Lewis Galoob Toys, Inc. V. Nintendo of America, Inc. - Legacy

Legacy

The Ninth Circuit referred to the Galoob ruling in Micro Star v. FormGen Inc., a case involving user-created levels for the video game Duke Nukem 3D. In that case, Judge Alex Kozinski concluded that the fair use analysis in Galoob v. Nintendo is "dicta" (non-binding), and ruled in favor of the copyright holder.

A 2002 case involving the ClearPlay technology raised a similar issue in the context of home viewing of DVDs. At no point was a copy of the DVD made; rather, offensive parts of the movie were automatically skipped. Hollywood studios and the Directors Guild of America sued ClearPlay alleging copyright infringement and trademark infringement. The case, however, was rendered irrelevant by the passage of the Family Entertainment and Copyright Act of 2005, a law that because of its narrow applicability did not abrogate Midway or affirm Galoob. (There was no judicial opinion issued in the case because it became moot in light of the new law.)

SonicBlue was sued over the commercial-skipping feature of ReplayTV on similar grounds. "Your contract when you get the show is you're going to watch the spots . … Any time you skip a commercial … you're actually stealing the programming," asserts Turner Broadcasting CEO Jamie Kellner. He admits that "there's a certain amount of tolerance" for going to the bathroom during commercials. SonicBlue went bankrupt before the court reached a decision on the merits of the case.