Accolade | Code Like It's 198x

In October 1991 Sega sued a Californian publisher of baseball and golf games for working out how a Mega Drive decides whether a cartridge is genuine. Accolade had bought a console and three Sega games, read the code inside them and written its own games to match. It lost the first round, and in April 1992 a judge ordered its Mega Drive games off the shelves. Six months later the federal appeals court reversed that decision. Its ruling that taking a program apart to learn how to work with it can be fair use became a precedent: in 2000 the same court relied on it in a case about a PlayStation emulator.

Accolade was more than a lawsuit. Two of the programmers who had founded Activision started it, and for fifteen years it sold sports, driving and flying games on almost every home computer and console.

Fast facts

Founded: December 1984, in California, by Alan Miller and Bob Whitehead.
First games: shipped in October 1985; HardBall! was the first made in-house.
Best-known games: HardBall!, Test Drive, Mean 18, Ace of Aces, 4th & Inches, Mini-Putt, The Duel: Test Drive II, Star Control.
In Britain: distributed first by U.S. Gold, then by Electronic Arts; it set up its own British operation in 1989.
The court case: Sega Enterprises v. Accolade, decided by the Ninth Circuit Court of Appeals on 20 October 1992.
Bought: by Infogrames, announced in April 1999.

Two Activision founders

Miller and Whitehead had both written games for the Atari 2600 at Atari, and in 1979 both were among the four programmers who left to found Activision. ZZAP!64 listed their work: Miller’s Tennis and Ice Hockey, Whitehead’s Skiing and Chopper Command. In December 1984, as the American cartridge market collapsed (see the 1983 crash), they left Activision and joined forces again. Miller later listed among his proudest achievements co-founding Accolade “in the depths of the first down cycle of programmable games and to watch it grow and prosper for ten years”.

British readers first heard of Accolade through U.S. Gold. In December 1985 Your Computer called it “the newest bright star in the US software firmament” and announced three games: the baseball game HardBall!, the comic Western adventure Law of the West and the space trading game PSI-5 Trading Company. Law of the West was Miller’s own, and the only game he designed at Accolade; he spent the rest of his decade there in management, rising to chairman and chief executive.

HardBall! and the sports games

HardBall! set the pattern. It showed baseball the way television did, from behind the pitcher, with large animated players, and it let the player manage a squad of 25 as well as bat and pitch. ZZAP!64 gave the Commodore 64 version 93% in March 1986; one reviewer thought it “surely the best real life sports simulation to date”. By April 1988 it had sold more than 200,000 copies, and The Games Machine reported in 1989 that it had earned a Platinum Award from the American Software Publishers Association for 250,000 sales. Mean 18, Test Drive and Ace of Aces each passed 100,000.

Not every game crossed the Atlantic well. In its April 1988 profile ZZAP!64 listed its own scores for Accolade’s games so far: 93% for HardBall!, 90% for the American football game 4th & Inches, 88% for Ace of Aces and PSI-5, 78% for Mini-Putt and only 46% for Test Drive. By then the company had 21 staff in Cupertino and sold its games in 29 countries.

Accolade made sport and driving its business. In 1989 The Games Machine found it in larger offices in San Jose, claiming 9% of the North American market and the lead in sports games and simulations. It had stopped using Electronic Arts in Britain and was setting up its own operation, with plans for at least six games before Christmas, among them The Duel: Test Drive II and a Jack Nicklaus golf game. It also commissioned outside studios: Miller later said that Don Mattrick, who went on to run EA’s studios, had developed several games for Accolade.

Sega v. Accolade

Accolade did not want to become a Sega licensee. The licence Sega offered, as the appeals court later described it, would have made Sega the only manufacturer of every game Accolade produced. Computer Gaming World reported that the company had already been “shut out of the lucrative Nintendo 8-bit market” and did not want to miss the next one.

So Accolade’s engineers studied the hardware. According to the court, they bought a Mega Drive (sold in America as the Genesis) and three Sega cartridges, wired a decompiler into the console and printed out the code, then compared the programs to find what every game had in common. From that they wrote a manual describing the requirements, with no Sega code in it, and used it to write their own games. The first was Ishido, a puzzle game Accolade had already published for the Macintosh and the PC, in 1990.

Sega then changed the rules. The Genesis III checked each cartridge for a short piece of code, and when it found it the console showed the message “PRODUCED BY OR UNDER LICENSE FROM SEGA ENTERPRISES LTD” for about three seconds. Accolade found the code, which was about 20 to 25 bytes long, and put it at the start of all its games. So its unlicensed cartridges now appeared to announce that Sega had licensed them.

Sega filed suit on 31 October 1991, for copyright and trademark infringement. In April 1992 Judge Barbara Caulfield granted Sega an injunction against Accolade, and then ordered it to recall the Mega Drive games already in shops. Computer Gaming World noted that video games were said to make up 40% of Accolade’s income. An appeals court quickly suspended the recall. The American Committee for Interoperable Systems, a group of computer companies, supported Accolade. Its chairman, Peter Choy, said that “the life blood of the computer industry is the ability of any competitor to make and distribute interoperable software and hardware.”

