The layperson thinks suing is easy: Party B does Party A wrong, Party A sues Party B and a judgement is eventually passed which finds Party B guilty or innocent. However, in law, absolutely nothing is simple or certain. The endless ins and outs of the proceedings from legal action are extremely tedious to study but can be pretty fascinating for those able to summarize and report the important elements of the story to a wider reader base.
There are some pretty fascinating and pivotal video game lawsuits out in the world – such as these two covered by the Gaming Historian – but in terms of research (which is what we do here) it’s important to get a handle on the general structure of these cases to prune important details from them. I am hoping that this article might stir some interest in those who may be interested in delving into the subject more, which I am very willing to help with if interested. Before looking into the structure of these legal proceedings though, I wanted to give a word as to why people should be interested in these lawsuits than those who strictly want to know the story behind that particular incident.
The supporting evidence used in court cases can often illuminate information otherwise lost or inaccessible today. This is mainly for a reason inherit to the purpose behind a court of law: The subjects are trying to tell the truth where possible. To support these truths they will often reference documents as to substantiate their particular claims. Midway, for instance, gave numbers of manufactured units for some of their most popular games as evidence in a lawsuit.
Beyond corporate records, as lawsuits are usually timely to the popularity of something, they will often host details fresh from a person’s memory to talk about the events in question. While this often still is at least a year after the events, it can be better than attempting to tell a complete story decades later. The depositions of Nolan Bushnell taken in 1975 for instance form a very thorough picture of some of the work done on Computer Space which he has been less detailed about in recent telling.
Not every lawsuit is going to be directly revealing about company secrets or game design because not every lawsuit is about things like that. Topics that seem unimportant to us will be reiterated ad naseum and topics that seem interesting will be only glanced at. There’s no guarantee in reading a lawsuit that you’re going to get juicy details about things most people care about, but you will more than likely get as thorough a view about something as is every likely to exist and maybe some extra details along the way. Let’s start the deep dive by looking into some of the subjects of these cases.
What Can You Be Sued For?
I have created a list of all the video game (with a few arcade and toy related) lawsuits that I have found potentially interesting to look into. In general though, most of the video game lawsuits that I’ve observed can fall into a few general categories:
Intellectual Property Rights. These include patents, trademarks, and copyrights. Everything from the Magnavox lawsuits to the Tetris Case to Atari v General Computer Corporation. These involve a direct violation of something a company or individual owns that another entity appropriates in a way the rights holder hasn’t authorized. These are by far the most numerous type of legal scuffles in the video game industry and have been the ones which have made the most visible shape on the landscape of gaming. The rulings of these cases have in part shaped technology and software more generally and give video games the distinction of being the most consistently fought over medium since their dawn.
Ordinance Trials. The cliche of the small town in America protecting the youth of America by banning video games from their city went to court many many times. Most famously, a town in Massachusetts enacted a total ban on arcade games within it’s boundaries. To be fair, many of these types of trials were about restricting video poker and lottery machines rather than banning all games. Also many of them were only restrictions on the operating hours of arcades rather than total bans, but nonetheless there were many and some of those may not yet have been repealed even as of today.
Contract Issues. These fairly standard cases are about the breakdown in understanding between two parties over a contract agreement, written or unwritten. For example, Daniel Pesina who portrayed Johnny Cage in Mortal Kombat sued Williams over the use of his likeness in the home versions of the game which he says were not specified under his contract. In 2011, Robin Antonick scrapped with Electronic Arts over the original John Madden Football by claiming his code was reused in subsequent versions which gave him the right to compensation.
Bankruptcy Cases. While bankruptcy seems like a pretty straightforward thing, the law behind it is actually anything but. The most important thing to note is that filing for bankruptcy does not mean a company is going out of business. The complicated process of bankruptcy is something that companies can rebound from even without being bought out. Cinematronics escaped bankruptcy for instance. Of course many of these cases are final, such as in the case of Universal Research Laboratories (which was bought by Stern Electronics).
Shareholder Litigation. The big scary one of the pack, Shareholder suits deal with unfair practices in business that can mislead either stockholders or consumers. This relates to things like accusations of insider-trading – as in the case of the suit against Warner Communications for Atari’s sink starting in 1982 – or in not dealing squarely with retailers as in the investigation brought against Nintendo (which ended with them handing out coupons).
There are other types of cases, such as a few criminal cases where video games are involved, but these represent the major areas of court action in this field. In terms of what you’ll find in the court record itself, let’s go through the broad strokes of how lawsuits are conducted.
