Judge Alex Kozinski Website

Trouble in Super Marioland

By Alex Kozinski. 27 July 1990. The Wall Street Journal, PAGE A9

It was a scene that would have warmed the hearts of the Nintendo board of directors: The family sat transfixed watching nine-year-old Jimmy, hero of the movie "The Wizard," sweep the final round of the Nintendo World Cup competition while, on a separate screen, Dad was struggling frantically to subdue level 8/4 of "Tetris." But such golden Nintendo moments are getting rarer these days. Despite Nintendo's aggressive marketing efforts -- "The Wizard," for example, looks like a thinly disguised infomercial on the joys and benefits of Nintendo -- it is clear that the home video game giant has lost some of its luster.

You don't have to see Nintendo's balance sheet to sense trouble in Super Marioland. There are telltale signs that the public's passion for this love-child of the television set and the computer chip may be cooling:

While it's far too early to count Nintendo out of the home video game market -- after all, millions of American households own Nintendo machines -- it is worth trying to figure out what went wrong. The answer, I suspect, is that Nintendo has become the victim of its own success. Nintendo controls virtually every aspect of production, marketing and distribution of its games; it maintains an orderly market.

But is it too orderly?

The games marketed over the past couple of years have taken on a monotonous uniformity; prices have shot up mercilessly; and consumer services have eroded. The lesson here may be that a planned economy -- even a privately planned one -- sows the seeds of its own destruction.

In the beginning, Nintendo games were exciting and reasonably priced. What still are some of the most innovative game cartridges were released during Nintendo's first two years, at prices from $20 to $40. "Super Mario Brothers," "Zelda," "Metroid," "Kid Icarus," "Wrecking Crew," "Solomon's Key," "World Runner," "KluKlu Land," "Rygar," "Legacy of the Wizard": All of these, and another handful released between 1986 and 1988, reflected ingenious efforts at creating games with unique feel, graphics and concept. At about $30, they were a darn good entertainment value.

Nintendo games now start at $40 and run up to about $75. Worse still, interesting new games are rare as hens' teeth. Many "new" games mimic not only the concept but also the music and graphics of earlier ones. Nintendo's most recent offering, "Final Fantasy," for example, is a rehash of "Ultima" and "Dragon Warrior." It seems like the only really novel game Nintendo has released in a couple of years is the aforementioned "Tetris," a game invented in the Soviet Union that's so exciting and challenging it's instantly addictive.

The lack of innovation and diversity in a medium that is constrained only by the imagination of the programmer and the skill of the graphic artist is surprising. The reason may be that Nintendo's careful filtering process allows production of only those games it approves of. Having to satisfy the Nintendo censor might well chill the creativity of potential game producers.

Nintendo also has ham-handedly interfered with normal retailer-customer relations. In the good old days, if you took your Nintendo product home and it didn't work, you could get an exchange from your retailer, just as with most other consumer products. No more. I recently tried to return a defective game cartridge and was advised that Nintendo prohibits such exchanges: "They won't take 'em back from us, so we get stuck with them. If you have a problem send the defective product to Nintendo in Redmond, Washington." Well, good luck. Video-game players definitely are into instant gratification, not this mail-and-wait routine. Most manufacturers can't push retailers and consumers around like this, but when you're the Donkey Kong of the business, maybe you can get away with it.

No doubt, Nintendo has what it thinks are fine business reasons for its strategy, but the bottom line is that the lack of effective competition may have made it fat and flabby. Maybe they'll pull it out, maybe they won't. In the meantime, my sons and I will be playing a bit of backgammon, as we wait for the situation to clear up.

Mr. Kozinski is a judge on the U.S. Court of Appeals for the Ninth Circuit.