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Location-Thirty-five
Very much on the run
ONE of the most signiflcant rulings in the video game •
copyright battle in the UK came in the High Court in the
fight between Sega and John Richards and Trolfame.
Although there bas been no definitive ruling on where, if
at au copyright lies in video ga"!es, the words of Mr.
Justice Goulding in hisjudgement in this case have been
followed by other judges in applications for interim
injunctions in video game copyright actions.
He said: "On the evidence before me in this case I am
clearly of the opinion that copyright under the
provisions relating to literary works in the 1956
Copyright Act, subsists in the assembly code program of
the game Frogger.
"The machine code program derived from it by the
operation of part of the system of the computer called
the assembler is to be regarded, I think, as either a
reproduction or an adaptation of the assembly code
program, and accordingly for the purposes of deciding
this motion I find that copyright does subsist in the
program.
"lt is not necessary for me to say anything at this
stage about the other heads of copyright claimed,
because if there is copyright in the program that is
enough prima f acie evidence of infringement for me to
have, to consider whether the plaintiff should have
interlocutory relief''.
many machines as they could produce. And , with demand at
its peak the pirates similarly shared this happy situation of
being able to sell virtually ail they could churn out.
Now, however, video sales have dropped and neither
manufacturers nor pirates have any guarantee of sales . The
loss of an assured market has therefore taken a lot of the
financial inceotive out of piracy.
Theo there is the cost of copying. Wise to the dangers of
being copied many manufacturers are now deliberately
designing software in such a way that boards cannot readily be
converted from one game to aoother as they used to be in the
less sophisticated days.
"The price differential betweeo the genuine article and the
copy has narrowed considerably, and with copies being much
harder and more expensive to produce these days this is
making piracy Jess worthwhile".
•
Aoother cootributory factor to the drop in pirate activity
has beeo the general shortage of video components. Even
legitimate manufacturers are faced with problems at times and
would-be pirates can certainly expect to suffer from this
shortage .
The picture , therefore , is a much brighter looking one than
il has been for some years, as far as this particular !rade
problem is concerned . In no particular order: worldwide legal
action ; a general drop in the market for video equipment;
increased production costs ; and more sophisticated machine
designs aimed al making copying more difficult, have ail
combined to hit the pirates hard.
However, at the height of the legal action here there is no
doubt that the threat of High Court injunctions did help a
number of legitimate companies deter those with a mind to
copying their games. Companies such as Williams Electronics,
Sega, Atari, Taitel and Data East ail took successful court
action to protect their equipment. These actions served as a
useful deterrent.
They made the pirates think twice before they copied
equipment produced by companies which they koew were
prepared to go to court .
Jim Pryde of Data East saw this happen. Data East and
Taitel issued writs against more than 20 people al the
begioning of 1983 over alleged copyright infringement in
Burgertime.
The following game brought on to the market by Data East
and again sold by Taitel was Burnin' Rubber. Very few copy
versions of this appeared on the market here and Jim Pryde is
convinced that this was because of the action taken over
Burgertime. They had shown they were prepared to take court
action and the pirates decided to steer clear of their game-s.
The practical result was that Burnin' Rubber , enjoyed
higher legitimate sales than its heavily pirated predecessor.
One interesting aspect of the legal action taken here is that
no case has ever been fully fought to ils conclusion so there is
no definitive ruling on where, if at ail, copyright does in fact lie
in a video game.
However, in the absence of such a ruling the views of Mr.
Justice Goulding in the action by Sega agaiost John Richards
and Trolfame over alleged piracy of Frogger have been taken
as giving a lead .
Mr. Justice Goulding ruled that for the p_urpose of granting
an irrterim iojunction there was a sufficiently arguable case
that copyright existed in the assembly code of computer
programs and that the machine code was also almost certainly
protected by copyright. Other courts dealing with later cases
have followed this view.
Looked at overall, therefore , il does seem that significant
strides have beeo taken by one means or another to combat
piracy. The courts have cracked down and market forces have
takeo the incentive out of piracy.
The telling lime cornes in the oew year but certainly ail the
pointers are towards considerably less pirate activity in the
future than in the past.
The case to be made out of piracy does not seem to be there
anymore. And without the big profits to be made the risk is
not worth taking, especially when the threat of being dragged
up to the High Court is still as real as ever.
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