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Production Protection to Copy(right) Protection: From the 10NES to DVDs
July-Sept. 2009 (vol. 31 no. 3)
pp. 54-63
Casey O'Donnell, University of Georgia

Much of what modern digital rights management (DRM) systems attempt to accomplish was actually forcefully implemented on videogame consoles beginning with the Nintendo Entertainment System (NES) and SEGA Genesis system in the early 1980s. Examining the links between modern DRM mechanisms and these early production and copy protection systems can help contextualize the future of media production and access.

1. Further examination of the long-term effects of the 10NES chip on the videogame industry more broadly can be found in C. O'Donnell, "The Nintendo Entertainment System and the 10NES Chip: Carving the Videogame Industry in Silicon," to be published in Games and Culture: A Journal of Interactive Media, expected Spring 2010.
2. The distinction between users and consumers is made because of differences that are important when examining digital media. There is a significant tension between what users do with digital media and what digital media producers wish, expect, or allow them to do. In part, this tension is central to those issues that now face a Web 2.0 world, in which the expectations of users to be able to (re)mix, shift, and play with technologies runs into conflicts with media producers' desire.
3. S.L. Kent, The Ultimate History of Video Games: The Story Behind the Craze That Touched Our Lives and Changed the World, Three Rivers Press, 2001.
4. M. Yukawa, Video Game Control Unit, US Patent No. D299726, to Nintendo Co., Patent and Trademark Office, 1985.
5. D. Sheff, Game Over: How Nintendo Zapped an American Industry, Captured Your Dollars, and Enslaved Your Children, Random House, 1993.
6. S. Malliet and E. Zimmerman, "The History of the Video Game," Handbook of Computer Game Studies, J. Raessens, and J. Goldstein eds., MIT Press, 2005, pp. 23–46.
7. J. Johns,, "Video Game Production Networks: Value Capture, Power Relations, and Embeddedness," J. Economic Geography, vol. 6, 2006, pp. 151–180.
8. Of course, we need only look at the analysis of some particularly vocal videogame critics to note that the "Seal of Quality" does not always indicate levels of quality on the NES. The "Angry Video Game Nerd" has become a viral Internet phenomenon because of his lampooning of particularly bad NES games (http://www.ScrewAttack.comAVGN).
9. Several texts have mentioned the existence of the 10NES chip, but none ever offered any proof of the device's existence (see Clapes' Softwarsand Sheff's Game Over). Despite this, researchers have used these reports as facts, without inquiry into the validity of these claims or the device's functionality. (See S. Kline, N. Dyer-Witherford, and G. de Peuter, Digital Play: The Interaction of Technology, Culture, and Marketing, McGill-Queen's Univ. Press, 2005.)
10. K. Nakagawa, System for Determining Authenticity of an External Memory Used In an Information Processing Apparatus, US Patent No. 4799635, to Nintendo Co., Patent and Trademark Office, 1985.
11. K. Nakagawa and M. Yukawa, Memory Cartridge and Information Processor Unit Using Such Cartridge, US Patent No. 4865321, to Nintendo Co., Patent and Trademark Office, 1987.
12. Atari Games Corp. and Tengen, Inc. v. Nintendo of America Inc. and Nintendo Co., Ltd., 975 F.2d 832, 1992.
13. L. Lessig, Code and Other Laws of Cyberspace, Basic Books, 1999.
14. A.L. Clapes, Softwars: The Legal Battles for Control of the Global Software Industry, Quorum Books, 1993.
15. D.S. Evans, A. Hagui, and R. Schmalensee, Invisible Engines: How Software Platforms Drive Innovation and Transform Industries, MIT Press, 2006, pp. 115–153.
16. Sega Enterprises Ltd. v. Accolade, Inc., 785 F.Supp. 1392, 1992.
17. T. Donovan, "Top 20 Publishers," GameDeveloper Magazine, vol. 13, no. 10, 2006, pp. 11–18.
18. F. Cifaldi and J. Fleming, "We See Farther—A History of Electronic Arts," Think Services Game Group, 2007; we_see_farther__a_history_of_.php.
19. An example of the price list for the Nintendo 64 can be found in the SEC filings of some companies. (See Bam Entertainment, Inc., "IPO S-1, EX-10.31, Material Contract," 2001. ) Other such price lists can be found in similar filings, but fewer and fewer have been included in the public filings of companies, making research on the precise economics of this system difficult.
