III. CHANGING THE GAME A. Enhancements

THE GAMES 83 III. CHANGING THE GAME A. Enhancements The original Game Genie was a device sold by Lewis Galoob Toys that allowed players to change up to three features of games played on Nintendo s NES console. 70 A cartridge-like hardware pack that connected the video game cartridge to the NES console, the Game Genie introduced its own start-up screen from which a player could enter special codes from examples listed in the Game Genie code book. By entering those codes or by programming their own codes, players could modify a maximum of three gameplay features, including, for example, the number of lives of the player s character, the speed at which a character moved, how much time, energy or ammunition a player had, the number of obstacles a player would face and on what world or level the action would start. Although the Game Genie allowed these gameplay characteristics to be altered, it did not change the data stored in Nintendo s game cartridge. In other words, the Game Genie s impact on gameplay was only a temporary alteration or enhancement. In Lewis Galoob Toys v. Nintendo of America, 71 the Court of Appeals found that the Game Genie did not violate any Nintendo copyrights. Copyright law protects the original creative work and its derivatives. 72 Nintendo claimed that the Game Genie was a derivative work, even though 70 71 72 Similarly, see OG International v. Ubisoft Entertainment, 2011 U.S. Dist. LEXIS 124020 (U.S. Dist. Ct. Northern Dist. of California), where the District Court denied Ubisoft s motion for a preliminary injunction and temporary restraining order to prevent OG from releasing its dancebased game Get Up and Dance in competition with Ubisoft s Just Dance series of dancebased games. Ubisoft filed its motion after OG had filed a declaratory motion to determine whether OG had infringed Ubisoft s copyright and trade dress rights in avatar and instructor features in Just Dance. In denying Ubisoft s motion, the court held that Ubisoft had failed to demonstrate a clear likelihood of success on the merits, nor a clear showing of irreparable harm. With respect to Ubisoft s copyright infringement claims, the court held that the avatars are entitled to protection against substantially similar copying, while the instructors are only entitled to protection against virtually identical copying. In both cases, the court held that Ubisoft had failed to demonstrate a clear likelihood of success. With respect to Ubisoft s trade dress infringement claims, the court held that the elements of avatars and instructors which Ubisoft alleged to be protected by trade dress are functional in nature and thus excluded from trade dress protection. Also, in a battle between two Japanese companies, a Tokyo court ordered DeNA to pay GREE damages of U.S. $2.9 million and to stop making available its fishing game on the basis that the game infringed GREE s copyrights. See online: <http://www.serkantoto.com/2012/02/23/greedena-lawsuit-tsuri-star/>. Versions of the Game Genie were also released for the SNES, Game Boy, Sega Genesis and Sega Game Gear. 1992 U.S. App. LEXIS 11266 (9th Cir. 1992). For example, the U.S. Copyright Act, 17 U.S.C. 101 defines derivative work as follows: A derivative work is a work based upon one or more preexisting works such as a translation,

84 VIDEO GAME LAW to be protected, derivative works usually physically incorporate the copyrighted work. The court rejected Nintendo s argument: The district court s finding that no independent work is created is supported by the record. The Game Genie merely enhances the audiovisual displays (or underlying data bytes) that originate in Nintendo game cartridges. The altered displays do not incorporate a portion of a copyrighted work in some form. Nintendo argues that the Game Genie s displays are as fixed in the hardware and software used to create them as Nintendo s original displays. Nintendo s argument ignores the fact that the Game Genie cannot produce an audiovisual display; the underlying display must be produced by a Nintendo Entertainment System and game cartridge. The Game Genie s display has no form. Even if we were to rely on the Copyright Act s definition of fixed, we would similarly conclude that the resulting display is not embodied, see 17 U.S.C. 101, in the Game Genie. It cannot be a derivative work. 73 Additionally, the court held that even if the audiovisual display created by the Game Genie were derivative, there would be no copyright infringement because the Game Genie s functions were a fair use of Nintendo s copyright. 74 Crucial to this finding were several conclusions of the lower court, which were cited with approval: 73 74 musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a derivative work. Section 3(1) of Canada s Copyright Act, R.S.C. 1985. c. C-42, although not using the term derivative work, covers off this concept with the words produce or reproduce the work... in any material form whatever. Worth noting is that if the taking from the original is not substantive, fair use/dealing will apply. Lewis Galoob Toys v. Nintendo of America, 1992 U.S. App. LEXIS 11266 at para. 6 (9th Cir. 1992). The finding in Galoob seemingly overrules an earlier contradictory finding on similar facts made by the Court of Appeals for the Seventh Circuit in Midway Mfg. Co. v. Arctic International Inc., 1983 U.S. App. LEXIS 28945, 704 F.2d 1009 (7th Cir. 1983). In Midway, considering a printed circuit board that accelerated the arcade game Galaxian, the court stated at 1013 (F.2d): The final argument of defendant s that we address is that selling plaintiff s licensees circuit boards that speed up the rate of play of plaintiff s video games is not an infringement of plaintiff s copyrights. Speeding up the rate of play of a video game is a little like playing at 45 or 78 revolutions per minute (RPM s) a phonograph record recorded at 33 RPMs. If a discotheque licensee did that, it would probably not be an infringement of the record company s copyright in the record. One might argue by analogy that it is not a copyright infringement for video game licensees to speed up the rate of play of video games, and that it is not a contributory infringement for the defendant to sell licensees circuit boards that enable them to do that. There is a critical difference between playing records at a faster than recorded speed and playing video games at a faster than manufactured rate: there is an enormous demand for speeded-up video games but there is little if any demand for speeded-up records. Not many people want to hear 33 RPM records played at 45 and 78 RPM s so that record licensors would not care if their licensees play them at that speed. But there is a big demand for speeded-up video games. Speeding up a video game s action makes the game more challenging and exciting and increases the licensee s revenue

THE GAMES 85 (a) Game Genie users were engaged in a non-profit activity. Therefore, their use of the Game Genie to create derivative works was presumptively fair. In coming to this conclusion, the court referenced the 1984 decision, Sony Corp. of America v. Universal City Studios, Inc., 75 where the U.S. Supreme Court held that the videotaping of televised material by consumers (through a Sony Betamax recorder or VCR) was a fair use; 76 (b) The published nature of Nintendo s console and cartridges supported the fairness of what the Game Genie does. In this light, the Game Genie was akin to a commentary on a literary work that incorporates large portions of that original work; 75 76 per game. Speeded-up games end sooner than normal games and consequently if players are willing to pay an additional price-per-minute in exchange for the challenge and excitement of a faster game, licensees will take in greater total revenues. Video game copyright owners would undoubtedly like to lay their hands on some of that extra revenue and therefore it cannot be assumed that licensees are implicitly authorized to use speeded-up circuit boards in the machines plaintiff supplies. Among a copyright owner s exclusive rights is the right to prepare derivative works based upon the copyrighted work. 17 U.S.C. 106(2). If, as we hold, the speeded-up Galaxian game that a licensee creates with a circuit board supplied by the defendant is a derivative work based upon Galaxian, a licensee who lacks the plaintiff s authorization to create a derivative work is a direct infringer and the defendant is a contributory infringer through its sale of the speeded-up circuit board. 1984 U.S. LEXIS 19, 464 U.S. 417 (U.S. 1984). The court in Sony observed that consumers were engaged in time-shifting programs, that is, taping them for later viewing since the originally scheduled broadcast time was not convenient. The court went on to find that time-shifting was a fair use of copyright material. Similarly, in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 2008 U.S. App. LEXIS 16458 (2d Cir. 2008), the court held that a cloud-based remote storage digital video recorder system did not infringe the copyright of the plaintiffs. The service relied on a router located at a user s home, which transmitted video received from the user s cable service provider to a remote server hosted by the defendants. The remote server would store programs received from the user s router and transmit the programs back to the user for viewing at a later time. The Court of Appeals held that: (a) any work temporarily buffered by Cablevision prior to storage was of a transitory nature, and thus it did not meet the fixation requirement under the Copyright Act; (b) the selection and storage of videos on the server were directed entirely by the user, and therefore Cablevision was not directly making any copies of the video; and (c) the transmission by Cablevision of a video uploaded by a user back to that user is not a transmission to the public. In a similar vein, see Viacom International Inc. v. YouTube, Inc., 2010 U.S. Dist. LEXIS 62829, 718 F. Supp. 2d 1180 (S.D.N.Y. 2010), the District Court for the Southern District of New York, in which Viacom alleged that YouTube was liable for vicarious and direct copyright infringement on the grounds that YouTube had hosted thousands of Viacom s copyrighted works for YouTube users to view without Viacom s permission. The court held that because YouTube had a well enforced and reasonable notice and takedown policy and had consequently removed the allegedly infringing videos promptly after being notified by Viacom that unauthorized videos were available, it was protected from liability for copyright infringement under the DMCA s safe harbor provisions. YouTube s general awareness that infringement was occurring on its website was insufficient to result in liability. Viacom has announced its intention to appeal this decision.

