Points: 10
Cover Story: It Came From Outer Space!
Trials and Tribulations

...continued, (page 2 of 4)

David and Goliath
Even after all of this, Atari's legal dealings weren't over. Long after they had largely given up on hardware and a new game console called the Nintendo Entertainment System took the 2600's place in gamers' hearts, the company that created the gaming industry still found its way to court. Though Atari had turned down a request a couple of years prior to help Nintendo distribute their fledgling system, the system's success made them realize that the videogame industry wasn't quite as dead as they'd left it, and they wanted back in. The aging 2600 and its successor, the 7800, didn't make much headway against the NES; Atari shrewdly decided to hedge its bets and support the NES, too, adopting the name Tengen.

Tengen's Tetris
Nintendo believed that Atari had lost its hold on the industry due to it lack of control over third parties. Literally anybody could make a game for the 2600, resulting in games that were only slightly altered, slapped with a new label and put on the shelf, as well as some "erotic" adventures that were not fun and certainly not sexy. As a result, Nintendo shepherded its third parties under strict (and, some developers argued, unfair) rules that required all NES games to be licensed. In addition, companies were not allowed to release more than five games a year for the system, and those games were required to remain exclusive to Nintendo.

Some companies found ways around the restrictions, such as Konami's splitting of its resources to create a "new" company, Ultra Games. Tengen simply appealed for a less restrictive license, and Nintendo refused. Tengen complied at first and in 1988 they released their only three legitimate NES games: RBI Baseball, Pac-Man and Gauntlet. At the same time, they secretly worked on ways to bypass Nintendo's 10NES security chip, which locked out games that were not given the coveted Nintendo "Seal of Quality."

The chip could be disabled easily enough with a good zap of electricity, but Tengen feared that such a route might damage consoles, and they didn't want liability suits on top of the trouble they already knew they'd be in for. Instead, Tengen reverse-engineered the chip by contacting the Government and requesting a copy of Nintendo's lock-out program for a potential court case against the company. With the help of the program, the NES' lock-out program fell away easily and the unlicensed Tengen games were launched. Nintendo sued the company for breach of contract as soon as the games hit the store shelves, and claimed that Atari created Tengen as "a front company to defraud Nintendo." Tengen lost and was forced to pay damages.

"I dunno, Davey..."
The dogfight between the companies flared up again with the release of Tetris for the NES. Both Tengen and Nintendo had their own versions of the wildly popular puzzle game; many gamers still maintain that Tengen's version, which allowed for two player head-to-head competition, was the superior of the two. Despite some confusion, though, only Nintendo possessed the rights to publish Tetris for home consoles-- meaning that Tengen's version, unknown to them, was illegal. Nintendo yanked Tengen back into court, forcing them to remove its inventory of hundreds of thousands of Tetris cartridges from stores. Already reeling from expensive legal defeats, Tengen was nearly run out of business when Nintendo threatened to stop supplying any retailers who were found carrying the illegal games. Tengen released a few Genesis games before giving its last wheeze, but Atari wasn't out for the count and would soon jump on Nintendo's back again.

Nintendo was already battle-hardened before it dealt with Tengen. Not long after Donkey Kong became a huge success in American arcades, MCA Universal sued Nintendo on the grounds that the barrel-chucking gorilla was a ripoff of their own hairy movie star, King Kong. It was a frightening scenario at first; Nintendo was still fragile at the time, and if they lost the suit, Nintendo of America would cease to be. The game manufacturer's lawyer, Howard Lincoln (now well-recognized as the Senior Vice President of the company) discovered that not only did Universal not own the rights to King Kong, they'd won a lawsuit years prior declaring that King Kong was actually public domain. It wasn't Universal's finest moment, and the Hollywood giant was swatted down like Kong himself, forced pay legal reparations to the up-and-coming Nintendo.

"You finally made a monkey out of me."
As the Nintendo Entertainment System grew in popularity and entered millions of American homes, some small video stores fed their registers some extra profit by buying their own copies of Nintendo games, and renting them out to customers who paid a fraction of the game's original price to play it for a few days. Nintendo received no profit from the practice beyond the initial cost of their game, and unlike video cassette rentals, a hot game could be put up for sale and for rent on the same day. Nintendo took steps to stop game rentals, but they didn't come out roaring until Blockbuster Video began to make game rentals a large-scale service. Nintendo lost the lawsuit, however; the only thing Blockbuster could be nailed for was including original, copyrighted instruction booklets with their rented games. Blockbuster simply switched over to photocopied booklets, or handed out a card that explained the game's basic premise and controls to the player. Despite threats to rental kiosks and retailers who sold multiple copies of certain games, video game rentals were free to prosper, and still do.

As the 1980s drew to a close, Atari filed an anti-trust lawsuit against Nintendo, which controlled more than 80% of the home gaming industry. Sega of America joined in as well, claiming that its own 8-bit Master System had failed because Nintendo threatened to stop supplying stores who carried the rival system. Atari contended that Nintendo's strict "quality control" was actually meant to smother competitors. The Justice Department ultimately decided that Nintendo was indeed strong-arming their competition, and their penalty was to issue $25 million in coupons to anyone who had bought an NES between June 1, 1988 and December 31, 1990. Customers received a $5 discount towards their next game purchase -- which actually encouraged a flood of sales that the best of Nintendo's advertising campaigns couldn't hope to instigate.

"Your wish is my hax."
Nintendo had less success in 1992 against Galoob, the makers of the infamous Game Genie. The Game Genie was a code-based "game-enhancing" device which could grant the player infinite health, lives or time if they were having a rough time getting through a game on their own... and if a player just wanted to watch Mario blast off halfway to the moon with a tap of the jump button, the Genie was good for that, too. Nintendo sued Galoob for copyright infringement with the argument that the use of the Genie produced a derivative work, since it altered the game data passing between the cartridge and the console. The court held that this wasn't the case, and even if it was, the derivative could fall under fair use: "Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work."


Deep-fried Chips

A Chicago man has filed a lawsuit against Microsoft, claiming that the company's rush to launch the Xbox 360 has resulted in an overlooked design flaw that causes the console to overheat and crash, rendering it unplayable in some instances (it's been discovered that the overheating is caused by poor ventilation in the system's massive energy supply).

The lawsuit calls for an unspecified amount of damages, as well as the recall and replacement of faulty 360 units. Microsoft hasn't spoken freely about the pending lawsuit, but a spokeswoman mentioned that only a "very, very small fraction" of consumers have called in with complaints about crashing systems.

Ohhh, burned.

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