Nintendo loses ground to Galoob in game case


SAN FRANCISCO -- In a decision that could mark the first break in Nintendo's lock on the market for games and accessories associated with the company's video-game system, a federal district judge here has ruled that an accessory made by another company does not infringe Nintendo's copyrights. Nintendo said it would appeal the decision.

Lewis Galoob Toys Inc. said yesterday that it had been told by Judge Fern Smith that the court had ruled in favor of Galoob in a copyright-infringement case brought by Nintendo of America Inc. regarding the Galoob product Game Genie.

A written decision will be issued late next week.

While it is a victory for Galoob, the decision does not bear directly on copyright infringement or antitrust cases pending between Nintendo and other companies that wish to make non-licensed games for the Nintendo system, Steven M. Klein, Galoob's executive vice president, general counsel and chief administrative officer, said in a telephone interview.

The changes that a player makes when using Game Genie in a Nintendo game are temporary, Mr. Klein said, and will not create a new version of the game.

Nintendo sued Galoob in June 1990, after the San Francisco-based toy company announced Game Genie, a video-game enhancer that would allow players to modify the rules, condition and pace of play on Nintendo games.

In its suit, Nintendo argued that Game Genie would allow players to create derivatives of its copyrighted games and that Galoob was therefore contributing to infringement. A court order has blocked sales of Game Genie.

Judge Smith has now ruled that Game Genie does not create a derivative work and that consumers would not be infringing Nintendo's copyrights if they used it.

And since the consumer is not infringing, Galoob is not contributing to infringement, Mr. Klein said. The judge also lifted the injunction against sales.

"This is a landmark decision for Galoob Toys," Mr. Klein said, adding that the company expected to begin shipping the product in 30 to 60 days.

But Nintendo, which has aggressively resisted any unauthorized products intended for use in its system, said yesterday that Game Genie did infringe and that it anticipated it would appeal Judge Smith's decision.

Howard Lincoln, Nintendo's senior vice president, said in a statement that Nintendo might ask for a stay of Judge Smith's decision from the U.S. Court of Appeals for the 9th Circuit.

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