86 VIDEO GAME LAW (c) The fact that the derivative works created by the Game Genie were comprised almost entirely of Nintendo s copyrighted displays does not militate against the finding of fair use ; and (d) Nintendo could not demonstrate harm to its market or the likelihood of a potential market for slightly altered versions of Nintendo s games. In fact, the court noted that Nintendo had not, at the date of the trial, issued or considered issuing altered versions of existing games. 77 Nintendo of America v. Prima Communications 78 is another case dealing with game enhancements. The District Court rejected Nintendo s attempt to prevent Prima from continuing to sell its GoldenEye 007: Unauthorized Game Secrets strategy guidebook. Nintendo argued that Prima had infringed copyrighted maps that were included in Nintendo s game manual. The court found that the maps contained much factual material and only some protected original material. Accordingly, any copying by Prima was noninfringing, as the copyright material in those maps was held to be de minimus, or trifling, in the overall context. Neither Galoob nor Prima dealt directly with the question of whether game enhancements can be protected because they improve the intellectual property of others and are therefore not prejudicial. Although this may seem a logical argument, copyright law does not recognize the doctrine of improvements found in patent law. 79 This means that whether devices like the 77 78 79 See also Nintendo of America Inc. v. Camerica Corp., [1991] F.C.J. No. 58, 34 C.P.R. (3d) 193 (F.C.T.D.), affd [1991] F.C.J. No. 445, 36 C.P.R. (3d) 352 (F.C.A.), where Rouleau J. dismissed Nintendo s application for an interlocutory injunction against the manufacturer of the Game Genie (created to modify Super Nintendo games). Although acknowledging that serious copyright issues had been raised, the court found that Nintendo did not meet the burden of showing the irreparable harm necessary for an injunction to be granted. In this regard, Rouleau J. stated at para. 33 of the judgment: Having taken this and all the affidavit evidence of the plaintiffs into consideration, I am resolved that not one scintilla of proof has been offered to support the imputation of irreparable harm. The plaintiffs have not demonstrated the loss of a single sale in spite of the fact that the defendant Camerica started shipping Game Genie to customers in June, 1990. This confirms my view that, even if they are successful at trial, the plaintiffs injuries would be severely circumscribed and, being limited to damages resulting from the alleged infringement of its copyright as opposed to loss of profits resulting from diminished sales, would be relatively insubstantial and compensable in damages. 1997 U.S. Dist. LEXIS 21120 (W.D. Wash. 1997). In patent regimes, improvements can be patented as a new work; generally, there is no statutory scheme for a derivative work in patent law that vests ownership in improvements to the creator of the original invention. Though the copying of creative materials is generally intended to be incidental to and in aid of the original game, from a legal perspective, this is irrelevant when considering whether a derivative infringes a publisher s or developer s copyright. The extent to which a copy may fit the definition of a derivative work of the author s original (which allows the author control over some changes of medium and adaptations of the original work) is a matter of debate in the U.S., focusing on the interpretation of the words recast, transformed, or adapted found in the Copyright Act, 17 U.S.C. 101. As these expansive words are not present in the Canadian Copyright Act, the Supreme Court has ruled that artist s rights under the Act do not permit him to prevent purchasers of a work to resell a modified copy (although not multiples) in the same market as the artist unless the copy is to the prejudice of honour or reputation of the author, (known as the moral right of integrity). Copyright Act, R.S.C. 1985, c. C-42,

THE GAMES 87 Game Genie, strategy guides, and other enhancements constitute original non-infringing works turns on traditional fair use/fair dealing defences: for example, whether the copyrighted material in the game cartridge was actually copied or altered (the Galoob issue), or whether the de minimus principle applies even where some physical copying occurred (the Prima issue). In summary, modifications that enhance games have been permitted, provided they do not copy the original work, do not infringe on any underlying patents, and do not circumvent any copy protection mechanisms. 80 B. Mods From the beginning of computer-based video games, it has been possible to modify an original game by adding or changing the original software. Games such as Doom permitted active communities to develop and create additional levels or worlds. Modifications (mods) can include changes to maps, levels, weapons, vehicles, skins, characters, storylines, scenery and almost anything that can be imagined, including the gameplay itself. 81 It can easily be argued that mods infringe the copyright in the original game. 82 After all, mods are usually based on original code and gameplay elements. 