William S. Coats, III, Howrey & Simon, Menlo Park, California, for the defendant-appellant.
Ezra Hendon, Crosby, Heafey, Roach & May, Oakland, California; James G. Gilliland, Jr., Townsend and Townsend and Crew, San Francisco, California, for the plaintiffs-appellees.
Annette L. Hurst, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, San Francisco, California, for amicus Institute for Electrical and Electronics Engineers–USA. Peter M.C. Choy, American Committee for Interoperable Systems and Computer & Communications Industry Association. Mark Lemley, University of Texas at Austin, Austin, Texas, for amicus Law Professors. Steven J. Metalitz, Smith & Metalitz, Washington, DC, for amici Nintendo of America, Inc., Sega of America, Inc., and 3dfx Interactive.
Appeal from the United States District Court for the Northern District of California, Charles A. Legge, District Judge, Presiding.
Before: CHOY, CANBY, Jr. and SILVERMAN, Circuit Judges.
CANBY, Circuit Judge:
In this case we are called upon once again to apply the principles of copyright law to computers and their software to determine what must be protected as expression and what must be made accessible to the public as function. Sony Computer Entertainment, Inc., which brought this copyright infringement action, produces and markets the Sony PlayStation console, a small computer with hand controls that connects to a television console and plays games that are inserted into the PlayStation on compact discs (CDs). Sony owns the copyright on the basic input-output system or BIOS, which is the software program that operates its PlayStation. Sony has asserted no patent rights in this proceeding.
The defendant is the Connectix Corporation, which makes and sells a software program called “Virtual Game Station.” The purpose of the Virtual Game Station is to emulate on a regular computer the functioning of the Sony PlayStation console, so that computer owners who buy the Virtual Game Station software can play Sony PlayStation games on their computers. The Virtual Game Station does not contain any of Sony’s copyrighted material. In the process of producing the Virtual Game Station, however, Connectix repeatedly copied Sony’s copyrighted BIOS during a process of “reverse engineering” that Connectix conducted in order to find out how the Sony PlayStation worked. Sony claimed infringement and sought a preliminary injunction. The district court con-
