Hi everyone,
In our presentation last week on cheating in video games, we talked about different ways players can “hack” their games—whether it’s using cheat codes, mods, or external devices. During the discussion, Professor Festinger brought up the Game Genie case (Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.), and our guest speakers also mentioned it, which made me want to dig deeper.
This case is really interesting because it asks whether changing how a game plays—without actually copying or distributing it—violates copyright law. Nintendo claimed the Game Genie was creating unauthorized derivative works, while Galoob argued it was just letting players customize their own experience without making any permanent changes. The court sided with Galoob, and the decision ended up being a big moment in video game law, helping define what counts as fair use when it comes to modifying games. Nintendo appealed the ruling, but the US Ninth Circuit Court upheld the decision, reinforcing that personal gameplay modifications don’t necessarily infringe copyright.
Below is my summary of the case for anyone interested!
Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F. Supp. 1283 (N.D. Cal. 1991)
Facts:
Nintendo of America, Inc. (“Nintendo”) owned copyrights for various video games designed for the Nintendo Entertainment System (NES). Lewis Galoob Toys, Inc. (“Galoob”) marketed the Game Genie, a device that allowed users to temporarily modify certain aspects of NES video games, such as granting extra lives or skipping levels. The Game Genie did not create a permanent copy of the game or alter the original work outside of the user’s gameplay session.
Galoob filed suit seeking a declaratory judgment that the Game Genie did not infringe Nintendo’s copyrights. Nintendo counterclaimed, arguing that the Game Genie created a derivative work and that Galoob was liable for direct and contributory copyright infringement. The district court conducted a bench trial to determine whether the Game Genie violated Nintendo’s copyright protections.
Issue:
Does the Game Genie create a derivative work under 17 U.S.C. § 101, thereby infringing Nintendo’s copyrights, either directly or contributorily?
Rule:
Under 17 U.S.C. § 106(2), the copyright owner has the exclusive right to create derivative works, which are defined under 17 U.S.C. § 101 as works that “recast, transform, or adapt” the original copyrighted work in a fixed and permanent form. The fair use doctrine (17 U.S.C. § 107) may serve as a defence if the alleged infringement qualifies as a permissible use.
Court’s Analysis:
- Derivative Work Determination:
- The court held that the Game Genie does not create a derivative work because it does not fix, store, or transfer any modified version of the original game. Instead, it merely alters gameplay temporarily while in use. The game reverts to its original form once the console is turned off.
- The court distinguished this case from Midway Mfg. Co. v. Artic Int’l, Inc., which involved unauthorized modifications in a commercial arcade setting. In contrast, Game Genie use was limited to private, non-commercial settings.
- Fair Use Analysis:
- The court applied the four-factor test from 17 U.S.C. § 107:
- Purpose and Character of the Use – The Game Genie was used privately for personal enjoyment, which supports fair use.
- Nature of the Copyrighted Work – The NES games were already published works, favouring fair use.
- Amount and Substantiality of Use – Game owners had already purchased the original game, and the Game Genie did not reproduce or distribute it.
- Effect on the Market – Nintendo failed to prove that the Game Genie negatively impacted game sales. Survey data suggested that the Game Genie could increase consumer interest in video games.
- No Direct or Contributory Infringement:
- Because private users of the Game Genie were not infringing Nintendo’s copyright, Galoob could not be held liable for contributory infringement.
- Galoob’s use of Nintendo’s copyrighted games for testing and marketing purposes did not violate copyright law.
- Injunctive Relief:
- The court found that Nintendo was not entitled to a permanent injunction because:
- No irreparable harm was demonstrated.
- The public interest was served by allowing consumers to modify their gameplay experience.
- Nintendo had adequate legal remedies if infringement had occurred.
Court’s Conclusion:
The court ruled in favour of Galoob, holding that the Game Genie did not create a derivative work and that its use constituted fair use under copyright law. Galoob was neither a direct nor contributory infringer. The preliminary injunction against Galoob was dissolved, allowing the continued sale and distribution of the Game Genie.
My Opinion:
The court’s decision in Galoob v. Nintendo makes sense under copyright law—using the Game Genie didn’t create a new, separate work, nor did it permanently alter Nintendo’s games. I generally support this outcome, as it aligns with the idea that players should have some freedom to modify their own gameplay experience. That said, the case raises broader questions about what recourse game developers have when individuals or companies alter their games. The ruling effectively creates a loophole: as long as a modification doesn’t change the original game files, it may be difficult to challenge. This highlights a fundamental tension in video games—players have always sought ways to gain an edge, whether through mods, cheat codes, or external devices like the Game Genie.
Cheating has long been a part of gaming culture. I remember growing up with games that had built-in cheat codes and hidden “Easter eggs,” which developers intentionally included for players to find and exploit. In many single-player games, these modifications don’t seem to cause harm—Nintendo had already sold the game, and how a player chooses to enjoy it in their own home doesn’t impact Nintendo’s revenue. This distinguishes the Game Genie from something like the R4 cartridge, which allowed users to pirate games entirely, cutting developers out of the equation. While both devices enabled cheats, the R4 posed a more direct threat to game sales, which is why it faced widespread legal challenges.
Still, the Game Genie case illustrates the ongoing friction between player freedom and developer control. Players have always pushed the boundaries of what games allow, whether through cheat codes, speedrunning exploits, or full-on modding communities. At the same time, developers have a legitimate interest in maintaining control over their games, particularly in competitive or online settings where modifications can undermine fairness. The court’s ruling protects players’ ability to customize their own experiences in a non-commercial, single-player setting, but it also leaves open questions about where to draw the line when modifications affect a game’s broader ecosystem.
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