The American legal system is so contemptibly self-serving and its processes so protracted and tedious that one tends to overlook the fact that extremely important concepts are sometimes at issue, and Accolade Inc of San Jose has rallied 11 copyright law professors to deliver an amicus curiae – friend of the court if our rusty Latin serves – to the Federal Appeals Court, saying that they believe that a US District Court injunction that bans Accolade from developing and selling software for the Sega Enterprises Ltd Genesis game machine is flawed and reflects a misunderstanding of the unique nature of computer programs. The brief filed in support of Accolade’s position argues that the lower court’s injunction upsets the balance of competing interests regulated by copyright law. In its lawsuit, Sega Enterprises alleges that its copyrights and trademarks were infringed when Accolade reverse-engineered a Sega Genesis game machine and several game cartridges to study how to make its own games compatible with the machine. Specifically, Sega claims that Accolade illegally copied its software during the course of its reverse engineering to study how the product operates. Accolade argues that its actions are protected by law and legal precedents, which encourage copyrighted information to be studied. The law professors’ brief presents two arguments that challenge the lower court’s reasoning for the injunction. First, they argue that copying code for the express purpose of studying how it operates is fair use and is permissible under copyright law. Second, the code that Accolade included – about 25 bytes of the 500,000 to 1.5m bytes in an Accolade program – is not protected by copyright law because it is essential to enable software to run on the Sega game machine. The professors base their fair use argument on the fundamental premise of copyright law, which balances protection for the author and the interests of society. In defining fair use, Federal law has established four factors to be considered by a court in balancing the competing interests of copyright law: the purpose and character of the use; the nature of the copyrighted work; the amount used in relation to the whole copyrighted work; and the effect of the use upon the potential market or value of the copyrighted use. Ideas expressed in other works protected by copyright law, such as literature and music, can be studied without copying because they are inherently understandable by people, the professors state. Object code, on the other hand, is incomprehensible. Disassembly, the process that transforms object code into an understandable form – is the only practical way in which a program… can be read, studied and analysed by a human being to understand the ideas and functions it contains, they say.
Cannot be protected
Since Accolade made the intermediate copy only to disassemble the object code into a form that could be studied, its actions did not infringe on the copyright. In essence, the intermediate copy was a technical requirement for Accolade to exercise its own rights under copyright law. The professors also argue that Sega’s lock-out code, which Accolade included in its software, cannot be protected under copyright law because the lock-out code is functional. To protect such information, the professors write, would give a monopoly not only on those game programs written by Sega or its licensees, but over all programs written for the Genesis, even those independently created by others. There is no indication that Congress intended to extend the reach of a copyright in a computer program that far, they continue. As evidence, they cite a congressional report: When specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement. The law professors conclude that disassembly of game programs for the sole purpose of studying their functionality and determining the specific information they contain that enables them to operate on a particula
r computer should be deemed a fair use and not an infringement under the Copyright Act, and it is not infringement to use such interface information in creating new and non-infringing games to operate on the same computer. The professors that appended their names to the brief teach copyright law at the law schools of Yale University, American University, Arizona State University, Duke University, University of California (Berkeley), University of Georgia, University of Minnesota, Vanderbilt University, Rutgers University and the University of Pittsburgh. The Federal Appeals Court in San Francisco will have to decide.
