Sony Computer Entertainment v. Connectix

Citation: Sony Computer Entertainment v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000)(full-text).

Factual Background
Connectix extracted the contents of a Sony Playstation’s BIOS and disassembled it in order to determine its behavior as part of creating an emulator (the Virtual Game Station) that would run Playstation games on Windows or Macintosh computers. None of the actual code from the Playstation system was used in the Virtual Game Station; Connectix merely studied the original code in order to replicate its behavior.

Appellate Court Proceedings
The Ninth Circuit Court of Appeals found that the extraction and examination of the Sony Playstation BIOS constituted fair use.

The court found that the purpose and character of the use made of the Sony BIOS by Connectix was “modestly transformative,” in that it established a new platform on which consumers could play Playstation games, and that therefore this factor favored Connectix.

On the second statutory factor, the nature of the copyrighted work, while the court recognized that software deserves copyright protection, it had previously ruled that such protection is less than that offered to “traditional literary works,” and found that in this case, the copying necessary to access the functional aspects of the software had been met, and this factor also favored a finding of fair use.

While the third factor, amount and substantiality of the portion used, weighed against Connectix (inasmuch as they had copied the entire work), the court also recognized that the copying had occurred as an intermediate step in the production of the Virtual Game Station, and that none of Sony’s software had actually appeared in the released product.

On the fourth factor, the effect of the use upon the potential market, the court somewhat interestingly found that while the Virtual Game Station might negatively impact Sony’s sales of the Playstation, the transformative aspect of the Virtual Game Station meant that the VGS did not simply supplant the Playstation, and that therefore, this factor favored Connectix as well.