William Cameron Canby

“ 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. ”

“ 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. ”

“ More important, the rule urged by Sony would require that a software engineer, faced with two engineering solutions that each require intermediate copying of protected and unprotected material, often follow the least efficient solution. ”

“ Sega expressly sanctioned disassembly. See id. at 1527–28. We see no reason to distinguish observation of copyrighted software in an emulated computer environment. Both methods require the reverse engineer to copy protected as well as unprotected elements of the computer program. Because this intermediate copying is the gravamen of the intermediate infringement claim, see 17 U.S.C. § 106 (1) ; Sega, 977 F.2d at 1518–19, and both methods of reverse engineering require it, we find no reason inherent in these methods to prefer one to another as a matter of copyright law. ”

“ Software engineers designing a product that must be compatible with a copyrighted product frequently must “reverse engineer” the copyrighted product to gain access to the functional elements of the copyrighted product. ”

“ They include (1) reading about the program; (2) observing “the program in operation by using it on a computer;” (3) performing a “static examination of the individual computer instructions contained within the program;” and (4) performing a “dynamic examination of the individual computer instructions as the program is being run on a computer.” Id. at 846. Method (1) is the least effective, because individual software manuals often misdescribe the real product. See id. It would be particularly ineffective in this case because Sony does not make such information available about its PlayStation. ”