BETWEEN MY MORE EXTENSIVE ARTICLES, I’VE DECIDED TO DO A FEW SHORTER ARTICLES ON SOME OF THE EARLIEST ON-LINE SYSTEM (SIERRA ON-LINE) NON-ADVENTURE TITLES. WHILE ON-LINE SYSTEMS IS KNOWN FOR ITS EARLY HI-RES ADVENTURE GAMES, THE COMPANY PUBLISHED A MYRIAD OF TITLES IN ITS FIRST COUPLE OF YEARS. RANGING FROM SPORTS AND TABLETOP GAMES TO FAST-PACED ACTION TITLES INSPIRED BY THE POPULAR VIDEO ARCADE GAMES OF THE TIME.
When Ken and Roberta Williams had completed the development of their first game, Mystery House, in the summer of 1980, Roberta took out a full-page ad in Micro 6502 magazine. To offer more than just Mystery House, two other titles, Skeetshoot and Trapshoot, both developed by a third party, were also featured. While Skeetshoot and Trapshoot quickly faded away, the company’s portfolio rapidly expanded with a multitude of new titles added over the next couple of years, one of the titles being Gobbler by Olaf Lubeck.
In 1980 Namco’s mellow yellow dot-eating Pac-Man arrived from Japan gobbling up video arcade real estate at an unprecedented speed. Unlike the majority of games of the time, Toru Iwatani’s Pac-Man wasn’t about violence, invading aliens, or even sports thus appealing to a much broader audience, outside the typical young male demography. While the video game market had surged in popularity with games like Pac-Man and Space Invaders it was soon flooded with similar titles from other manufacturers attempting to cash in on the success. Pac-Man, with its cheerful and non-violent nature, quickly gained widespread critical and commercial success and became a favorite among video arcade players. By 1981 it had become the hottest video arcade game around and greatly inspired many of the early home computer game developers, ultimately resulting in a home market full of rip-offs and clones.
In 1981 Ken Williams put out advertisements in publications like Softtalk and InfoWorld, searching for new developers to further expand the company’s portfolio of games. The ad simply read, with bold letters, “AUTHORS WANTED” and below listing the perks of working with On-Line Systems. Including “I (Ken) will personally be available at any time for technical discussions, helping to debug, brainstorming, etc.“.
On-Line Systems “Authors Wanted” ad from InfoWorld in 1981
One who saw the ad was Pam Lubeck, wife of professional scientific programmer Oluf Lubeck. Lubeck had while working as a researcher in the Computer Research and Applications Division of Los Alamos National Laboratory, written a couple of video arcade clones on his Apple II computer, one of them being a really good Pac-Man clone called Gobbler. Lubeck responded to Ken’s ad, mailed in his creations, and not before long Williams responded showing interest. The two agreed on a publishing deal and On-Line Systems started selling Lubeck’s Gobbler in 1981.
Olaf Lubeck’s Gobbler was released for the Apple II in 1981, while Lubeck wanted to do an Atari conversion, On-Line Systems was soon on collision course with conglomerate Atari
There was no doubt, to neither Ken Williams nor anybody else, that Gobbler was a (very well done) copy of Pac-Man. Not only was the visual appearance and gameplay copied, the level layout, rotated 90 degrees, was nearly identical to Pac-Man.
The Apple II version was the only release of the game.
(The control scheme is a bit weird and takes some time getting used to)
While a focus on copyrights was slowly building at the time, Ken like most didn’t give it too many thoughts. It was tempting copying the most popular video arcade games with already working gameplay concepts and proven track records, they surely had the potential to be a gold mine on the personal computer.
Gobbler ended up doing quite good, selling around 800 copies a month. But by becoming successful and also being superior to most other Pac-Man clones, the title soon got Atari’s attention.
Earlier, Atari had acquired the rights to produce home versions of Namco’s Pac-Man, a deal that had cost millions of dollars. Atari which yet had to release its own official Pac-Man port for its Atari VCS (2600) home video console (the game would be developed throughout 1981 but didn’t see release until the spring of 1982) would soon claim copyrights infringement, insisting that the copyrights they owned on coin-op games made unauthorized home computer translations illegal.
Industry-wide cautionary letters sent out by Atari to publications and publishers like On-Line Systems, Brøderbund, and Sirius Software, went like this:
This Game is Over
By 1981 Atari wasn’t the company it had been years earlier in the Nolan Bushnell era, it was now part of corporate giant Warner Communications, and had sales in the billions of dollars. Pushing around small-time companies like On-Line System, which had around 50 employees at the time, didn’t suit Ken and Roberta. Gobbler clearly copied Pac-Man and while it was clear to everybody, even to Ken, it was a hit and he didn’t want to lose out on potential revenue.
