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Law and Gaming- The Saga of Ralph Baer


Law and Gaming- The Saga of Ralph Baer

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.

Isn't that Pong?

Isn't that Pong?

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”.

Isn't that Odyssey Tennis?

Isn't that Odyssey Tennis?

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.

Uh, let's zoom in on the screen there.

Uh, let's zoom in on the screen there.

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 ?”

Much better. You can even sort of make out the tennis!

Much better. You can even sort of make out the tennis!

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.

A screenshot of Spacewar, or: The Case for Capture Devices

A screenshot of Spacewar, or: The Case for Capture Devices

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.  



Gaming History 101: A Trip through the Historical Software Collection


Gaming History 101: A Trip through the Historical Software Collection

A few days ago, the Internet Archive put up a section called the Historical Software Collection, a portion of their archive dedicated to preserving old software that they’ve deemed important to the history of videogames. The games are presented accurately, running of a Javascript version of MESS (the Multi Emulator Super System), so the’re totally free and legally availble to play in your browser.

We at Built to Play wanted to give you a little sampler of five games in the collection that we feel are some of the more historically interesting ones available.

Pac- Man 2600:


In 1981, Atari employee Todd Frye was asked to develop a version of Namco’s arcade hit, Pac-Man, for the Atari 2600. Atari figured that even though their hardware was released in 1977, and wasn’t designed to display more than three moving objects at a time, Pac-Man was simple and gameplay-focused enough that they could get away with what they assumed would be an ugly, but functional port.

They were wrong.


Programmer Todd Frye was given about five months to make the game, which he quickly realized was almost impossible. For one thing, Pac-Man was running on arcade-level hardware that was 16 times more powerful than the 2600, and because of executives trying to get as much money out of the game as possible, Frye was told to design the game on a 4 kilobyte cartridge, rather than the larger, but more expensive, 8 KB counterpart. Frye ended up changing the game’s trademark power pellets to yellowish wafers, and drawing them, along with Pac-Man, every frame. To get around the three moving objects rule, Frye had the four ghosts flicker on a four frame rotation, with only one being visible every frame. On an old CRT monitor, the afterimage could trick someone into thinking they weren’t flickering that often, but on a modern computer monitor, the effect is headache-inducing.


It all resulted in a game that is recognizable as Pac-Man, but not nearly as good, and certainly a disappointment to Pac-Man fans who were eagerly anticipating a home version. Atari, expecting the game to be their biggest seller ever, printed 12 million copies, about two million more games than there were sold Atari 2600’s at the time. The game sold seven million units over the course of the system’s life, a little over half of the initial estimate. Unsatisfied buyers returned the game in droves, leaving Atari with not only the 5 million left over, but hundreds of thousands more copies sitting unsold. Pac-Man is often cited as one of the games (along with E.T. the Extra Terrestrial) that led to the videogame crash of 1983, because it drove consumer confidence in Atari straight into the ground.

And no, apparently the yellowish squares aren’t Twinkies. What a gyp.



Luckily, the Collection not only features the 2600’s best selling title, but also its second best, David Crane and Activisions’s Pitfall!.

Unlike Pac-Man, it’s Pitfall’s gameplay that makes it so important. It’s often considered one of the earlier examples of the sidescrolling platformer.


Pitfall lacks the uneven terrain of other, later platformers, but has the same multiple levels of play, sidescrolling format, and focus on avoiding hazards that would eventually become the genre’s trademarks. It’s unlikely that the true origin point for platformers, Super Mario Bros. was inspired by Pitfall, but its early use of those concepts on system that could barely handle them is interesting enough on its own.

Crane managed to get multiple moving sprites on screen at once, without any flickering, and still fit the game on a 4 KB cartridge, a feat that made Pac-Man look even worse by comparison. He also made sure the game felt completely distinct from Atari’s glut of poor arcade conversions by giving players a 20 minute time limit. Arcade games usually lasted only a few minutes, to get players to pump more quarters into the machine. By giving players 20 minutes, Crane gave the game a reason to be on a home system, and started the trend of longer game experiences for the home market.



