Unlicensed Nintendo Games // Nintendo Vs. Tengen

Some of the major unlicensed tengen games for Nintendo Entertainment System

At the height of the Nintendo Entertainment System’s popularity in the late 1980s, Nintendo had very strict license agreements with third-party developers to only release five games per year, and that these titles would be exclusive to Nintendo for two years. Nintendo argued that this ensured high quality for consumers and they would put the “Official Nintendo Seal of Quality” sticker on each game.

Tengen was a video game publisher that was created by Atari Games, Its main focus was on computer and console games. When Nintendo designed the 10NES lock out system to prevent unauthorized games from running on its video game console, the NES, Atari began their attempts to reverse engineer the 10NES, which included monitoring communications between the console and cartridges chips, chemically peeling layers from the chip, and microscopically examining the code embodied in the chip's silicon. However, Atari was unable to sufficiently decipher its operation and thus failed to break the lock-out system.

Facts:

Atari obtained the source code for the 10NES from the Copyright Office, by falsely alleging that a copy of the code was needed in a copyright infringement action. Atari used this copy to develop its own replica of the 10NES, the Rabbit, which generated signals functionally indistinguishable from the 10NES. As Atari gained access to NES owners without Nintendo's licensing conditions, Nintendo sought a motion to enjoin Atari's alleged infringement of its copyright, which was granted by the District Court. Atari then asserted copyright misuse to defend against copyright infringement claims.

The courts found that Atari had infringed Nintendo's copyright by creating verbatim and substantially similar copies of the protected elements of the 10NES chip. Atari was unsuccessful in claiming that such copying was fair use, or that Nintendo had misused it copyright.