Grand Thieves & Tomb Raiders (28 page)

Even in its early months,
Populous
was more than a hit; it became a
phenomenon. International success followed its domestic coup – in
time, it was converted to run on a dozen more platforms, selling more than three million copies worldwide. And in the process, its developers had their eyes opened to the potential of the new
global games market – Bullfrog’s contract with EA hadn’t covered the Far East, so Les Edgar in Guildford found himself negotiating directly with publisher Imagineer in Japan.

‘Imagineer had the exclusive right to put out two games within the first seven releases on the Super Nintendo,’ says Edgar. ‘And they chose
Populous
.’ They
offered an advance of a million pounds, plus guarantees on the royalties. The Bullfrog team could barely believe their luck: not only was Imagineer offering a huge sum for the game, it wanted to do
all the conversion work in-house. Edgar and Molyneux were ecstatic: ‘That’s brilliant!’ Edgar remembers thinking. ‘I love my job!’

Bullfrog knew that being a launch title indicated a certain amount of success, but
Populous
had already exceeded all its expectations. For a while, Japanese gamers became obsessed with
the game, and merchandising followed – fans could buy
Populous
comics, dolls and figurines. Imagineer even set up a competition around the game, and asked the game’s makers to
come to Japan to play the winner.

Edgar and Molyneux, in their late twenties and suddenly successful, decided to push their luck: they insisted that they would only come if they could travel in luxury. To their surprise,
Imagineer agreed. The pair had underestimated the game’s value – Imagineer had planned a staggeringly grand event, complete with a symphony orchestra to play the
Populous
music, and coverage by television crews. And so the developers who worked from a tiny office above a shop in Guildford found themselves sitting in first-class seats to Tokyo, waiting to take
off.

The British games industry had prospered during its years of near isolation, but the protection that isolation offered also had a flip side: British developers had been
commercially and creatively dislocated from foreign markets. British and American home gaming in particular grew separately, and along different paths. America, the world’s biggest games
market, always had a closer relationship with home games consoles – dedicated devices in which the games load instantly from chunky plastic cartridges. Although they were on sale around the
world, they were more popular, for longer, in the United States. And so, for a while, the markets on either side of the Atlantic used different machines, and were slightly out of phase. While
Britons were starting to play games on the ZX Spectrum, American children were already tiring of their Atari 2600s and Intellivisions.

The consoles had been the foundation of the American games industry, but the software was managed badly. Between poor-quality games forced upon retailers, and a gold rush of independent
publishers, the value fell out of the market, and by 1983 sellers were discounting games to a small fraction of their suggested price. There is a legend, repeated often and with a grain of truth,
that Atari commissioned an
E.T.
game at hectically short notice for a Christmas 1982 release, and manufactured more copies than could possibly be sold. Unwilling to release a tide of cheap
titles onto a failing market, the company eventually buried millions of unsold cartridges, including
E.T.
, in a New Mexico landfill.

Consoles never disappeared from the world’s second biggest games market, though. From 1983, both the hardware and the games in Japan had been dominated by the
manufacturer Nintendo. They had found legal and technological ruses to keep control over their console’s software, protecting the value of both the games and the company. But compared to the
free-wheeling businesses fostered by home computing, console games looked very controlled, even closed. If the American market was out of step with British developers, Nintendo’s grip on the
console hardware looked completely impenetrable.

As Codemasters grew during the eighties, David Darling became a regular visitor to trade shows in the US, and spotted that while American developers were writing games for the
Amiga and Atari ST, they weren’t reflecting the buying trends of the public. ‘We noticed this because when we used to go to CES shows in America,’ he recalls, ‘even when
you’re driving down the street you would see NES games at gas stations – it had taken over the culture.’

