Authors: Steven Kent
The Ultimate History of Video Games: From Pong to Pokémon and Beyond—The Story Behind the Craze That Touched Our Lives and Changed the World (60 page)
The most notable casualty of the war between Nintendo and Atari Games was the Tengen version of the game
Tetris
, a game that was created by Soviet mathematician Alexey Pajitnov while working at the Computer Center of the Moscow Academy of Science. Pajitnov came up with a computer game in which players organized two-dimensional geometric shapes. The blocks would fall from the top of the screen, and players had to rotate and place them before they landed. If the player organized the blocks into complete and unbroken lines as they landed, the blocks would disappear. If the line was broken, it would remain on the screen and blocks would pile on top of it. The game ended when the blocks reached the top of the screen.
Pajitnov developed the game on an Electronica 60, an antiquated computer that was the Russian clone of the PDP (Programmable Data Processor) computers made for the Department of Defense by Digital Equipment.
**
Because his computer could display only alphanumeric characters, Pajitnov teamed up with Vadim Gerasimov, a gifted young hacker with access to a PC, to create a better-looking interface for the game.
In 1986, a friend of Pajitnov’s sent a copy of
Tetris
to the Institute of Computer Science, in Budapest, Hungary. It was there that Robert Stein, president of the London-based software company Andromeda, happened to see the game.
Sometime in 1986, Robert Stein was in Hungary and saw
Tetris.
… just one of the pirate copies. I didn’t call them pirated back then, I gave it out myself everywhere. So, he feels that this is a really good game and approached the Computer Center and wanted to make a license and publish it. He had no idea what it means to deal with the Russians, with the Russian bureaucracy.—Alexey Pajitnov, creator,
Tetris
Stein contacted the Moscow Academy of Science and began negotiating with Pajitnov for the rights to
Tetris.
Thinking Pajitnov had the authority to make a deal, Stein next began calling executives at large software publishers with an offer to license the game. He sold the European computer rights to
Tetris
to Mirrorsoft and the American rights to Spectrum Holobyte, both backed by British publishing magnate Robert Maxwell. Stein had not counted on the difficulties of dealing with the Soviets, however, and granted these rights before securing them for himself. Mirrorsoft and Spectrum Holobyte released versions of
Tetris
in January 1988. The Soviets did not sign Stein’s contract until the following month. Stein’s contract specifically gave him control of the personal computer versions of
Tetris
created for Western markets.
He finally came to us and said, “Well, I want this right, I want those rights, I want those rights.” So, basically, because we promised him the PC rights, they were given to him, and we legalized our relationship at this point. But the game was on the shelf already and I do believe that he sold his video rights as well without having an agreement. He approached us immediately, asking for all the rights, but we didn’t know who the hell he was.
—Alexey Pajitnov
Then the confusion began. Spectrum Holobyte sold the Japanese computer and coin-op rights of
Tetris
to an entrepreneur named Henk Rogers, who had strong ties to Nintendo. At the same time, Mirrorsoft sold the exact same
rights to Atari Games. Mirrorsoft wielded more power in the Maxwell organization, so the rights went to Atari. Atari, in turn, sold the Japanese coin-operated game rights to Sega Enterprises and the Japanese console and PC rights to Rogers. What nobody realized was that Stein had never received the rights to make any of these deals.
After looking over the various arrangements, Rogers realized that no one owned the handheld rights to
Tetris
, so he flew to Moscow and met with the Soviets. He had hoped to secure the rights as an agent for Nintendo. Nintendo was preparing to unveil the Game Boy, and Arakawa thought
Tetris
would be the perfect lead title for the new handheld game system. While Rogers was there, the Soviets surprised him by offering the worldwide video game rights as well. He had been under the impression that Atari and Mirrorsoft controlled those rights, and fearing a legal battle with those companies, Rogers brought Nintendo into the negotiations. On March 22, 1988, Howard Lincoln and Minoru Arakawa signed a contract with representatives of Electronorgtechnica (ELORG), the Soviet agency handling the transaction, sealing the worldwide home video game rights to
Tetris.
Atari Games had already begun work on the Tengen version of
Tetris
for the NES by that time.
I was there when they locked up
Tetris.
The
Tetris
story was kind of an interesting one, and to this day the people at Tengen believe that the Russians double dipped. The product was in negotiation for licensing, and at virtually the same time, the product was licensed to two companies. We had manufactured
Tetris
and put it on the market, and, in fact, it became the number one seller on the Nintendo platform.—Ted Hoff
On March 31, nine days after signing the contract in Moscow, Lincoln and Arakawa sent a fax to Hideyuki Nakajima, informing him that Nintendo had secured video game rights to
Tetris
. Two weeks later, Atari Games quietly filed for a copyright for the game.
Atari released its Tengen version of
Tetris
in May, 1989; Nintendo released its version one month later. The Tengen version, which was created by veteran
arcade designer Ed Logg,
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had both single-player and two-player modes and looked almost exactly like the arcade game. Nintendo’s version was a single-player game. Most reviewers agreed that Tengen had done a better job with the game.
Judge Smith, who handled the case concerning Atari’s duplication of the 10NES, presided over the
Tetris
case as well. The trial hinged on determining who had legal ownership of the game. Nintendo’s pedigree was obviously stronger. Nintendo had signed statements from Soviet officials confirming the sale and a note signed by Stein, defining computers as PC computers with, among other things, a keyboard and a monitor. Recognizing that Nintendo would almost certainly prevail when the case went to trial, Judge Smith granted Nintendo’s motion to force Atari to recall its cartridge. The case ended without a trial, however. On November 13, 1989, Smith canceled the trial and ruled that Nintendo owned the rights to the game.
