text. The procedural encompasses the latter half of the ‘video-games’ concatenation; without methods of play, there is no game. [3]

Case law dealt with the question of copywriting rules even before videogames were invented. The consensus opinion was that game rules were not available for copyright, since they were clearly ideas. Furthermore, many rules were considered to be either public domain, utilitarian, or minimally original. The clear exceptions were unique ‘pictorial aspects of games’ such as board or card designs (Hemnes, 175-77). This consensus carried into the discussion of videogames, where a stringent separation between the graphic and the procedural was created. The Galaxian case followed this distinction as well.

Hemnes and Stern both argue that this separation marks a clear misunderstanding of the relationship between graphic and procedural layers. Stern says, “Several independent programs can be written to produce the same audiovisual work, and slight changes in the object code for a game may cause a very different looking graphic display or audiovisual work” (Stern, 93). In other words, two sets of nearly identical code can produce wildly different graphic displays. Especially in today’s modern programming environment, the graphic element is often finished last, while placeholder graphics are used to build up the underlying procedural ‘game engine.’ The converse situation is also true; very different code can produce identical graphic elements. Hundreds of games in the early 1980s were ported across multiple hardware platforms. Programming Donkey Kong for an arcade console and the Atari 2600 required separate code, but the end result was meant to look identical.

Hemnes offers a more nuanced argument: “[I]n many video games the rules of play are partially disguised (from a copyright standpoint) in the games’ audiovisual elements.” When the ghosts turn blue in Pac-Man, for example, they may be eaten. A careless observer might mistakenly “describe the color of the monsters as a graphic element of the game, rather than as part of a rule of play” (Hemnes, 178). He argues nearly the opposite of Stern, claiming that the graphic and procedural elements are not so clearly distinguishable as we might think. Pac-Man’s maze is both graphic and procedural, as it defines the method of play. Neither map easily to the idea/expression distinction. Hemnes and Stern argue from opposite directions, but they are both correct. Code and image can oscillate in a relationship that changes according to what the game dictates.

The courts assumed that the graphic decision came first, while the code was written after the fact. The moment of graphical creation marked the moment of authorship. The ‘utilitarian’ translation into code and algorithm works as a prop for the graphic. Such a chronology is a necessity for the tradition of copyright to make sense, but it doesn’t jibe with the reality of programming. Often it is the procedural layer of the game that is the most creative, intriguing, and expressive. Certainly Pong, whose permanence in videogame history is seen clearly in its numerous permutations over the years, relies less on its graphic elements than its underlying method of play (which is arguably just a reiteration of table tennis). Entire genres of videogames are spawned specifically in relation to their procedural elements (e.g. ‘platform games’).

As many copyright critics have noted, the idea/expression distinction finds its structural support by privileging eighteenth century romantic notions of authorship and creativity. Law professor James Boyle summarizes this concept:

The author takes facts, genre, and language from the public domain, works on them, adds the originality of spirit presumptively conferred on him by the themes of romanticism, and produces a finished work. The ideas (and the facts on which they are based) return to the public domain, thus enriching it for future use. But because the author’s originality has marked the form of the work as ‘unique,’ the form or expression becomes his alone. (98)

‘Facts, genre, and language’ clearly cover the procedural aspect of a game under this conception. The algorithms that describe fundamental mechanics, the unique programming language, and the mathematics and physics of game design all float in the realm of the public domain. It leaves little room for the creative expression of code, nor the collaborative aspect of game design.

It also neglects the player and the machine as collaborative authors, operating in what I call the performative and the hardware layers, respectively. Does the expression of creativity end when the game’s code is complete? I believe the answer is no, and the courts were obliquely grappling with this problem of authorship as well. The registration of two separate sequences, play and attract mode, already set up a distinction between how a machine plays the game and how a player plays. The machine’s play was known in advance, fixed in code, but the player could conceivably play an infinite number of ways. The ITC was only able to rule on the identical expressions of the attract mode in Galaxian and Galactic Invaders, since, as they stated, “The program and microprocessor are constant, but the player is variable” (Stern, 86). Protecting all possible player input would essentially protect the code as a whole, as well as admitting that the player possessed a role as author. Existing copyright protection simply cannot accommodate those expressions. It is also questionable whether the microprocessor itself is ‘constant.’ As the complexity of code increases, unintended and emergent game characteristics emerge. Neither player nor programmer are directly authors of this behavior; they emerge from the hardware itself. [4]