On 20 October 1992 the Ninth Circuit Court of Appeals dissolved the injunction. Judge Stephen Reinhardt wrote that disassembling Sega’s code had been “necessary in order to understand the functional requirements for Genesis compatibility”, and set out the rule: “Where there is good reason for studying or examining the unprotected aspects of a copyrighted computer program, disassembly for purposes of such study or examination constitutes a fair use.” On the trademark claim, the court held that Sega was “primarily responsible for any resultant confusion”, because its own system had put the false message on Accolade’s games.

Alan Miller, now Accolade’s chairman, said he looked forward to returning to its “previous position behind Electronic Arts as the second leading independent publisher of Sega Genesis compatible products”. The two companies settled the next year: at the summer trade show of 1993 Computer Gaming World found Accolade celebrating “a settlement with Sega of America”.

What the ruling meant

The press understood the stakes at the time. In December 1992 Amazing Computing pointed out that the reverse engineering Sega had objected to “is used by just about everybody in the hardware or software business”, and added: “If Sega had won, hardware companies might have been able to control development of software for their machines”.

Accolade’s was not the only case. A month earlier the Federal Circuit had ruled in Atari Games’ dispute with Nintendo over the NES lockout chip that copying code in order to reverse-engineer it could be fair use, but had still found against Atari Games, which had obtained Nintendo’s code from the Copyright Office under false pretences. Boardwatch wrote in March 1993 that with the Sega decision, fair use for reverse engineering software was “now firmly established”. Console makers kept other ways of controlling who published for their machines, but study by disassembly was now on firmer legal ground. In 2000 the same court relied on its Accolade ruling when it allowed Connectix’s PlayStation emulator (see Sony v. Connectix).

Later years

Accolade kept publishing through the nineties, on the PC and the consoles, and handled North American distribution for Infogrames for several years. By 1999 its best-known series were struggling: Computer Gaming World wrote that it was “in desperate need of a hit” when Infogrames announced in April that it was buying the company. Accolade became Infogrames’ base in North America and traded for a time as Infogrames North America. Infogrames went on to buy GT Interactive and Hasbro Interactive, and from 2003 its businesses traded under the Atari name, so the company Miller and Whitehead had founded after leaving Activision ended up part of a company called Atari.

Sources

Your Computer, December 1985, p. 23, “Soft News”: Accolade founded by Miller and Whitehead; HardBall! for January 1986 through U.S. Gold; Law of the West; PSI-5.
ZZAP!64 issue 9, January 1986, p. 89: preview of HardBall!; p. 172: U.S. Gold advertisement, HardBall! at £9.95 cassette, £14.95 disk.
ZZAP!64 issue 11, March 1986, pp. 32–33: HardBall! review, 93%.
ZZAP!64 issue 36, April 1988, p. 67: Accolade profile (founded December 1984; Miller’s and Whitehead’s games at Atari and Activision; first products October 1985; HardBall! over 200,000 copies; Cupertino, 21 staff, 29 countries; ZZAP!’s scores for the softography); p. 88: 4th & Inches review, 90%.
The Games Machine issue 20, July 1989, pp. 70–71, Dominic Handy, Accolade feature: December 1984; San Jose; Peter Doctorow; HardBall!’s Platinum Award at 250,000; Gold Awards for Mean 18, Test Drive and Ace of Aces; 9% of the North American market; leaving Electronic Arts and moving into Britain; at least six games before Christmas.
Digital Press issue 50, January 2003, pp. 25–26, interview with Alan Miller: co-founding Accolade in 1984; Law of the West his only Accolade design; chairman and chief executive; Don Mattrick; distributing Infogrames, “which eventually purchased Accolade”.
Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir., 20 October 1992), Judge Reinhardt: the licence terms; the console, cartridges and decompiler; Ishido; the Genesis III and its message; the 20 to 25 bytes; the April 1992 injunction and recall; the fair-use holding; the trademark holding. https://static.case.law/f2d/977/cases/1510-01.json
Computer Gaming World issue 96, July 1992, p. 20, “Accolade Gets Reprieve in Sega Decision”: the suit filed on 31 October 1991; the Nintendo market; Judge Caulfield’s injunction and recall order of 13 April 1992; 40% of revenue; the stay; Peter Choy and ACIS.
Game Informer issue 6, September 1992, p. 51: the appeals court’s ruling and Alan Miller’s statement.
GamesMaster issue 1, January 1993, p. 10: the ruling of 20 October.
Amazing Computing vol. 7 no. 12, December 1992, p. 66: “If Sega had won…”.
Boardwatch, March 1993, p. 44: Atari Games v. Nintendo and Sega v. Accolade on reverse engineering.
Computer Gaming World issue 109, August 1993, p. 16: Accolade’s settlement with Sega of America.
Computer Gaming World issue 180, July 1999, p. 52, “Infogrames Buys Accolade”.
Sega Retro, “Accolade” (web, secondary): renamed Infogrames North America. https://segaretro.org/Accolade