## Facts

- Sony produced the PlayStation console and owned copyright in the PlayStation BIOS software that operated the console.
- Connectix developed and sold the Virtual Game Station (VGS), a computer program that emulated PlayStation console functionality so users could play PlayStation games on personal computers.
- VGS, as sold, contained no Sony BIOS code, but Connectix repeatedly copied the BIOS during reverse engineering to understand functional elements necessary for compatibility.
- Sony sued Connectix for copyright infringement and related intellectual property claims, asserting VGS threatened PlayStation console sales.
- The district court granted a preliminary injunction, finding Sony likely to succeed because Connectix’s intermediate copying was not fair use, and barred sales and further BIOS copying while ordering impoundment of copies.
- Connectix appealed.

## Issues

1. Whether intermediate copying of Sony’s BIOS during reverse engineering to develop a noninfringing emulator was fair use under 17 U.S.C. § 107.
2. Whether VGS tarnished Sony’s PlayStation trademark.

## Decision

- The Ninth Circuit reversed the preliminary injunction and remanded with instructions to dissolve it.
- The court held that Connectix’s intermediate copying during reverse engineering was fair use because it was necessary to access unprotected functional elements and the final product contained no infringing code.
- The court rejected Sony’s trademark tarnishment claim for insufficient evidence of a substantial negative association with the PlayStation mark.
- The Supreme Court denied certiorari.

## Legal Principles

- Intermediate copying of software may be fair use when necessary for reverse engineering to obtain access to unprotectable functional elements and to produce a noninfringing, compatible product.
- Under the § 107 factors, a use can be transformative where it creates a new platform or functionality rather than merely superseding the original, even if undertaken for commercial purposes.
- Because software commonly contains significant functional content, the “nature of the work” factor may favor fair use to preserve public access to uncopyrightable functional elements.
- Copying an entire program may receive limited weight in fair-use analysis when the copying is intermediate and the released product contains no copyrighted expression from the original.
- Market harm attributable to lawful competition from a noninfringing product does not weigh against fair use; copyright does not confer control over functional aspects better addressed by patent law.
- A trademark tarnishment claim requires evidence of a substantial negative association; allegations of inferior performance or bugs, without sufficient proof of such association, are inadequate.

## Conclusion

The Ninth Circuit held that reverse engineering requiring intermediate copying of copyrighted BIOS code to develop a noninfringing emulator was fair use and that the emulator did not tarnish Sony’s trademark, requiring dissolution of the preliminary injunction.


Sony Comput. Ent. Am., Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000), cert. denied, 531 U.S. 871 (2000)