80 81 82 s. 28.2(1). Unlike French law, Canadian law does not recognize a moral right to control the use that is made with the authorized copy of the artist s work (a right known as a droit de destination ). See Théberge v. Galerie d Art du Petit Champlain inc., [2002] S.C.J. No. 32, [2002] 2 S.C.R. 336 (S.C.C.). In the granting of a preliminary injunction in Sony v. GameMasters, 1999 U.S. Dist. LEXIS 21719, 87 F. Supp. 2d 976 (N.D. Cal. 1999), the court seemed to have little doubt that the Game Enhancer, a chipping and cheating device would likely be found to violate the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (DMCA) despite the fact that one of its apparently legitimate uses was to temporarily modify the rules of a specific game for gameplay enhancement. Some of the best or most popular mods have included Counter-Strike for Half-Life, Desert Combat for Battlefield 1942, and 65 Season for Grand Prix Legends. For example, video game publisher Tecmo, Inc. has sued webmasters and members of an online forum dedicated to creating custom skins, including several skins... designed to make Tecmo Characters appear naked. These mods were for Tecmo s Xbox games, including Dead or Alive Xtreme Beach Volleyball. Tecmo s general manager was quoted as saying: [W]e believe it is our duty to uphold the integrity of our work. The action, filed in the District Court, Northern District of Illinois, on January 25, 2005, claims copyright infringement, the circumvention of copyright protection systems in violation of the DMCA, passing off and unfair competition. An attorney with the Electronic Frontier Foundation stated: This complaint is absurd... The law allows for fair use of other people s copyrighted works without any permission needed, and one of the key things that you re allowed to do is make copies in order to reverse engineer and understand how they work... If they d offered a competing video game with Tecmo s code in it, it s a legal issue. But here, they have simply offered a way for legitimate game owners to modify how the game looks on their screen. It s like a home customization kit. It s not competing in any way with Tecmo s product. In fact, you have to own Tecmo s product to use this stuff. See Kevin Poulsen, Hackers sued for tinkering with Xbox games (February 10, 2005), online: The Register <http://www.theregister.co.uk/2005/02/10/tecmo_sues_xbox_game_hackers/>.

88 VIDEO GAME LAW On the other hand, many developers and publishers appreciate the mod communities that have evolved and see modding as an asset to their games. By the late 1990s, it was not uncommon for developers and publishers to include tools that allowed and encouraged mods, along with limited but explicit permissions set out in the accompanying End User Licence Agreements (EULA). 83 The final step in the evolution of mods seems to be the active encouragement and even the subsidization of mod teams by publishers and developers. Does modding infringe copyright in the absence of the publishers and developers permission? The answer is almost certainly yes. 84 A useful legal starting point in considering this phenomenon is that every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright. 85 In Micro Star v. FormGen Inc., 86 the owners of the intellectual property in the first-person shooter game Duke Nukem 3D (D/N-3D) sued Micro Star, which had compiled 300 player-created levels for the game onto a disc that was commercially sold to players under the name Nuke It (N/I). Ironically, these levels were created because the original game included a utility called Build Editor, which enables players to create such new content. FormGen sought a preliminary injunction barring the sale of Nuke It, claiming that Micro Star violated FormGen s exclusive right to prepare derivative works based on Duke Nukem 3D. To succeed in its claims, FormGen had to overcome the principles enunciated six years earlier, in Galoob, 87 by the same court. In that case, an intermediate device that modified certain gameplay parameters was protected. The court began its consideration most appropriately: Duke Nukem routinely vanquishes Octabrain and the Protozoid Slimer. But what about the dreaded Micro Star? 88 83 84 85 86 87 88 For example, Microsoft releases software development kits (SDKs) for its PC Flight Simulator series. These SDKs are free and allow modders to produce additional planes and scenery. As well, Electronic Arts (EA) seems to have made a conscious effort to ensure that its Formula 1 series of games could be modded relatively easily. In the PC game FI Challenge 1999 2002, EA even included code for some unnecessary features (such as headlights and horns, which Formula 1 cars do not have) that could be activated by modders. See the discussions related to Davidson, Section II.C. Davidson & Associates v. Internet Gateway: Pwned by the EULA ; iracing, Section II.D. iracing v. Robinson: Open Wheels, Closed Games and MDY, Section II.E. MDY Industries, LLC v. Blizzard Entertainment, Inc.: Not Bots, below. Sony Corp. of America v. Universal City Studios, Inc., 1984 U.S. LEXIS 19, 464 U.S. 417 at 451 (U.S. 1984). 1998 U.S. App. LEXIS 22061 (9th Cir. 1998). Lewis Galoob Toys v. Nintendo of America, 1992 U.S. App. LEXIS 11266 (9th Cir. 1992). Micro Star v. FormGen Inc., 1998 U.S. App. LEXIS 22061 at para. 1 (9th Cir. 1998).

