Fair Use for Computer Programs and Other Copyrightable Works in Digital Form: the Implications of Sony, Galoob and Sega

Journal of Intellectual Property Law Volume 1 | Issue 1 Article 6 October 1993 Fair Use for Computer Programs and Other Copyrightable Works in Digital Form: the Implications of Sony, Galoob and Sega Pamela Samuelson University of Pittsburgh School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation Pamela Samuelson, Fair Use for Computer Programs and Other Copyrightable Works in Digital Form: the Implications of Sony, Galoob and Sega, 1 J. Intell. Prop. L. 49 (1993). Available at: https://digitalcommons.law.uga.edu/jipl/vol1/iss1/6 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Samuelson: Fair Use for Computer Programs and Other Copyrightable Works in FAIR USE FOR COMPUTER PROGRAMS AND OTHER COPYRIGHTABLE WORKS IN DIGITAL FORM: THE IMPLICATIONS OF SONY, GALOOB AND SEGA Pamela Samuelson* Contents Page I. INTRODUCTION ................................ 51 II. 56 SONY AS A FAIR-USE CASE ........................ A. SOME BACKGROUND ON FAIR USE AND THE SONY CASE ............................. B. UNIVERSAL'S ARGUMENTS AGAINST FAIR USE C. ....... 56 61 THE SUPREME COURT'S FAIR-USE ANALYSIS ......... 62 III. THE IMPLICATIONS OF SONY FOR PRIVATE NONCOMMERCIAL COPYING OF COMPUTER PROGRAMS ... 67 A. B. 67 A COPY AT THE OFFICE, A COPY AT HOME .......... MAKING A COPY TO TEST THE FUNCTIONALITY OF A PROGRAM ................................ C. LENDING A COPY TO A FRIEND ................... 69 70 IV. THE EMERGENCE OF FAIR USE IN THE SOFTWARE COPYRIGHT CASE LAW: GALOOB V. NNTENDO AND SEGA V. ACCOLADE ............................. A. GALOOB V. NINTENDO B. SEGA V. ACCOLADE ........................ .......................... 73 74 78 Professor of Law, University of Pittsburgh School of Law. This Article is dedicated to Professor L. Ray Patterson in honor of his steadfast commitment to a conception of copyright as a regulatory regime in which the rights of users are to be balanced against the rights of publishers and authors so as to foster the production and dissemination of knowledge. The author wishes to acknowledge the contributions made to this Article by her research assistant Jim Weinberg. She also thanks Robert J. Glushko, Dennis S. Karjala, Jessica Litman, Jerome H. Reichman, and Uoyd Weinreb for their insightfud comments on earlier drafts of this Article. Published by Digital Commons @ Georgia Law, 1993 1 Journal of Intellectual Property Law, Vol. 1, Iss. 1 [1993], Art. 6 J. INTELL. PROP.L. C. [Vol. 1:49 THE IMPORTANCE OF SONY FOR THE GALOOB AND SEGA DECISIONS ....................... 84 V. THE IMPLICATIONS OF SEGA FOR OTHER SOFTWARE COPYRIGHT DISPUTES .......................... A. THE IMPLICATIONS OF SEGA FOR OTHER DECOMPILATIONS OR DISASSEMBLIES OF COMPUTER PROGRAMS ....................... B. FAIR USE IN OTHER SOFTWARE CASES ............... VI. IMPLICATIONS OF GALOOB FOR USES OF ELECTRONIC INFORMATION TOOLS ON COPYRIGHTED WORKS ........ A. TOOLS FOR EXPANDING ORDINARY USES OF COPYRIGHTED WORKS ........................ B. TOOLS FOR AIDING THE INTERPRETATION OF OTHER WORKS ............................. C. WORKS THAT INTERACT WITH PREEXISTING WORKS... VII. CONCLUSION ................................ https://digitalcommons.law.uga.edu/jipl/vol1/iss1/6 86 86 98 102 104 109 112 116 2 Samuelson: Fair Use for Computer Programs and Other Copyrightable Works in 1993] FAIR USE FOR COMPUTER PROGRAMS 51 I. INTRODUCTION Fair use has historically served as a flexible and adaptable mechanism for balancing the interests of copyright owners, their competitors or potential competitors, and the public to fulfill the larger purposes of copyright law which have traditionally been understood to be promoting the production and dissemination of knowledge. 1 Given this history, it is perhaps surprising how little use has been made, until very recently, of fair use as a defense to software copyright infringement claims, especially considering the high volume of such litigations in the past dozen years.2 The most plausible explanation for the dearth of software related fair-use cases is that the first decade of software litigation concentrated on more fundamental questions, such as whether copyright 1 See, e4g., L Ray Patterson, Free Speech, Copyright and Fair Use, 40 VAND. L. REV. 1 (1987) [hereinafter Patterson, Free Speech] (discussing fair use as a balancing mechanism for mediating among the interests of authors, publishers, and the public in order to fulfill the underlying purposes of copyright law). 2 There were a few cases in the first decade of software copyright litigations in which fairuse defenses were raised, although they were not given much attention. See, eg., AllenMyland, Inc. v. International Business Machs., 746 F. Supp. 520 (E.D. Pa. 1990) (holding that database of IBM-authored software kept on behalf of IBM customers to whom AMI provided modification services was not fair use), recons. denied, 770 F. Supp. 1004 (E.D. Pa. 1991). It may also be that, with the presumption against fair use when defendants have commercial purposes that the Supreme Court established in Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984), software copyright defendants have, until recently, been reluctant to raise fair-use defenses since most of the litigated cases have involved commercial competitors. See infra note 63 (concerning the Sony presumption of unfairness when defendants have commercial purposes). There has also been remarkably little discussion of fair use in the ample law review literature on copyright protection for computer programs. Two notable exceptions are Leo J. Raskind, The Uncertain Case For Special Legislation Protecting Computer Software, 47 U. Prrr. L. REv. 1131 (1986) (noting absence of fair-use analysis in computer software copyright cases) and Stephen K Tapp & Daniel E. Wanat, Computer Software Copyright Issues: Section 117 and FairUse, 22 MEM. ST. U. L. REv. 197 (1992) (taking narrow view of usefulness of fair use in computer software cases). See also Pamela Samuelson, Modifying Copyrighted Software: Adjusting Copyright Doctrine to Accommodate a Technology, 28 JuRIdETRIcS J. 179 (1988) [hereinafter Samuelson, Modifying Software] (analyzing adequacy of current defenses, including fair use, to copyright infringement action); Pamela Samuelson, Computer Programsand Copyright'sFair Use Doctrine,36 CoMMs. OF THE A.C.M. 19 (Sept. 1993) (evaluating fair use and how the courts have dealt with it in recent decisions). Published by Digital Commons @ Georgia Law, 1993 3 Journal of Intellectual Property Law, Vol. 1, Iss. 1 [1993], Art. 6 J. INTELL. PROP.L. (...truncated)