Diarmuid Fionntain O'Scannlain

“ In order to play a Sony video game, one can choose to purchase either a PlayStation console (assuming one has a television) or the Bleem emulator (assuming one has a personal computer) . Thus, the greater Bleem’s sales, the less likely people will buy Sony’s consoles. Of course, people can buy both, if they prefer to play their games on a large format (televisions typically have much larger screens than computers) and if they prefer better graphics (computer screens typically have much greater resolution than televisions) . ”

“ In various advertising media, Bleem has included comparative “screen shots” of Sony PlayStation games. The shots show what the game looks like when played with a Sony console on a television screen, what it looks like when played with Bleem’s emulator on a computer screen, and also at times what it looks like when played with Bleem’s emulator and speed-enhancing hardware (called a graphics card) on a computer screen. A video game screen shot is a small image depicting the computer or television screen in a frozen moment during the playing of the video game. ”

“ The video game market is enormous and lucrative, and Sony, with its PlayStation console and games, is a market leader, having sold more than 60 million consoles and 460 million video game disks worldwide. Emulators, such as that produced by Bleem, may not adversely affect the sales of Sony game disks—in fact, they may help them—but emulators very likely will reduce the sales of consoles. ”

“ Certainly screen shots are a standard device used in the industry to demonstrate video game graphics, but there is not a market for them, or at least not one in which Bleem may participate given Sony’s refusal to license to it. ”

“ With respect to the first factor, the Fifth Circuit noted the public benefit of comparative advertising as a means of providing more information to the public and concluded that this factor weighed in the defendant’s favor. See id. at 1175–76.
The Federal Trade Commission has also noted the social utility of comparative advertising:
Comparative advertising, when truthful and nondeceptive, is a source of important information to consumers and assists them in making rational purchase decisions. ”

“ The Bleem emulator was developed by Randy Linden who, together with David Herpolsheimer, comprise the entire staff of Bleem. Linden developed PC software that effectively emulates the function performed by Sony’s hardware console through a process of reverse-engineering the components in the console. He devised a computer program to perform these same functions on a personal computer. ”

“ The Fifth Circuit noted that the cover of TV Guide was clearly copyrighted and the Herald had just as clearly reproduced it for a commercial purpose: to sell its own product. The court nevertheless found, after a § 107 analysis, that the reproduction was a fair use. ”