THE GAMES 89 The court then distinguished Galoob in order to find copyright infringements: Micro Star argues that the MAP 89 files on N/I are a more advanced version of the Game Genie, replacing old values (the MAP files in the original game) with new values (N/I s MAP files). But, whereas the audiovisual displays created by Game Genie were never recorded in any permanent form, the audiovisual displays generated by D/N-3D from the N/I MAP files are in the MAP files themselves. In Galoob, the audiovisual display was defined by the original game cartridge, not by the Game Genie; no one could possibly say that the data values inserted by the Game Genie described the audiovisual display. In the present case the audiovisual display that appears on the computer monitor when a N/I level is played is described in exact detail by a N/I MAP file.... 90 Micro Star further argues that the MAP files are not derivative works because they do not, in fact, incorporate any of D/N-3D s protected expression. In particular, Micro Star makes much of the fact that the N/I MAP files reference the source art library, but do not actually contain any art files themselves. Therefore, it claims, nothing of D/N-3D s is reproduced in the MAP files. In making this argument, Micro Star misconstrues the protected work. The work that Micro Star infringes is the D/N-3D story itself a beefy commando type named Duke, who wanders around post-apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels, and the stories told in the N/I MAP files are surely sequels, telling new (though somewhat repetitive) tales of Duke s fabulous adventures. A book about Duke Nukem would infringe for the same reason, even if it contained no pictures. 91 Essentially, the court found that the enhancements provided by the additional game levels substantially incorporated protected material by using the characters and story fundamentals of the original game. The court also rejected Micro Star s claims that its use of Duke Nukem 3D s protected expression fell within the doctrine of fair use 92 because: (1) Micro Star s use 89 90 91 92 MAP files contain a series of instructions that tell the game engine where to place what objects from the source art library. Micro Star v. FormGen Inc., 1998 U.S. App. LEXIS 22061 at para. 11 (9th Cir. 1998). Micro Star v. FormGen Inc., 1998 U.S. App. LEXIS 22061 at para. 13 (9th Cir. 1998) [citations omitted]. 17 U.S.C. 107 permits unauthorized use of copyrighted works for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, and instructs courts in determining whether the use made of a work in any particular case is a fair use to consider four factors: (1) the purpose and character of the use, including whether it is commercial in nature; (2) the nature of the copyrighted work; (3) the amount and sustainability of the copied material in relating to the copyrighted work as a whole; and (4) the effect of the use on the potential market for the copyrighted work.

