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Sega Enters. v. Accolade, Inc. - 977 F.2d 1510 (9th Cir. 1992)


The second statutory fair use factor of Section 107 of the Copyright Act, 17 U. S. C. S. § 107, the nature of the copyrighted work, reflects the fact that not all copyrighted works are entitled to the same level of protection. The protection established by the Copyright Act for original works of authorship does not extend to the ideas underlying a work or to the functional or factual aspects of the work. To the extent that a work is functional or factual, it may be copied, as may those expressive elements of the work that must necessarily be used as incident to expression of the underlying ideas, functional concepts, or facts. Works of fiction receive greater protection than works that have strong factual elements, such as historical or biographical works, or works that have strong functional elements, such as accounting textbooks. 


Defendant developer of computer games appealed a preliminary injunction entered by the U. S. District Court for the Northern District of California under the Copyright Act in favor of plaintiff computer game system manufacturer whose product was reverse engineered by defendant. A video entertainment system manufacturer obtained a preliminary injunction against a game developer that reverse engineered the manufacturer's games. The developer sold games it had developed for other systems with the computer code that made the games functional on the manufacturer's system.


Was the copying of unprotected functional elements of plaintiff system manufacturer's program a fair use under the Copyright Act?




The court reversed entry of the preliminary injunction. In light of the purpose of the Copyright Act to encourage the production of creative works for the public good, the reverse engineering was a fair use of the manufacturer's copyrighted work. The disassembly of the manufacturer's product was the only reasonably available means for obtaining the unprotected functional codes of the manufacturer's game program. Screen display of the manufacturer's logo on games sold by the developer was the result of the manufacturer's security code needed for access to the unprotected functional code, and the manufacturer thereby was responsible for any resulting trademark confusion. When the person seeking the understanding has a legitimate reason for doing so and when no other means of access to the unprotected elements exists, such disassembly is as a matter of law a fair use of the copyrighted work. 

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