How to Sue
The first thing that normally happens in a case is that the defendant (the party to be sued) is informed of the potential legal issues. There is always some sort of preamble, though it’s not always on the record. These will be the earliest documents in the collection, pre-dating the suit itself, or often recounted as a discussion between two lawyers in evidence.
Whenever these talks stall, then one of the lawyers files in a court to get a suit going. It does not necessarily have to be the alleged infringed company; a party in Intellectual Property cases can ask for a declaratory judgement. This statement would be a way to refocus the trial to “Is their claim valid?” versus “Is this other party infringing?” It’s too complicated to explain why this would be done other than to say that it can be easier to be the plaintiff rather than the defendant.
The start date of the trial initiates the long, slow task of getting to a trial. First among orders of business are a clear outline of what the trial is about, which includes stating facts which both defendants agree upon. These lists are tossed between the parties with adjustments being made until they agree on what’s at stake and furnish information as requested. In the case of the Magnavox patent suits for instance, they ask if the other company was aware of the Odyssey beforehand and if they did indeed manufacture the games they are being sued for.
Concurrently with this, both companies will be collecting evidence. This includes letters, compilations of facts, affidavits, and depositions. Depositions are the rockstars of lawsuits for the historian, but in practice they can actually prove to be of limited use to the proceedings depending on the nature of the case. These lengthy sessions where lawyers representing both parties question an individual before a judge are at times the most interesting and the most boring part of the lawsuit. The earliest parts tend to be the best for details, such as information on schooling and background leading up to the subjects in the case. After that it’s a whole lot of re-questioning about “Did you in fact do that on this day and in what order?”
Other pieces of evidence can be intriguing as well. Things like catalogs from obscure magazines or articles from newspapers can be used to show intent of coverage for proof of how much money one party or another has made. These can also be things shown at trials to be examined and explained, such as in the case of the exhibits used in the K. C. Munchkin case to show the similarities between the defendant’s game and Pac-Man. It’s admittedly neat to think that you are holding objects once used in active litigation to decide the fate of major companies.
Between the evidence gathering stage and the trial comes an endless amount of one-upsmanship as the lawyers attempt to find precedent cases to support their continuation or dismissal of the trial. This includes photocopying results from legal journals with very harsh underlines. Often this is something you need very particular legal experience to get anything out of and it’s mostly summed up in the trial anyways so it’s largely not that interesting.
Then, finally, will come a trial. This often takes at least a year, so usually a case will be started in one year and go to court the following year or later. At the trial, lawyers will make arguments and call witnesses for examination to lay down the law in totality. This process can sometimes take months, as in the case of Bally v Williams. The testimony given can be pretty useful too, especially given that they usually call those who weren’t previously deposed. Then, the judge renders their judgement as to end the proceedings once and for all, ordering one party or another to pay their dues.
At this point, further legal action can be taken by the defendant. If the defendant loses, they can appeal the decision to a higher court and get the case re-examined such as in Data East v Epyx. Should a defendant win a case but not feel properly compensated, they can call for a trial on their terms to get what they feel they were owed for winning the case like when Nintendo fought back against Universal for it’s suit over the Donkey Kong trademark.
This is all assuming a trial happens at all. Companies can settle before they get to court or before the judgement is rendered, which ultimately leads to frustration for historians who want to know the conclusion to this epic tale. While agreements can often be part of the record, they can also be omitted as non-material to an on-going case. What this means research-wise is that a case can come to a sudden end with no follow-up. This is – in a technical, legal term – a bummer.
If a case is properly concluded, it will likely get a write-up in a legal journal. Most of these can be found online nowadays through services like Court Listener. Keep in mind that these write-ups will largely only talk about the issues at play and not generally the evidence within the case, though there are exceptions. They are written for lawyers looking for legal precedence and will likely not be a great help in really understanding the objects of the trial, nor will they summarize all cases.
Ultimately, how a case has been stored over the years will have largely jumbled the order of these files so it’s really just a matter of targeting an capturing the information. While it would be the best to get everything, in truth not all pieces of paper are important. I’ll share a few of my techniques for quickly identifying what out of these papers is worth capturing given the limited time allowed within the archives, then we’ll get to actually accessing these archives.
What Do You Need?
The best thing to look for on legal documents are dates. Dates can relate to the case itself, such as when letters were sent, but they can also fairly often be related to evidence as to construct a timeline of when something was talked about or released. In the matter of patent suits, these dates can be used to prove whether the concept for an invention predates the Intellectual Property in question. They can also deal with events which were documented, such as the first showing of games to general audiences. Dates in the papers themselves almost always provide at least something with a narrative function if not a revelation.