Akalabeth is brutal, confusing, difficult to get into and almost unplayable to people who grew up with the luxuries of modern RPGs. It’s also probably the reason that those RPGs even exist in the first place.

Richard Garriot programmed Akalabeth: World of Doom in 1979, while he was in high school. Eventually, the game found its way out of his hometown and into the hands of the California Pacific Computer Company, who offered to publish Garriot’s game, and give him 5$ for every copy sold. Three years later, Garriot would release his next game, Ultima, a spiritual sequel to Akalabeth.


Ultima is essentially the inspiration for almost every western RPGs, and plenty of eastern ones as well. Ultima and Wizardry, another RPG released that same year, are often cited as the two games that inspired Dragon Quest and Final Fantasy, which in turn inspired every other JRPG. And all these games can trace their origins back to Akalabeth.

The game is mostly a curio now, since Ultima went on to do what Akalabeth tried to do but in a more playable state, but there is some charm left on those digital bones. Nothing says dedication like turning your restart option into a prayer for revival.

Mystery House:


In the late ‘70s, Ken Williams wanted to start up a company for Apple II software development. After poking around a catalogue, he and his wife, Roberta, found a game called Colossal Cave, which they loved. It was a text-adventure game, and when they started looking for more, they couldn’t find anything that was quite what they wanted, so they did what any reasonable person would do: they made their own.

Roberta felt like the game would work better with pictures, so Ken developed Mystery House, using 70 simple drawings she’d made for their story, which was based on Agatha Christie’s novel And Then There Were None. They sold the game in sandwich bags at local software shops, and it managed to break 10,000 copies sold, which was an unbelievable success at the time.


A few years later, they turned their little operation into a proper company, called Sierra On-Line, and worked on cranking out more and more adventure games. Text-adventure games were already pretty popular among hobbyists, but adding pictures and graphics made the genre more accessible, opened it up to new fans, and eventually, turned adventure games into some of the most popular PC games out there.

Sierra’s later titles like King’s Quest and Space Quest, Lucasart’s classics like Maniac Mansion and the Indiana Jones games, even Myst, all owe something of their existence to Ken and Roberta Williams, and Mystery House.

As an added bonus, not only is the game historically important, it’s also one of the few games in the collection that is still kind of playable! It’s a little obtuse, but seasoned adventure gamers might be able to enjoy the spookiness regardless.

Smurf: Adventure in Gargamel’s Castle: 

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Unlike every other game on this list (and most other games in the collection), Smurf is interesting specifically because it inspired nothing.

Released in 1982, the game has you control an adjectiveless smurf on his way to rescue Smurfette. You do this by jumping, double jumping, or ducking. That’s about it. You can’t defeat enemies (of which there are only two) and your most common hazards are some weeds that will kill you if you touch them. One can only assume smurfs (smurves?) are just that into garden maintenance.


The game can be beaten in about two or three minutes on any difficulty, it’s a bit of a joke. The interesting thing about it though, is that it was the first platformer with alternating terrain. Unlike in Pitfall, you weren’t just jumping over pits and hazards, but up and down onto ledges on different levels. It’s not any sort of major innovation, in fact, Donkey Kong did it a year earlier, but it wouldn’t be adopted back into sidescrolling platformers until the next year’s Maniac Miner, which probably didn’t draw anything from Smurf.

Smurf, like other games in the collection is mostly a curio these days, but it’s a distinctly weird curio. It’s a pretty bad game with early signs of innovation that just sort of evolved into a dead end. Uneven terrain in platformers became a “thing” with Super Mario Bros., which was in turn inspired by Donkey Kong. But Smurf did it first, for whatever it’s worth.

Also, that topless Smurfette glitch makes her gaming’s first sex symbol, in a weird way. Take THAT, Lara Croft.