90 VIDEO GAME LAW of FormGen s copyright work was made purely for financial gain; (2) the fair use defence is much less likely to succeed where it is applied to fiction or fantasy creations; 93 (3) the quantity and importance of the material used was substantial; and (4) Micro Star impinged on FormGen s ability to market new versions of the Duke Nukem story when only FormGen has the right to enter that market. Finally, the court forcefully rejected Micro Star s argument that it was the beneficiary of the implicit licence FormGen gave to its customers by authorizing them to create new levels: Micro Star also argues that it is the beneficiary of the implicit license FormGen gave to its customers by authorizing them to create new levels.... Nothing indicates that FormGen granted Micro Star any written license at all; nor is there evidence of a nonexclusive oral license. The only written license FormGen conceivably granted was to players who designed their own new levels, but that license contains a significant limitation: Any new levels the players create must be offered [to others] solely for free. The parties dispute whether the license is binding, but it doesn t matter. If the license is The scope of Canada s fair dealing provisions are more limited. Sections 29, 29.1 and 29.2 of the Copyright Act, R.S.C. 1985, c. C-42 set out the parameters of fair dealing in Canada, providing protection for: research or private study, criticism or review and news reporting. The Supreme Court of Canada s decision in CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.J. No. 12, [2004] 1 S.C.R. 339 (S.C.C.) significantly clarifies the concept of fair dealing in Canada at paras. 48 53. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user s right. In order to maintain the proper balance between the rights of a copyright owner and users interests, it must not be interpreted restrictively.... The Copyright Act does not define what will be fair ; whether something is fair is a question of the fact and depends on the facts of each case.... 93 At the Court of Appeal, Linden J.A. acknowledged that there was no set test for fairness, but outlined a series of factors that could be considered to help assess whether a dealing is fair. Drawing on the decision in Hubbard, [[1972] 1 All E.R. 1023 (C.A.)], as well as the doctrine of fair use in the United States, he proposed that the following factors be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases. CCH is part of a recent trilogy of Supreme Court of Canada decisions, including Théberge v. Galerie d Art du Petit Champlain inc., [2002] S.C.J. No. 32, [2002] 2 S.C.R. 336 (S.C.C.) and Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] S.C.J. No. 44, [2004] 2 S.C.R. 427 (S.C.C.), which favoured user rights over those of copyright holders. In this regard, in Micro Star v. FormGen Inc., 1998 U.S. App. LEXIS 22061 (9th Cir. 1998), the court pointed out at para. 17, that Duke Nukem s world is made up of aliens, radioactive slime and freezer weapons, clearly fantasies, even by Los Angeles standards.

THE GAMES 91 valid, it clearly prohibits commercial distribution of levels; if it doesn t, FormGen hasn t granted any written licenses at all. In case FormGen didn t license away its rights, Micro Star argues that, by providing the Build Editor and encouraging players to create their own levels, FormGen abandoned all rights to its protected expression.... Given that it overtly encouraged players to make and freely distribute new levels, FormGen may indeed have abandoned its exclusive right to do the same. But abandoning some rights is not the same as abandoning all rights, and FormGen never overtly abandoned its rights to profit commercially from new levels. Indeed, FormGen warned players not to distribute the levels commercially and has actively enforced that limitation by bringing suits such as this one. 94 Although copyright holders may find advantages in the additional content being created, on current trajectories there are and will continue to be pockets of hostility pitting game makers directly against the modding community. This is particularly true as game makers try to ensure that all available revenues attributable to their content are captured, which is becoming increasingly important to game makers as games become more expensive to produce. After all, even in Micro Star, it was not the actual modders who were being sued, but rather those who sought commercial gain from the creative efforts of others. In the same light, if a mod were to significantly diminish the appeal of an authorized commercial product, at a minimum, the likely result would be threats of litigation. Though it was once an intriguing question as to whether or not a copyright holder could successfully sue a publisher/developer for providing the tools used for infringing purposes, the answer is now fairly clear. 95 Jurisprudence in the realm of video games and related technical areas indicates that the DMCA is being applied in such a way that the answer is yes. Several arguments that, at first blush, would seem to offer a way for the 94 95 Micro Star v. FormGen Inc., 1998 U.S. App. LEXIS 22061 at para. 18 (9th Cir. 1998). For example, Marvel Enterprises Inc. sued NCsoft Corporation and Cryptic Studios Inc. in the District Court, Central District of California, because of the massively multiplayer game City of Heroes. Marvel claimed that the character customization functionality in the game allows players to create superheroes that closely resemble trademarked Marvel comic characters like The Incredible Hulk and the X-Men. As well, Marvel alleged that since the game is played on the defendant s servers, they are responsible for their customers copyright breaches. On March 9, 2005, as a result of a preliminary motion, the court dismissed six of Marvel s causes of action, although significant copyright claims remain. See Tor Thorsen, Marvel sues NCsoft over City of Heroes (November 12, 2004), online: Gamespot <http://www.gamespot.com/news/2004/ 11/12/news_6113055.html>; and Allen Raush, NCsoft Scores Partial Victory over Marvel (March 11, 2005), online: <http://pc.gamespy.com/pc/city-of-heroes/595372p1.html>. Nintendo used the DMCA to threaten Pokémon fan sites with litigation when they posted screenshots from Pokémon Black and Pokémon White in advance of the games release. See Luke Plunkett, Report: Nintendo Threatens Pokémon Website For Showing Pictures Of Pokémon (September 20, 2010), online: Kotaku <http://kotaku.com/5642547/report-nintendothreatens-pokemon-website-for-showing-pictures-of-pokemon>.