Video games are like pornography, we know it when we see it.
It’s sort of a troublesome statement, but you can appreciate the idea behind it. Porn is hard to define, especially from a legal perspective. Erotic imagery isn’t necessarily erotic to everyone, and anything may be more erotic to some than others. A bare breast shown without the intent of titilating might not be porgnographic to say, some of the readers of the New York Times, but others were offended that children were seeing that kind of image.
But porn still has a working legal definition, and one that’s pretty easy to follow. Any image with the intent of titillation is pornographic. Law doesn’t often take things on a case by case basis unless it’s important. Blanket laws are laid down early to catch most instances of a problem, and if something makes it up to the supreme court, the case can be taken on its own merits.
So why not try to define video games from a legal perspective? After all, we definitely have a whole bunch of cases and decisions to draw from.
Ralph Baer is a guy responsible for a lot of things. He claims to have been responsible for all video games ever. He is definitely responsible for the Magnavox Odyssey, the first ever reprogrammable game system. He’s also responsible for launching dozens of patent suits against video game companies and developers based on the fact that he believes he owns the patent for video games.
In 1966 Baer, an engineer who worked for Sanders Associates on defense contracts, got the idea to make a game that could be played on a television. Eventually, his ideas led to a patent on an “apparatus for generating symbols upon the screen of a television receiver to be manipulated by at least one participant.” Basically, Baer and his company patented video games, if you want to define them as “things you control on a raster monitor”.
There were sub-claims in the patent, specifically the idea that there needed to be a hitting symbol (the player) and a hit symbol (a ball) moving both vertically and horizontally. So while Baer did patent video games, he defined them all as ping pong. He also defined video games as anything you do on a screen that you control. No win state, no lose state; he wasn’t worried about the “game” so much as he was about the “video”, which is a surprisingly forward thinking move for an industry that would soon be made up entirely of Pong clones.
Times were tough, and Sanders wasn’t in a position to turn the patent into a product, so they licensed it out to Magnavox, a TV company. Along with Baer, Magnavox created the Odyssey, a game system with different cartridges that could be swapped out to play simple games, including a now infamous tennis game.
In 1972, Nolan Bushnell played Tennis on the Odyssey at a demo event, and went back to his then-new company Atari, and told one of his employees, Al Alcorn, to make a better version of it. Eventually, that game became Pong, and catapulted Atari to the top of the burgeoning video game industry.
Three years later, after Baer prodded Magnavox to take action against Atari, they sued, claiming that Atari’s Pong was a direct ripoff of Odyssey Tennis. They won, of course, considering that Baer had a guest book from the event signed by Bushnell, who later admitted that he was, in fact, inspired by the Odyssey. Atari and Magnavox settled out of court, and let Atari retroactively sublicense the patent for “video games”.
But that wasn’t the end of Baer’s lawsuit career. He spent most of the ‘80s and ‘90s on the stand as a fact witness and consultant claiming that all video games technically belonged to him and Magnavox, as he was the “father of video games”.
In 1985, he (along with Sanders and Magnavox) sued Activision, as they didn’t obtain a license to produce Atari VCS games from Magnavox. Activision first brought forward nine pieces of prior art that disproved the validity of Baer’s patent. All of these pieces had already been brought forward in two lawsuits Baer had filed between the Atari and Activision cases, so Activision moved to claim that their games were different because they had more complicated circuitry that the patent didn’t cover. Even though Activisions games didn’t even resemble anything on the Odyssey, the judge ruled in favour of Magnavox, forcing Activision to pay out over a million dollars and obtain a royalty license from Magnavox.
Over the next few years Baer would end up in court with companies like Coleco, Mattel and Nintendo. All were either sued for not licensing, or attempted to prove that Baer’s claim was illegitimate. Nintendo’s lawyers dug up Tennis for Two, a game made in 1958 by William Higinbotham, a physicist who created the ignition system for the atomic bomb. Higinbotham worked for the Brookhaven National Library at the time, and put the game together for an exhibit funded by the U.S. Department of Energy to get visitors excited about atomic power. Tennis for Two was almost exactly like the Odyssey’s tennis game and Pong, but played on an oscilloscope, a device used for measuring voltages.
The courts didn’t side with Nintendo, who had to keep paying licensing royalties to Magnavox and Sanders. According to Baer recollection of his own testimony, there are a few reasons that Higinbotham’s game doesn’t count. In an interview with game historian David Winter, Baer says that “to qualify as a video game, you have to have to pass one major test: Can you play the game on a standard home TV set or a TV monitor ?”
Basically, Tennis for Two isn’t the first video game, or even a video game at all, because it was only available for a limited time, on specialized hardware, and never made commercially available to the public. Remember, Baer says that in order to be a video game, it must be played on a standard TV or monitor. Even though Tennis for Two, Tennis and Pong are virtually indistinguishable, because the oscilloscope demo was taken down after a while, and was not made available for play on a standard TV, it doesn’t count. Though, the only difference between Tennis for Two and say, Tennis is that one is played on a TV and one isn’t. Kind of a silly distinction huh?
There were other video games that existed before the Odyssey. Thomas T. Goldsmith Jr. and Estle Ray Mann created the Cathode Ray Tube Amusement Device in 1958, which played a simple missile simulator using analog controls and screen overlays. In 1951, the British company Ferranti built the Nimrod computer, which used a panel of light bulbs in order to play a strategy game called Nim. Spacewar, which is often cited as the first proper video game, was made in 1961, by students at MIT working on a PDP-1 mini-computer.
As far as the internet can tell, the patent has lapsed, and no one pays Magnavox, Sanders or Baer anymore for making video games. But if you want to be strictly legal about it, a video game is anything happening on a screen that you control. If you want to be like Baer and get stingy about it, you have to make it commercially available and playable on someone’s actual screen, otherwise it’s not a video game, it’s just a nuisance that prevents someone from calling him the inventor of video games. And to be fair, Baer is incredibly important to the history of video games. He even invented the concept of home video games, making him the great-great-grandfather of the PS4 and Xbox One. But his definition of games that was legally enforced for years is a little problematic. The part about interactivity is forward thinking and all, but the part about raster monitors and commercial availability seems like it mostly served to keep Baer in royalty checks. The definition might not be valid anymore, and Baer might be important, but let’s try not to stick too close to his definition. After all, I’m pretty sure not every game is secretly tennis.