Cite as 203 F.3d 596 (9th Cir. 2000)
fringement even when the end product did not itself contain copyrighted material. Id. at 1518–19. But this copying nonetheless could be protected as a fair sue if it was “necessary” to gain access to the functional elements of the software itself. Id. at 1524–26. We drew this distinction because the Copyright Act protects expression only, not ideas or the functional aspects of a software program. See id. at 1524 (citing 17 U.S.C. § 102(b)). We also recognized that, in the case of computer programs, this idea/expression distinction poses “unique problems” because computer programs are, “in essence, utilitarian articles—articles that accomplish tasks. As such, they contain many logical, structural, and visual display elements that are dictated by the function to be performed, by considerations of efficiency, or by external factors such as compatibility requirements and industry demands.” Id. Thus, the fair use doctrine preserves public access to the ideas and functional elements embedded in copyrighted computer software programs. This approach is consistent with the “ ‘ultimate aim [of the Copyright Act], to stimulate artistic creativity for the general public good.’ ” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975)).
We turn then to the statutory fair use factors, as informed by our precedent in Sega.
- 1. Nature of the copyrighted work
Under our analysis of the second statutory factor, nature of the copyrighted work, we recognize that “some works are closer to the core of intended copyright protection than others.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Sony’s BIOS lies at a distance from the core because it contains unprotected aspects that cannot be examined without copying. See Sega, 977 F.2d at 1526. We consequently accord it a “lower degree of protection than more traditional literary works.” Id. As we have applied this standard, Connectix’s copying of the Sony BIOS must have been “necessary” to have been fair use. See id. at 1524–26. We conclude that it was.
There is no question that the Sony BIOS contains unprotected functional elements. Nor is it disputed that Connectix could not gain access to these unprotected functional elements without copying the Sony BIOS. Sony admits that little technical information about the functionality of the Sony BIOS is publicly available. The Sony BIOS is an internal operating system that does not produce a screen display to reflect its functioning. Consequently, if Connectix was to gain access to the functional elements of the Sony BIOS it had to be through a form of reverse engineering that required copying the Sony BIOS onto a computer.[1] Sony does not dispute this proposition.
The question then becomes whether the methods by which Connectix reverse-engineered the Sony BIOS were necessary to gain access to the unprotected functional elements within the program. We conclude that they were. Connectix employed several methods of reverse engineering (observation and observation with partial disassembly), each of which required Connectix to make intermediate copies of copyrighted material. Neither of these methods renders fair use protection inapplicable. Sega expressly sanctioned
- ↑ Connectix offers evidence that it attempted to gain access to the functionality of the Sony BIOS by attaching a “logic analyzer” to the input and output leads of the chip on which the Sony BIOS was located within the PlayStation console. This form of observation does not appear to require the making of an intermediate copy, but was of limited value because it permitted the observation of inter-chip but not intra-chip signals. Sony does not suggest that this form of observation alone would have permitted Connectix engineers to gain access to the functional elements of the Sony BIOS.