Consoles are technologically similar to computers, but they are very different as a business. Computer makers might hope that a thriving games market for their machine will boost sales, but they
have no financial interest in or control over it – their profit is made from their hardware, and they compete to produce the best machine for a price consumers will pay. But the console
business revolves around controlling the software market. The manufacturers – Nintendo, Sega and later Sony and Microsoft – charge the publishers a licence fee to produce games for
their machine, while the hardware itself is often sold below the cost of production. The console manufacturers have many of the same concerns as the games-makers – they want a single,
identical platform in as many homes as possible, supporting a long-lasting, high-margin market in their games. But they also act as a gatekeeper for those games: only the manufacturers can
distribute the specialist equipment required to develop new titles, they can withhold a license, force the production
of a certain number of units at the publisher’s
cost, and so on. Developers might enjoy very productive relationships with the console makers, but it would always be on the manufacturers’ terms.

A console is a pure consumer games product. It has a controller rather than a keyboard, there’s no way for players to write programs for it and no way to distribute them if they could. The
owner’s only job is to buy and play games – whatever their virtues, bedroom coding on a console is impossible.

In the United States in the late eighties, most developers believed that consoles’ time had passed. ‘Atari was a bit like Imagine – they became huge and then they
collapsed,’ says Darling. ‘American retailers had written off games consoles. They thought home computers had taken over.’ This apparent decline certainly suited games-makers.
Coding for consoles needed pricey development kits, and the high cost of manufacturing cartridges could break a company. Consoles were toxic, and the legendary Atari landfill appeared to have
swallowed that industry forever.

Yet by the end of the decade, the Nintendo Entertainment System, a cartridge-based console, was the dominant gaming platform in North America. At under a hundred dollars, Nintendo had found a
price point that worked for a mass market, and it used a common 6502 processor paired with a graphics chip designed for fast, scrolling images. It also devised legal as well as technological
protections to ensure that only its cartridges could be used on its console. Nintendo had found an apparently watertight way to keep control of its software market.

So the company could be sure that there would be no flood of poor titles or unlicensed games, while the price captured a market missed by the more expensive Amiga and Atari ST. Nintendo brought
over a library of games from Japan, with the highlight – a blissfully playable and fluid platformer called
Super Mario Bros.
– packed in with every console. The formula worked:
while plenty of US developers focused on the 16-bit computers, the NES console was winning.
As David Darling put it, ‘Nintendo had caught everybody with their pants
down.’

‘When you’ve gone through all these Dragon 32s and BBCs and VIC-20s and Commodore 64s,’ he says, ‘the whole time you’re trying to work out what
the next big platform is going to be.’ By the late eighties, Codemasters’ business had been shaped to suit the home computers most popular in Britain. The UK was certainly the
company’s biggest market, but it was selling well into France and Germany and around Europe. The US market, though, was far harder to prise open. And while Codemasters had been inching up its
prices – £1.99 became £2.99, 16-bit games sold for a fiver – it was firmly a budget label, with all the pressure on margins that that brought. A different platform might
create a more robust business, but the choice was delicate: ‘It’s like walking across a lily pond, working out where the next lily is, not stepping on one like the Atari Jaguar
that’s going to collapse,’ says Darling. Nintendo offered a piracy-resistant, high-margin market that stood every chance of becoming embedded throughout the US. ‘So we worked out
that the NES was the next platform.’

Returning from the Computer Entertainment Show in Las Vegas, David Darling, his brother Richard and their colleague Ted Carron brainstormed the games they could make to exploit the NES. David
Darling says they were looking for a mass-market product, one that would ‘appeal to everybody’, with a universality of options. ‘We were thinking about having a switch in the
cartridge, to make your character bigger or give him extra lives,’ says David Darling. ‘We were thinking about ways to modify our game.’

As the session drew on, they wondered if it would be possible to apply this idea to other games.
Super Mario Bros.
and
Teenage Mutant Ninja Turtles
both had a giant presence in
the United States – what if Codemasters offered a product that included the switch for those games, which players already had on their shelves? If the company could sell a device –
Darling and the team called it a Game Genie – that could change every game the player owned, making them harder
or easier, adding twists and cheats, then Codemasters
wouldn’t need to create and market its own character or an intellectual property. Everyone with a machine would want the gadget for their own favourite title.