I think to this day, anyone you talk to will certainly say that the best
Tetris
was the two-player
Tetris
that came out on Nintendo and was published by Tengen. Without a doubt, it was the best
Tetris.
At one point, you could look in the back of any of the gaming magazines and find people who would be willing to pay you $300 for a Tengen
Tetris
cartridge.There were 268,000 of them locked up, bolted, padlocked in Milpitas on Sycamore [Street]. If people knew that they were $300 each and knew that there were that many of them, they probably would have picked the lock. But that was a well kept secret in a dark room. And those cartridges were never shipped. When I left the company two years ago, the cartridges were still under lock and key. My understanding is that they were subsequently destroyed.
—Ted Hoff
Nintendo sold more than 3 million copies of its NES
Tetris
cartridge and more than 40 million copies of
Tetris
cartridges for Game Boy. (The game
came packed in with the system.) Pajitnov, the creator of the game, did not make any royalties from any of these sales, but his association with the game enabled him to emigrate to the United States. In 1996, all of the rights that ELORG had sold expired and reverted to Pajitnov. Hoping to help Pajitnov finally profit from the game, Henk Rogers helped him establish the Tetris Company, Llc., which would then control all rights to the game. From that time on, companies that made games based on
Tetris
had to purchase the rights from Pajitnov.
Ordinarily in a trademark case, a trademark holder contends that another party is misusing the holder’s mark or is attempting to pass off goods or services as those of the trademark holder. The other party usually protests that the mark is not being misused, that there is no actual confusion, or that for some other reason no violation has occurred. This case is different. Here both parties agree that there is misuse of a trademark, both agree that there is an unlawful mislabeling, and both agree that confusion may result. The issue here is—which party is primarily responsible?
11—Judge Stephen Reinhardt
In 1984, Bob Whitehead and Alan Miller, two of the original VCS programmers who left Atari and started Activision, founded a software company called Accolade. Accolade started out as a computer game company, but when Sega released the Genesis in 1989, Whitehead and Miller decided to convert some of their PC titles to work on the new console.
They had licensed approximately thirty other companies, and the licensing deal, it turns out, is a very expensive deal. One pays them between $10 and $15 per cartridge on top of the real hardware manufacturing costs, so it about doubles the cost of goods to the independent publisher. It winds up with the consumer generally paying a lot more for the cartridge, but that’s the licensing deal, and they have a right to establish whatever they consider to be a fair deal.
We chose to not accept the licensing deal and instead to independently study the system, figure out how to do games for it, and then publish several games for the system.
—Alan Miller, cofounder, Accolade
Mike Lorenzen led a team of Accolade engineers that purchased a Genesis console and three game cartridges, then wired the console so that they could make printouts of the executable code of the games. They compared each game’s code to locate identical chains, believing that all of the games would use the same programming instructions to disable any security locks Sega placed in the Genesis. They used this information to create a “development manual” for making Genesis games.
According to Accolade, at this stage it did not copy Sega’s programs but relied only on the information concerning interface specifications for the Genesis that was contained in its development manual. Accolade maintains that with the exception of the interface specifications, none of the code in its games is derived in any way from its examination of Sega’s code.
12—Judge Stephen Reinhardt
Accolade released
Ishido
, its first Genesis game, in 1990. Previously released as a Macintosh and PC computer game,
Ishido
was a strategy board game in the same vein as
Go.
Like Nintendo, Sega created security systems in its consoles to guard against software pirates and unlicensed publishers. In 1990, the company unveiled Genesis III, a slightly modified version of the Genesis console that included an externally developed security system called the Trademark Security System (TMSS).
The most recent version of the Genesis, the “Genesis III,” incorporates the licensed TMSS. When a game cartridge is inserted, the microprocessor contained in the Genesis III searches the program for four bytes of data consisting of the letters “S-E-G-A” (the “TMSS initialization code”). If Genesis III finds the TMSS
initialization code in the right location, the game is rendered compatible and will operate on the console. In such case, the TMSS initialization code then prompts a visual display for approximately three seconds which reads
“PRODUCED BY OR UNDER LICENSE FROM SEGA ENTERPRISES LTD”
(the “Sega Message”).
13—Judge Stephen Reinhardt
With Genesis III, Sega created a double security gate. To make unlicensed cartridges, software publishers had to discover how to unlock the security system, then face charges of misrepresentation since the TMSS authentication process triggered the licensing message. Though all officially licensed games were Genesis III compatible,
Ishido
would not operate on the new console. Accolade did not learn about this development, however, until the Winter Consumer Electronics Show in January 1991, when Sega did a demonstration in which the new version of the Genesis screened the
Ishido
cartridge. By this time, the company was preparing five games for release.
Caught in a vulnerable situation, Accolade engineers scrambled to discover what piece of code the licensed cartridges used to satisfy TMSS. They found their answer in a tiny segment in the “power-up” sequence of the game code that had no identifiable function. Lorenzen noticed it during his first round of reverse engineering and even sent a memo to Miller, stating that “it is possible that some future Sega peripheral device might require it for proper initialization.”
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That code sequence was added to the games
Star Control, Hardball, Turrican
, and
Mike Ditka Power Football
before Accolade put them on the market. Accolade released a fifth game,
Onslaught
, as well, but the game code did not have the TMSS file in the correct location and would not run on Genesis III consoles.
On October 31, 1991, Sega Enterprises filed suit against Accolade, accusing the company of trademark infringement and unfair competition. One month later, Sega added copyright infringement to its charges. Accolade lodged a counterclaim, accusing Sega of false designation of origin and unfair competition. Among other things, the counterclaim stated that Sega injured Accolade’s reputation by falsely attributing itself as the source of the unlicensed games.