When Atari contacted Ken, it grew to an issue of ambivalence nature, the businessman in him wanted to protect his own company’s intellectual properties, just like Atari wanted, but on the other hand, he and Roberta weren’t about to be pushed around by a giant conglomerate. As the lawsuit took off so did Ken’s nervousness, Atari was in a position to essentially put him out of business.
Ken hired a lawyer and managed, clearly in his favor, to get the case tried locally. Atari came in at full force trying to intimidate the local judge, implying that the case was beyond his competence. The fact of the matter was that not many had any real experience when it came to video and computer games copyright infringement.
A court case a year earlier between arcade manufacturer Midway and small hardware manufacturer Dirkschneider, who created unauthorized clones of popular video arcade games, selling them substantially below the price of genuine machines, had led to what would be known as the ten-foot-rule. If two products from ten feet away didn’t look the same no copyright infringement was occurring. Obviously, the nature of the issue was more complicated than that, nonetheless, the court apparently didn’t find the creative development work behind gameplay and mechanics as important as visual appearance.
Lubeck was initially to do a conversion of his Gobbler for the Atari 8-bit but a young and determined John Harris (who really didn’t care for the Apple II computer and wasn’t overwhelmed by Gobbler) convinced Ken to let him do a completely new Pac-Man clone for Atari’s home computers. Harris went back to the Hexagon House, one of the houses Ken had purchased to accommodate his young workforce, and in a month wrote out what was probably one of the best-written games at the time for the Atari 8-bit. Unfortunately, it looked remarkably like the game it copied, and with all the Atari legal stuff going on, Ken needed Harris to make substantial changes to the game.
Harris’s altered his Pac-Man clone visually to where its characters appeared unique, added a candy theme, and titled it Jawbreaker. While Ken’s lawyer assured that the only thing Atari really owned was the Pac-Man name, the characters, and not the game’s mechanics, Atari still approached On-Line Systems with the choice of getting sued or letting Atari take over Jawbreaker and market it under the Atari name. Initially, Atari managed to obtain a temporary restraining order in the U.S. District Court for the Eastern District of California in Fresno prohibiting On-Line Systems from producing or selling Gobbler and Jawbreaker. On-Line Systems filed an antitrust suit, stating that Atari was trying to monopolize any game featuring a maze and dots. Atari countersued and Midway joined the fight.
As part of the defense, Ken and his lawyer pointed to an earlier Japanese game called Head On, which shared mechanics and to some extent gameplay (a maze with dots) with Pac-Man but was released prior to it – Essential implying that Pac-Man was copying as well.
Also, there was was no way for programmers to copy the game code from video arcade games since they were all hard-wired. Every line of code written for Gobbler and Jawbreaker was written from scratch to immitate gameplay and therefore wasn’t a copy of the original code.
Head On (Fender Bender), developed by Japanese AStar International, was used by Ken and his lawyer as a part of their defense. It shared mechanics such as a maze and dots with Pac-Man but was released prior to it. The game was released in the US in 1980 by California Pacific Computer Company (of Akalabeth and Ultima fame). Initially, as Head On but was retitled to Fender Bender
Eventually, both the Atari and Midway infringement claims were tossed out of court, appealed, and then dismissed again. The parties settled out of court, and copyright law concerning computer games was established as protecting not the mere idea but the specific execution of that idea – in this case protecting the Pac-Man name and its characters but not its gameplay and mechanics.
The lawsuit shook Ken and he retracted Gobbler after only 5 months on the market. Harris changed Jawbreaker to where Ken was confident that it diverged enough from Pac-Man and published it later in 1981. It became a huge success on the Atari 8-bit and was ported to an array of other micros – I’ll cover Jawbreaker and a bit more on the lawsuit in an upcoming article.
Atari’s own and subpar version (because of technical limitations) of Pac-Man for the Atari VCS (2600) ultimately sold well over seven million copies. A number that utterly dwarfed the number of rip-offs sold, combined for all platforms.
The legal battle between On-Line Systems and Atari was not only a fight of copyrights but also a clash of cultures. The early free-spirited culture in the software and computer industry, a culture which On-Line Systems represented was fading quickly. Not before long did On-Line Systems become Sierra On-Line, a real corporation grown with investment money – the free-spirited party days were over.
The outcome of the lawsuit would lay precedence, resulting in the home market becoming swamped with numerous clones, likely playing a small part in the large-scale recession the video game industry went through in 1983-84.
Lubeck would, while continuing his work as a researcher at Los Alamos National Laboratory, continue to partner up with On-Line Systems and in 1982 write Cannonball Blitz…
Sources: Steven Levy: Hackers, Heroes of the Computer Revolution, Wikipedia, InfoWorld, Douglas G. Carlston: Software People, Ken Williams: Not All Fairy Tales Have Happy Endings, Antic Atari 8-bit Podcast