At first it seemed impossible. The game software was held in a fixed form in the cartridge chips, and the consoles had fierce technological and legal guards to shield them against unauthorised
use. Nintendo’s system was in the form of a patented electronic ‘lock and key’, with a connecting chip in the console and cartridge. ‘You could quite easily copy the key
chip,’ says Darling, ‘but if you did, then when the kid put the game in the console, he was putting all of the elements of the patent together. So he was replicating the patent, and
because you were the supplier, you would be a contributory infringer.’ It was a tortuous defence, but legally effective. Nintendo had firm control over producers of its games and no one could
adapt or sell unlicensed games ‘without Nintendo jumping on their head’.

But Codemasters found an elegant evasion. Its device sat in the cartridge slot on the top of the machine, and itself had a slot for an original game. The piggybacked games passed all of their
data through the Game Genie, which could adjust it as the player wanted using a series of codes, arduously but satisfyingly entered by the gamer according to a book of cheats that shipped with the
gadget. And of course, the original key chip was still there, in the game cartridge. ‘We got around it because it sat in the middle,’ says Darling. ‘The console wouldn’t
even know that the Game Genie was there.’

It took six months to complete the device’s design. The NES had a presence in the UK, but it arrived after cheap home computers had become established, and its foothold was small. The real
NES market had always been the US, and 1990 was set to be its peak year, with sales of fifteen million games. Codemasters sought a licensee for the Game Genie, and found a large, but not dominant,
toy manufacturer called Lewis Galoob Toys Inc.

Despite their approaches, Nintendo refused to license the Game Genie for the NES, but Codemasters and Lewis Galoob Toys were
both confident that they didn’t need
permission so production was announced in May 1990. And Nintendo tacitly acknowledged that the device didn’t trigger the patent infringement defence, as Codemasters had calculated, because
when it did sue Lewis Galoob Toys, it was for something else entirely.

The Game Genie, Nintendo argued, created a ‘derivative work’ of its games. US law gives copyright holders control over sequels and adaptations of their work, and a version of
Super Mario Bros.
in which the jumping height had been doubled was, Nintendo argued, no different. Galoob pre-empted Nintendo’s first salvo by applying for an order confirming that
it had not violated copyright, but was swiftly hit by an injunction: the company couldn’t sell the device throughout the United States, while Nintendo was held to a bond to cover lost sales.
At first this was for $100,000, but Galoob argued that it had pre-orders for more than half a million Game Genies, and might have expected millions more. The bond was increased to $15 million.

The injunction had demolished Codemasters’ US plans, but the Game Genie went on sale in Canada, where it was hugely successful; there was every reason to challenge Nintendo in the United
States. The lawsuit was very time-consuming, dominating the management attention of Codemasters, but Darling, sensing victory, relished the conflict. ‘We were quite young and enthusiastic,
and confident,’ he says. ‘We got heavily into talking to lawyers. We’d go and see their lawyers, we’d see our lawyers, we’d go to hotels in Canada and get all three
sets of lawyers together.’

Codemasters, still publishing games but now with giant sums at stake, edged ever closer to jeopardising its business. For a year, Nintendo doggedly blocked the Game Genie, escalating the case
until it had reached the US Court of Appeals for the Ninth Circuit, as high as such a dispute was ever likely to go. ‘We were fully aware of all the legal arguments, and we were quite
confident that we’d win,’ says Darling. ‘But it definitely stretched the company.’

When the case came to court, Galoob and Codemasters won convincingly. The presiding Judge, Fern M Smith, ruled that there was no
fixed derivative work. Using the Game
Genie, the court said, was no different to skipping portions of a book, or fast-forwarding through a video – your experience might have changed, but the original product hasn’t.
‘It was a bit of a tenuous argument,’ says Darling about Nintendo’s case. ‘The judge said “No, it’s not true, because when you unplug it, it hasn’t
actually changed the game.” For the copyright to exist it needs to be fixed. And it’s not fixed.’