tion used in relation to the copyrighted work as a whole, Connectix disassembled parts of the Sony BIOS and copied the entire Sony BIOS multiple times. This factor therefore weighs against Connectix. But as we concluded in Sega, in a case of intermediate infringement when the final product does not itself contain infringing material, this factor is of “very little weight.” Sega, 977 F.2d at 1526–27; see also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449–50, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (copying of entire work does not preclude fair use).
- 3. Purpose and character of the use
Under the first factor, purpose and character of the use, we inquire into whether Connectix’s Virtual Game Station
merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (internal quotation marks and citations omitted). As an initial matter, we conclude that the district court applied an erroneous legal standard; the district court held that Connectix’s commercial purpose in copying the Sony BIOS gave rise to a “presumption of unfairness that … can be rebutted by the characteristics of a particular commercial use.” Order at 14–15 (citing Sega, 977 F.2d at 1522). Since Sega, however, the Supreme Court has rejected this presumption as applied to the first and fourth factor of the fair use analysis. Acuff-Rose, 510 U.S. at 584, 594, 114 S.Ct. 1164 (clarifying Sony, 464 U.S. at 451, 104 S.Ct. 774). Instead, the fact that Connectix’s copying of the Sony BIOS was for a commercial purpose is only a “separate factor that tends to weigh against a finding of fair use.” Id. at 585, 114 S.Ct. 1164 (internal quotation marks omitted).[1]
We find that Connectix’s Virtual Game Station is modestly transformative. The product creates a new platform, the personal computer, on which consumers can play games designed for the Sony PlayStation. This innovation affords opportunities for game play in new environments, specifically anywhere a Sony PlayStation console and television are not available, but a computer with a CD–ROM drive is. More important, the Virtual Game Station itself is a wholly new product, notwithstanding the similarity of uses and functions between the Sony PlayStation and the Virtual Game Station. The expressive element of software lies as much in the organization and structure of the object code that runs the computer as it does in the visual expression of that code that appears on a computer screen. See 17 U.S.C. § 102(a) (extending copyright protection to original works of authorship that “can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”). Sony does not claim that the Virtual Game Station itself contains object code that infringes Sony’s copyright. We are therefore at a loss to see how Connectix’s drafting of entirely new object code for its VGS
- ↑ Sony points to Micro Star v. Formgen, Inc., 154 F.3d 1107 (9th Cir.1998), for the proposition that commercial use creates a presumption of unfairness. See id. at 1113 (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)). We do not read Micro Star that way; moreover, such a reading would be contrary to Acuff-Rose. Acuff-Rose expressly rejected such a “hard evidentiary presumption” and stated the Court of Appeals “erred” by giving such dispositive weight to the commercial nature of the use. 510 U.S. at 582, 114 S.Ct. 1164. Also, Micro Star itself involved a use that was non-transformative, which is not the case here. See Micro Star, 154 F.3d at 1113 & n. 6. Cf. American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 921–22 (2d Cir.1994) (amended opinion) (rejecting, on grounds of Acuff-Rose and collected cases, presumption of unfairness for commercial use as applied to Texaco’s intermediate copying of copyrighted articles).
