Copyright law in the United States is pretty explicit when it comes to defining what third-parties are allowed to do with regards to content said third party did not create. While copyright law makes provisions for fair use in the creation of new or derivative works based on original material, the owner and the would-be content creators often have conflicting views on just how far that umbrella of protection extends. Because of this gray area, most people go out of their way to avoid intentionally creating tremendous legal hassles. And then there’s Galoob…
Back in 1990, everybody wanted a piece of the infinite money pie Nintendo was serving up via the NES. This included UK company Codemasters, who were interested in selling games without seeing most of their profits eaten by Nintendo’s policy on cartridge shells and lockout chips (see last week’s Wacky Wednesday). So they glitched past the lockout chip, paid Nintendo World Champion Thor Aackerlund to stump for them in multi-page magazine ads, created sister company Camerica to publish the games in North America, and hired toy company Galoob to distribute them…basically, Codemasters stood around waving red capes in Nintendo’s face until they charged.
Nintendo obliged, seeking an injunction against Galoob to halt distribution of Codemasters’ games. But the big N discovered going after Galoob was nothing like bullying your average third-party developer. Galoob wasn’t some start-up easily cowed by the threat of a multi-million-dollar lawsuit–they were the third-largest manufacturer and distributor of toys in the United States with their own license to print money called “Micro Machines.” They cock-punched Nintendo in state after state until Nintendo staggered home in dishonor. Now, if this was just a simple story of corporate one-upsmanship, it would be no big thing. But this is Wacky Wednesday, and we want dickery of the highest order without involving Ron Jeremy. Galoob provided this by releasing the Game Genie. If Codemasters’ games were red capes being waved in the face of Nintendo-bull, the Game Genie was a bathtub-load of chum, blood and gibs unloaded into the waters Nintendo-shark called home.
Nintendo went nuts, filing suit against Galoob for copyright infringement based on the creation of derivative works. In Nintendo’s mind, the Game Genie modified the code of an NES title, turning it into something different from what the programmers intended. The result was a new game, one derived from the original, containing all the same graphics and sound assets, but made without the consent of the developers and thus illegal. Galoob countered by explaining that the Game Genie didn’t in any way allow for the creation of an entirely new game, it just let the user mess with some different number values as they were being passed from the cart to the NES. Nobody could use it to turn Duck Hunt into an RPG or make Mario hop his way through Dracula’s castle instead of the Mushroom Kingdom. As shit got real, the US legal system shut down distribution of the Game Genie and agreed to hear the case with one little stipulation: Nintendo had to set aside a ginormous wad of cash with which to compensate Galoob for potentially lost sales over the course of the trial should the court decide in Galoob’s favor. We’ll come back to that in a minute.
The Canadian court on the other hand treated the situation like the plot of a RomCom where the would-be lovers part ways only to later realize what they needed all along was each another. “Go ahead and sell the thing, we’ll see what happens, eh?” they said.
Galoob, never one to miss an opportunity to teabag the opposition, took out this Bill-&-Ted-esque ad in the pages of every US video game magazine they could find, praising our neighbors to the north for their forward thinking:
Over a year went by before the court handed down its ruling: the Game Genie did not permit gamers to create derivative works, and ordered Nintendo to pay lost sales from that fund we mentioned earlier. But when the court started calculating how much potential money Galoob lost during the trial, they came to a startling conclusion: they hadn’t asked Nintendo to hold back enough. So not only did they order Nintendo to hand over the entirety of the fifteen million dollars they’d set aside at the start of the trial, but the court also saddled them with the full cost of Galoob’s legal fees on top of it. Thus was the prolific video game cheating industry born, on the back of the very company who tried to kill it in the first place. Sometimes that’s just the way the plumber bounces…