Conclusion

My textual analysis of videogames is not exhaustive. There are other layers worth articulating, especially as we advance toward the depth and complexity of contemporary gaming. [5] This is also not specifically a formal analysis, aiming to uncover what is essential or unique about videogames. All texts operate on multiple layers; theater involves the narrative, procedural (stage direction), performative, sound, and so on. The important point is the difficulty courts of the early 1980s had in conforming videogames to existing models of copyright law. Categorizing videogames as audiovisual works addressed only one aspect of these texts. That exclusion shuffled the remaining layers into the realm of the ‘unoriginal,’ the ‘utilitarian,’ and the public domain. Bracketing in this manner upheld the entrenched distinction between idea and creative, authorial expression, while ignoring the practical and artistic realities of videogame creation. As Hemnes says, this practice “may save the chaff while discarding the wheat—it would protect the occasionally mundane aspects of the games such as the shapes of their characters and the beeping sounds they emit while throwing the games’ original and intriguing rules into the public domain” (Hemnes, 177).

I want to be clear, however, that the solution to this problem is not a wholesale expansion of the limits of copyright. Admitting all code, performances, or hardware into the realm of copyright would be a mistake. Part of my overall strategy is to uncover the assumptions underlying copyright law and how it operates in practice. As Boyle says, “If one is critical of a system built on its presuppositions, one must begin by understanding both its authentic appeal and the deep conceptual itches it manages to scratch” (Boyle, 60). The ITC applied the law as they understood it in the circumstances of the case. The question is whether the parts that “didn’t fit” were discarded wholesale or used to critique and challenge notions of copyright.

In other words, what’s the source of the itch and how might we better scratch it? Not every aspect of game creation needs to fall under copyright. Group authorship, team design, and the easy transfer of reusable code permits artistic progress. In general, videogames rely heavily on quotation, homage, and the gradual refinement of proven mechanics. Many aspects of videogames are better served by patent and trademark law (Hemnes, 218-222). Still, copyright must address the new categories of expression made possible by the medium of videogames. Questioning the romantic notions of creative authorship expands our conception of both authors and creativity. In the wake of the videogame, programmers, players, and machines all participate in the expression of creativity.

Sources

Barthes, Roland, “From Work to Text,” Image-Music-Text (New York : Hill and Wang, 1977), pp. 155-164.

Boyle, James, Shamans, Software, & Spleens, (Harvard University Press, 1996).

Hemnes, Thomas M. S., “The Adaptation of Copyright Law to Video Games,” University of Pennsylvania Law Review, vol. 131, no. 1 (Nov 1982), pp. 171-233.

Humble, Rod, “Game Rules as Art,” http://www.escapistmagazine.com/articles/view/issues/issue_41/247-Game- Rules-as-Art (Apr 18, 2006).

Stern, Richard H. and Jeffrey Squires, “Can We Stop Software Theft?”, IEEE Micro, vol. 2, no. 1 (February 1982), pp. 13-25.

Stern, Richard H., “Unloading ROMs: illegal piracy, an unfair trick, or free competition?”, IEEE Micro, vol. 2, no. 2 (May 1982), pp. 85-7.

Stern, Richard H., “Software and copyright law: court judgments remain unpredictable,” IEEE Micro, vol. 2, no. 3 (August 1982), pp. 92-3.

Endnotes

[1] I use the term text here in a specific methodological sense, as originally articulated by Barthes and his contemporaries (see e.g., Barthes, 1977). In general, the ‘field’ of textuality involves plurality, play, linkage, and an emphasis on the activity of production (especially between a text and its readers). This is contrasted conceptually to a work, which is characterized by fixity, filiation, sovereignty, and unilateral consumption.

[2] This applies equally as well to another layer, sound, which I incorporate into a general ‘audiovisual’ category for the sake of comparison.

[3] Game designer Rod Humble makes the compelling argument that “[T]he creation of a set of rules within which the successful player must be creative is a form of expression exclusive to the domain of game design. No other art form does this” (Humble 2006).

[4] There are well-documented ‘kill screens,’ game-ending glitches due to unexpected code errors, in both Pac-Man and Donkey Kong. The player prompts these glitches through play, but they ultimately cannot ‘author’ their outcome. See e.g. http://en.wikipedia.org/wiki/Kill_screen

[5] I would also propose, for instance, the network layer, which describes the interaction of multiple hardware instances across real or virtual space.

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