The legality of Emulators was recently challenged in the US courts twice,
when Sony brought actions against both commercial Playstation Emulators, Bleem!
and VGS.
Although they are of limited perhaps interest since they are both tried
in US jurisdiction and the actual trials are pending, it is worth looking at the
legal issues raised in motions for preliminary injunctions. At
first instance and on appeal Sony focused upon two elements; copyright and
trademark. We shall proceed
accordingly.
In Sony
v Connectix [87], the subject for
consideration was not whether Connectix’s Emulator contained any infringing
element of the Papillon code; Sony admitted that it did not.
Instead, the first thing that Sony alleged was the infringing disassembly
of the Playstation BIOS and that the repeated intermediary copies that were
created by copying the BIOS Image into RAM were infringing copies.
Primarily based on these grounds, the judge issued a preliminary
injunction against Connectix; his points were reversed on appeal[88].
The Court of Appeals found the disassembly of the BIOS necessary in order
for Connectix to understand how the Playstation works, i.e. examine the
underlying concepts of it not protected by copyright, citing the case of Sega
v Accolade[89].
Bearing in mind the analysis given previously on Article 6 of the
Software Directive and its relation with the cited case, it is obvious that a
European court would have reached the same conclusion[90].
Similar would probably be the outcome regarding the repetitive
intermediate copying of the BIOS to RAM by reason of Article 5(1).
Weight, should not been given to the “repetitive” copying, as Sony
suggested, since it is incidental; as the Court argued, it could have been
avoided by not switching off the computer.
At first instance, Sony alleged that the reverse engineering of the
custom-made chips Geometry Transfer Engine (GTE) and Graphics Processing Unit (GPU)
was wrong because it considers the processes performed “trade secrets”.
This consideration would probably fail in a European court by reason of
Article 82 of the Treaty of Amsterdam. Given
the fact that the Emulators in question are commercial products, Sony could be
seen as abusing its dominant power and seeking to establish a monopoly on the
Playstation software. A court would
therefore consider to oblige Sony to provide the needed information following
the settlement in IBM v Commission[91],
if such petition has been made prior to the filing of the case, or disregard it
upon evidence, as in Connectix’s instance, that attempts were made to obtain
the information by agreement.[92].
On the relevant subject, the US Court of Appeals stated that “if Sony
wishes to obtain a lawful monopoly on the functional concept of its software, it
must satisfy the more stringent standards of patent laws”[93].
Four days after the trial, Sony
filed a separate lawsuit alleging the infringement of eleven audiovisual
patents, only to voluntary dismiss it one day before it actually went on trial
and simultaneously file an amended one. Sony
has not made any information regarding the patent lawsuit available.
The other issue raised at first instance was
that of trademark, in relation to use and tarnishment.
Both claims were rejected by the Court of Appeals, primarily for two
reasons. The court stated that
since the operation of a computer program is by definition depended upon
compatibility with a given platform, Connectix had the right to advertise as
“A Playstation Emulator”, “Capable of playing Playstation games”.
This reasoning is so profoundly correct that a legal analysis is not
needed[94].
Tarnishment was raised by Sony in the context that Playstation might be
associated with an, admittedly, inferior product.
The court of Appeal reversed that decision due to lack of evidence, by
reasoning that the bad performance of some games with the VGS
was not misattributed to the games or the Playstation but rather to the Emulator
itself. The idea that a game not
performing well on an Emulator, which explicitly stresses on its package that
absolute compatibility with all games is not guaranteed, can be misunderstood by
a user as inferior quality of the game it self is remote[95].
The only remaining issues now pending for trial, after the dismissal of
the rest by a summary judgment, are those of trade
secret and unfair competition which will be eventually tried
probably in September 2000.[96]
Similar
were the charges in Sony
v Bleem [97] but a restraining
order was not granted because on a balance of probabilities the judge did not
found that Sony will be justified. A catalytic reason was that Bleem!
was not based on decompilation. Sony
did not detest that. “In
developing its Emulator, Bleem treated the PlayStation as a black box, simply
reproducing what the machine does in response to a given instruction in a game's
program code. If instruction A puts a red dot on the screen, then all Bleem! has
to do is put a red dot on the screen whenever it encounters instruction A--how
it does that is irrelevant”[98].
In legal terms, is it “clean room” reverse engineering and therefore
unlike that the position would be different in Europe.
The question on appeal was not the legality of the Emulator but rather
whether Bleem had the right to present pictures of a Playstation game running on
Bleem! at the back of the software’s package.
By reasoning that due to the nature of the product Bleem had to
necessarily relay upon images from Playstation games, and by also adding that it
was a de minimis infringement, for “a frame constitutes 1/30th of a
second’s worth of a Videogame”[99],
the court rejected the claim of copyright infringement; same would have been the
result in England, for example, under the fair dealing principle[100].
Bleem has now brought an action against Sony, claiming among others that
Sony has unlawfully acquired, maintained, and extended
its monopoly in the video game market through a combination of anticompetitive
practices, in addition to restraint of trade, and defamation[101].
As the judge consented in Sony v Connectix, the effect that those Emulators might have for Sony is to actually boost the PlayStation games sales[102] rather that to hinder them. But for the patent issues, for which little are known, it is unlike that either Emulator will be found infringing an Intellectual Property Right.