The best sources of information outside of the depositions and trial testimony are the statement of facts and affidavits by individuals. One unfortunate thing which can happen is that certain articles in court documents can be lost, often only referred to in other documents. The affidavit of someone who is going to bring forth information usually contains some bit of information, usually a confirmation of their role in the case stated in fairly plain terms. As the specifics of the case become updated, the important matters get edited into new versions of the Statement of Facts file.
Look out for names that sparsely appear in the text as well. Usually those people who only show up once will carry with them an important piece of information. Sometimes it’s just lawyers yet it can also be people with relationships to the case that nobody would be able to determine in retrospect. Engineers who witnessed things being worked on, businessmen who had potential dealings with the parties involved, and even people no longer with the company at the time of their calling. These are calling cards of information deemed relevant enough to be in the record which determines at least a little something interesting for the right mind.
Something surprisingly not overused in legal documents are underlines by the stenographers. Usually this denotes a specific source, either within the case or external. These can often lead in the direction of new information. Likewise quotation marks are useful highlights and possibly the only record of things which were once a part of the larger case file like from depositions.
It’s hard to showcase what I omitted from my gathering because, well, I didn’t get it. In all honesty I should have been more thorough in at least capturing the front page of all the documents I looked at. At the same time though, the omissions included things like reprints of patents and legal journals which weren’t important as to constructing a fuller narrative of the trial. I also tended to not capture the ‘hearings’ prior to the trial. Usually these include the counsels for each side meeting with a judge to discuss when the trial’s going to be an particular parameters of the legal specifics. Only important if you want to be very particular about the specific trial goings-on.
Capturing this info defends on your set-up, speed, and amount of material to get through. Some short trials (or sub trials) can be done with still time to spare. I’ll share my general experience with capturing some of this stuff below as well as a rundown of how this whole court system works.
Who’s A What A Court Now?
The United States judicial system is divided into eleven regional court circuits (plus three special courts located in Washington D.C). The National Archives for these districts are held in one central location and this is where you’ll find regional court documents. While this does not mean that local courts couldn’t have documents related to these cases, the centralized court structure makes most evidence harvested in one spot.
On top of this there are also overlapping areas for the Court of Appeals, which is a separate level of judiciary authority. Making sense of these is a little bit difficult, so in my spreadsheet where I have been tracking these lawsuits I have tried to point out what archive the case might be located in as well as where the case was initially filed. There are special courts as well and this would be a matter where you’d have to ask your friendly archivists.
Those employed by the government at the National Archives tend to be very helpful and friendly, but stern in the observance of rules. At the Archives located in Chicago, Illinois they maintain a quiet space and attendance to your going’s on, making sure you are only taking out one box at a time and not damaging the materials. You do also need to become registered to enter, for which there is no fee.
It is best when possible to ask ahead for a particular case to examine before arriving so that it can be pulled ahead of time. This of course requires knowing if a case is located there and preferably it’s case number. Discovery usually requires a different appointment, but one well worth investing in as there are literally thousands of cases that could potentially exist.
Here’s where things get a little funny though. Even with all the extra complications I took when describing court battles above, I left out two things. One is an early settlement, one in which barely anything every comes of it from a legal standpoint and no write-up is ever done because the two companies come to an agreement. The Atari v General Computer Corporation could have been a landmark case for kit games, but it probably never even got to the evidence gathering stage even though the filing for the case exists.
The other thing is the matter of consolidated cases. Often times you will have multiple suits which get shoved into one for one reason or another. Most often it’s because the companies sue each other, usually in completely different courts, and a judge determines they need to be merged. It can also be that the aggressor has multiple suits of the same subject ongoing that become one. However that doesn’t mean that all the files get transferred, and from the outside it’s hard to tell which one became the ‘main’ case. So diligence is needed to check each and every one.
It was a lot of active work to get my archive, but I feel pretty confident about having captured the most important pieces of information. For anybody else that may want to take up this task, I’m more than willing to help get this information disseminated so we can all learn from it. There is a matter of unfair geography where only people in major cities have access to most of the contents, but some regional courts actually hold info from others. For example, duplicates of the Archives held in New York are in Kansas City, Missouri (for some reason).
This was my attempt to explain the legal system in terms of video games, at least in the United States. If anybody has info on these practices outside the US, I’d love to hear from you about it! The most people that know these documents exist, the more interest there will be in retrieving them. Places like the Strong Museum of Play and Stanford University hold some of these documents as well and it would be great to have their insights revealed.
The History of How We Play 