Accolade v. Distinctive Software

Citation
Accolade, Inc. v. Distinctive Software, Inc., 1990 WL 180239, 1990 Copyright L. Dec. (CCH) 126 (N.D. Cal. June 17, 1990).

Factual Background
Plantiff, Accolade, Inc. (“Accolade”), and Defendants Distinctive Software Inc., Unlimited Software Inc., and Distinctive Management Group, Inc., (referred to collectively as “DSI”), entered into a series of licensing agreements whereby DSI would develop software for publication by Accolade. The licensing agreement at issue here was concluded on October 1, 1987, and stated that for a period of two years DSI would develop computer games for which Accolade would retain exclusive rights. Pursuant to this agreement, DSI developed "The Duel" for Accolade. The agreement contains an integration clause stating that it constitutes the complete agreement between the parties and could be modified only by written agreement.

Trial Court Proceedings
Plaintiff, Accolade, alleged that DSI infringed its copyright in "The Duel" by selling the video game "Outrun," which contains some of the same underlying computer codes as "The Duel." Only the similarity of the underlying computer codes was at issue.

Accolade filed a motion for a preliminary injunction to enjoin DSI from further copying or distribution of any video game containing these underlying computer codes.

DSI opposed Accolade’s motion on the grounds that its copying of underlying computer codes did not infringe Accolade’s copyright in "The Duel." DSI argued that the only codes contained in both video games are standard "library codes" or "subroutines" used to perform basic computer functions. DSI argued that similar codes are contained in many [computer game]]s, since they are necessary to perform such functions as clearing the screen or operating the joystick. DSI asserted that these library codes are not game-specific, but are routinely referred from one computer game to another so the programmer need not need to duplicate the task of developing them. DSI argued that its licensing agreement with Accolade never contemplated the transfer of copyright in the library codes. It further argues that copyright law does not support a finding that it infringed Accolade’s copyright, since the computer codes were mere mechanical devices rather than copyrightable expression.

The trial court denied Accolade’s motion for preliminary injunction because the trial court was not convinced that Accolade owned a copyright to the underlying codes themselves or that the copying that did occurred amounting to infringement of Accolade’s copyright in the video game. The court did not believe that Accolade had made a sufficient showing of likelihood of success on the merits. Last, the trial court held that Accolade has failed to show that the balance of hardships tilted in its favor.