The founding story of Ms. Pac-Man has been told before and is well known, especially among those fascinated by the raucous early days of the coin-op boom. But still, it's a humdinger.
A group of MIT drop-outs deconstructed the original game, made significant improvements and sold the additional modifying code back to U.S. distributor Midway and Japanese creator Namco as a new game.
That company was called General Computer, and it made its living by modifying the work of others, and presenting that work as separate intellectual properties. In the early 1980s, the legal status of this activity was yet to be established.
At last week's Game Developers Conference, one of Ms. Pac-Man's creators, Steve Golson, looked back at his days as part of the gang of brilliant and opportunistic hackers who ripped open successful arcade games, and reconstituted and improved them.
Their original Pac-Man mod was a game called Crazy Otto. It was, essentially, the same game, with various improvements.
We might recognize this as "modding," but it's more complex than that.
In the head-spinning years of hits like Missile Command, Donkey Kong and Pac-Man, the legal implications of modifying someone else's work and selling it on as one's own were fuzzy. Golson's speech reveled in how he and his comrades ran rings around the arcade manufacturers.
Ms. Pac-Man, in its original form of Crazy Otto, sat on a significant base of code from Pac-Man, but the makers of the original game were never supposed to be paid. Only General Computer would take the money.
Today, it's difficult to imagine someone releasing a paid add-on for, say, Grand Theft Auto 5, and pretending that it's an entirely new game, without there being extreme and rapid legal implications.
Prior to Ms. Pac-Man, General Computer reverse-engineered nuclear war arcade game Missile Command, made it more challenging, and then represented the game to arcade operators as Super Missile Attack. Around five percent of Missile Command machines were modified with the new version. General Computer cleared $250,000 in profits.
Missile Command's manufacturer Atari hit General Computer with a $15 million lawsuit. But this was an era of rapid change and quick profits. Atari decided to settle by hiring General Computer.
Following his GDC speech, I asked Golson if what they were doing was basically plagiarizing someone else's work, as if they were an author who changes a few passages in a novel and presents it as something new.
"What we were doing was more like taking a book that someone has already bought and selling them an index or an addition at the end," he said. "Atari had already sold the game to the end-user [the arcade operators]. They had already made their money. That part of the game could not be resold. You already had to have the Atari code for our game to work. We were adding something new."
Recently, the critic Ian Bogost, also a professor of media and technology at the Georgia Institute of Technology, tackled Ms. Pac-Man's story and subsequent influence in his book How to Talk About Video Games, setting the game within the context of its attempt to appeal to women and its portrayal of a female central character. I asked Bogost to chip in his thoughts on the legality and morality of early arcade mods. He replied via email:
"It's important to understand the context of arcade enhancement kits of the late '70s and early '80s. These kits were developed by third parties to work atop devices that had been sold outright to the proprietors of venues that hosted coin-op cabinets, typically bars, bowling alleys, laundromats, convenience stores and so forth. Coin-op buyers bought something more like a vending machine (from their perspective) than an entertainment system.
"The sellers of cabinets provided detailed schematics for operating and repairing them, and these are the materials that enhancement kit developers used to devise their add-ons. From the enhancement kit creators' perspective, the results were more like performing aftermarket alterations to vehicles, say, than like absconding with the game itself for personal gain.
"There's no question that [General Computer] was building atop Pac-Man, nor any question about why they were doing so. But all art is ultimately stolen, and most games build atop the designs set by predecessors. Usually not by literally installing parasitic daughterboards on their hardware, to be sure. But then again, we couldn't do that anymore even if we wanted to."
Expediency and Settlement
Atari's settlement was an act of expediency, not of defeat. If anything, General Computer's case was not progressing well. Atari successfully managed to slap a temporary restraining order on Super Missile Attack as well as a longer preliminary injunction.
The company argued that the arcade cabinets still advertised Missile Command, but that the game inside was Super Missile Attack. An offer by General Computer, to supply new stickers to put on the cabinets, was rejected. In that case, the game would cease to be Missile Command entirely, an invidious situation.
General Computer's case rested on the fact that, while Atari's code was protected by copyright, the actual experience of playing the game was not. Therefore, selling a similar experience could not be a breach of copyright.
This was before later "look and feel" cases which centered on which elements of computer software could be copyrighted, and which not. In later years, various lawsuits concluded that copyright could not be infringed by an overall idea (for example, a character eating pellets in a maze) but could be infringed by similar details in presentation, like an icon.
Judge Robert Keeton, who later presided over the landmark 1995 Lotus v. Borland look and feel trial, which established many of the precedent conclusions still used today, was due to handle the Atari case.
General Computer's modifications on Pac-Man took astonishing skill, intelligence and daring. Ms. Pac-Man was clearly a significant advance on the original.
Most notably, it randomized the previously predictable movements of the ghosts, it offered up four mazes instead of one, and it created (using only a handful of pixels) a central character who has an identifiable personality separate from Pac-Man's.
Legally, General Computer made sure to sell nothing that could be identified as someone else's code. Crazy Otto featured a two-legged pellet-munching character, not unlike Pac-Man.
Instead of releasing the game and waiting for a Midway lawsuit, General Computer pitched it to Midway directly. This was an outrageous act of chutzpah, especially as the company was working for Atari at the time. Yet the contract with Atari allowed General Computer to work with other companies. Midway saw the benefit, signed the game up, made some changes and released Ms. Pac-Man as a sequel to its most successful game.
This legitimized General Computer's work, but doesn't help to explain the morality of what the team was doing.
Here's Bogost again:
"Whether Crazy Otto would have been considered a violation of Pac-Man's copyright in 1982 or whether it would be today and irrespective of the method by which the game was accomplished, that's surely an interesting question. But it's not an open and shut case by any means.
"I am not a lawyer, but it's important to remember that game design, like fashion design, is not protected by copyright in the same way as audiovisual presentation of film, music or indeed of video games. This is a really disorienting feature of games, because creators and players rightly feel that where the meat of apparent creativity takes place, there should be protection. But the law doesn't see it that clearly, not at all. That's why you still see so-called 'clones,' and that's why we always feel so anxious and uncomfortable with them.
"The moral rightness of enhancement-kit design circa 1981 (or mobile game cloning today) is a legitimate area of concern and study and criticism. But ultimately, whether these acts are obviously right or wrong is probably less interesting than the dynamics that produce them and how creators and players respond to them and why things are different in 1972 vs. 1979 vs. 1983 vs. 2015."
Golson says he believes what they were doing was morally right and, at the time, legally justifiable. Once games like Pac-Man began to fade in popularity, they were a burden to arcade owners. Enhancement kits extended the life of the games, and were popular with consumers.
On the other hand, game companies derived no benefit from enhancement kits, and believed that they were getting in the way of new arcade game sales. They saw them as parasitical encroachments on their own creative endeavors.
I asked Golson if he believes the Atari lawsuit would have survived in a later era, when look and feel cases had been established. He said, "maybe we would have lost." Atari settled, he added, because the company was afraid to lose and to set a damaging precedent. It didn't want to be the ones to tackle such a tricky subject as software look and feel, one that eventually required a Supreme Court ruling.
Atari made an accommodation, as did Midway and Namco. The result is Ms. Pac-Man. Cabinets can still be seen in bars around the country. The game remains popular on mobile devices and other platforms. Golson and his confederates are still receiving royalty checks for their work