20. Nintendo, "NES Licensed Game List," 2003;
21. Scholars have noted that regional coding schemes have been used in videogame systems like Sony's PlayStation console (see T. Gillespie, Wired Shut: Copyright and the Shape of Digital Culture, MIT Press, 2007, p. 265). It appears to date back even further than the PlayStation 1. Region "coding" has been part and parcel of the videogame industry ever since the release of the NES. The close control over production and distribution, although not technologically enforcing these rules, has significant repercussions for regional distribution.
22. The creation of legitimate means to import videogames or circumvent regional encoding has never been marketed to consumers since this device. The only means users have of circumventing these devices is to purchase mod chips, which are illegal in most countries (see Gillespie's Wired Shut, p. 266). Not surprisingly, these devices also allow developers to circumvent production protection. Many aspiring videogame developers import mod chips from countries like China and Korea in the hopes of learning how to develop games for these systems. Some videogame developers also use these devices to supplement their supply of development kit hardware (dev kits). See, for example, " Out of Business due to Multiple Sony Lawsuits" ( ).
23. Y. Inoue, Adaptor for a Game Machine Cartridge, US Patent No. D308197, to Nintendo Co., Patent and Trademark Office, 1987.
24. Some scholars have cited the introduction of DVD as being a particular departure from "squabbling over video formats," as was seen early on in media technology. ( A.R. Galloway, Protocol: How Control Exists after Decentralization, MIT Press, 2004. ) On the other hand, we can now point to technologies such as Sony's Blu-Ray, which seem to indicate a shift in the other direction. Certainly there is little interoperability between many of the media formats that exist on our emerging digital media technologies. This shift owes a debt of gratitude to the videogame industry, which has provided a blueprint from which to work to advance these efforts.
25. For example, an early NCR patent describes a now common method by which a program counts down the number of days a user has to register a piece of software prior to its no longer functioning. They note specifically Nintendo's "lock" and "key" approach to authorization. The patent document itself ( G.L. Edwards Jr. US Patent No. 5014234, to NCR Corp., Patent and Trademark Office, 1986.) addresses the perceived need for copyright control: "unauthorized use of proprietary computer programs is widespread" and it is "necessary for developers of such software to set licensing fees for the use of such software at a sufficient level to recover such costs." Despite the prevalent use of these methods today, most software packages have not declined in price.
26. T. Hibino and Y. Satoshi, Security Systems and Methods for a Videographics and Authentication Game/Program Fabricating Device, US Patent No. 5599231, to Nintendo Co., Patent and Trademark Office, 1994.
27. DMCA. To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes, 17 U.S.C. §§512, 1201–1205, 1301–1332; 28 U.S.C. §4001; 17 U.S.C. §§101, 104, 104A, 108, 112, 114, 117, 701. 1998.
28. P. Samuelson, "DRM {AND, OR, VS.} THE LAW," Comm. ACM, vol. 46, no. 4, 2003, pp. 41–45.
29. P. Samuelson, "Reverse Engineering Under Siege: Is Reverse Engineering a Lawful Way to Acquire Trade Secrets?" Comm. ACM, vol. 45, no. 10, 2002, pp. 15–20.
30. P. Samuelson, "Anticircumvention Rules: Threat to Science," Science, vol. 293, 2001, pp. 2028–2031.
31. C. O'Donnell, "The Work/Play of the Interactive New Economy: Video Game Development in the United States and India," doctoral dissertation, Science and Technology Studies Dept., Rensselaer Polytechnic Inst., 2008.

Index Terms:
Copyright, Nintendo, DVD, CSS, DMCA, 10NES, history of computing, production protection, videogame development
Casey O'Donnell, "Production Protection to Copy(right) Protection: From the 10NES to DVDs," IEEE Annals of the History of Computing, vol. 31, no. 3, pp. 54-63, July-Sept. 2009, doi:10.1109/MAHC.2009.49
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