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7 U. Balt. Intell. Prop. L.J. 23 (1998-1999)
The Devil and the Genie: Revisiting Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.

handle is hein.journals/ubip7 and id is 27 raw text is: THE DEVIL AND THE GENIE: REVISITING LEWIS GALOOB TOYS, INC. v. NINTENDO OF AMERICA, INC. Thu M. Nguyent I. INTRODUCTION As the phenomenon of playing CD-ROM games with other people over the Internet has increased, so has the emergence of software programs that allow the game's players to construct a nearly invincible hero. These so-called cheat programs create an experience of the game very different from that expected by the legitimate players of the game and unintended by the game's creators. As a result, the creators race to update their programs in order to render them immune from these cheats. Hackers, however, quickly and easily counteract these programs by releasing updated cheat software in a matter of days. Finding a technical solution to the cheating problem may take time. In fact, a satisfactory solution via software may not even be feasible -- at least not for a very long time. For these creators, bringing legal action for copyright infringement against hackers who promulgate the cheats is a more effective answer to the cheating problem. In section I of my paper, I investigate the cheating phenomenon as applied to Diablo, a CD-ROM role-playing game. In section II, I provide an overview of the copyright law on derivative works, with an emphasis on case law dealing with video game enhancing devices. In section III, I argue that the legal standard that would likely be used in the derivative work analysis is incorrect and thus conclude that a more reasonable standard is appropriate, given the nature of the creative work that I discuss. In section IV, I consider the policy reasons as to why cheat programs should be deemed infringing, and thus enjoined. II. THE STORY A. A Short History of Diablo, a Role-Playing Game One can trace Diablo's roots to the early pencil-paper role- playing game, or RPG, of the 1980's. In that era, Dungeons and Dragons was the game of choice, and youths gathered around dining room tables or grammar school yards during recess to engage in a fantasy game, where a role of a twenty-sided die dictated the player's future. The player t Thu M. Nguyen is an attorney with the law firm of Loeb & Loeb in Los Angeles, where she specializes in both entertainment law and intellectual property litigation. She earned her J.D. from the U.C.L.A. School of Law in May 1998, and her B.A. in English at U.C. Berkeley in December 1994.

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