GUEST COMMENTARY
COMMENT ARY
GUEST
Opinions
di
ff
er
fer
dif
ns
nio
Opi
Video-game manufacturers
manufacturers have
have begun
begun working
working to
to reduce
reduce the
the flow
flow into
into the
the U.S.
U.S. of
of
Video-game
parallel imports-not
imports-not counterfeits,
counterfeits, but
but games
games legally
legally manufactured
manufactured and
and sold
sold abroad
abroad and
and then
then
parallel
resold to
to U.S.
U.S. importers
importers other
other than
than the
the companies
companies assigned
assigned U.S.
U.S. distribution
distribution rights
rights by
by the
the
resold
manufacturer.
manufacturer.
Like counterfeit
counterfeit games,
games, parallel
parallel imports
imports lessen
lessen the
the value
value of
of the
the U.S.
U.S. manufacturers'
manufacturers'
Like
games, especially
especially when
when those
those games
games are
are dedicated
dedicated and
and the
the parallel
parallel imports
imports are
are sold
sold as
as kits.
kits.
games,
Manufacturers see
see the
the same
same threat
threat whether
whether from
from a a counterfeit
counterfeit or
or a a parallel
parallel import.
import.
Manufacturers
American Amusement
Amusement Machine
Machine Association
Association (AAMA),
( AAMA), which
which represents
represents U.S.
U.S.
The American
The
manufacturers
and
distributors,
recently
issued
a
position
paper
on
parallel
imports
in
which
it
manufacturers and distributors, recently issued a position paper on parallel imports in which it
states that
that parallel
parallel importers-and
importers-and their
their customers-infringe
customers-infringe on
on copyrights,
copyrights, and
and in
in doing
doing so
so
states
incur civil
civil and
and criminal
criminal liability.
liability.
incur
A
Washington
,
0.
C.,
attorney who
who has
has advised
advised parallel
parallel importers,
importers, Richard
Richard H.
H. Stern,
Stern, has
has
A Washington, D.C., attorney
written
a
reply
to
the
AAMA
statement
in
which
he
asserts
that
the
legal
issues
of
parallel
written a reply to the AAMA statement in which he asserts that the legal issues of parallel
imports remain
remain unresolved
unresolved and
and the
the AAMA
AAMA statement
statement should
should be
be considered
considered only
only the
the advocacy
advocacy
imports
of an
an opponent
opponent of
of parallel
parallel imports.
imports.
of
The AAMA
AAMA statement
statement and
and Stern's
Stern's reply
reply follow
follow in
in their
their entirety.
entirety.
The
Parallel importers
importers face
face penalties
penalties
Parallel
While the
the amusement-game
amusement-game industry
industry in
in general
general
While
and video-game
video-game manufacturers
manufacturers and
and distributors
distributors in
in
and
particular
have
long
been
plagued
by
pirating
particular have long been plagued by pirating
activities of
of illegal
illegal manufacturers,
manufacturers, a a more
more recent
recent
activities
problem involves
involves the
the unlawful
unlawful importation
importation and
and
problem
distribution of
of video
video games
games (audio-visual
(audio-visual works)
works)
distribution
legally manufactured
manufactured but
but shipped
shipped into
into the
the United
United
legally
States in
in violation
violation of
of exclusive
exclusive distribution
distribution agree-
agree-
States
ments and
and copyrights
copyrights held
held by
by the
the legitimate
legitimate United
United
ments
States importers
importers of
of these
these games.
games . The
The purpose
purpose of
of
States
this
article
is
to
explain
the
legal
remedies
available
this article is to explain the legal remedies available
under present
present copyright
copyright laws
laws which
which would
would subject
subject
under
those trading
trading in
in "parallel
"parallel imports"
imports" to
to substantial
substantial
those
civil and
and criminal
criminal penalties.
penalties.
civil
often happens
happens in
in the
the industry
industry that
that a a company
company
It It often
in the
the United
United States
States obtains
obtains exclusive
exclusive rights
rights from
from a
a
in
foreign manufacturer
manufacturer to
to distribute
distribute a a particular
particular video
video
foreign
game or
or components
components for
for the
the games.
games . As
As well
well as
as the
the
game
exclusive
contractual
rights,
the
foreign
manufac-
exclusive contractual rights, the foreign manufac-
turer also
also often
often grants
grants to
to the
the state-side
state-side company
company the
the
turer
exclusive protective
protective rights
rights as
as the
the sole
sole claimant
claimant
exclusive
under the
the U.S.
