Alex Kozinski

“ Computer programs don’t actually go anywhere or fetch anything. Rather, the game engine receives the player’s instruction as to which game level to select and instructs the processor to access the MAP file corresponding to that level. The MAP file, in turn, consists of a series of instructions indicating which art images go where. When the MAP file calls for a particular art image, the game engine tells the processor to access the art library for instructions on how each pixel on the screen must be colored in order to paint that image. ”

“ I FormGen Inc., GT Interactive Software Corp. and Apogee Software, Ltd. (collectively FormGen) made, distributed and own the rights to Duke Nukem 3D (D/N-3D) , an immensely popular (and very cool) computer game. D/N-3D is played from the first-person perspective; the player assumes the personality and point of view of the title character, who is seen on the screen only as a pair of hands and an occasional boot, much as one might see oneself in real life without the aid of a mirror. [1] Players explore a futuristic city infested with evil aliens and other hazards. ”

“ As a preliminary matter, Micro Star asks us to focus on the player’s use of the N/I CD in evaluating the fair use claim, because—according to Micro Star—the player actually creates the derivative work. In Galoob, after we assumed for purposes of argument that the Game Genie did create derivative works, we went on to consider the fair use defense from the player’s point of view. ”

“ Therefore, it claims, nothing of D/N-3D’s is reproduced in the MAP files. In making this argument, Micro Star misconstrues the protected work. The work that Micro Star infringes is the D/N-3D story itself—a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels, see Trust Co. ”

“ See 17 U.S.C. § 204 (a) ; Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 556 (9th Cir. 1990) . A nonexclusive license may, however, be granted orally or implied by conduct. See Effects, 908 F.2d at 558. ”