U.S. Copyright
Copyright Act.
Act. Is
Is the
the United
United States
States
under
copyright holder
holder protected
protected by
by copyright
copyright laws
laws when
when
copyright
the legitimate
legitimate foreign
foreign manufacturer
manufacturer sells
sells its
its goods
goods
the
to an
an unauthorized
unauthorized third
third party
party who
who imports
imports these
these
to
goods into
into the
the United
United States?
States? If If there
there is
is an
an infringe-
infringe-
goods
ment, are
are the
the unauthorized
unauthorized importer
importer and
and others
others in
in
ment,
the chain
chain of
of distribution
distribution (such
(such as
as distributors
distributors and
and
the
operators) subject
subject to
to the
the criminal
criminal penalties
penalties of
of the
the
operators)
Copyright
Act?
The
answer
to
both
these
questions
Copyright Act? The answer to both these questions
is clearly
clearly yes.
yes .
is
78
78
History of
of copyright
copyright protection
protection of
of video
video games
games
History
Copyright protection
protection is
is granted
granted to
to original
original
Copyright
works
under
the
Copyright
Act
of
1976,
Title
17 of
of
works under the Copyright Act of 1976, Title 17
the United
United States
States Code
Code as
as amended.
amended . Section
Section 102
102 of
of
the
the Copyright
Copyright Act
Act states
states that
that copyright
copyright protection
protection is
is
the
to "motion
"motion pictures
pictures and
and other
other audiovisual
audiovisual
given to
given
works ." After
After video
video games
games first
first began
began to
to appear
appear
works."
on
the
market
in
the
mid
'70s
,
many
felt
that
copy-
on the market in the mid '70s, many felt that copy-
right protection
protection could
could not
not be
be obtained
obtained to
to prevent
prevent
right
unauthorized reproduction
reproduction of
of the
the games.
games. Although
Although
unauthorized
video
games
per
se
are
not
listed
in
the
seven
cate-
video games per se are not listed in the seven cate-
gories under
under section
section 102,
102, as
as stated
stated in
in the
the General
General
gories
Guide to
to the
the Copyright
Copyright Act
Act of
of 1976
1976 (published
(published by
by
Guide
the
Copyright
Office
in
1977),
these
seven
cate-
the Copyright Office in 1977), these seven cate-
gories are
are "illustrative
"illustrative and
and are
are not
not meant
meant to
to be
be
gories
!imitative." Case
Case law
law has
has established
established that
that video
video
limitative."
games qualify
qualify as
as "other
"other audiovisual
audiovisual works,"
works ," and
and
games
therefore
clearly
are
within
the
ambit
of
the
Copy-
therefore clearly are within the ambit of the Copy-
right Act.
Act.
right
Under Section
Section 502
502 of
of the
the Copyright
Copyright Act,
Act , one
one
Under
whose goods
goods are
are infringed
infringed may
may seek
seek several
several forms
forms
whose
of relief:
relief: the
the copyright
copyright owner
owner may
may obtain
obtain a a court
court
of
order enjoining
enjoining the
the infringer
infringer from
from copying
copying or
or
order
importing goods
goods in
in this
this country;
country; the
the court
court may
may
importing
impound and
and destroy
destroy infringing
infringing articles;
articles; and
and the
the
impound
infringer
may
be
held
liable
for
damages
and
lost
infringer may be held liable for damages and lost
profits (including
(including attorney's
attorney's fees)
fees) to
to the
the wronged
wronged
profits
party . In
In addition
addition to
to these
these remedies,
remedies , the
the copyright
copyright
party.
law (Section
(Section 506)
506) provides
provides for
for criminal
criminal penalties
penalties of
of
law
fines and
and imprisonment.
imprisonment. A
A 1982
1982 amendment
amendment to
to the
the
fines
act increased
increased the
the maximum
maximum fine
fine to
to $250,000
$250 ,000 and
and the
the
act
PLAY METER,
METER, March
March 1,
1, 1986
1986
PLAY